LEASE AGREEMENT [TEXAS]
EXHIBIT 10.7
[TEXAS]
This Lease Agreement (this “Lease”) is made and entered into by and between BV DFWA I, LP,
a Texas limited partnership (“Landlord”) and AMERICAN LOCKER GROUP, INC., a Delaware
corporation (“Tenant”);
1. Premises and Term. In consideration of the obligation of Tenant to pay Rent as
provided in this Lease, and in consideration of the other terms, provisions, and covenants of this
Lease, Landlord leases to Tenant, and Tenant leases from Landlord premises delineated on
Exhibit A attached hereto and incorporated herein (the “Premises”) in the building
(the “Building”) located on the real property described on Exhibit B attached
hereto and incorporated herein (the “Land”) in Dallas County, Texas, more particularly
described as follows:
| Approximately 100,500 square feet of space within a building of 401,797 square feet situated on a 23.103 acre tract of land situated in the Heirs of Xxxx Xxxxxx Survey, Abstract No. 1555, the S.A. & M.G.R.R. Survey, Abstract No. 1439, the Xxxxxxxxx Xxxxxxxx Survey, Abstract No. 1733, and the Xxxxxxx Xxxxxxx survey, Abstract 1728, Dallas County, Texas, said tract being a portion of that certain tract of land known as Dallas Fort Worth International Airport, with said building being commonly known as 0000 Xxxxxx Xxxxxxxxx, XXX Xxxxxxx, Xxxxx |
To have and to hold the Premises, subject to the terms and provisions of this Lease, for a term
(the “Term”) commencing on January 1, 2011 (the “Commencement Date”), and ending
ninety-one (91) full calendar months thereafter. Landlord shall have Substantially Completed
Landlord’s Work prior to the Commencement Date, subject to any Tenant Delay Day. Landlord’s
non-delivery of possession of the Premises to Tenant on the Commencement Date will not affect this
Lease or the obligations of Tenant under this Lease. However, unless caused by a Tenant Delay Day,
the Commencement Date will be delayed until possession of the Premises is delivered to Tenant and
the Term will be extended for a period equal to the delay in delivery of possession of the Premises
to Tenant. If delivery of possession of the Premises to Tenant is delayed, Landlord and Tenant
shall, upon such delivery, execute an amendment to this Lease setting forth the revised
Commencement Date and expiration date of the Term. Tenant shall have the right to occupy the
Premises beginning upon execution of this Lease and continuing until the Commencement Date (the
“Early Occupancy Period”) in order to set up equipment, racking, network cabling, security
systems, office furniture and any other items in order to ready the Premises for Tenant’s use
thereof, subject to all applicable requirements, restrictions and approvals of DFW Airport. During
such Early Occupancy Period, Tenant shall not be required to pay Rent (as hereinafter defined) but
shall be otherwise subject to all of the provisions of this Lease. By taking possession of the
Premises, Tenant shall be deemed to have acknowledged that it has inspected the Premises and
accepts the Premises in their then present condition, and as suitable for the purpose for which the
Premises are leased. Tenant further acknowledges that Landlord has made no representations as to
the repair or condition of the Premises, nor promises to alter, remodel, or improve the Premises,
except those expressly set forth in this Lease. Additionally, subject to the terms of this Lease
and Landlord’s rules and regulations therefor, Tenant and its employees, agents, and invitees shall
have the non-exclusive use of all common areas and all easements and appurtenances which benefit
the Land and including walkways, landscaping, rights of way, and other improvements benefiting the
Building in each case to the extent designated by Landlord from time to time for the common use of
all tenants of the Building.
2. Rent.
2.1. As used in this Lease, “Rent” means “Base Rent” (defined in Section 2.2)
and “Additional Rent” (defined in Section 3). In the event Tenant fails to pay any
installment of Rent hereunder within ten (10) days of the due date of when such installment is due,
Tenant shall be obligated to pay to Landlord (without the necessity of a demand therefor by
Landlord) a late charge in an amount equal to ten percent (10%) of such installment; provided,
however, that Tenant may pay Rent later than such ten (10) day grace period up to two (2) times per
calendar year before such late charge shall be applied. The late charge is in addition to all of
Landlord’s other rights and remedies hereunder or at law and shall not be construed as liquidated
damages or as limiting Landlord’s remedies in any manner.
2.2. Tenant agrees to pay to Landlord rent for the Premises, without deduction, set off, or
abatement, for the Term, in the following monthly amounts (the “Base Rent”):
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| LEASE PERIOD | MONTHLY BASE RENT | |||
January 1, 2011 through July 31, 2011 |
$ | 0.00 | ||
August 1, 2011 through July 31, 2012 |
$ | 8,375.00 | ||
August 1, 2012 through January 31, 2014 |
$ | 16,750.00 | ||
February 1, 2014 through January 31, 2017 |
$ | 25,125.00 | ||
February 1, 2017 through July 31, 2018 |
$ | 27,218.75 | ||
The initial monthly installment of Base Rent is due and payable upon execution of this Lease and
will be applied to the first calendar month of the Term; subsequent monthly installments of Base
Rent are due and payable in advance without demand on or before the first day of each succeeding
calendar month during the Term. If the Commencement Date occurs on a date other than the first day
of a calendar month, there shall be due and payable on the Commencement Date an additional amount
equal to that portion of the Base Rent (prorated on a daily basis) attributable to the number of
days from the Commencement Date to the end of the calendar month during which the Commencement Date
falls.
2.3. Landlord hereby grants Tenant use of the Premises free of Base Rent for the seven (7)
full calendar month(s) of the Term from January 1, 2011 through July 31, 2011 (the “Free Rent
Period”). The total value of the free rent granted to Tenant is $58,625.00. Except for the
non-payment of Base Rent specified above, Tenant shall, throughout the Free Rent Period, be
obligated to make all other payments which Tenant is obligated to make pursuant to the terms of the
Lease and shall be subject to all the covenants and conditions of the Lease.
2.4. If any check tendered to Landlord by Tenant under this Lease is dishonored for any reason
caused by Tenant, Tenant shall pay to Landlord an amount equal to the amount Landlord has been
required to pay to its bank as a result of such dishonor. If any two or more Rent payments by
check are dishonored or returned unpaid, thereafter Landlord may, at Landlord’s sole option, upon
written notice to Tenant, require that all future payments of Rent for the remaining Term must be
made by cash, certified check, cashier’s check, official bank check, money order, or automatic
electronic funds transfer (“Good Funds”). Any acceptance by Landlord of a payment for Rent
by Tenant’s personal or corporate check thereafter will not be construed as a waiver of Landlord’s
right to insist upon payment by Good Funds as set forth herein.
3. Tenant’s Obligation to Pay Reimbursable Expenses as Additional Rent. In addition
to the Base Rent payable under Section 2.2, Tenant shall pay to Landlord as Additional Rent the
Reimbursable Expenses (as herein defined), as adjusted from time to time, as set forth in Section
3. For purposes of this Lease, the following terms shall have the herein indicated meanings:
3.1. “Reimbursable Expenses” means “Tenant’s Share” of “Taxes” and
“Operating Costs” (as all such terms are herein defined).
3.2. The term “Tenant’s Share” means a fraction (expressed as a percentage to two
decimal places), the numerator of which is the floor area (in square feet) of the Premises and the
denominator of which is the aggregate leaseable floor area (in square feet) in all buildings
(including the Building) now or hereafter situated on the Land as of the first day of January for
the relevant calendar year. Landlord and Tenant hereby stipulate that Tenant’s Share is
25.01 % as of the Commencement Date.
3.3. “Operating Costs” means, for each calendar year (or portion thereof) during the
Term, the aggregate of all costs, expenses, and liabilities of every kind or nature paid or
incurred by Landlord in connection with the ownership, operation and maintenance of the
“Project” (being the Building and Land, together with driveways, parking facilities,
loading dock areas, roadways and any other similar improvements and easements associated with the
foregoing or operation thereof) including but not limited to the following costs determined in
accordance with generally accepted accounting principles consistently applied. (A) property
management fees (not to exceed 5% of the gross rent received from the Project) and expenses that
are directly related to the Project; (B) all supplies and materials directly used in the operation,
maintenance, repair, replacement, and security of the Project; (C) the actual cost of all utilities
(including fuel, gas, electricity, water, sewer, and other services) for the common areas and other
non-tenant areas of the Project (e.g., mechanical, electrical and telecommunications rooms) as
reasonably determined by Landlord; (D) repairs, replacements, and general maintenance of the
Project including but not limited to paving and parking areas, roads, roof repairs (Landlord is
responsible for replacement of the roof as provided in Section 7), alleys and driveways, trash
collection, sweeping and removal of trash for the common areas, mowing and snow removal,
landscaping and exterior painting, the cost of maintaining utility lines, fire
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sprinklers and fire protection systems, exterior lighting, and mechanical and plumbing systems
serving the Project and, to the extent the following items serve more than one tenant in the
Project, dock doors, drains and sump pumps; (E) service, maintenance and management contracts for
the operation, maintenance, management, repair, replacement, and security of the Project (including
but not limited to alarm service, window cleaning, and elevator maintenance); (F) costs of
professional services rendered for the general benefit of the Project; (G) environmental insurance
or environmental management fees; (H) the cost of any insurance deductibles for insurance required
to be maintained by Landlord; (I) insurance expenses; and (J) costs for improvements made to the
Project which, although capital in nature, are expected to reduce the normal operating costs
(including but not limited to all utility costs) of the Project, as amortized using a commercially
reasonable interest rate over the time period reasonably estimated by Landlord to recover the costs
thereof taking into consideration the anticipated cost savings, as determined by Landlord using its
good faith, commercially reasonable judgment, as well as capital improvements made in order to
comply with any Law hereafter promulgated by any governmental authority or any new interpretations
of any Law hereafter rendered with respect to any existing Law, as amortized using a commercially
reasonable interest rate over the useful economic life of such improvements as determined by
Landlord in its reasonable discretion. As used in this Lease, the term “Laws” refers to
any federal, state, and local laws, ordinances, rules and regulations, court orders, governmental
directives, governmental orders and all interpretations of the foregoing, and all restrictive
covenants affecting this Lease or the Project. The preceding notwithstanding, for purposes of
determining Tenant’s share of Operating Costs, Controllable Operating Costs (defined below) for any
calendar year will be deemed not to increase over the amount of Controllable Operating Costs during
the previous year by more than eight percent (8%) per year on a cumulative basis, compounded
annually. The term “Controllable Operating Costs” means all Operating Costs except costs
and expenses for taxes, insurance, utilities, costs to Landlord resulting from compliance with
Laws, and any increases in service contract fees and expenses resulting from government-mandated
wage increases. The term “Non-Controllable Operating Costs” means all Operating Costs
other than Controllable Operating Costs. There is no cap on Non-Controllable Operating Costs.
Operating Costs shall not include costs for (i) capital improvements made to the Project, other
than capital improvements described in Section 3.3(J) and except for items which are generally
considered maintenance and repair items, such as painting of common areas, and the like; (ii)
repair, replacements and general maintenance paid by proceeds of insurance or by Tenant or other
third parties; (iii) interest, amortization or other payments on loans to Landlord; (iv)
depreciation; (v) leasing commissions; (vi) legal expenses for services, other than those that
directly benefit all Project tenants generally (e.g., tax disputes); provided, however, explicitly
excluding legal fees incurred by Landlord to enforce obligations of other tenants of the Project;
(vii) Taxes; (viii) renovating or otherwise improving space for occupants of the Project or vacant
space in the Project.; (ix) the cost of any expense to Landlord in curing a default under any
ground lease or lease to other tenants of the Project; or (x) the costs and expenses incurred by
Landlord directly resulting from the negligence or willful misconduct of Landlord or its agents.
3.4. “Taxes” means all taxes, assessments, and governmental charges or fees whether
federal, state, county or municipal, and whether they be by taxing districts or authorities
presently taxing or by others, subsequently created or otherwise, and any other taxes and
assessments (including but not limited to non-governmental assessments for common charges under a
restrictive covenant or other private agreement that are not treated as part of Operating Costs)
now or hereafter attributable to the Project (or its operation), excluding, however, penalties and
interest thereon and federal and state taxes on income (if the present method of taxation changes
so that in lieu of or in addition to the whole or any part of any Taxes, there is levied on
Landlord a capital tax directly on the rents received therefrom or a margin tax, franchise tax,
assessment, or charge based, in whole or in part, upon such rents for the Project, then all such
taxes, assessments, or charges, or the part thereof so based, shall be deemed to be included within
the term “Taxes” for purposes hereof). Taxes shall include the costs of consultants retained in an
effort to lower Taxes and all costs incurred in disputing any taxes or in seeking to lower the tax
valuation of the Project. For property tax purposes, Tenant waives all rights to protest or appeal
the appraised value of the Premises, as well as the Project, and all rights to receive notices of
reappraisement, as set forth in Sections 41.413 and 42.015 of the Texas Tax Code. If applicable,
Landlord may, in its sole discretion, allocate in a reasonable manner the values of multiple
properties carried by taxing authorities on a single tax account.
3.5. Landlord may make a good faith estimate of Tenant’s Share of Reimbursable Expenses to be
due by Tenant for any calendar year or part thereof during the Term. During each calendar year or
partial calendar year of the Term, Tenant shall pay to Landlord, in advance concurrently with each
monthly installment of Base Rent, an amount equal to the estimated Tenant’s Share of Reimbursable
Expenses for such calendar year or part thereof divided by the number of months therein. During
the first year of the Term, Tenant shall pay to Landlord the sum of $9,213.00 per month in advance,
as Landlord’s initial estimate of Tenant’s Share of Reimbursable Expenses, which amount includes
$9,213.00 per month as
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Landlord’s estimate of Tenant’s Share of Operating Costs and $0.00 per month as Landlord’s
estimate of Tenant’s Share of Taxes. From time to time, Landlord may estimate and re-estimate the
amount of Tenant’s Share of Reimbursable Expenses to be due by Tenant and deliver a copy of the
estimate or re-estimate to Tenant. Thereafter, the monthly installments of Tenant’s Share of
Reimbursable Expenses payable by Tenant shall be appropriately adjusted in accordance with the
estimations so that, by the end of the calendar year in question, Tenant shall have paid all of
Tenant’s Share of Reimbursable Expenses as estimated by Landlord. Any amounts paid based on such
an estimate shall be subject to adjustment as herein provided when actual Reimbursable Expenses are
available for each calendar year.
3.6. By April 1 of each calendar year, or as soon thereafter as practicable, Landlord shall
furnish to Tenant a statement of Reimbursable Expenses for the previous year (the “Reimbursable
Expenses Statement”). If Tenant’s estimated payments of Operating Costs or Taxes under this
Section 3 for the year covered by the Reimbursable Expenses Statement exceed Tenant’s Share of such
items as indicated in the Reimbursable Expenses Statement, then Landlord shall promptly reimburse
Tenant for such excess, or in Landlord’s election, credit such amount against rent; likewise, if
Tenant’s estimated payments of Operating Costs or Taxes under this Section 3 for such year are less
than Tenant’s Share of such items as indicated in the Reimbursable Expenses and Tax Statement, then
Tenant shall promptly pay Landlord such deficiency.
3.7. Landlord’s books and records with regard to Reimbursable Expenses are available for
inspection by Tenant at Landlord’s offices during Landlord’s regular business hours. Tenant or
auditors selected by Tenant and reasonably approved by Landlord in writing, shall have the right,
within ninety (90) days of receiving the Reimbursable Expenses Statement, to inspect and audit such
records at Landlord’s offices during Landlord’s regular business hours. If the audit is conducted
by a firm retained on a contingency fee basis, the firm shall be reputable and approved in writing
by both Tenant and Landlord (which approval shall not be unreasonably withheld, conditioned or
delayed). If such audit reveals that an error was made in the Reimbursable Expenses previously
charged to Tenant, then Landlord shall refund to Tenant any overpayment of any such costs, or
Tenant shall pay to Landlord any underpayment of any such costs, as the case may be, within thirty
(30) days after notification thereof. If such audit reveals overpayment by Tenant of more than
five percent (5%) from Tenant’s payment of Reimbursable Expenses, Landlord shall reimburse Tenant
for the actual cost of such audit, in all other cases Tenant shall bear all costs and expenses
incurred in connection with such audit.
4. Deposit. Upon execution of this Lease, Tenant shall pay to Landlord the sum of
$36,431.75 (the “Security Deposit”), which sum shall be held by Landlord, without
obligation for interest, as security for the performance of Tenant’s covenants and obligations
under this Lease, it being expressly understood and agreed that the Security Deposit is not an
advance rental deposit or a measure of Landlord’s damages in case of Tenant’s default. Upon the
occurrence of any “Event of Default,” as herein defined, by Tenant beyond any applicable
cure period, Landlord may, from time to time, without prejudice to any other remedy provided herein
or provided by law, use the Security Deposit to make good any arrears of Rent and any other damage,
injury, expense, or liability caused by the event of default; and Tenant shall pay to Landlord on
demand the amount so applied in order to restore the Security Deposit to its original amount. If
no Event of Default has occurred and is continuing, Landlord will refund to Tenant any remaining
balance of the Security Deposit within forty-five (45) days after the expiration of the Term.
Notwithstanding anything contained in this Lease to the contrary, all amounts payable by Tenant to
or on behalf of Landlord under this Lease, whether or not expressly denominated as Rent, shall
constitute Rent for the purposes of this Lease and for purposes of section 502(b)(6) (or comparable
provision of any future bankruptcy law) of the Federal Bankruptcy Code, 11 U.S.C. Sections 101 et
seq. (the “Bankruptcy Code”).
5. Disclaimer of Warranties. By execution of this Lease, Tenant acknowledges and
agrees that except as expressly set forth in this Lease, neither Landlord nor any officer, partner,
agent, employee, or representative of Landlord makes or has made any warranties or representations
of any kind or character, express or implied, with respect to the Premises, the Building or the
Project, or any portion thereof, its physical condition, income to be derived therefrom, or
expenses to be incurred with respect thereto, its fitness or suitability for any particular use, or
any other matter or thing relating to or affecting the same. There are no oral agreements,
warranties, or representations collateral to or affecting the Premises, the Building or the
Project, or any portion thereof, except as may be otherwise expressly set forth in this Lease.
Landlord and Tenant each hereby agrees that the Premises are leased in their AS IS, WHERE IS
condition with any and all latent or patent defects. Tenant, by execution of this Lease, expressly
agrees that Landlord has not made and does not make any warranties with respect to the Premises
upon which an action under the Texas Deceptive Trade Practices Act could be based.
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6. Use. The Premises shall be used, to the extent permitted by applicable Law, only
for general office purposes and to the extent applicable, for receiving, storing, shipping and
selling (other than retail) products, materials and merchandise manufactured, made and/or
distributed by Tenant and for such other lawful purposes as may be incidental thereto (the
“Permitted Use”). Tenant shall continuously occupy and use the Premises only for the
Permitted Use and shall comply with all Laws relating to this Lease and/or the use, condition,
access to, and occupancy of the Premises or any portion of the Project and will not commit waste,
overload the Building’s Structure or the Building’s Systems or subject the Premises to use that
would damage the Premises. As used herein, the term “Building’s Structure” means the
Building’s exterior walls, roof, footings, foundations, structural portions of load-bearing walls,
structural floors and subfloors, and structural columns and beams; “Building’s Systems”
means the Building’s life-safety, plumbing, electrical and mechanical systems. Notwithstanding
anything in this Lease to the contrary, as between Landlord and Tenant, (a) after the Commencement
Date, Tenant shall bear the risk of complying with Title III of the Americans With Disabilities Act
of 1990, any state laws governing handicapped access or architectural barriers, and all rules,
regulations, and guidelines promulgated under such laws, as amended from time to time (the
“Disabilities Acts”) in the Premises, and (b) Landlord shall bear the risk of complying
with the Disabilities Acts in the common areas of the Building, other than compliance that is
necessitated by the use of the Premises for other than the Permitted Use or as a result of any
alterations or additions, including but not limited to any initial tenant improvement work, made by
or on behalf of Tenant, any assignee claiming by, through or under Tenant, any subtenant claiming
by, through or under Tenant; and any of their respective agents, contractors, employees, licensees,
guests and invitees (“Tenant Part[ies]”) (which risk and responsibility shall be borne by
Tenant). The Premises shall not be used for any use which is disreputable, creates extraordinary
fire hazards, or results in an increased rate of insurance on the Building, or for the storage of
any Hazardous Materials (except as provided in Section 17 hereof). Tenant shall not install within
the Premises nor use in the Premises any equipment or fixtures which might be reasonably expected
due to excess weight, vibration or any other characteristic, to damage the Premises or the
Building. Outside storage is prohibited without Landlord’s prior written consent. If, because of
a Tenant Party’s acts or because Tenant vacates the Premises, the rate of insurance on the Building
or its contents increases, then such acts shall be an Event of Default, Tenant shall pay to
Landlord the amount of such increase on demand, and acceptance of such payment shall not waive any
of Landlord’s other rights. Tenant shall conduct its business and control each other Tenant Party
so as not to create any nuisance (including but not limited to emission of odors, fumes or excess
noise) or unreasonably interfere with other tenants or Landlord in its management of the Building.
Notwithstanding anything in this Lease to the contrary, Landlord acknowledges that Tenant’s
Permitted Use includes the production and distribution of lockers and other incidental items, and
Landlord agrees that, as of the Commencement Date of this Lease, such use does not create a
nuisance, create an extraordinary fire hazard, or increase the rate of insurance on the Building.
7. Landlord’s Maintenance Obligations. This Lease is intended to be a net lease;
accordingly, Landlord’s maintenance obligations (at its sole cost and expense) are limited to the
replacement of the Building’s Structure. Landlord shall not be responsible for (a) any such work
until Tenant notifies Landlord of the need therefor in writing or (b) alterations to the Building’s
Structure required by applicable Law because of Tenant’s use of the Premises (which alterations
shall be made by Tenant at its sole cost and expense). The Building’s Structure does not include
windows, glass or plate glass, doors or overhead doors, special fronts, or office entries, dock
bumpers, dock plates or levelers, loading areas and docks, and loading dock equipment, all of which
shall be maintained by Tenant, unless such damage is solely caused by latent defects of the
Building’s Structure or the gross negligence or willful misconduct of Landlord or Landlord’s
agents. Landlord’s liability for any defects, repairs, replacement or maintenance for which
Landlord is specifically responsible for under this Lease shall be limited to the cost of
performing the work. Additionally, Landlord shall maintain automatic fire sprinkler system, the
parking areas, and other common areas of the Building, including driveways, alleys, landscape and
grounds surrounding the Premises and utility lines in a good condition, consistent with the
operation of a bulk warehouse/industrial or service center facility, including maintenance, repair,
and replacement of the exterior of the Building (including but not limited to painting),
landscaping, sprinkler systems, and any items normally associated with the foregoing. All costs in
performing the work described in the foregoing sentence shall be included in Operating Costs.
Tenant shall promptly notify Landlord in writing of any work required to be performed under this
Section 7, and Landlord shall not be responsible for performing such work until Tenant delivers to
Landlord such notice. Notwithstanding anything to the contrary contained herein, Landlord shall,
in its sole and absolute discretion, determine the appropriate remedial action required of it to
satisfy its maintenance obligations hereunder (e.g., Landlord shall, in its sole and absolute
discretion, determine whether, and to the extent, repairs or replacements are the appropriate
remedial action). Notwithstanding anything in this Section 7 to the contrary, if Landlord fails to
make any repairs or to perform any maintenance required of Landlord hereunder to the roof of the
building over the Premises, and (i) such failure shall persist for thirty (30) days after written
notice of the need for such repairs or maintenance is given to Landlord, and (ii) unless Landlord
has commenced such repairs or maintenance during such period and is
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diligently pursuing the same, and (iii) such failure creates a risk of bodily injury or
property damage, then Tenant may (but shall not be required to) following a second notice (which
notice shall have a heading in at least 12-point type, bold and all caps “FAILURE TO RESPOND SHALL
RESULT IN TENANT EXERCISING SELF-HELP RIGHTS”) and Landlord’s failure to commence repairs within
five (5) business days after receipt of such second notice, cause Landlord’s roofing contractor to
perform such repairs or maintenance in accordance with the provisions of this Lease governing
Tenant’s repairs and alterations and Landlord shall reimburse Tenant for all reasonable costs and
expenses therefor within thirty (30) days after presentation of appropriate invoices and back-up
documentation; provided, however, that the self-help rights of Tenant set forth in this Section 7
shall only apply to any entity or individual who succeeds to the rights of BV DFWA I, LP in and to
this Lease and shall in no way be deemed to apply to BV DFWA I, LP or its affiliates.
8. Insurance and Taxes.
8.1. Subject to Tenant’s obligation to pay to Landlord Tenant’s Share of the Reimbursable
Expenses, Landlord covenants and agrees to maintain standard fire and extended coverage insurance
covering the Building (exclusive of any of Tenant’s fixtures, furnishings, and equipment attached
thereto or located thereon) in an amount not less than the replacement cost thereof.
8.2. Subject to Tenant’s obligation to pay to Landlord Tenant’s Share of the Reimbursable
Expenses, Landlord agrees to pay before they become delinquent all Taxes; provided, however,
Landlord may (in its own name or in the name of both Landlord and Tenant as Landlord may deem
appropriate) dispute and contest the same, and in such case such disputed item need not be paid
until finally adjudged to be valid and any right to appeal has lapsed. At the conclusion of such
contest, Landlord shall pay the items contested to the extent that they are held valid, together
with all items, court costs, interest, and penalties relating thereto. If the Taxes levied against
the Premises are increased as a result of any alterations, additions, or improvements made by
Tenant or by Landlord at the request of Tenant, Tenant shall pay to Landlord upon demand, as
Additional Rent, the amount of the increase and continue to pay the increase during the Term.
9. Improvements; Alterations; Tenant’s Maintenance and Repair Obligations.
9.1. Improvements; Alterations; Signs. Improvements to the Premises shall be
installed at Tenant’s expense only in accordance with plans and specifications which have been
previously submitted to and approved in writing by Landlord. Landlord shall not unreasonably
withhold, condition or delay such approval. Tenant shall not paint or install lighting or
decorations, signs, window or door lettering, or advertising media of any type visible from the
exterior of the Premises without the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned, or delayed. Tenant shall have no right to install signs upon
the exterior of the Building or elsewhere at the Project except as approved in writing by Landlord
in its reasonable discretion. All signs must be constructed and affixed in compliance with Laws.
All alterations, additions, and improvements shall be constructed, maintained, and used by Tenant,
at its risk and expense, in accordance with all Laws; Landlord’s consent to or approval of any
alterations, additions or improvements (or the plans therefor) shall not constitute a
representation or warranty by Landlord, nor Landlord’s acceptance, that the same comply with sound
architectural and/or engineering practices or with all applicable Laws, and Tenant shall be solely
responsible for ensuring all such compliance. Notwithstanding anything herein to the contrary,
Tenant shall be permitted to make additions, alterations and improvements to the Premises without
Landlord’s consent provided that the cost of such additions, alterations and improvements do not
exceed $25,000 and shall not affect or alter the structural integrity of the Premises.
9.2. Repairs; Maintenance. Tenant shall maintain the Premises in a clean, safe, and
operable condition, and shall not permit or allow to remain any waste or damage to any portion of
the Premises. Additionally, Tenant, at its sole expense, shall repair, replace and maintain in
good condition and in accordance with all Laws and the equipment manufacturer’s suggested service
programs, all portions of the Premises, Tenant’s Off-Premises Equipment and all areas, improvements
and systems exclusively serving the Premises including but not limited to loading docks, sump
pumps, dock xxxxx, dock equipment and loading areas, dock doors, dock seals, overhead doors, dock
levelers and similar leveling equipment, plumbing, water, and sewer lines up to points of common
connection within the Premises, entries, doors, ceilings, windows, interior walls, and the interior
side of demising walls, and heating, ventilation and air conditioning systems, and other building
and mechanical systems exclusively serving the Premises. Such repair and replacements include
capital expenditures and repairs whose benefit may extend beyond the Term. The term “Tenant’s
Off-Premises Equipment” means any of Tenant’s equipment or other property that may be located
on or about the Project (other than inside the
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| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
Premises). Landlord may perform Tenant’s maintenance obligations at Tenant’s cost. Tenant
shall repair or replace, subject to Landlord’s direction and supervision, any damage to the
Building caused by a Tenant Party. If Tenant fails to make such repairs or replacements within 30
days after the occurrence of such damage, then Landlord may make the same at Tenant’s cost. If any
such damage occurs outside of the Premises, then Landlord may elect to repair such damage at
Tenant’s expense, rather than having Tenant repair such damage. The cost of all maintenance,
repair or replacement work performed by Landlord under this Section 9 shall be paid by Tenant to
Landlord within 30 days after Landlord has invoiced Tenant therefor. Notwithstanding anything to
the contrary contained in this Lease, Landlord shall deliver the heating, ventilation and air
conditioning systems that serve the Premises in good working order and condition as of the
Commencement Date, and shall warranty such items for the first twelve (12) months of the Term;
provided, however, Tenant’s sole remedy for any breach of the above warranty shall be that
Landlord, for the first twelve (12) months of the Term only, at its sole cost and expense, will
make all necessary repairs, replacements, and corrections of any nature or description to such
systems without limitation unless said repairs, replacements or corrections are due to Tenant’s
failure to cause routine maintenance to be performed thereon as required in this Section 9.2.
During the 13th through 36th months of the Term, Tenant shall repair the
heating, ventilation and air conditioning units serving the Premises (“HVAC”) to the extent
such maintenance and repair costs do not exceed $1,000.00 per unit per year at any one time. Any
repairs required for the HVAC in excess of $1,000.00 per unit per year at any one time during said
period shall be the responsibility of Landlord, unless such repairs are directly attributable to
the negligence or misconduct of Tenant or if Tenant fails to maintain a service contract on the
HVAC units. Landlord shall only be responsible for payment above said $1,000.00 per unit per year
cap. During the period from the 37th month through the end of the Term, Tenant shall be
solely responsible for the HVAC and Landlord shall have no obligation during said period.
Landlord’s obligation with regard to this Section 9.2 shall become null and void as it pertains to
any replacement unit during the Term.
9.3. Performance of Work. All work described in this Section 9 shall be performed
only by Landlord or by contractors and subcontractors approved in writing by Landlord, which shall
not be unreasonably withheld, conditioned, or delayed. Tenant shall cause all contractors and
subcontractors to procure and maintain insurance coverage naming Landlord, Landlord’s property
management company and Landlord’s asset management company as additional insureds against such
risks, in such amounts, and with such companies as Landlord may reasonably require. Tenant shall
provide Landlord with the identities, mailing addresses and telephone numbers of all persons
performing work or supplying materials prior to beginning such construction and Landlord may post
on and about the Premises notices of non-responsibility pursuant to applicable Laws. All such work
shall be performed in accordance with all Laws and in a good and workmanlike manner so as not to
damage the Building (including but not limited to the Premises, the Building’s Structure and the
Building’s Systems). All such work which may affect the Building’s Structure or the Building’s
Systems must be approved by the Building’s engineer of record, if any, at Tenant’s expense and, at
Landlord’s election, must be performed by Landlord’s usual contractor for such work. All work
affecting the roof of the Building must be performed by Landlord’s roofing contractor, and no such
work will be permitted if it would void or reduce the warranty on the roof; provided, however, that
Landlord acknowledges that Tenant shall have the right to install a powder coating line in the
Premises that will require access to natural gas and roof penetration(s).
9.4. Mechanic’s Liens. All work performed, materials furnished, or obligations
incurred by or at the request of a Tenant Party shall be deemed authorized and ordered by Tenant
only, and Tenant shall not permit any mechanic’s liens to be filed against the Premises or the
Project in connection therewith. Upon completion of any such work, Tenant shall deliver to
Landlord final lien waivers from all contractors, subcontractors and materialmen who performed such
work. If such a lien is filed, then Tenant shall, within ten days after Landlord has delivered
notice of the filing thereof to Tenant (or such earlier time period as may be necessary to prevent
the forfeiture of the Premises, the Project or any interest of Landlord therein or the imposition
of a civil or criminal fine with respect thereto), either (1) pay the amount of the lien and cause
the lien to be released of record, or (2) diligently contest such lien and deliver to Landlord a
bond or other security reasonably satisfactory to Landlord. If Tenant fails to timely take either
such action, then Landlord may pay the lien claim, and any amounts so paid, including but not
limited to expenses and interest, shall be paid by Tenant to Landlord within ten days after
Landlord has invoiced Tenant therefor. Landlord and Tenant acknowledge and agree that their
relationship is and shall be solely that of “landlord-tenant” (thereby excluding a relationship of
“owner-contractor,” “owner-agent” or other similar relationships). Accordingly, all materialmen,
contractors, artisans, mechanics, laborers and any other persons now or hereafter contracting with
Tenant, any contractor or subcontractor of Tenant or any other Tenant Party for the furnishing of
any labor, services, materials, supplies or equipment with respect to any portion of the Premises,
at any time from the date hereof until the end of the Term, are hereby charged with notice that
they look exclusively to Tenant to obtain payment for same. Nothing herein shall be deemed a
consent by Landlord to any liens being placed upon the Premises, the Project or
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Landlord’s interest therein due to any work performed by or for Tenant or deemed to give any
contractor or subcontractor or materialman any right or interest in any funds held by Landlord to
reimburse Tenant for any portion of the cost of such work. Tenant shall defend, indemnify and hold
harmless Landlord and its agents and representatives from and against all claims, demands, causes
of action, suits, judgments, damages and expenses (including but not limited to attorneys’ fees) in
any way arising from or relating to the failure by any Tenant Party to pay for any work performed,
materials furnished, or obligations incurred by or at the request of a Tenant Party. This
indemnity provision shall survive termination or expiration of this Lease.
9.5. Janitorial Services. Tenant, at its sole expense, shall provide its own
janitorial services to the Premises and shall maintain the Premises in a clean and safe condition.
Tenant shall procure adequate dumpsters and/or other trash and garbage receptacles for the Premises
and shall store all trash and garbage within such receptacles in the area designated from time to
time by Landlord and shall, at its sole expense, arrange for the regular pickup of such trash and
garbage at times, and pursuant to reasonable regulations, established by Landlord from time to
time.
10. Inspection. Landlord and Landlord’s agents and representatives shall have the
right to enter and inspect the Premises upon reasonable notice and during reasonable business
hours, other than in the case of an emergency when no notice shall be required, for the purpose of
(i) ascertaining the condition of the Premises, (ii) in order to make such repairs as may be
required to be made by Landlord under the terms of this Lease and (iii) for the purpose of showing
the Premises and the Building to prospective purchasers. During the period that is six (6) months
prior to the end of the Term hereof, Landlord and Landlord’s agents and representatives shall have
the right to enter the Premises at any time upon reasonable notice and during reasonable business
hours for the purpose of showing the Premises to prospective tenants and shall have the right to
erect on the Premises a sign indicating that the Premises are for sale or lease.
11. Utilities. Landlord agrees to provide such water, electricity, telephone, and
other utility service connections into the Premises as may be presently in place. Tenant shall pay
all charges incurred for any utility services used on or from the Premises and any maintenance
charges for utilities, shall be responsible for any costs associated in any manner with any
additional utility connections to the Premises which Tenant may require, and shall furnish all
electric light bulbs and tubes. Such payments shall be made directly to the supplier of any
utility separately metered (or submetered) to the Premises, or to Landlord if any such utilities
are not separately submetered or metered. Landlord shall calculate the cost of Tenant’s portion of
any such utilities on such equitable basis as may be determined by Landlord with respect to any
such utilities. Tenant shall pay to Landlord within 30 days after receipt of an invoice therefor,
the cost of such service, based on rates charged by the utility company furnishing such service,
including but not limited to all fuel adjustment charges, demand charges and taxes. Unless
otherwise required by law, Landlord is the party entitled to designate non-electric utility and
telecommunication service providers to the Building. Landlord shall in no event be liable for any
interruption or failure of utility or telecommunication services on the Premises, except if such
failure or interruption is caused by the gross negligence or willful misconduct of Landlord or its
agents.
12. Assignment and Subletting. Tenant shall not, without the prior written consent of
Landlord, (a) assign, transfer, or encumber this Lease or any estate or interest herein, whether
directly or by operation of law, (b) permit any other entity to become Tenant hereunder by merger,
consolidation, or other reorganization, (c) if Tenant is an entity other than a corporation whose
stock is publicly traded, permit the transfer of an ownership interest in Tenant so as to result in
a change in the current control of Tenant, (d) sublet any portion of the Premises, (e) grant any
license, concession, or other right of occupancy of any portion of the Premises, or (f) permit the
use of the Premises by any parties other than Tenant (any of the events listed in Section 12(a)
through 12(f) being a “Transfer”). Landlord agrees that it will not unreasonably withhold,
condition or delay such consent; however, in determining whether or not to grant its consent,
Landlord shall be entitled to take into consideration factors such as Landlord’s desired tenant
mix, the reputation and net worth of the proposed transferee, the then current market conditions,
and the compliance of the proposed transferee with the regulations of the Office of Foreign Asset
Control (“OFAC”) of the Department of the Treasury (including but not limited to those
named on OFAC’s Specially Designated Nationals and Blocked Persons List) and any statute, executive
order (including but not limited to the September 24, 2001, Executive Order Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism), or
other governmental action relating thereto. Tenant shall provide Landlord with a written
description of all terms and conditions of the proposed Transfer, copies of the proposed
documentation, and the following information about the proposed transferee: name and address of the
proposed transferee and any entities and persons who own, control or direct the proposed
transferee; reasonably satisfactory information about its business and business history; its
proposed use of the Premises; banking, financial, and other credit information; and general
references
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| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
sufficient to enable Landlord to determine the proposed transferee’s creditworthiness and
character. Tenant shall reimburse Landlord immediately upon request for its reasonable attorneys’
fees incurred in connection with considering any request for consent to a Transfer. No Transfer
shall release Tenant from its obligations under this Lease, but rather Tenant and its transferee
shall be jointly and severally liable therefor. Landlord’s consent to any Transfer shall not waive
Landlord’s rights as to any subsequent Transfers. Tenant shall pay to Landlord, immediately upon
receipt thereof, the excess of (1) all compensation received by Tenant for a Transfer less the
costs reasonably incurred by Tenant with unaffiliated third parties (i.e., brokerage commissions
and tenant finish work) in connection with such Transfer (such costs shall be amortized on a
straight-line basis over the term of the Transfer in question) over (2) the Rent allocable to the
portion of the Premises covered thereby. Notwithstanding the foregoing, however, Landlord
acknowledges and agrees that, without the consent of Landlord, Tenant may assign or sublease its
interest under this Lease to (i) an entity controlled by, controlling, or under common control with
Tenant or (ii) an entity acquiring or succeeding to substantially all of the business of Tenant by
merger, spin-off, reorganization, consolidation, acquisition or otherwise (provided any such
successor entity shall have a net worth equal to or greater than the net worth of Tenant at the
time of the date of execution of this Lease or at the time of such assignment, whichever is
greater)(all of the foregoing, a “Permitted Transfer”), subject to the following conditions
precedent: (a) Tenant shall not be in default under this Lease beyond any applicable notice and
cure period provided for in this Lease; (b) a fully executed copy of an assignment or sublease,
including the assumption of this Lease by the assignee or acceptance of the sublease by sublessee,
in form reasonably acceptable to Landlord, and such other information regarding the assignment or
sublease as Landlord may reasonably request, shall have been delivered to Landlord; (c) the
Premises shall continue to be operated solely for the use specified in Section 6 of this Lease or
other use acceptable to Landlord in its sole discretion; (d) Tenant shall pay all costs reasonably
incurred by Landlord in connection with such assignment or subletting, including without
limitation, reasonably attorneys’ fees; and (e) Tenant acknowledges (and, at Landlord’s request, at
the time of such assignment or subletting shall confirm) that in each instance Tenant shall remain
liable for performance of the terms and conditions of this Lease despite such assignment or
subletting.
13. Fire and Casualty Damage.
13.1. If the Premises should be damaged or destroyed by fire, tornado, or other casualty,
Tenant shall give immediate written notice thereof to Landlord.
13.2. If the Premises or the Building should be totally destroyed by fire, tornado, or other
casualty, or if either should be so damaged that rebuilding or repairs cannot be completed within
200 days after the date upon which Landlord is notified by Tenant of such damage, this Lease shall
terminate and the Rent shall be abated during the unexpired portion of this Lease, effective upon
the date of the occurrence of such damage.
13.3. If the Premises or the Building should be damaged by fire, tornado, or other casualty,
but only to such extent that rebuilding or repairs can be completed within 200 days after the date
upon which Landlord is notified by Tenant of such damage, this Lease shall not terminate, but
Landlord shall, at its sole cost and expense, proceed with reasonable diligence to rebuild and
repair such Building to substantially the condition in which it existed prior to such damage,
except that (i) Landlord shall not be required to so rebuild or repair if less than twelve (12)
months remain in the Term hereof after the expiration of such 200-day period, (ii) Landlord shall
not be required to rebuild, repair, or replace any part of the partitions, fixtures, and other
improvements which may have been placed on the Premises by Tenant, and (iii) so long as Landlord
has complied with the provisions hereof relating to insurance coverage, Landlord shall not be
obligated to expend any funds in excess of available insurance proceeds attributable to such damage
in rebuilding the Premises. If the Premises are untenantable in whole or in part following such
damage, the Rent payable hereunder during the period the Premises are untenantable shall be reduced
to such extent as may be fair and reasonable under all of the circumstances. In the event that
Landlord should fail to complete such repairs and rebuilding within 200 days after the date upon
which Landlord is notified by Tenant of such damage, Tenant may, at its option, terminate this
Lease by delivering written notice of termination to Landlord within thirty (30) days after the
expiration of such 200-day period, as Tenant’s exclusive remedy, whereupon all rights and
obligations hereunder shall cease and terminate.
13.4. Notwithstanding anything herein to the contrary, in the event the holder of any
indebtedness secured by a mortgage or deed of trust covering the Premises requires that the
insurance proceeds be applied to such indebtedness, then Landlord shall have the right to terminate
this Lease by delivering written notice of termination to Tenant, whereupon all rights and
obligations hereunder shall cease as of the date of the occurrence of such damage.
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| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
13.5. Any insurance which may be carried by Landlord or Tenant against loss or damage to the
buildings and other improvements situated on the Premises shall be for the sole benefit of the
party carrying such insurance and under its sole control.
14. Insurance; Waivers; Subrogation; Indemnity.
14.1. Tenant’s Insurance. Effective as of the Commencement Date, and continuing
throughout the Term, Tenant shall maintain the following insurance policies: (1) commercial general
liability insurance in amounts of $2,000,000 per occurrence or, following the expiration of the
initial Term, such other amounts as Landlord may from time to time reasonably require, insuring
Tenant, Landlord, Landlord’s property management company, Landlord’s asset management company (if
any) and, if requested in writing by Landlord, Landlord’s agents, Landlord’s mortgagee and their
respective Affiliates against all liability for injury to or death of a person or persons or damage
to property arising from the use and occupancy of the Premises, (2) All Risk/Special Form Property
insurance covering the full value of Tenant’s property and improvements, and other property
(including property of others) in the Premises or the Project (including but not limited to
Tenant’s Off-Premises Equipment), (3) contractual liability insurance sufficient to cover Tenant’s
indemnity obligations hereunder (but only if such contractual liability insurance is not already
included in Tenant’s commercial general liability insurance policy), and (4) worker’s compensation
insurance, to the extent required by applicable Laws. The term “Affiliate” means any
person or entity which, directly or indirectly, through one or more intermediaries, controls is
controlled by, or is under common control with the party in question. Tenant’s insurance shall
provide primary coverage to Landlord when any policy issued to Landlord provides duplicate or
similar coverage, and in such circumstance Landlord’s policy will be excess over Tenant’s policy.
Tenant shall furnish to Landlord certificates of such insurance and such other evidence
satisfactory to Landlord of the maintenance of all insurance coverages required hereunder at least
ten days prior to the earlier of the Commencement Date or the date Tenant enters or occupies the
Premises, and at least 15 days prior to each renewal of said insurance, and Tenant shall obtain a
written obligation on the part of each insurance company to notify Landlord at least 30 days before
cancellation or a material change of any such insurance policies. All such insurance policies
shall be in form, and issued by companies with a Best’s rating of A-IX or better, reasonably
satisfactory to Landlord. If Tenant fails to comply with the foregoing insurance requirements or
to deliver to Landlord the certificates or evidence of coverage required herein, Landlord, in
addition to any other remedy available pursuant to this Lease or otherwise, may, but shall not be
obligated to, obtain such insurance and Tenant shall pay to Landlord on demand the premium costs
thereof, plus an administrative fee of 10% of such cost.
14.2. No Subrogation; Waiver of Property Claims. Landlord and Tenant each waives any
claim it might have against the other for any damage to or theft, destruction, loss, or loss of use
of any property, to the extent the same is recovered under any insurance policy of the types
described in this Section 14 that covers the Project, the Premises, Landlord’s or Tenant’s
fixtures, personal property, leasehold improvements, or business, or is required to be insured
against under the terms hereof, regardless of whether the negligence of the other party caused such
Loss (defined below). Additionally, Tenant waives any claim it may have against Landlord for any
Loss to the extent such Loss is caused by a terrorist act. Each party shall cause its insurance
carrier to endorse all applicable policies waiving the carrier’s rights of recovery under
subrogation or otherwise against the other party. Notwithstanding any provision in this Lease to
the contrary, Landlord, its agents, employees and contractors shall not be liable to Tenant or to
any party claiming by, through or under Tenant for (and Tenant hereby releases Landlord and its
servants, agents, contractors, employees and invitees from any claim or responsibility for) any
damage to or destruction, loss, or loss of use, or theft of any property of any Tenant Party
located in or about the Project, caused by casualty, theft, fire, third parties or any other matter
or cause, regardless of whether the negligence of any party caused such loss in whole or in part.
Tenant acknowledges that Landlord shall not carry insurance on, and shall not be responsible for
damage to, any property of any Tenant Party located in or about the Project.
14.3. Indemnity. Subject to Section 14.2, Tenant shall defend, indemnify, and hold
harmless Landlord (including without limitation all its affiliates, subsidiaries and associated
companies, successors and assigns) and its representatives and agents from and against all claims,
demands, liabilities, causes of action, suits, judgments, damages, and expenses (including but not
limited to reasonable attorneys’ fees) arising from any injury to or death of any person or the
damage to or theft, destruction, loss or loss of use of, any property or inconvenience (a
“Loss”) (1) occurring in or on the Project (other than within the Premises) to the extent
caused by the negligence or willful misconduct of any Tenant Party, (2) occurring in the Premises,
or (3) arising out of the use of the Premises or the installation, operation, maintenance, repair
or removal of any property of any Tenant Party located in or about the Project, including but not
limited to Tenant’s Off-Premises Equipment. It being agreed that clauses (2) and (3) of this
indemnity are intended to indemnify Landlord and
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its agents against the consequences of their own negligence or fault, even when Landlord or
its agents are jointly, comparatively, contributively, or concurrently negligent with Tenant, and
even though any such claim, cause of action or suit is based upon or alleged to be based upon the
strict liability of Landlord or its agents; however, such indemnity shall not apply to the gross
negligence or willful misconduct of Landlord and its agents. The indemnities set forth in this
Lease shall survive termination or expiration of this Lease and shall not terminate or be waived,
diminished or affected in any manner by any abatement or apportionment of Rent under any provision
of this Lease. If any proceeding is filed for which indemnity is required hereunder, the
indemnifying party agrees, upon request therefor, to defend the indemnified party in such
proceeding at its sole cost utilizing counsel satisfactory to the indemnified party.
15. Condemnation.
15.1. If the whole or any substantial part of the Premises or the Building or Land upon which
the Premises are located should be taken for any public or quasi-public use under governmental law,
ordinance, or regulation, or by right of eminent domain, or conveyed in lieu thereof (a
“Taking”), this Lease shall terminate and the Rent shall be abated during the unexpired
portion of this Lease, effective as of the date of such Taking. For the purposes hereof
“substantial part of the Premises” shall be deemed to mean such portion of the Premises the loss of
which would, in Landlord’s reasonable opinion, materially lessen the usefulness of the Premises to
Tenant for the purposes for which Tenant is then using the Premises.
15.2. If less than a substantial part of the Premises or the Building or Land upon which the
Premises becomes subject to a permanent Taking, this Lease shall not terminate, but the Rent
payable hereunder during the unexpired portion of this Lease shall be reduced on a reasonable basis
as to the portion of the Premises rendered untenantable by the Taking.
15.3. In the event of any such Taking, Landlord shall receive the entire award or other
compensation for the Land, Building and other improvements taken; however, Tenant may separately
pursue a claim (provided it will not reduce Landlord’s award) against the condemnor for the value
of Tenant’s personal property which Tenant is entitled to remove under this Lease, moving costs,
loss of business and other claims it may have.
16. Holding Over. Should Tenant, or any of its successors in interest, hold over the
Premises, or any part thereof, after the expiration of the Term, as the Term may be renewed or
extended, unless otherwise agreed in writing, such holding over shall constitute and be construed
as creating a month-to-month tenancy only, terminable at the will of Landlord, at a rental equal to
the then current rental for the first thirty (30) days after the expiration of the Term, and
thereafter the greater of (a) the then fair market rental value of the Premises or (b) the total
rental payable for the last month of the Term plus fifty percent (50%) of such amount, payable in
full on the first day on which Tenant holds over and on the first day of each month thereafter
during such holdover period. The inclusion of the preceding sentence shall not be construed as
Landlord’s permission for Tenant to hold over. In addition, Tenant shall protect, defend,
indemnify and hold Landlord harmless from all loss, costs (including but not limited to reasonable
attorney’s fees) and liability resulting from such holdover, including but not limited to any
claims made by any succeeding tenant founded upon Tenant’s failure to vacate the Premises upon
expiration of the Term, as it may be renewed or extended, and any lost profits to Landlord
resulting therefrom.
17. Environmental Requirements.
17.1. Prohibition against Hazardous Materials. Except for Hazardous Materials
contained in products used by Tenant in de minimis quantities for ordinary cleaning and office
purposes, and those materials expressly permitted in accordance with Exhibit H attached
hereto and made a part hereof (the “Permitted Materials”), Tenant shall not, nor shall it
permit or cause any party to, bring any Hazardous Materials upon the Premises or in the Project or
transport, store, use, generate, manufacture, dispose, or release any Hazardous Materials on or
from the Premises or the Project without Landlord’s prior written consent. Tenant, at its sole
cost and expense, shall operate its business in the Premises in strict compliance with all
Environmental Requirements and all requirements of this Lease. Tenant shall complete and certify
to disclosure statements as requested by Landlord from time to time relating to Tenant’s
transportation, storage, use, generation, manufacture, or release of Hazardous Materials on the
Premises or in the Project. Tenant shall promptly notify Landlord of any spill, release, discharge
or disposal of Hazardous Materials at, on, under or from the Premises or Property in violation of
any Environmental Requirements, and Tenant shall promptly deliver to Landlord a copy of any notice
of violation relating to the Premises or the Project of any Environmental Requirement.
| Texas Industrial Lease — American Locker Group, Inc. | 11 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
17.2. Environmental Requirements. The term “Environmental Requirements” means
all Laws regulating or relating to health, safety, or environmental conditions at, on, in, under,
or about the Premises or the Project or the environment or natural resources, including but not
limited to the following: the Comprehensive Environmental Response, Compensation and Liability
Act; the Resource Conservation and Recovery Act; the Clean Air Act; the Clean Water Act; the Toxic
Substances Control Act and all state and local counterparts thereto, and any common or civil law
obligations including but not limited to nuisance or trespass, and any other requirements of
Section 22 and Exhibit C of this Lease. The term “Hazardous Materials” means and
includes any substance, material, waste, pollutant, or contaminant that is or could be regulated
under any Environmental Requirement or that may adversely affect human health or the environment,
including but not limited to any solid or hazardous waste, hazardous substance, asbestos, petroleum
(including but not limited to crude oil or any fraction thereof, natural gas, synthetic gas,
polychlorinated biphenyls (PCBs), and radioactive material). For purposes of Environmental
Requirements, to the extent authorized by law, Tenant is and shall be deemed to be the responsible
party, including but not limited to the “owner” and “operator” of Tenant’s “facility” and the
“owner” of all Hazardous Materials brought on the Premises or the Project by a Tenant Party and the
wastes, by-products, or residues generated, resulting, or produced therefrom.
17.3. Removal of Hazardous Materials. Tenant, at its sole cost and expense, shall
remove all Hazardous Materials stored, disposed of or otherwise released by a Tenant Party onto or
from the Premises or the Project, in a manner and to a level satisfactory to Landlord in its sole
discretion, but in no event to a level and in a manner less than that which complies with all
Environmental Requirements and does not limit any future uses of the Premises or the Project or
require the recording of any deed restriction or notice regarding the Premises or the Project.
Tenant shall perform such work at any time during the period of this Lease upon written request by
Landlord or, in the absence of a specific request by Landlord, before Tenant’s right to possession
of the Premises terminates or expires. If Tenant fails to perform such work within the time period
specified by Landlord or before Tenant’s right to possession terminates or expires (whichever is
earlier), Landlord may at its discretion, and without waiving any other remedy available under this
Lease (including without limitation Section 19.3) or at law or equity (including but not limited to
an action to compel Tenant to perform such work), perform such work at Tenant’s cost. Tenant shall
pay all costs incurred by Landlord in performing such work within ten days after Landlord’s request
therefor. Such work performed by Landlord is on behalf of Tenant and Tenant remains the owner,
generator, operator, transporter, and/or arranger of the Hazardous Materials for purposes of
Environmental Requirements. Tenant agrees not to enter into any agreement with any person,
including but not limited to any governmental authority, regarding the removal of Hazardous
Materials that have been disposed of or otherwise released onto or from the Premises or the Project
without the written approval of the Landlord.
17.4. Indemnity.
17.4.1. Tenant’s Indemnity. Tenant shall indemnify, defend, and hold Landlord
(including without limitation all its affiliates, subsidiaries and associated companies, successors
and assigns) harmless from and against any and all losses (including but not limited to diminution
in value of the Premises or the Project and loss of rental income from the Project), liabilities
(INCLUDING BUT NOT LIMITED TO ANY STRICT LIABILITY), claims, demands, actions, suits, damages
(including but not limited to punitive damages), expenses (including but not limited to
remediation, removal, repair, corrective action, or cleanup expenses), and costs (including but not
limited to actual attorneys’ fees, consultant fees or expert fees and removal or management of any
asbestos brought into the Premises or the Project or disturbed in breach of the requirements of
this Section 17, regardless of whether such removal or management is required by Law) which are
brought or recoverable against, or suffered or incurred by Landlord as a result of any release of
Hazardous Materials or any breach of the requirements under this Section 17 by a Tenant Party
regardless of whether Tenant had knowledge of such noncompliance. The obligations of Tenant under
this Section 17 shall survive any expiration or termination of this Lease.
17.5. Inspections and Tests. Landlord shall have access to, and a right to perform
inspections and tests of, the Premises to determine Tenant’s compliance with Environmental
Requirements, its obligations under this Section 17, or the environmental condition of the
Premises. Access shall be granted to Landlord upon Landlord’s prior notice to Tenant and at such
times so as to minimize, so far as may be reasonable under the circumstances, any disturbance to
Tenant’s operations. Such inspections and tests shall be conducted at Landlord’s expense, unless
such inspections or tests reveal that Tenant has not complied with any Environmental Requirement,
in which case Tenant shall reimburse Landlord for the reasonable cost of such inspection and tests.
Landlord’s receipt of or satisfaction with any environmental assessment in no way waives any
rights that Landlord holds against Tenant. Tenant shall promptly notify Landlord of any
communication or report that Tenant makes to any governmental authority regarding any possible
violation of Environmental Requirements or
| Texas Industrial Lease — American Locker Group, Inc. | 12 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
release or threat of release of any Hazardous Materials onto or from the Premises or the
Project. Tenant shall, within five days of receipt thereof, provide Landlord with a copy of any
documents or correspondence received from any governmental agency or other party relating to a
possible violation of Environmental Requirements or claim or liability associated with the release
or threat of release of any Hazardous Materials onto or from the Premises or the Project. Upon
request, Tenant shall provide Landlord with an inventory of Hazardous Materials located at, on or
in the Premises and copies of any Material Safety Data Sheet in Tenant’s possession required by any
Environmental Requirement or related to any Hazardous Material.
17.6. Tenant’s Financial Assurance in the Event of a Breach. In addition to all other
rights and remedies available to Landlord under this Lease or otherwise, Landlord may, in the event
of a breach of the requirements of this Section 17 that is not cured within 30 days following
notice of such breach by Landlord, require Tenant to provide financial assurance (such as
insurance, escrow of funds or third party guarantee) in an amount and form satisfactory to
Landlord. The requirements of this Section 17 are in addition to and not in lieu of any other
provision in this Lease. Tenant’s obligations under this Section 17 shall also apply to the areas
where Tenant’s Off-Premises Equipment is located.
18. Events of Default. Each of the following events shall be deemed to be an
“Event of Default” by Tenant under this Lease:
18.1. The failure of Tenant to pay any installment of Rent payable under this Lease, or
failure to perform or discharge any other obligation or liability of Tenant under this Lease
requiring the payment of money, within ten (10) days after such payment is due.
18.2. Tenant’s becoming insolvent or making a transfer in fraud of creditors or an assignment
for the benefit of creditors.
18.3. The filing by Tenant of a petition under any section or chapter of the Bankruptcy Code
or under any present or future bankruptcy, insolvency, or similar law or statute of the United
States or any state thereof heretofore or hereinafter enacted; or the filing of such a petition
against Tenant involuntarily if such petition is not withdrawn or otherwise removed within sixty
(60) days of its being filed; or the adjudication of Tenant as bankrupt or insolvent in proceedings
filed against Tenant thereunder.
18.4. The appointment of a receiver, trustee, or custodian for, or the taking possession by
such a receiver, trustee, or custodian of, all or substantially all of the assets of Tenant.
18.5. Abandonment or vacation by Tenant of any substantial portion of the Premises, but only
if Tenant has stopped paying Rent, or is otherwise not in compliance with the terms of the Lease.
18.6. Failure by Tenant to procure, maintain and deliver to Landlord evidence of the insurance
policies and coverages required by Section 14.1 of this Lease.
18.7. Failure by Tenant to pay and release of record or diligently contest and bond around any
mechanic’s lien filed against the Premises or the Project for any work performed, materials
furnished or obligation incurred by or at the request of Tenant within the time and manner required
by Section 9.4.
18.8. Failure by Tenant to comply with any term, provision, or covenant of this Lease or to
discharge any obligation or liability under this Lease not involving the payment of money, and the
failure to cure any such failure within thirty (30) days after written notice thereof to Tenant,
provided that if such default is not susceptible to cure within thirty (30) days, Tenant shall be
deemed to have cured such default if Tenant has commenced efforts to cure such default within such
thirty (30) day period and diligently pursues and completes such curative actions within a
reasonably prompt period of time thereafter.
19. Remedies. Upon any Event of Default, Landlord may, in addition to all other
rights and remedies afforded Landlord hereunder or by law or equity, take any one or more of the
following actions:
| Texas Industrial Lease — American Locker Group, Inc. | 13 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
19.1. Termination of Lease. Terminate this Lease by giving Tenant written notice
thereof, in which event Tenant shall pay to Landlord the sum of (1) all Rent accrued hereunder
through the date of termination, (2) all amounts due under Section 19.3, and (3) an amount equal to
(A) the total Rent that Tenant would have been required to pay for the remainder of the Term
discounted to present value at a per annum rate equal to the “Prime Rate” as published on
the date this Lease is terminated by The Wall Street Journal, Southwest Edition, in its listing of
“Money Rates” minus one percent, minus (B) the then present fair rental value of the
Premises for such period, similarly discounted;
19.2. Termination of Possession. Terminate Tenant’s right to possess the Premises
without terminating this Lease by giving written notice thereof to Tenant, in which event Tenant
shall pay to Landlord (1) all Rent and other amounts accrued hereunder to the date of termination
of possession, (2) all amounts due from time to time under Section 19.1, and (3) all Rent and other
net sums required hereunder to be paid by Tenant during the remainder of the Term, diminished by
any net sums thereafter received by Landlord through reletting the Premises during such period,
after deducting all costs incurred by Landlord in reletting the Premises. Landlord shall not be
obligated to relet the Premises before leasing other portions of the Building. Landlord shall not
be liable for, nor shall Tenant’s obligations hereunder be diminished because of, Landlord’s
failure to relet the Premises or to collect rent due for such reletting. Tenant shall not be
entitled to the excess of any consideration obtained by reletting over the Rent due hereunder.
Reentry by Landlord in the Premises shall not affect Tenant’s obligations hereunder for the
unexpired Term; rather, Landlord may, from time to time, bring an action against Tenant to collect
amounts due by Tenant, without the necessity of Landlord’s waiting until the expiration of the
Term. Unless Landlord delivers written notice to Tenant expressly stating that it has elected to
terminate this Lease, all actions taken by Landlord to dispossess or exclude Tenant from the
Premises shall be deemed to be taken under this Section 19.2. If Landlord elects to proceed under
this Section 19.2, it may at any time elect to terminate this Lease under Section 19.1;
19.3. Perform Acts on Behalf of Tenant. Perform any act Tenant is obligated to
perform under the terms of this Lease (and enter upon the Premises in connection therewith if
necessary) in Tenant’s name and on Tenant’s behalf, without being liable for any claim for damages
therefor, and Tenant shall reimburse Landlord on demand for any expenses which Landlord may incur
in thus effecting compliance with Tenant’s obligations under this Lease (including, but not limited
to, collection costs and legal expenses), an administrative fee equal to 15% of such expenses, plus
interest on such expenses and fees at the Default Rate;
19.4. Suspension of Services. Suspend any services required to be provided by
Landlord hereunder without being liable for any claim for damages therefor; or
19.5. Alteration of Locks. Additionally, with or without notice, and to the extent
permitted by Law, Landlord may alter locks or other security devices at the Premises to deprive
Tenant of access thereto, and Landlord shall not be required to provide a new key or right of
access to Tenant.
20. Payment by Tenant; Non-Waiver; Cumulative Remedies.
20.1. Payment by Tenant. Upon any Event of Default, Tenant shall pay to Landlord all
costs incurred by Landlord (including but not limited to court costs and reasonable attorneys’ fees
and expenses) in (1) obtaining possession of the Premises, (2) removing and storing Tenant’s or any
other occupant’s property, (3) repairing or restoring the Premises to the condition in which Tenant
accepted the Premises, (4) if Tenant is dispossessed of the Premises and this Lease is not
terminated, reletting all or any part of the Premises (including brokerage commissions, cost of
tenant finish work, and other costs incidental to such reletting), (5) performing Tenant’s
obligations which Tenant failed to perform, and (6) enforcing, or advising Landlord of, its rights,
remedies, and recourses arising out of the default. To the full extent permitted by law, Landlord
and Tenant agree the federal and state courts of the state in which the Premises are located shall
have exclusive jurisdiction over any matter relating to or arising from this Lease and the parties’
rights and obligations under this Lease.
20.2. No Waiver. Landlord’s acceptance of Rent following an Event of Default shall
not waive Landlord’s rights regarding such Event of Default. No waiver by Landlord of any
violation or breach of any of the terms contained herein shall waive Landlord’s rights regarding
any future violation of such term. Landlord’s acceptance of any partial payment of Rent shall not
waive Landlord’s rights with regard to the remaining portion of the Rent that is due, regardless of
any endorsement or other statement on any instrument delivered in payment of Rent or any writing
delivered in
| Texas Industrial Lease — American Locker Group, Inc. | 14 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
connection therewith; accordingly, Landlord’s acceptance of a partial payment of Rent shall
not constitute an accord and satisfaction of the full amount of the Rent that is due.
20.3. Cumulative Remedies. Any and all remedies set forth in this Lease: (1) shall
be in addition to any and all other remedies Landlord may have at law or in equity, (2) shall be
cumulative, and (3) may be pursued successively or concurrently as Landlord may elect. The
exercise of any remedy by Landlord shall not be deemed an election of remedies or preclude Landlord
from exercising any other remedies in the future. Additionally, Tenant shall defend, indemnify and
hold harmless Landlord, Landlord’s Mortgagee and their respective representatives and agents from
and against all claims, demands, liabilities, causes of action, suits, judgments, damages and
expenses (including but not limited to reasonable attorneys’ fees) arising from Tenant’s failure to
perform its obligations under this Lease.
21. Mortgages/Ground Lease. Tenant accepts this Lease subject and subordinate to any
and all mortgages and/or deeds of trust now or at any time hereafter constituting a lien or charge
upon the Premises or the improvements situated thereon or any portion thereof; provided, however,
that upon Tenant’s written request, Landlord shall use commercially reasonable efforts to obtain
for the benefit of Tenant a non-disturbance agreement on Landlord’s Lender’s standard form.
Notwithstanding the foregoing, the subordination of this Lease to future mortgages shall be subject
to Tenant’s receipt of a non-disturbance agreement reasonably acceptable to Tenant which provides
in substance that so long as Tenant is not in default under the Lease past applicable cure periods,
its use and occupancy of the Premises shall not be disturbed notwithstanding any default of
Landlord under such mortgage. Subject to the foregoing, Tenant shall at any time hereafter on
demand execute any instruments, releases or other documents which may be required by any mortgagee
for the purpose of subjecting and subordinating this Lease to the lien of any such mortgage.
Tenant acknowledges that this Lease is subject and subordinate to the Lease Agreement dated May 27,
2004 (the “Ground Lease”). Tenant accepts this Lease subject to all of the terms and
conditions of the Ground Lease and covenants that it will do no act or thing which would constitute
a violation of the provisions of the Ground Lease attached hereto as Exhibit G with respect
to the Premises or the use thereof. The effectiveness of this Lease is conditioned upon Landlord’s
receipt of any required consents under the Ground Lease. Landlord and Tenant shall use
commercially reasonable efforts to obtain from the prime landlord under the Ground Lease and have
delivered to Tenant a non-disturbance agreement in the form of such prime landlord under the Ground
Lease. If Landlord fails to obtain any required consents under the Ground Lease, Landlord shall
refund to Tenant any prepaid rent and Security Deposit paid by Tenant to Landlord.
22. Rules and Regulations. Tenant shall comply with the rules and regulations of the
Project which are attached hereto as Exhibit C, as amended from time to time by Landlord.
Tenant shall be responsible for the compliance with such rules and regulations by each Tenant
Party.
23. Personal Property Taxes. Tenant shall be liable for all taxes levied or assessed
against personal property, furniture, or fixtures placed by Tenant in the Premises or in or on the
Building or Project.
24. Notices. Each provision of this instrument or of any applicable governmental
laws, ordinances, regulations, and other requirements with reference to the sending, mailing, or
delivery of any notice or the making of any payment by Landlord to Tenant or with reference to the
sending, mailing, or delivery of any notice or the making of any payment by Tenant to Landlord
shall be deemed to be complied with when and if the following steps are taken:
24.1. All Rent and other payments required to be made by Tenant to Landlord hereunder shall be
payable to Landlord at the address for payment of Rent hereinbelow set forth or at such other
address as Landlord may specify from time to time by written notice delivered in accordance
herewith.
24.2. All payments required to be made by Landlord to Tenant hereunder shall be payable to
Tenant at the address hereinbelow set forth, or at such other address as Tenant may specify from
time to time by written notice delivered in accordance herewith.
24.3. Any notice or document required or permitted to be delivered hereunder (collectively
called “Notices”) must be in writing to be effective. Any Notice, other than a payment,
which shall be deemed received only when actually received, that is addressed to the party for whom
it is intended at its address specified for the receipt of Notices (which is currently the address
set forth below) will be deemed to have been given or made, whether actually received or not, on
the second Business Day after the date it is deposited in the United States mail, postage prepaid,
certified, return receipt
| Texas Industrial Lease — American Locker Group, Inc. | 15 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
requested. Any party may change its address for the receipt of Notices by Notice in
accordance with this Section 24. Notices given otherwise than in accordance with this Section 24,
including but not limited to Notices given by facsimile or e-mail, will be effective upon receipt.
The current addresses of the parties for Notices are as follows:
LANDLORD: Address for Payment of Rent:
|
BV DFWA I, LP x/x Xxxx xx Xxxxxxx X.X. Xxx 000000 Xxxxxx, Xxxxx 75284-0583 |
|
Address for Notices and All
Other Correspondence:
|
Industrial Properties Corporation 00000 Xxxxxx Xxxxxxx, Xxxxx 000 Xxxxxxx, Xxxxx 00000 Attention: Xxx Xxxxxxx, Xx. Telephone: 000-000-0000 Telecopy: 000-000-0000 |
|
TENANT:
|
American Locker Group, Inc. 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000 XXX Xxxxxxx, Xxxxx 00000 Attention: Xxxx Xxxxxxx Telephone: 000-000-0000 Telecopy: 000-000-0000 |
|
ADDITIONAL NOTICE ADDRESS:
|
Xxxxxxx & Xxxxxx, P.C. 0000 Xxxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxx 00000 Attention: Xxxxxxx Xxxxxxxx Telephone: 000-000-0000 Telecopy: 000-000-0000 |
If and when included within the term “Landlord,” as used in this instrument, there are more
than one person, firm, or corporation, all shall jointly arrange among themselves for their joint
execution of a notice specifying an individual at a specific address for the receipt of notices and
payments to Landlord; if and when included within the term “Tenant,” as used in this
instrument, there are more than one person, firm, or corporation, all shall jointly arrange among
themselves for their joint execution of a notice specifying an individual at a specific address for
the receipt of notices and payments to Tenant. All parties included within the terms “Landlord”
and “Tenant,” respectively, shall be bound by notices given in accordance with the provisions of
this Section 24 to the same effect as if each had received such notice.
25. Miscellaneous.
25.1. Gender. Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to include the plural and
vice versa, unless the context otherwise requires.
25.2. Successors and Assigns. The terms, provisions, covenants, and conditions
contained in this Lease shall apply to, inure to the benefit of, and be binding upon, the parties
hereto and upon their respective heirs, legal representatives, successors, and permitted assigns,
except as otherwise herein expressly provided.
25.3. Captions. The captions are inserted in this Lease for convenience only and in
no way define, limit, or describe the scope or intent of this Lease, or any provision hereof, nor
in any way affect the interpretation of this Lease.
| Texas Industrial Lease — American Locker Group, Inc. | 16 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
25.4. Estoppel Certificates. Tenant agrees, within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord’s designee, an estoppel certificate stating that this
Lease is in full force and effect, the date to which Rent has been paid, the unexpired Term, and
such other matters pertaining to this Lease as may be reasonably requested by Landlord. Landlord
agrees, within thirty (30) days after request of Tenant, which request shall not occur more than
twice annually, to deliver to Tenant, or Tenant’s designee, an estoppel certificate on Landlord’s
form stating that this Lease is in full force and effect, the date to which Rent has been paid, and
the unexpired Term.
25.5. Financial Statements. No more than once annually, within ten (10) business days
after written request from Landlord, Tenant shall deliver to Landlord such financial statements as
are reasonably required by Landlord to verify the net worth of Tenant, or any assignee, subtenant,
or guarantor of Tenant. In addition, Tenant shall deliver to any lender designated by Landlord any
financial statements required by the lender to facilitate the financing or refinancing of the
Building and Land. Tenant represents and warrants to Landlord that each financial statement is a
true, complete, and accurate statement as of the date of the statement. All financial statements
will be confidential and will be used only for the purposes set forth in this Lease.
25.6. Written Modifications. This Lease may not be altered, changed, or amended
except by an instrument in writing executed by Landlord and Tenant.
25.7. Entire Agreement. This instrument, including all Exhibits and Riders which are
attached hereto, constitutes the entire agreement between Landlord and Tenant. No prior written or
prior or contemporaneous oral statements, promises, or representations shall be binding.
25.8. Severability. If any provision of this Lease shall ever be held to be invalid
or unenforceable, such invalidity or unenforceability shall not affect any other provisions of the
Lease, but such other provisions shall continue in full force and effect.
25.9. Governing Law. This Lease shall be construed and enforced in accordance with
the laws of the state in which the Premises are located.
25.10. Interpretation. The parties acknowledge that each party and its counsel has
reviewed and had the opportunity to negotiate revisions to this Lease, and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Lease or any amendments, annexes, or exhibits hereto.
25.11. Time is of the Essence. It is expressly agreed by the parties hereto that time
is of the essence with respect to this Lease.
25.12. Landlord’s Default. In the event of any act or omission by Landlord which
would give Tenant the right to damages from Landlord or the right to terminate this Lease by reason
of a constructive or actual eviction from all or part of the Premises or otherwise, Tenant shall
not xxx for such damages or exercise any such right to terminate until (a) it shall have given
written notice of such act or omission to Landlord and provided that a non-disturbance agreement
has been executed by Landlord’s lender, to the holder(s) of the indebtedness or other obligations
secured by any mortgage or deed of trust affecting the Premises, and (b) thirty (30) days shall
have elapsed following the giving of such notice, and during which time Landlord and such holder(s)
or either of them, their agents, or employees, shall be entitled to enter upon the Premises and do
therein whatever may be necessary to remedy such act or omission.
25.13. Landlord Transfer. Landlord may transfer any portion of the Project and any of
its rights under this Lease. If Landlord assigns its rights under this Lease, then Landlord shall
thereby be released from any further obligations hereunder arising after the date of transfer,
provided that the assignee assumes in writing Landlord’s obligations hereunder arising from and
after the transfer date.
25.14. Landlord’s Liability. The liability of Landlord (and its partners,
shareholders or members) to Tenant (or any person or entity claiming by, through or under Tenant)
for any default by Landlord under the terms of this Lease or any matter relating to or arising out
of the occupancy or use of the Premises and/or other areas of the Building shall be limited to
Tenant’s actual direct, but not consequential, damages therefor and shall be recoverable only from
the interest of
| Texas Industrial Lease — American Locker Group, Inc. | 17 | |||
| 2701 Regent, Suite 200, DFW Airport, Texas |
Landlord in the Building, and Landlord (and its partners, shareholders or members) shall not
be personally liable for any deficiency. The provisions of this Section shall survive any
expiration or termination of this Lease. Additionally, Tenant hereby waives its statutory lien
under Section 91.004 of the Texas Property Code.
25.15. Force Majeure. Other than for Tenant’s obligations under this Lease that can
be performed by the payment of money (e.g., payment of Rent and maintenance of insurance), whenever
a period of time is herein prescribed for action to be taken by either party hereto, such party
shall not be liable or responsible for, and there shall be excluded from the computation of any
such period of time, any delays due to strikes, riots, acts of God, shortages of labor or
materials, war, terrorist acts or activities, governmental laws, regulations, or restrictions, or
any other causes of any kind whatsoever which are beyond the control of such party.
25.16. Brokerage. Neither Landlord nor Tenant has dealt with any broker or agent in
connection with the negotiation or execution of this Lease, other than NAI Xxxxxx Xxxx Company
(“Landlord’s Broker”), whose commission shall be paid by Landlord pursuant to a separate
written agreement and Transwestern (“Tenant’s Broker”), whose commission shall be paid by
Landlord’s Broker pursuant to a separate written agreement. Tenant and Landlord shall each
indemnify the other against all costs, expenses, attorneys’ fees, liens and other liability for
commissions or other compensation claimed by any other broker or agent claiming the same by,
through, or under the indemnifying party.
25.17. Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LANDLORD AND
TENANT EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LITIGATION OR TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE ARISING OUT OF OR WITH RESPECT TO THIS LEASE OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED
HERETO.
25.18. Water or Mold Notification. To the extent Tenant or its agents or employees
discover any water leakage, water damage or mold in or about the Premises or Project, Tenant shall
promptly notify Landlord thereof in writing.
25.19. Joint and Several Liability. If Tenant is comprised of more than one party,
each such party shall be jointly and severally liable for Tenant’s obligations under this Lease.
All unperformed obligations of Tenant hereunder not fully performed at the end of the Term shall
survive the end of the Term, including but not limited to payment obligations with respect to Rent
and all obligations concerning the condition and repair of the Premises.
25.20. Telecommunications. Tenant and its telecommunications companies, including but
not limited to local exchange telecommunications companies and alternative access vendor services
companies, shall have no right of access to and within the Building, for the installation and
operation of telecommunications systems, including voice, video, data, Internet, and any other
services provided over wire, fiber optic, microwave, wireless, and any other transmission systems
(“Telecommunications Services”), for part or all of Tenant’s telecommunications from the
Building to any other location without Landlord’s prior written consent. All providers of
Telecommunications Services shall be required to comply with the rules and regulations of the
Building, applicable Laws and Landlord’s policies and practices for the Building. Tenant
acknowledges that Landlord shall not be required to provide or arrange for any Telecommunications
Services and that Landlord shall have no liability to any Tenant Party in connection with the
installation, operation or maintenance of Telecommunications Services or any equipment or
facilities relating thereto. Tenant, at its cost and for its own account, shall be solely
responsible for obtaining all Telecommunications Services.
25.21. Confidentiality. Tenant acknowledges that the terms and conditions of this
Lease are to remain confidential for Landlord’s benefit, and may not be disclosed by Tenant to
anyone, by any manner or means, directly or indirectly, without Landlord’s prior written consent;
however, Tenant may disclose the terms and conditions of this Lease to its attorneys, accountants,
employees and existing or prospective financial partners provided same are advised by Tenant of the
confidential nature of such terms and conditions and agree to maintain the confidentiality thereof
(in each case, prior to disclosure) and Tenant may disclose the terms and conditions of this Lease
to the extent that such disclosure is required from a publicly-traded company by any governmental
authority, including but not limited to the SEC, or required by any applicable Laws. Tenant shall
be liable for any disclosures made in violation of this Section by Tenant or by any entity or
individual to whom the terms of and conditions of this Lease were disclosed or made available by
Tenant. The consent by Landlord to any disclosures shall not be deemed to be a waiver on the part
of Landlord of any prohibition against any future disclosure.
| Texas Industrial Lease — American Locker Group, Inc. | 18 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
25.22. Security Service. Tenant acknowledges and agrees that, while Landlord may (but
shall not be obligated to) patrol the Building, Landlord is not providing any security services
with respect to the Premises or Tenant’s Off-Premises Equipment and that Landlord shall not be
liable to Tenant for, and Tenant waives any claim against Landlord with respect to, any loss by
theft or any other damage suffered or incurred by Tenant in connection with any unauthorized entry
into the Premises or any area where Tenant’s Off-Premises Equipment is located or any other breach
of security with respect to the Premises or Tenant’s Off-Premises Equipment.
25.23. Prohibited Persons and Transactions. Tenant represents and warrants to
Landlord that Tenant is currently in compliance with and shall at all times during the Term
(including any extension thereof) remain in compliance with the regulations of OFAC of the
Department of the Treasury (including but not limited to those named on OFAC’s Specially Designated
Nationals and Blocked Persons List) and any statute, executive order (including but not limited to
the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons
Who Commit, Threaten to Commit or Support Terrorism), or other governmental action relating
thereto.
25.24. Determination of Charges. Landlord and Tenant agree that each provision of
this Lease for determining charges and amounts payable by Tenant (including but not limited to
provisions regarding Additional Rent and Tenant’s Proportionate Share of Taxes and Operating Costs)
is commercially reasonable and, as to each such charge or amount, constitutes a statement of the
amount of the charge or a method by which the charge is to be computed for purposes of Section
93.012 of the Texas Property Code.
25.25. Quiet Enjoyment. Provided Tenant has performed all of its obligations
hereunder, Tenant shall peaceably and quietly hold and enjoy the Premises for the Term, without
hindrance from Landlord or any party claiming by, through, or under Landlord, but not otherwise,
subject to the terms and conditions of this Lease.
25.26. Recording. Tenant shall not record this Lease or any memorandum of this Lease
without the prior written consent of Landlord, which consent may be withheld or denied in the sole
and absolute discretion of Landlord, and any recordation by Tenant shall be a material breach of
this Lease. Tenant grants to Landlord a power of attorney to execute and record a release
releasing any such recorded instrument of record that was recorded without the prior written
consent of Landlord.
25.27. Subordination of Landlord’s Lien. Landlord shall be entitled to any available
statutory lien or security interest in any personal property or trade fixtures of Tenant located on
the Premises. Notwithstanding the foregoing, upon Tenant’s request, Landlord shall subordinate its
security interest and landlord’s lien to the security interest of Tenant’s supplier or
institutional financial source by executing and delivering Landlord’s then-current form of
Subordination of Landlord’s Lien.
26. Surrender of Premises. No act by Landlord shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept a surrender of the Premises shall be valid
unless it is in writing and signed by Landlord. At the expiration or termination of this Lease,
Tenant shall deliver to Landlord the Premises with all improvements located therein in good repair
and condition, free of Hazardous Materials placed on the Premises during the Term, broom-clean
condition, reasonable wear and tear excepted, and shall deliver to Landlord all keys to the
Premises. Provided that Tenant has performed all of its obligations hereunder, Tenant may remove
all unattached trade fixtures, furniture, and personal property placed in the Premises or elsewhere
in the Building by Tenant (but Tenant may not remove any such item which was paid for, in whole or
in part, by Landlord or any wiring or cabling unless Landlord requires such removal).
Additionally, at Landlord’s option, Tenant shall remove such alterations, additions, improvements,
trade fixtures, personal property, equipment, wiring, conduits, cabling, and furniture (including
but not limited to Tenant’s Off-Premises Equipment) as Landlord may request together with all signs
affixed by Tenant to the exterior of the Building or elsewhere at the Project (as well as lettering
installed by Tenant on sign panels installed by Landlord); however, Tenant shall not be required to
remove any addition or improvement to the Premises or the Project if Landlord has specifically
agreed in writing that the improvement or addition in question need not be removed. Tenant shall
repair all damage caused by such removal. All items not so removed shall, at Landlord’s option, be
deemed to have been abandoned by Tenant and may be appropriated, sold, stored, destroyed, or
otherwise disposed of by Landlord without notice to Tenant and without any obligation to account
for such items. The provisions of this Section 26 shall survive the end of the Term.
| Texas Industrial Lease — American Locker Group, Inc. | 19 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
27. Parking. Tenant shall have the non-exclusive right, in common with other tenants
of the Building to use such parking spaces associated with the Building as are allocated to Tenant
by Landlord, which shall consist of a minimum of one hundred (100) parking spaces. Landlord shall
use its reasonable discretion in allocating parking spaces to the tenants of the Building, taking
into consideration all factors Landlord deems relevant, including but not limited to the density
and type (e.g., office or industrial) of use conducted by the tenants of the Building in their
respective premises. Landlord reserves the right to initiate steps to control the parking
utilization through gates, access cards, hang-tags or other means as appropriate. Initially,
Tenant shall have the non-exclusive right to use those vehicular parking spaces circled on
Exhibit E hereto. Parking spaces will be available to Tenant without charge during the
initial Term. Landlord shall not be responsible for enforcing Tenant’s parking rights against
third parties.
28. List of Exhibits. All exhibits and attachments attached hereto are incorporated
herein by this reference.
Exhibit A — Outline of Premises
Exhibit B — Description of the Land
Exhibit C — Building Rules and Regulations
Exhibit D — Tenant Finish-Work: Work of Limited Scope
Exhibit E — Parking
Exhibit F — Option to Extend
Exhibit G — Ground Lease
Exhibit H — Permitted Materials
Exhibit B — Description of the Land
Exhibit C — Building Rules and Regulations
Exhibit D — Tenant Finish-Work: Work of Limited Scope
Exhibit E — Parking
Exhibit F — Option to Extend
Exhibit G — Ground Lease
Exhibit H — Permitted Materials
[SIGNATURE PAGE FOLLOWS]
| Texas Industrial Lease — American Locker Group, Inc. | 20 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
EXECUTED the 16th day of November, 2010.
| LANDLORD: | BV DFWA I, LP, a Texas limited partnership |
|||||||
| By: | CH REALTY III/DFE INDUSTRIAL HOLDINGS GP, L.L.C., a Delaware limited liability company, in its capacity as general partner | |||||||
| By: | CH REALTY INVESTORS III, L.P., a Delaware limited partnership, in its capacity as sole member and manager | |||||||
| By: | MF FUNDING, INC., a Delaware corporation, in its capacity as general partner | |||||||
| By: | /s/ Xxx Xxxxxxx, Xx.
|
|||||
| Printed Name | ||||||
| Its: | Vice President
|
| TENANT: | AMERICAN LOCKER GROUP, INC., a Delaware corporation |
|||||
| By: | /s/ Xxxx X Xxxxxxx
|
|||||
| Printed Name | ||||||
| Its: | President
|
|||||
| Texas Industrial Lease — American Locker Group, Inc. | 21 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
EXHIBIT A
PREMISES
| Texas Industrial Lease — American Locker Group, Inc. | 22 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
EXHIBIT B
LAND
BEING a 23.103 acre tract of land situated in the Heirs of Xxxx Xxxxxx Survey, Abstract No.
1555, the S.A. & M.G.R.R. Survey, Abstract No. 1439, the Xxxxxxxxx Xxxxxxxx Survey, Abstract No.
1733, and the Xxxxxxx Xxxxxxx Survey, Abstract 1728, Dallas County, Texas, said tract being a
portion of that certain tract of land known as Dallas Fort Worth International Airport, comprised
in part by the following tracts of land: A 72.668 acre tract of land, known as Tract No. 1,
described in a Deed from Xxxxxx Xxxxxxx Xxxxxxxx, Devisee Under the Will of Xxxxxx Xxxxxxx Xxxxxxx
to the City of Dallas, as recorded in Volume 69098, Page 1727 of the Deed Records of Dallas
County, Texas, (DRDCT): A 25.33 acre tract of land, described in a Deed from Xx X. Xxxxxxx and
wife, Xxxxxx X. Xxxxxxx to the City of Dallas, as recorded in Volume 69060, Page 1955, DRDCT: A
40.96 acre tract of land, described in Deed from Xxxxxx Xxxxxx Xxxxxxxx, Individually and as
Trustee for the use and benefit of Xxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxxx, Xxx Xx Xxxxxxxx and Xxx
X. Xxxxxxxx under the terms of a Trust Agreement
dated January 6th, 1970, to the City of Dallas, as recorded in Volume 70063, Page 1133, DRDCT: a
8.08 acre tract
of land, described in a Deed from Xxxxx Xxxxxx Xxxxxxx and wife, Xxxxxx Xxxxxx Xxxxxxx to the
City of Dallas, as recorded in Volume 69092, Page 1614 of DRDCT: A 5.162 acre tract, described in
a Deed from Xxxxx X. Xxxxxx and wife, M. Xxxxxx Xxxxxx to the City of Dallas, as recorded in
Volume 69153, Page 1879, DRDCT: said 23.103 tract of land being more particularly described as
follows:
BEGINNING
at a 5/8 inch iron rod capped “DFW Boundary” set (DFW Surface 88 Coordinate — Northing
1,029,727.6477, Easting 421,208.6371) for the Southeast corner of the herein described tract, said
corner being on the North right-of-way (ROW) line of Regent Boulevard a 120 foot ROW, and the same
being a point on a non-tangent curve to the left, from which the point of intersection of the
extended centerline of Trade Avenue and the Northerly right-of-way line of Regent Boulevard bears
South 56 degrees 28 minutes 31 seconds East a distance of 160.49 feet;
THENCE, Northwesterly, along and with the Northerly right-of-way line of said Regent Boulevard
and said curve to the left, having a radius of 2060.50 feet, a central angle of 09 degrees 27
minutes 47 seconds, a long chord that bears North 63 degrees 00 minutes 32 seconds West, 339.93
feet, an arc distance of 340.32 feet to a 5/8 inch iron rod capped “DFW Boundary” set (DFW
Surface 88 Coordinate — Northing 1,029,881.9269, Easting 420,905.7300) for point of tangency;
THENCE North 67 degrees 44 minutes 26 seconds West, continuing along and with the Northerly
right-of-way line of said Regent Boulevard, a distance of 1028.24 feet to a 5/8 inch iron rod set
(DFW Surface 88 Coordinate Northing 1,030,271.4244, Easting
419,954.1172) for the Southwest corner
of the herein described tract;
THENCE North 22 degrees 13 minutes 53 seconds East, leaving the Northerly right-of-way line of
said Regent Boulevard, a distance of 735.23 feet to a 5/8 inch iron rod capped “DFW Boundary” set
(DFW Surface 88 Coordinate — Northing 1,030,951.9977, Easting 420,232.2900) for the Northwest
corner of the herein described tract, the same being the Southerly R.O.W. line of a Railroad Drill
Tract 30 foot R.O.W. as described in a Resolution by Dallas/Fort Worth Regional Airport Board,
Resolution No. 79-031 dated 8th day April, 1981;
THENCE South 67 degrees 40 minutes 25 seconds East, along and with the said South right of way
line of said Drill Track, a distance of 1215.92 feet to a 5/8 inch iron rod capped “DFW Boundary”
set (DFW Surface 88 Coordinate -Northing 1,030,490.0895, Easting 421,357.0616) for the point of
curvature of a curve to the right;
THENCE Southeasterly, continuing along and with said Drill Track right of way, along and with said
curve to the right, having a radius of 748.94 feet, a central angle of 11 degrees 38 minutes 23 seconds, a
long chord that bears South 61 degrees 51 minutes 13 seconds East, 151.89 feet, an arc distance
of 152.15 feet to a 5/8 inch iron rod capped “DFW Boundary” set (DFW Surface 88 Coordinate
Northing 1,030,418.4409, Easting 421,490.9871) for Northeast corner of the herein described tract;
THENCE South 22 degrees 13 minutes 53 seconds West, a distance of 746.27 feet to the Point of
Beginning, Containing 23.103 acres of land, more or less.
23
EXHIBIT C
BUILDING RULES AND REGULATIONS
1. The following rules and regulations shall apply to the Premises, the Building, the parking
areas associated therewith, and the appurtenances thereto:
2. Sidewalks, doorways, vestibules, halls, stairways, loading dock areas and associated
overhead doors, and other similar areas (each, to the extent applicable to the Project) shall not
be obstructed by tenants or used by any tenant for purposes other than ingress and egress to and
from their respective leased premises and for going from one to another part of the Building.
3. Plumbing (including but not limited to outside drains and sump pumps), fixtures and
appliances shall be used only for the purposes for which designed, and no sweepings, rubbish, rags
or other unsuitable material shall be thrown or deposited therein. Damage resulting to any such
fixtures or appliances from misuse by a tenant or its agents, employees or invitees, shall be paid
by such tenant.
4. No signs, advertisements or notices shall be painted or affixed on or to any windows or
doors or other part of the Building visible from the exterior of the Premises without the prior
written consent of Landlord. Except as consented to in writing by Landlord or in accordance with
Tenant’s building standard improvements, no draperies, curtains, blinds, shades, screens or other
devices shall be hung at or used in connection with any window or exterior door or doors of the
Premises. No awning shall be permitted on any part of the Premises. Tenant shall not place
anything against or near glass partitions or doors, or windows which might appear unsightly from
outside the Premises.
5. Landlord may prescribe weight limitations and determine the locations for safes and other
heavy equipment or items, which shall in all cases be placed in the Building so as to distribute
weight in a manner acceptable to Landlord which may include the use of such supporting devices as
Landlord may require. All damages to the Building caused by the installation or removal of any
property of a tenant, or done by a tenant’s property while in the Building, shall be repaired at
the expense of such tenant.
6. Tenant shall not make or permit any vibration or improper, objectionable or unpleasant
noises or odors in the Building or otherwise interfere in any way with other tenants or persons
having business with them. Notwithstanding the foregoing, the regular noise and vibration
associated with the punch presses, turret punch presses and air compressor are permitted by
Landlord. Tenant shall not introduce, disturb or release asbestos or PCB’s into or from the
Premises.
7. Tenant shall not keep in the Building any flammable or explosive fluid or substance.
Tenant shall not install or operate any steam or gas engine or boiler, or other mechanical
apparatus in the Premises without the prior written consent of Landlord. The use of oil, gas or
inflammable liquids for heating, lighting or any other purpose is expressly prohibited. Explosives
or other articles deemed extra hazardous shall not be brought into the Building. Notwithstanding
the foregoing, the natural gas fired dry/cure oven, wash line heater and parts cleaning tank are
permitted by Landlord so long as Tenant’s use of such items otherwise complies with the terms and
conditions of this Lease.
8. Landlord will not be responsible for lost or stolen personal property, money or jewelry
from tenant’s leased premises or public or common areas regardless of whether such loss occurs when
the area is locked against entry or not.
9. Tenant shall not conduct any activity on or about the Premises or Building which will draw
pickets, demonstrators, or the like.
10. All vehicles are to be currently licensed, in good operating condition, parked for
business purposes having to do with Tenant’s business operated in the Premises, parked within
designated parking spaces, one vehicle to each space. No vehicle shall be parked as a “billboard”
vehicle in the parking lot. Any vehicle parked improperly may be towed away. Tenant, Tenant’s
agents, employees, vendors and customers who do not operate or park their vehicles as required
shall subject the vehicle to being towed at the expense of the owner or driver.
| Texas Industrial Lease — American Locker Group, Inc. | 24 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
11. No tenant may enter into phone rooms, electrical rooms, mechanical rooms, or other service
areas of the Building unless accompanied by Landlord or the Building manager.
12. No birds or animals (other than seeing-eye dogs) shall be brought into or kept in, on or
about any tenant’s premises. No portion of any tenant’s premises may at any time be used or
occupied as sleeping or lodging quarters.
13. Unless otherwise agreed in writing by Landlord, each tenant must contract for the removal
of trash and other debris from its premises and provide a dumpster or other suitable trash
receptacle adjacent to its premises for removal of trash; no trash or other debris may be left
outside any tenant’s receptacle.
14. Tenant shall not permit storage outside the Premises or dumping of waste or refuse or
permit any harmful materials to be placed in any drainage system or sanitary system in or about the
Premises.
15. Tenant shall not install or operate on the Premises any machinery or mechanical devices of
a nature not directly related to Tenant’s ordinary use of the Premises.
16. Tenant will not permit any Tenant Party to bring onto the Project any handgun, firearm or
other weapons of any kind, illegal drugs or, unless expressly permitted by Landlord in writing,
alcoholic beverages.
| Texas Industrial Lease — American Locker Group, Inc. | 25 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
EXHIBIT D
TENANT FINISH-WORK: WORK OF LIMITED SCOPE (NO PLANS)
(Landlord Performs the Work)
(Landlord Performs the Work)
1. Acceptance of Premises. Except as set forth in this Exhibit, Tenant accepts the
Premises in their “AS-IS” condition on the date that this Lease is entered into; provided, however,
that Landlord shall ensure that as of the Commencement Date, and for a period of thirty (30) days
thereafter, all systems, including electrical, plumbing, overhead doors, dock equipment, fire
protection sprinklers, exhaust fans, skylights, and windows are in good working condition, and the
walls, windows, skylights, exterior doors and roof are all weather tight or will be made so by
Landlord, at Landlord’s sole cost and expense, without offset against any allowance.
2. Scope of Work. Landlord, at its sole cost and expense, shall perform the following
work in the Premises (the “Work”):
| X | Repaint the existing painted walls in the Premises with Building-standard paint in Tenant’s choice of color in Building-standard quantities. | ||
| X | Install Building-standard carpet in the Premises in Tenant’s choice of color. | ||
| X | Other (specify): |
| • | Replace fifteen (15) interior office doors with Building standard units. | ||
| • | Provide and install four (4) CFM roof mounted ventilation fans. | ||
| • | Provide and install approximately 150 T-5 joist mounted warehouse lights. | ||
| • | Provide and install one (1) Rite-Xxxx, model HVLSC, 4-blade, 24’ diameter warehouse fan. | ||
| • | Provide and install two (2) 6’ X 8’ dock levelers; capacity 15,000 lbs., manually operated. |
Within three business days after the date of this Lease, Tenant shall select all Building-standard
materials to be incorporated into the Work and give written notice of such selection to Landlord.
3. Construction Allowance. Landlord shall provide to Tenant a construction allowance
not to exceed $11,000.00 (the “Construction Allowance”) to be applied toward additional
work in the Premises not covered in the Work above. The Construction Allowance shall not be
disbursed to Tenant in cash, but shall be applied by Landlord to the payment of the additional
work, if, as, and when the of the additional work is actually incurred and paid by Landlord. The
Construction Allowance must be used (that is, the Work must be fully complete and the Construction
Allowance disbursed) within six months following the date that Work commences or shall be deemed
forfeited with no further obligation by Landlord with respect thereto, time being of the essence
with respect thereto.
4. Definitions. As used herein, a “Tenant Delay Day” means each day of delay
in the performance of the Work that occurs (a) because Tenant fails to timely select Landlord’s
standard finish-out materials to be incorporated into the Work (and notify Landlord thereof) or
fails to timely furnish any other information or deliver or approve any required documents (whether
preliminary, interim revisions or final), pricing estimates, construction bids, and the like, (b)
because of any change requested by Tenant to the Work or to any design or space plans, (c) because
Tenant fails to attend any meeting with Landlord, any design professional, or any contractor, or
their respective employees or representatives, as may be required or scheduled hereunder or
otherwise necessary in connection with the preparation or completion of any construction documents,
or in connection with the performance of the Work, (d) because of any specification by Tenant of
materials or installations in addition to or other than Landlord’s standard finish-out materials,
or (e) because a Tenant Party otherwise delays completion of the Work. As used herein
“Substantial Completion,” “Substantially Completed,” and any derivations thereof
mean the Work in the Premises is substantially completed (as reasonably determined by Landlord) in
| Texas Industrial Lease — American Locker Group, Inc. | 26 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
substantial accordance with this Exhibit. Substantial Completion shall have occurred even
though minor details of construction, decoration, landscaping and mechanical adjustments remain to
be completed by Landlord.
5. Warranties. LANDLORD MAKES NO EXPRESS OR IMPLIED WARRANTIES IN CONNECTION WITH ANY
WORK TO BE PERFORMED BY LANDLORD IN THE PREMISES EXCEPT AS EXPRESSLY STATED IN THIS EXHIBIT.
Landlord will perform the work in a good and workmanlike manner and will, upon Tenant’s written
request, assign to Tenant (at no cost or expense to Landlord) any and all warranties Landlord
receives from manufacturers and suppliers for equipment and other personalty installed pursuant
hereto.
| Texas Industrial Lease — American Locker Group, Inc. | 27 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
EXHIBIT E
PARKING
| Texas Industrial Lease — American Locker Group, Inc. | 28 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
EXHIBIT F
OPTION TO EXTEND
1. Provided that Tenant is not in default under the terms of this Lease, either at the time of its
exercise of the option herein provided or at the end of the Term provided in the Lease (or the end
of the then current option period, if applicable), Tenant shall have two (2) consecutive options to
extend this Lease for a period of five (5) years at the end of the primary term of the Lease. Each
such option must be exercised by Tenant giving Landlord written Notice in accordance with the
notice provisions of the Lease of its intention to exercise such option not less than 180 nor more
than 270 days prior to the end of the primary term, or the previous option period, as the case may
be.
2. For each option period exercised by Tenant in accordance herewith, the Lease shall be deemed
extended and shall be continued in full force and effect with respect to every applicable term and
condition contained therein, except that the Base Rent payable with respect to the Premises for
such option period shall be as follows:
The Base Rent for the renewal term shall be based on the then prevailing rental
rates for properties of equivalent quality, size, utility and location, with the
length of the Term, the amount of any potential tenant improvement allowance
required to be expended by Landlord, and credit standing of the Tenant, to be taken
into account.
Upon notification from Tenant of the exercise of this renewal option, Landlord
shall, within fifteen (15) days thereafter, notify Tenant in writing of the proposed
Base Rent for the renewal term; Tenant shall, within fifteen (15) days following
receipt of same, notify Landlord in writing of the acceptance or rejection of the
proposed Base Rent.
3. In the event Tenant fails to exercise any option within the time and in the manner provided
herein, such option, and all subsequent options, shall be deemed waived by Tenant and shall not be
exercisable thereafter.
4. The option provided herein is for the sole benefit of Tenant (or any Affiliate of Tenant) and
may not be exercised by any subtenant or assignee of Tenant, regardless of whether Landlord has
consented to or approved such subletting or assignment. As used herein, the term “Affiliate” shall
mean any entity that is controlled by, controlling, or under common control with, Tenant.
| Texas Industrial Lease — American Locker Group, Inc. | 29 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
EXHIBIT G
[GROUND LEASE]
| Texas Industrial Lease — American Locker Group, Inc. | 30 | |||
| 0000 Xxxxxx, Xxxxx 000, XXX Xxxxxxx, Xxxxx |
EXHIBIT H
PERMITTED MATERIALS
The following materials may be brought and used in the Premises (but not to exceed the following
amounts), so long as (i) the materials are stored and used in accordance with all applicable Laws
and Environmental Requirements; (ii) Tenant does not transfer materials from container to
container; (iii) secondary containment is placed beneath any equipment using hydraulic oil or any
other equipment that is observed by Landlord or its agents to be leaking; (iv) chemical containers
that are fifty-five (55) gallons in size or larger used during production shall have secondary
containment; (v) there is no exterior product or large metal scrap storage in or around the
Premises; and (vi) Tenant notifies the applicable fire department of the storage of the following
materials:
CHEMICALS — GRAPEVINE
| DESCRIPTION | YEARLY QTY | |
CAL SOLVE 2365
|
20 GAL | |
CAL CLEAN 836
|
00 XXX | |
XXXX XXX
|
00 XXX | |
00000 XXXXXXXX
|
360 GAL | |
90517 FINAL XXXXX
|
00 XXX | |
00000 COATER
|
600 GAL | |
70818 CLEANER BOOSTER
|
600 GAL | |
POLY-CUT COOLANT
|
330 GAL | |
DIESEL
|
10 GAL | |
MEK
|
10 GAL | |
TOUCH UP LIQUID PAINT — 10 OZ CAN
|
00 XX | |
XXXXXXXX XXXXXXX XXXXX
|
00 XX | |
XX-00 CLEANING AGENT
|
25 GAL | |
SAE 80W90 EP GEAR LUBE
|
5 GAL | |
PUPLE LUBRICANT FOR SS
|
5 GAL | |
ONE GREASE — 12 OZ TUBE
|
30 EA | |
3M BRAND LIQUID STAINLESS STEEL CLEANER & POLISH — 10 OZ CAN
|
20 EA |
CHEMICAL — LOCK SHOP
| MANUFACTURER | DESCRIPTION | QTY PER YEAR | ||
ENSIGN PRODUCTS
|
318 VERSATOIL | 2 GAL. | ||
XXXXX LUBRITECH
|
AIR LUBE 10W/NR | 10 GAL. | ||
MIDCO PRODUCTS
|
PRO MAGIC FOAMING COOLING COIL CLEANER | 6 OZ. | ||
CRC INDUSTRIES
|
DRY GLIDE #03044 | 10 OZ. | ||
UNITED REFINING CO.
|
GASOLINE, REGULAR UNLEADED | 50 GAL. | ||
BIDALL
|
HAND CREAM BARRIER | 13 OZ. | ||
KENSOL
|
KX OXIDE RESISTOR | 6 OZ. |
| Texas Industrial Lease — American Locker Group, Inc. | 31 | |||
| 2701 Regent, Suite 200, DFW Airport, Texas |
| MANUFACTURER | DESCRIPTION | QTY PER YEAR | ||
XXXXXXX
|
XXXXX 052 10W-20 TRACTOR TRANSMISSION/HYD. FLUID | 1 QT. | ||
KINZUA
|
KE-416 INSECT SPRAY | 32 OZ. | ||
KINZUA
|
KE-3026-B ANTI-SEIZE | 4 OZ. | ||
KINZUA
|
KE-107C GREEN APPLE AIR FRESHENER | 28 OZ. | ||
LPS LABORATORIES
|
TAPMATIC CUTTING FLUID | 16 OZ. | ||
HYDRO-BLAST
|
MD-20 CLEANING AGENT | 25 LBS. | ||
MOBILE LUBE
|
SAE 80W90 EP GEAR LUBE | 1 QT. | ||
MAGNAFLUX
|
SURFACE CONDITIONER #3132-T | 2 OZ. | ||
MOBILE OIL CO.
|
MOBILE GEAR 627 SPINDLE OIL | 5 QT. | ||
MOBILE OIL CO.
|
PRG-540-130 HYDRAULIC OIL | 4 OZ. | ||
XXXXXX GROUP
|
NEUTRA-CLEAN BATTERY CLEANER & NEUTRALIZER | 1 QT. | ||
BOSTIK
|
NEVER-SEIZE REGULAR GRADE | 2 OZ. | ||
NIAGARA LUBRICANT
|
0560 UNIVERSAL TRACTOR FLUID | .5 GAL. | ||
OATEY
|
50/50 SOLID WIRE SOLDER | .25 LBS. | ||
SLICK 50
|
ONE LUBE #43604128 AEROSOL | 36 OZ. | ||
XXXXXX XXXXXX PAINTS
|
QUICK DRY ALKYD ENAMEL DRESDEN BLUE | 1 OZ. | ||
XXXXXX XXXXXX PAINTS
|
QUICK DRY ALKYD ENAMEL POSTAL XXXX | 1 OZ. | ||
XXXXXX XXXXXX PAINTS
|
QUICK DRY ALKYD ENAMEL MARINE BLUE | 1 OZ. | ||
XXXXXX XXXXXX PAINTS
|
QUICK DRY ALKYD ENAMEL SMOKE XXXX | 1 OZ. | ||
XXXXXX XXXXXX PAINTS
|
QUICK DRY ALKYD ENAMEL SAND | 1 OZ. | ||
XXXXXX XXXXXX PAINTS
|
QUICK DRY ALKYD ENAMEL BLACK | 1 OZ. | ||
XXXXXX XXXXXX PAINTS
|
QUICK DRY ALKYD ENAMEL REGALIA BLUE | 1 OZ. | ||
XXXXXX XXXXXX PAINTS
|
QUICK DRY ALKYD ENAMEL CRIMSON RED | 1 OZ. | ||
XXXXXX XXXXXX PAINTS
|
QUICK DRY ALKYD ENAMEL CADET BLUE | 1 OZ. | ||
XXXXXX XXXXXX PAINTS
|
QUICK DRY ALKYD ENAMEL DESERT SAND | 1 OZ. | ||
XXXXX CORPORATION
|
CHROME YELLOW TOUCH UP BOTTLE | 1 OZ. | ||
XXXXX CORPORATION
|
SUNSET ORANGE TOUCH UP BOTTLE | 1 OZ. | ||
XXXXX CORPORATION
|
SLATE TOUCH UP BOTTLE | 1 OZ. | ||
XXXXX CORPORATION
|
COCOA TOUCH UP BOTTLE | 1 OZ. | ||
XXXXX CORPORATION
|
SANDALWOOD TOUCH UP BOTTLE | 1 OZ. | ||
XXXXX CORPORATION
|
ANTIQUE GOLD TOUCH UP BOTTLE | 1 OZ. | ||
XXXXX CORPORATION
|
M10909AC ANTIQUE GOLD SPRAY PAINT | 24 OZ. | ||
XXXXX CORPORATION
|
M10910AC SLATE XXXX SPRAY PAINT | 24 OZ. | ||
XXXXX CORPORATION
|
COCOA SPRAY PAINT | 12 OZ. | ||
XXXXX CORPORATION
|
M10911AC SMOKE XXXX SPRAY PAINT | 12 OZ. | ||
XXXXX CORPORATION
|
96130004 DARK GREEN SPRAY PAINT | 12 OZ. |
| Texas Industrial Lease — American Locker Group, Inc. | 32 | |||
| 2701 Regent, Suite 200, DFW Airport, Texas |
| MANUFACTURER | DESCRIPTION | QTY PER YEAR | ||
XXXXX CORPORATION
|
M10902AC CHROME YELLOW SPRAY PAINT | 12 OZ. | ||
CUSTOM FINISHES INC.
|
CF-2003 LEMON SPRAY PAINT | 12 OZ. | ||
CUSTOM FINISHES INC.
|
CF-1176 CRIMSON RED SPRAY PAINT | 12 OZ. | ||
CUSTOM FINISHES INC.
|
CF-1238 DESERT TAN SPRAY PAINT | 12 OZ. | ||
CUSTOM FINISHES INC.
|
CF-1224 TROPIC SAND SPRAY PAINT | 12 OZ. | ||
CUSTOM FINISHES INC.
|
CF-1223 NBU XXXX SPRAY PAINT | 12 OZ. | ||
CUSTOM FINISHES INC.
|
CF-1175 SANDALWOOD SPRAY PAINT | 12 OZ. | ||
RELTON CORPORATION
|
RAPID TAP | 16 OZ. | ||
APPLIED RESEARCH
|
SUPERBRUTE INDUSTRIAL CLEANER & DEGREASER | 10 GAL. | ||
KINZUA
|
KE-2021 SKIN SHIELD CREAM | 14 OZ. | ||
BAUSCH & LOMB INC.
|
SIGHT SAVERS ANTI-FOG LIQUID W/O SILICONE | 6 OZ. | ||
SLICK 50
|
ONE LUBE PETROLEUM OIL | 1 QT. | ||
MASTER CHEMICAL CORP.
|
TRIM MICROSOL 185 | 25 GAL. | ||
MASTER CHEMICAL CORP.
|
TRIM WHAMEX | 5 GAL. | ||
MASTER CHEMICAL CORP.
|
TRIM RP-08F | .5 GAL. | ||
STECO CORP.
|
TAP MAGIC PROTAP CUTTING FLUID | .5 GAL. | ||
TRICO MFG. CORP.
|
TRI-COOL | 6 OZ. | ||
ITW FLUID PRODUCTS GROUP
|
DYKEM RED LAYOUT FLUID | 2 OZ. | ||
ITW FLUID PRODUCTS GROUP
|
DYKEM BLUE LAYOUT FLUID | 6 OZ. | ||
WD40 COMPANY
|
WD40 SPRAY CAN | 16 OZ. | ||
XCELPLUS INTERNATIONAL INC.
|
MFL-ALL PURPOSE ANTI-WEAR / ANTI- CORROSION LUBRICANT | 5 GAL. | ||
DOW CORNING CORP.
|
Z MOLY — POWDER | 3 OZ. | ||
BLACKHAWK AUTOMOTIVE INC.
|
SILVER SOLDER | .5 LBS. | ||
ANCHOR CHEMICAL CORP.
|
ANCHORLUBE G-771 | 2 OZ. | ||
DYKEM COMPANY
|
DYKEM SPRAY | 12 OZ. | ||
NIAGARA LUBRICANT
|
MULTI-PURPOSE AUTOMATIC TRANSMISSION FLUID | .5 GAL. | ||
JNJ INDUSTRIES INC.
|
GLOBALTECH ISOPROPYL ALCOHOL, 99% | 5 GAL. | ||
SUPERIOR GRAPHITE CO.
|
NATURAL GRAPHITE | 4 OZ. | ||
PETROLON INC.
|
ONE GREASE | .5 QTS. | ||
3M
|
3M BRAND LIQUID STAINLESS STEEL CLEANER & POLISH | .5 QTS. | ||
ARMOR ALL PRODUCTS CORP.
|
#7 CHROME POLISH | 2 OZ. | ||
EXXON MOBIL CORP.
|
MOBIL 1 SYNTHETIC GREASE | 6 OZ. | ||
RIDGID TOOL CO.
|
RIDGID PREMIUM DARK THREAD CUTTING OIL | .5 QT. | ||
BOSTIK INC.
|
RED BEARING LUBRICANT | 5 OZ. | ||
TURTLE WAX, INC.
|
TURTLE WAX CHROME POLISH | 6 OZ. | ||
EXXON MOBIL CORP.
|
MOBILUX EP 1 (ARO GREASE #33153) | 6 OZ. |
| Texas Industrial Lease — American Locker Group, Inc. | 33 | |||
| 2701 Regent, Suite 200, DFW Airport, Texas |
| MANUFACTURER | DESCRIPTION | QTY PER YEAR | ||
AMREP INC.
|
XXXXX BARRIER CREAM | 18 OZ. | ||
LPS LABORATORIES
|
LPS BELT DRESSING | 12 OZ. | ||
XXXXXXX & XXXXXX
|
CASCADE AUTOMATIC DISHWASHING DETERGENT | 150 OZ. | ||
X. X. XXXXXX CO.
|
DRAWSOL WM 4470 | 1 GAL. |
| Texas Industrial Lease — American Locker Group, Inc. | 34 | |||
| 2701 Regent, Suite 200, DFW Airport, Texas |
