EXHIBIT 10.72
GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
COMMERCIAL LEASE AGREEMENT
TABLE OF CONTENTS
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Article Page
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1. Defined Terms.................................................. 1
2. Lease and Lease Term........................................... 2
3. Rent and Security Deposit...................................... 2
4. Taxes.......................................................... 2
5. Insurance and Indemnity........................................ 2
6. Use of Demised Premises........................................ 3
7. Property Condition: Maintenance, Repairs and Alterations....... 4
8. Damage or Destruction.......................................... 4
9. Condemnation................................................... 5
10. Assignment and Subletting...................................... 5
11. Default and Remedies........................................... 5
12. Landlord's Contractual Lien.................................... 6
13. Protection of Lenders.......................................... 6
14. Professional Service Fees...................................... 7
15. Environmental Representations and Indemnity.................... 7
16. Miscellaneous.................................................. 8
17. Additional Provisions.......................................... 8
An Exhibit or Exhibits may be attached to this Lease which shall be made a part
of this Lease for all purposes [check all boxes which apply]:
EXHIBITS TO LEASE
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[X] Exhibit A Floor Plan/Site Plan [_] Exhibit E Guarantee
[X] Exhibit B Legal Description of Property [X] Exhibit F Expense Reimbursement
[X] Exhibit C Renewal Options [_] Exhibit G Percentage Rental/Gross Sales Reports
[ ] Exhibit D Right of First Refusal for [X] Exhibit H Construction of Improvements
Additional Space [X] Exhibit I Addendum Number One To Lease
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ARTICLE ONE: DEFINED TERMS
As used in this Lease, the following terms set forth in this Article One shall
have the respective meanings set forth hereinbelow:
1.01. DATE OF LEASE: December 3, 1996.
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1.02. LANDLORD: Primera Coppell Properties I, Ltd., a Texas limited
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partnership
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Address of Landlord: 2001 Bryan Street, Suite 3810, Dallas, Texas 75201
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Telephone: 214/855-6620
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1.03. TENANT: Custom Chrome, Inc.
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Address of Tenant: 16100 Jacqueline Court, Morgan Hill, California 95037
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Telephone: 408/778-0500
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1.04. PREMISES:
A. Street address (including county): 1111 Executive Drive, Coppell,
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Dallas County, Texas
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B. Floor or site plan: Being a floor area of approximately 60,000 square
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feet and being approximately 250 by 240 feet (measured to the
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exterior of outside walls and to the center of the interior walls,
and being more particularly shown in outline on the floor/site plan
attached hereto as Exhibit A. (The aforementioned street address and
the floor or site plan shall collectively be referred to herein as
the "Demised Premises".)
C. Legal description: The legal description of the property on which the
floor/site plan is situated is more particularly described in Exhibit
B attached hereto (the "Property").
1.05. LEASE TERM: 5 years and 0 months beginning on the 1st day
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of January, 1997, and ending on the 31st day of
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December, 2001.
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1.06. BASE RENT: $960,000.00* total Base Rent for the Lease Term payable
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in monthly installments of $16,000.00* per month in advance.
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1.07. SECURITY DEPOSIT: $ one month's Base Rent
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1.08. PERMITTED USE: [See Section 6.01] Warehouse, light manufacturing,
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distribution and such other commercial uses relating to Tenant's business
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or operations which comply with the applicable requirements.
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1.09. PRINCIPAL BROKER: [If none, so state] Colliers Baldwin Realtors
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Address: 9400 N. Central Expressway Suite 250, Dallas, Texas 75231
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1.10. COOPERATING BROKER: [If none, so state]: Foster & Rudd
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Address: 12900 Preston, Suite 550, Dallas, Texas 75230
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1.11. PROFESSIONAL SERVICE FEES: [See Article 14]
A. Payments due to the Principal and Cooperating Brokers shall be
calculated and paid in accordance with Paragraph []A or [] B of
Section 14.01.
[Check applicable paragraph] s ** 4.50% to Principal Broker
2.25% to Cooperating Broker
B. The percentage applicable for leases in Sections 14.01 shall be
** percent ( %).
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1.12. HOLDOVER RENT: [See Section 2.04] $ one hundred twenty-five percent
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(125%) of Base Rent per month in advance.
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1.13. DAILY LATE CHARGE: [See Section 3.03] Thirty Dollars ($30) per day.
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1.14. ACCEPTANCE: [See Section 16.13] The number of days for acceptance of
this offer to lease shall be 7 days.
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* Subject to adjustment per Exhibit H, paragraph 6.
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ARTICLE TWO: LEASE AND LEASE TERM
2.01. LEASE OF DEMISED PREMISES FOR LEASE TERM. Landlord leases the Demised
Premises to Tenant and Tenant leases the Demised Premises from Landlord for the
Lease Term stated in Section 1.05. As used herein, the "Commencement Date"
shall be the date specified in Section 1.05 for the beginning of the Lease Term,
unless advanced or delayed under any provision of this Lease.
2.02. DELAY IN COMMENCEMENT. Landlord shall not be liable to Tenant if
Landlord does not deliver possession of the Demised Premises to Tenant on the
first date specified in Section 1.05 above. Landlord's nondelivery of possession
of the Demised Premises to Tenant on that date shall not affect this Lease or
the obligations of Tenant under this Lease. However, the Commencement Date shall
be delayed until possession of the Demised Premises is delivered to Tenant. The
Lease Term shall be extended for a period equal to the delay in delivery of
possession of the Demised Premises to Tenant, plus the number of days necessary
for the Lease Term to expire on the last day of a month. If Landlord does not
deliver possession of the Demised Premises to Tenant within thirty (30) days
after the first date specified in Section 1.05 above, Tenant may elect to cancel
this Lease by giving written notice to Landlord within ten (10) days after the
thirty (30) day period ends. If Tenant gives such notice, the Lease shall be
canceled effective as of the date of its execution, and no party hereto shall
have any obligations, one to the other. If delivery of possession of the Demised
Premises to Tenant is delayed, Landlord and Tenant shall, upon such delivery,
execute an amendment to this Lease setting forth the Commencement Date and
expiration date of the Lease Term.
2.03. EARLY OCCUPANCY. If Tenant occupies the Demised Premises prior to the
Commencement Date, Tenant's occupancy of the Demised Premises shall be subject
to all of the provisions of this Lease. Early occupancy of the Demised Premises
shall not advance the expiration date of the Lease Term. Unless provided
otherwise herein, Tenant shall pay Base Rent and all other charges specified in
this Lease for the period of occupancy. (See Addendum, (S)1)
2.04. HOLDING OVER. Tenant shall vacate the Demised Premises upon the
expiration of the Lease Term or earlier termination of this Lease. Tenant shall
reimburse Landlord for and indemnify Landlord against all damages incurred by
Landlord as a result of any delay by Tenant in vacating the Demised Premises.
If Tenant does not vacate the Demised Premises upon the expiration of the Lease
Term or earlier termination of the Lease, Tenant's occupancy of the Demised
Premises shall be a "month to month" tenancy, subject to all of the terms of
this Lease applicable to a month to month tenancy, except that the Base Rent per
month then in effect shall be the amount designated in Section 1.12.
ARTICLE THREE: RENT AND SECURITY DEPOSIT
3.01. MANNER OF PAYMENT. All sums payable hereunder by Tenant (the "Rent")
shall be made to the Landlord at the address designated in Section 1.02 or to
such other party or address as Landlord may designate in writing to Tenant. Any
and all payments made to a designated third party for the account of the
Landlord shall be deemed made to Landlord when received by said designated third
party. All sums payable by Tenant hereunder, whether or not expressly
denominated as rent, shall constitute rent for the purposes of Section 502(b)(6)
of the Bankruptcy Code and for all other purposes. The Base Rent is the minimum
rent for the Demised Premises and is subject to the terms and conditions
contained in this Lease together with the Exhibits attached hereto, if any.
3.02. TIME OF PAYMENT. Upon execution hereof, Tenant shall pay the
installment of rent for the first month of the Lease Term. On or before the
first day of the second month of the Lease Term and of each month thereafter,
the installment of rent and other sums due hereunder shall be due and payable,
in advance, without off-set, deduction or prior demand. If the Lease Term
commences or ends on a day other than the first or last day of a calendar month,
the rent for any fractional calendar month following the Commencement Date or
preceding the end of the Lease Term shall be prorated by days.
3.03. LATE CHARGES. Tenant's failure to pay sums due hereunder promptly may
cause Landlord to incur unanticipated costs. The exact amount of such costs are
impractical or extremely difficult to ascertain. Such costs may include, but are
not limited to, processing and accounting charges and late charges which may be
imposed on Landlord by any ground lease, deed of trust or mortgage encumbering
the Demised Premises. Therefore, if any sum due hereunder is not received when
due, Tenant shall pay the Landlord a late charge equal to the Daily Late Charge
for each day after the due date until such delinquent sum is received. The
parties agree that such late charge represents a fair and reasonable estimate of
the costs Landlord will incur by reason of such late payment or such dishonored
check.
3.04. SECURITY DEPOSIT. Upon execution hereof, Tenant shall deposit with
Landlord a cash Security Deposit in the sum stated in Section 1.07. Landlord may
apply all or part of the Security Deposit to any unpaid rent or other charges
due from Tenant or to cure any other defaults of Tenant. If Landlord uses any
part of the Security Deposit, Tenant shall restore the Security Deposit to its
full amount within ten (10) business days after Landlord's written demand.
Tenant's failure to restore the full amount of the Security Deposit within the
time specified shall be a default under this Lease. No interest shall be paid
on the Security Deposit. Landlord shall not be required to keep the Security
Deposit separate from its other accounts and no trust relationship is created
with respect to the Security Deposit. Upon any termination of this Lease not
resulting from Tenant's default, and after Tenant has vacated the Demised
Premises in the manner required by this Lease, Landlord shall refund the unused
portion of the Security Deposit to Tenant within ten (10) business days.
3.05. GOOD FUNDS PAYMENTS. If, for any reason whatsoever, any two or more
payments by check from Tenant to Landlord for Rent are dishonored and 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 of
the Lease shall be made by cash, cashier's check, or money order and that the
delivery of Tenant's personal or corporate check will no longer constitute
payment of Rent as provided in this Lease. Any acceptance by Landlord of a
payment for Rent by Tenant's personal or corporate check thereafter shall not be
construed as a waiver of Landlord's right to insist upon payment by good funds
as set forth in this Section 3.05.
ARTICLE FOUR: TAXES
4.01. PAYMENT BY LANDLORD. Landlord shall pay the real estate taxes on the
Demised Premises during the Lease Term.
4.02. IMPROVEMENTS BY TENANT. In the event the real estate taxes levied
against the Demised Premises for the real estate tax year in which the Lease
Term commences are increased in the current tax year or subsequent tax years 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 the
amount of such increase and continue to pay such increase during the term of
this Lease. Landlord shall use reasonable efforts to obtain from the tax
assessor or assessors a written statement of the total amount of such increase.
4.03. JOINT ASSESSMENT. If the real estate taxes are assessed against the
Demised Premises jointly with other property not constituting a part of the
Demised Premises, the real estate taxes for such years shall be equal to the
amount bearing the same proportion to the aggregate assessment that the total
square feet of building area in the Demised Premises bears to the total square
feet of building area included in the joint assessment.
4.04. PERSONAL PROPERTY TAXES. Tenant shall pay all taxes assessed against
trade fixtures, furnishings, equipment, or any other personal property belonging
to Tenant. Tenant shall use reasonable efforts to have its personal property
taxed separately from the Demised Premises, but if any of Tenant's personal
property is taxed with the Demised Premises, Tenant shall pay the taxes for the
personal property within fifteen (15) days after Tenant receives a written
statement for such personal property taxes.
ARTICLE FIVE: INSURANCE AND INDEMNITY
5.01. CASUALTY INSURANCE. During the Lease Term, Landlord shall maintain
policies of insurance covering loss of or damage to the Demised Premises in an
amount equal to the full replacement value of the Demised Premises. Such
policies shall provide protection against all perils included within the
classification of fire and extended coverage and any other perils which Landlord
deems necessary. Landlord may obtain insurance coverage for Tenant's fixtures,
equipment or building improvements installed by Tenant in or on the Demised
Premises. Tenant shall, at Tenant's expense, maintain such primary or additional
insurance on its fixtures, equipment and building improvements as Tenant deems
necessary to protect its interest. Tenant shall not do or permit to be done
anything which invalidates any such insurance policies.
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Any casualty insurance which may be carried by Landlord or Tenant shall be for
the sole benefit of the party carrying such insurance and under its sole
control.
5.02. INCREASE IN PREMIUMS. Tenant shall not permit any operation or
activity to be conducted or storage or use of any volatile or any other
materials on or about the Demised Premises that would cause suspension or
cancellation of any fire and extended coverage insurance policy carried by
Landlord, or increase the premiums therefor, without the prior written consent
of Landlord. If Tenant's use and occupancy of the Demised Premises causes an
increase in the premiums for any fire and extended coverage insurance policy
carried by Landlord as of the day immediately prior to Tenant's possession of
the Demised Premises under this Lease, Tenant shall pay, as additional rental,
the amount of such increase to Landlord upon demand and presentation of written
evidence of the increase by Landlord.
5.03. LIABILITY INSURANCE. During the Lease Term, Tenant shall maintain a
policy of comprehensive public liability insurance, at Tenant's expense,
insuring Landlord against liability arising out of the ownership, use,
occupancy, or maintenance of the Demised Premises. The initial amount of such
insurance shall be at least $1,000,000 combined single-limit bodily injury and
property damage, for each occurrence, and shall be subject to periodic increases
based upon such economic factors as Landlord shall determine, in Landlord's
discretion, exercised in good faith. However, the amount of such insurance
shall not limit Tenant's liability nor relieve Tenant of any obligation
hereunder. The policy shall contain cross-liability endorsements, if
applicable, and shall insure Tenant's performance of the indemnity provisions of
Section 5.04. Such policy shall contain a provision which prohibits
cancellation or modification of the policy except upon thirty (30) days' prior
written notice to Landlord. Tenant may discharge its obligations under this
Section by naming Landlord as an additional insured under a policy of
comprehensive liability insurance maintained by Tenant and containing the
coverage and provisions described in this Section. Tenant shall deliver a copy
of such policy or certificate (or a renewal thereof) to Landlord prior to the
Commencement Date and prior to the expiration of any such policy during the
Lease Term. If Tenant fails to maintain such policy, Landlord may elect to
maintain such insurance at Tenant's expense. Tenant shall, at Tenant's expense,
maintain such other liability insurance as Tenant deems necessary to protect
Tenant.
5.04. INDEMNITY. Landlord shall not be liable to Tenant or to Tenant's
employees, agents, invitees or visitors, or to any other person whomsoever, for
any injury to persons or damage to property on or about the Demised Premises or
any adjacent area owned by Landlord caused by the negligence or misconduct of
Tenant, its employees, subtenants, licensees or concessionaires or any other
person entering the Demised Premises under express or implied invitation of
Tenant, or arising out of the use of the Demised Premises by Tenant and the
conduct of its business therein, or arising out of any breach or default by
Tenant in the performance of its obligations hereunder; and Tenant hereby agrees
to indemnify and hold Landlord harmless from any loss, expense or claims arising
out of such damage or injury. Tenant shall not be liable for any injury or
damage caused by the negligence or misconduct of Landlord, or its employees or
agents, and Landlord agrees to indemnify and hold Tenant harmless from any loss,
expense or damage arising out of such damage or injury.
5.06. WAIVER OF SUBROGATION. Each party hereto waives any and every claim
which arises or may arise in its favor against the other party hereto during the
term of this Lease or any renewal or extension thereof for any and all loss of,
or damage to, any of its property located within or upon, or constituting a part
of, the Demised Premises, which loss or damage is covered by valid and
collectible fire and extended coverage insurance policies, to the extent that
such loss or damage is recoverable under such insurance policies. Such mutual
waivers shall be in addition to, and not in limitation or derogation of, any
other waiver or release contained in this Lease with respect to any loss of, or
damage to, property of the parties hereto. Inasmuch as such mutual waivers will
preclude the assignment of any aforesaid claim by way of subrogation or
otherwise to an insurance company (or any other person), each party hereby
agrees immediately to give to each insurance company which has issued to such
party policies of fire and extended coverage insurance, written notice of the
terms of such mutual waivers, and to cause such insurance policies to be
properly endorsed, if necessary, to prevent the invalidation of such insurance
coverages by reason of such waivers.
ARTICLE SIX: USE OF DEMISED PREMISES
6.01. PERMITTED USE. Tenant may use the Demised Premises only for the
permitted use stated in Section 1.08. Tenant acknowledges that Tenant has or
will independently investigate and verify to Tenant's satisfaction the extent of
any or nonconforming uses of the Demised Premises. Tenant further acknowledges
that Tenant is not relying upon any warranties or representations of Landlord or
the Brokers who are participating in the negotiation of this Lease concerning
the permitted uses of the Demised Premises or with respect to any nonconforming
uses of the improvements located on the Demised Premises.
6.02. COMPLIANCE WITH LAW. Tenant shall comply with all governmental laws,
ordinances and regulations applicable to the use of the Demised Premises, and
shall promptly comply with all governmental orders and directives for the
correction, prevention and abatement of nuisances and other activities in or
upon, or connected with the Demised Premises, all at Tenant's sole expense. (See
Addendum, (S)2)
6.03. CERTIFICATE OF OCCUPANCY. Tenant may, prior to the commencement of the
term of this Lease, apply for a Certificate of Occupancy from the municipality
in which the Demised Premises are located and Landlord shall cooperate with
Tenant in obtaining such Certificate of Occupancy. If Tenant is unable to obtain
a Certificate of Occupancy prior to the Commencement Date, Tenant shall have the
right to terminate this Lease by written notice to Landlord if Landlord or
Tenant is unwilling or unable to cure the defects which prevented the issuance
of the Certificate of Occupancy. Landlord shall, cure any such defects
preventing the issuance of a Certificate of Occupancy, including any repairs,
installations, or replacements of any items which are not presently existing on
the Demised Premises, or which have not been expressly agreed upon by Landlord
in writing.
6.04. SIGNS. Without the prior written consent of Landlord, Tenant shall
not place or affix any signs or other objects upon or to the Demised Premises,
including but not limited to the roof or exterior walls of the building or other
improvements thereon, or paint or otherwise deface said exterior walls. Any
signs installed by Tenant shall conform with applicable laws and deed and other
restrictions. Tenant shall remove all signs at the termination of this Lease
and shall repair any damage and close any holes caused or revealed by such
removal.
6.05. UTILITY SERVICES. Tenant shall pay the cost of all utility services,
including but not limited to initial connection charges, all charges for gas,
water, sewerage, storm water disposal, communications and electricity used on
the Demised Premises, and for all electric lights, lamps and tubes.
6.06. LANDLORD'S ACCESS. Landlord and its authorized agents shall have the
right, during normal business hours, upon written notice to Tenant at least
twenty-four (24) hours in advance to enter the Demised Premises (a) to inspect
the general condition and state of repair thereof, (b) to make repairs required
or permitted under this Lease, (c) to show the Demised Premises or the Property
to any prospective tenant or purchaser, or (d) for any other reasonable purpose.
During the final one hundred fifty (150) days of the Lease Term, Landlord and
its authorized agents shall have the right to erect and maintain on or about the
Demised Premises customary signs advertising the Demised Premises for lease or
for sale. (See Addendum, (S)3)
(during the last one hundred fifty (150) days of the Lease Term only)
6.07. QUIET POSSESSION. If Tenant pays the rent and complies with all other
terms of this Lease, Tenant may occupy and enjoy the Demised Premises for the
full Lease Term, subject to the provisions of this Lease.
6.08. EXEMPTIONS FROM LIABILITY. Landlord shall not be liable for any
damage or injury to the person, business (or any loss of income therefrom),
goods, wares, merchandise or other property of Tenant, Tenant's employees,
invitees, customers or any other person in or about the
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Demised Premises, whether such damage or injury is caused by or results from:
(a) fire, steam, electricity, water, gas or rain; (b) the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures or any other cause; (c) conditions arising
on or about the Demised Premises or upon other portions of any building of which
the Demised Premises is a part, or from other sources or places; or (d) any act
or omission of any other tenant of any building of which the Demised Premises is
a part. Landlord shall not be liable for any such damage or injury even though
the cause of or the means of repairing such damage or injury are not accessible
to Tenant. The provisions of this Section 6.08 shall not, however, exempt
Landlord from liability for Landlord's gross negligence or willful misconduct.
ARTICLE SEVEN: PROPERTY CONDITION, MAINTENANCE, REPAIRS AND ALTERATIONS
7.01. PROPERTY CONDITION. Except as disclosed in writing by Landlord to
Tenant contemporaneously with the execution hereof (the "Disclosure Notice"), to
the best of Landlord's knowledge the Demised Premises has no known latent
structural defects, construction defects of a material nature, and to the best
of Landlord's knowledge none of the improvements has been constructed with
materials known to be a potential health hazard to occupants of the Demised
Premises. Tenant acknowledges that neither the Principal Broker nor any
cooperating Broker has made any warranty or representation to Tenant with
respect to the condition of the Demised Premises, and that Tenant is relying
exclusively upon the representations, if any, of Landlord with respect to the
condition of the Demised Premises. Landlord agrees to hold said Brokers
harmless of and from any and all damages, claims, costs and expenses of every
kind and character resulting from or related to Landlord's furnishing to said
Brokers any false, incorrect or inaccurate information with respect to the
Demised Premises of Landlord's concealing any material information with respect
to the condition of the Demised Premises. Other than as expressly set forth in
this Lease, Landlord represents that on the Commencement Date, the plumbing,
electrical and lighting system, exterior doors, any fire protection sprinkler
system, heating system, air conditioning equipment, dock levelers and elevators
in the Demised Premises are in good operating condition.
7.02. ACCEPTANCE OF DEMISED PREMISES. Tenant acknowledges that a full and
complete inspection of the Demised Premises and adjacent common areas has been
made. Tenant specifically acknowledges that as a result of such inspection and
disclosure, Tenant has taken possession of the Demised Premises and has made its
own determination to fully accept same in its as-is condition., except for
improvements as expressly provided for herein.
7.03. OBLIGATION TO REPAIR. Except as otherwise provided herein, Landlord
shall be under no obligation to perform any repair, maintenance or management
service in the Demised Premises or adjacent common areas. Tenant shall be fully
responsible, at its expense, for all repair, maintenance and management services
other than those which are expressly assumed by Landlord.
A. LANDLORD'S OBLIGATION TO REPAIR.
(1) Subject to the provisions of Article Eight (Damage or Destruction)
and Article Nine (Condemnation) and except for damage caused by any act or
omission of Tenant, together with foundation and structural supports,
exterior and load bearing walls, Landlord shall keep the foundation, roof
and the structural portions of exterior walls of the improvements of the
Demised Premises in good order, condition and repair. Landlord shall not
be obligated to maintain or repair windows, doors, plate glass or the
surfaces of walls. In addition, Landlord shall not be obligated to make
any repairs under this Section until a reasonable time after receipt of
written notice from Tenant of the need of such repairs. If any repairs are
required to be made by Landlord, Tenant shall, at Tenant's sole cost and
expense, promptly remove Tenant's fixtures, inventory, equipment and other
property, to the extent required to enable Landlord to make such repairs.
Landlord's liability hereunder shall be limited to the cost of such repairs
or corrections. Tenant waives the benefit of any present or future law
which might give Tenant the right to repair the Demised Premises at
Landlord's expense or to terminate the Lease because of the condition.
B. TENANT'S OBLIGATION TO REPAIR. Subject to the provisions of the last
sentence of Section 7.01, the preceding Section 7.03.A, Article Eight (Damage
or Destruction) and Article Nine (Condemnation), Tenant shall, at all times,
keep all other portions of the Demised Premises in good order, condition and
repair, including but not limited to repairs (including all necessary minor
replacements) of the windows, plate glass, doors, heating system, air
conditioning equipment, electrical and lighting system, fire protection
sprinkler system, dock levelers, elevators, interior and exterior plumbing and
the interior of the building in general. In addition, Tenant shall, at
Tenant's expense, repair any damage to any portion of the Property, including
the roof, foundation, or structural portions of exterior walls of the Demised
Premises, caused by Tenant's acts or omissions, subject to the waiver of
subrogation in Section 5.06. If Tenant fails to maintain and repair the
Property within the applicable notice and cure periods of this Lease, Landlord
may, on ten (10) days' prior written notice, enter the Demised Premises and
perform such maintenance or repair on behalf of Tenant, except that no notice
shall be required in case of emergency, and Tenant shall reimburse Landlord
for all costs incurred in performing such maintenance or repair immediately
upon demand. (See Addendum, (S)4)
7.04. ALTERATIONS, ADDITIONS AND IMPROVEMENTS. Tenant shall not create any
openings in the roof or exterior walls, or make any alterations, additions or
improvements to the Demised Premises without the prior written consent of
Landlord. Consent for nonstructural alterations, additions or improvements
shall not be unreasonably withheld by Landlord. Tenant shall have the right to
erect or install shelves, bins, machinery, air conditioning or heating equipment
and trade fixtures, provided that Tenant complies with all applicable
governmental laws, ordinances, codes, and regulations. At the expiration or
termination of this Lease, Tenant shall, subject to the restrictions of Section
7.05 below, have the right to remove such items so installed by it, provided
Tenant is not in default at the time of such removal and provided further that
Tenant shall, at the time of removal of such items, repair in a good and
workmanlike manner any damage caused by installation or removal thereof. Tenant
shall pay for all costs incurred or arising out of alterations, additions or
improvements in or to the Demised Premises and shall not permit a mechanic's or
materialman's lien to be filed against the Demised Premises. Upon request by
Landlord, Tenant shall deliver to Landlord proof of payment reasonably
satisfactory to Landlord of all costs incurred or arising out of any such
alterations, additions or improvements. (See Addendum, (S)5)
7.05. CONDITION UPON TERMINATION. Upon the termination of the Lease, Tenant
shall surrender the Demised Premises to Landlord, broom clean and in the same
condition as received except for ordinary wear and tear which Tenant was not
otherwise obligated to remedy under any provision of the Lease, except for
casualty losses beyond the control of Tenant. Tenant shall not be obligated to
repair any damage which Landlord is required to repair under Article Eight
(Damage or Destruction). In addition, Landlord may require Tenant to remove any
alterations, additions or improvements (whether or not made with Landlord's
consent) prior to the termination of the Lease and to restore the Demised
Premises to its prior condition, all at Tenant's expense. All alterations,
additions and improvements which Landlord has not required Tenant to remove
shall become Landlord's property and shall be surrendered to Landlord upon the
termination of the Lease. In no event, however, shall Tenant remove any of the
following materials or equipment without Landlord's prior written consent: any
power wiring or power panels; lighting or lighting fixtures; wall coverings;
drapes, blinds or other window coverings; carpets or other floor coverings;
heaters, air conditioners or any other heating or air conditioning equipment;
fencing or security gates; or other similar building operating equipment and
decorations. (See Addendum, (S)5)
ARTICLE EIGHT: DAMAGE OR DESTRUCTION
8.01. NOTICE. If the building or other improvements situated on the Demised
Premises should be damaged or destroyed by fire, tornado or other casualty,
Tenant shall immediately give written notice thereof to Landlord. upon learning
thereof.
8.02. PARTIAL DAMAGE. If the building or other improvements situated on the
Demised Premises are damaged by fire, tornado, or other casualty but not to such
an extent that rebuilding or repairs cannot reasonably be completed within one
hundred twenty (120) days from the date Landlord receives written notification
by Tenant of the happening of the damage, this Lease shall not terminate, but
Landlord shall, at its sole cost and risk, proceed forthwith and use reasonable
diligence to rebuild or repair such building and other improvements on the
Demised Premises (other than leasehold improvements made by Tenant or any
assignee, subtenant or other occupant of the Demised Premises) to substantially
the condition in which they existed prior to such damage; provided, however, if
the casualty occurs during the final eighteen (18) months of the Lease Term,
Landlord shall not be required to rebuild or repair such damage unless Tenant
shall exercise its renewal option (if any is contained herein) within fifteen
(15) days after the date of receipt by Landlord of the notification of the
occurrence of the damage. If Tenant does not elect to exercise its renewal
option or if there is no renewal option contained herein or previously
unexercised at such time, this Lease shall terminate at the option of Landlord
and the Rent shall be abated for the unexpired portion of this Lease, effective
from the date of actual receipt by Landlord of the written notification of the
damage. If the building and other improvements are to be rebuilt or repaired and
are untenantable in whole or in part following such damage, the monthly
installments of Rent payable hereunder during the period in which they are
untenantable shall be adjusted equitably.
Page 4
8.03. SUBSTANTIAL OR TOTAL DESTRUCTION. If the building or other
improvements situated on the Demised Premises are substantially or totally
destroyed by fire, tornado, or other casualty, or so damaged that rebuilding or
repairs cannot reasonably be completed within one hundred twenty (120) days from
the date Landlord receives written notification by Tenant of the happening of
the damage, this Lease shall terminate at the option of either Landlord or
Tenant and monthly installments of Rent shall be abated for the unexpired
portion of this Lease, effective from the date of receipt by Landlord or Tenant
of such written notification. If this Lease is not terminated, the building and
the improvements shall be rebuilt or repaired and monthly installments of Rent
abated to the extent provided under Section 8.02.
ARTICLE NINE: CONDEMNATION
If, during the term of this Lease or any extension or renewal thereof, all or
a substantial part of the Demised Premises are taken for any public or quasi-
public use under any governmental law, ordinance or regulation or by right of
eminent domain, or are sold to the condemning authority under threat of
condemnation, this Lease shall terminate and the monthly installments of Rent
shall be abated during the unexpired portion of this Lease, effective from the
date of taking of the Demised Premises by the condemning authority. If less
than a substantial part of the Demised Premises is taken for public or quasi-
public use under any governmental law, ordinance or regulation, or by right of
eminent domain, or is sold to the condemning authority under threat of
condemnation, Landlord, at its option, may by written notice terminate this
Lease or shall forthwith at its sole expense restore and reconstruct the
buildings and improvements (other than leasehold improvements made by Tenant or
any assignee, subtenant or other occupant of the Demised Premises) situated on
the Demised Premises in order to make the same reasonably tenantable and
suitable for the use for which the Demised Premises is leased as defined in
Section 6.01. The monthly installments of Base Rent payable hereunder during
the unexpired portion of this Lease shall be adjusted equitably. Landlord and
Tenant shall each be entitled to receive and retain such separate awards and
portions of lump sum awards as may be allocated to their respective interests in
any condemnation proceedings. The termination of this Lease shall not affect
the rights of the respective parties to such awards.
ARTICLE TEN: ASSIGNMENT AND SUBLETTING
Tenant shall not, without the prior written consent of Landlord which consent
shall not be unreasonably withheld or delayed, assign this Lease or sublet the
Demised Premises or any portion thereof. Any assignment or subletting shall be
expressly subject to all terms and provisions of this Lease, including the
provisions of Section 6.01 pertaining to the use of the Demised Premises. In
the event of any assignment or subletting, Tenant shall remain fully liable for
the full performance of all Tenant's obligations under this Lease. Tenant shall
not assign its rights hereunder or sublet the Demised Premises without first
obtaining a written agreement from the assignee or sublessee whereby the
assignee or sublessee agrees to assume the obligations of Tenant hereunder and
to be bound by the terms of this Lease. No such assignment or subletting shall
constitute a novation. In the event of the occurrence of an event of default
while the Demised Premises is assigned or sublet, Landlord, in addition to any
other remedies provided herein or by law, may at Landlord's option, collect
directly from such assignee or subtenant all rents becoming due under such
assignment or subletting and apply such rent against any sums due to Landlord
hereunder. No direct collection by Landlord from any such assignee or subtenant
shall release Tenant from the performance of its obligations hereunder.
ARTICLE ELEVEN: DEFAULT AND REMEDIES
11.01. DEFAULT. Each of the following events shall be an event of default
under this Lease:
A. Failure of Tenant to pay any installment of the Rent or other sum
payable to Landlord hereunder on the date that same is due and such failure
shall continue for a period of ten (10) days;
B. Failure of Tenant to comply with any term, condition or covenant of
this Lease, other than the payment of Base Rent or other sum of money, and
such failure shall not be cured within thirty (30) days after written notice
thereof to Tenant; (See Addendum, (S)6)
C. Tenant or any guarantor of Tenant's obligations hereunder shall make a
general assignment for the benefit of creditors;
D. Tenant or any guarantor of Tenant's obligations hereunder shall
commence any case, proceeding or other action seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it or its
debts under any law relating to bankruptcy, insolvency, reorganization or
relief of debtors, or seeking appointment of a receiver, trustee, custodian or
other similar official for it or for all or any substantial part of its
property;
E. Any case, proceeding or other action against Tenant or any guarantor of
Tenant's obligations hereunder shall be commenced seeking to have an order for
relief entered against it as debtor, or seeking reorganization, arrangement,
adjustment, liquidation, dissolution or composition of it or its debts under
any law relating to bankruptcy, insolvency, reorganization or relief of
debtors, or seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its property,
and Tenant (i) fails to obtain a dismissal of such case, proceeding, or other
action within sixty (60) days of its commencement; or (ii) converts the case
from one chapter of the Federal Bankruptcy Code to another chapter; or (iii)
is the subject of an order of relief which is not fully stayed within seven
(7) business days after the entry thereof; and
F. Abandonment by Tenant of any substantial portion of the Demised
Premises or cessation of the use of the Demised Premises for the purpose
leased. for a period of ninety (90) consecutive days or more.
11.02. REMEDIES. Upon the occurrence of any of the events of default listed
in Section 11.01, Landlord shall have the option to pursue any one or more of
the following remedies without any prior notice or demand whatsoever:
A. Terminate this Lease, in which event Tenant shall immediately surrender
the Demised Premises to Landlord. If Tenant fails to so surrender the Demised
Premises, Landlord may, without prejudice to any other remedy which it may
have for possession of the Demised Premises or arrearages in Rent, enter upon
and take possession of the Demised Premises and expel or remove Tenant and any
other person who may be occupying the Demised Premises or any part thereof, by
force if necessary, without being liable for prosecution or any claim for
damages therefor. Tenant shall pay to Landlord on demand the amount of all
loss and damage which Landlord may suffer by reason of such termination,
whether through inability to relet the Demised Premises on satisfactory terms
or otherwise.
B. Enter upon and take possession of the Demised Premises, by force if
necessary, without terminating this Lease and without being liable for
prosecution or for any claim for damages therefor, and expel or remove Tenant
and any other person who may be occupying the Demised Premises or any part
thereof. Landlord may relet the Demised Premises and receive the rent
therefor. Tenant agrees to pay to Landlord monthly or on demand from time to
time any deficiency that may arise by reason of any such reletting. In
determining the amount of such deficiency, the professional service fees,
attorneys' fees, remodeling expenses and other costs of reletting shall be
subtracted from the amount of rent received under such reletting.
C. Enter upon the Demised Premises, by force if necessary, without
terminating this Lease and without being liable for prosecution or for any
claim for damages therefor, and do whatever Tenant is obligated to do under
the terms of this Lease. Tenant agrees to pay Landlord on demand for expenses
which Landlord may incur in thus effecting compliance with Tenant's
obligations under this Lease, together with interest thereon at the rate of
twelve percent (12%) per annum from the date expended until paid. Landlord
shall not be liable for any damages resulting to Tenant from such action,
whether caused by negligence of Landlord or otherwise.
D. In addition to the foregoing remedies, Landlord shall have the right to
change or modify the locks on the Demised Premises in the event Tenant fails
to pay the monthly installment of Rent when due. Landlord shall not be
obligated to provide another key to Tenant or allow Tenant to regain entry to
the Demised Premises unless and until Tenant pays Landlord all Rent which is
delinquent. Tenant agrees that Landlord shall not be liable for any damages
resulting to the Tenant from the lockout. At such time that Landlord changes
or modified the lock, Landlord shall post a "Notice of Change of Locks" on the
front of the Demised Premises. Such Notice shall state the following:
(1) That Tenant's monthly installment of Rent is delinquent, and
therefore, under authority of Section 11.02D of Tenant's Lease, the
Landlord has exercised its contractual right to change or modify Tenant's
door lock;
(2) That the Notice has been posted on the Tenant's front door by a
representative of Landlord and that Tenant should make arrangements to pay
the delinquent installment of Rent when Tenant picks up the key; and
Page 5
(3) That the failure of the Tenant to comply with the provisions of the
Lease and the Notice and/or tampering with or changing the door lock(s) by
Tenant may subject the Tenant to legal liability.
E. No re-entry or taking possession of the Demised Premises by Landlord
shall be construed as an election to terminate this Lease, unless a written
notice of such intention is given to Tenant. Notwithstanding any such
reletting or re-entry or taking possession, Landlord may, at any time
thereafter, elect to terminate this Lease for a previous default. Pursuit of
any of the foregoing remedies shall not preclude pursuit of any of the other
remedies provided by law, nor shall pursuit of any remedy herein provided
constitute a forfeiture or waiver of any monthly installment of Rent due to
Landlord hereunder or of any damages accruing to Landlord by reason of the
violation of any of the terms, provisions and covenants herein contained.
Forbearance by Landlord to enforce one or more of the remedies herein provided
upon an event of default shall not be deemed or construed to constitute a
waiver of any other violation or default. The loss or damage that Landlord
may suffer by reason of termination of this Lease or the deficiency from any
reletting as provided for above shall include the expense of repossession and
any repairs or remodeling undertaken by Landlord following possession. Should
Landlord terminate this Lease at any time for any default, in addition to any
other remedy Landlord may have, Landlord may recover from Tenant all damages
Landlord may incur by reason of such default, including the cost of recovering
the Demised Premises and the cost of the rental then remaining unpaid.
11.03. NOTICE OF DEFAULT. Tenant shall give written notice of any failure by
Landlord to perform any of its obligations under this Lease to Landlord and to
any ground lessor, mortgagee or beneficiary under any deed of trust encumbering
the Demised Premises whose name and address have been furnished to Tenant in
writing. Landlord shall not be in default under this Lease unless Landlord (or
such ground lessor, mortgagee or beneficiary) fails to cure such nonperformance
within thirty (30) days after receipt of Tenant's notice. However, if such
nonperformance reasonably requires more than thirty (30) days to cure, Landlord
shall not be in default if such cure is commenced within such 30-day period and
thereafter diligently pursued to completion.
11.04. LIMITATION OF LANDLORD'S LIABILITY. As used in this Lease, the term
"Landlord" means only the current owner or owners of the fee title to the
Demised Premises or the leasehold estate under a ground lease of the Demised
Premises at the time in question. Each Landlord is obligated to perform the
obligations of Landlord under this Lease only during the time such Landlord owns
such interest or title. Any Landlord who transfers its title or interest is
relieved of all liability with respect to the obligations of Landlord under this
Lease accruing on or after the date of transfer. However, each Landlord shall
deliver to its transferee the Security Deposit held by Landlord if such Security
Deposit has not then been applied under the terms of this Lease.
ARTICLE THIRTEEN: PROTECTION OF LENDERS
13.01. SUBORDINATION. Landlord shall have the right to subordinate this
Lease to any future ground Lease, deed of trust or mortgage encumbering the
Demised Premises, and advances made on the security thereof and any renewals,
modifications, consolidations, replacements or extensions thereof, whenever made
or recorded. Landlord's right to obtain such a future subordination is subject
to Landlord's providing Tenant with a written Subordination, Nondisturbance and
Attornment Agreement from any such ground lessor, beneficiary or mortgagee
wherein Tenant's right to peaceable possession of the Demised Premises during
the Lease Term shall not be disturbed if Tenant pays the Rent and performs all
of Tenant's obligations under this Lease and is not otherwise in default. If
any ground lessor, beneficiary, or mortgagee elects to have this Lease superior
to the lien of its ground lease, deed of trust or mortgage and gives written
notice thereof to Tenant, this Lease shall be deemed superior to such ground
lease, deed of trust or mortgage whether this Lease is dated prior or subsequent
to the date of said ground lease, deed of trust or mortgage or the date of
recording thereof. Tenant's rights under this Lease, unless specifically
modified at the time this Lease is executed, are subordinated to any existing
ground lease, deed of trust or mortgage encumbering the Demised Premises. (See
Addendum, (S)7)
13.02. ATTORNMENT. If Landlord's interest in the Demised Premises is
transferred voluntarily or involuntarily to any ground lessor, beneficiary under
a deed of trust, mortgagee or purchaser at a foreclosure sale, Tenant shall
attorn to the transferee of or successor to Landlord's interest in the Demised
Premises and recognize such transferee or successor as Landlord under this
Lease. Tenant waives the protection of any statute or rule of law which gives
or purports to give Tenant any right to terminate this Lease or surrender
possession of the Demised Premises upon the transfer of Landlord's interest.
13.03. SIGNING OF DOCUMENTS. Tenant shall sign and deliver any instruments
or documents necessary or appropriate to evidence any such attornment or
subordination or agreement to do so.
13.04. ESTOPPEL CERTIFICATES.
A. Upon Landlord's written request, Tenant shall execute, acknowledge and
deliver to Landlord a written statement certifying: (i) that none of the terms
or provisions of this Lease have been changed (or if they have been changed,
stating how they have been changed); (ii) that this Lease has not been
canceled or terminated; (iii) the last date of payment of the Base Rent and
other charges and the time period covered by such payment; and (iv) that, to
the best of Tenant's knowledge, Landlord is not in default under this Lease
(or, if Landlord is claimed to be in default, stating why). Tenant shall
deliver such statement to Landlord within twenty (20) days after Landlord's
request. Any such statement by Tenant may be furnished by Landlord to any
prospective purchaser or lender of the Demised Premises. Such purchaser or
lender may rely conclusively upon such statement as true and correct.
B. If Tenant does not deliver such statement to Landlord within such 20-day
period, Landlord, and any prospective purchaser or lender, may conclusively
presume and rely upon the following facts: (i) that the terms and provisions
of this Lease have not been changed except as otherwise represented by
Landlord; (ii) that this Lease has not been canceled or terminated except as
otherwise represented by Landlord; (iii) that not more than one monthly
installment of Base Rent or other charges have been paid in advance; and (iv)
that Landlord is not in default under the Lease. In such event, Tenant shall
be estopped from denying the truth of such facts.
13.05. TENANT'S FINANCIAL CONDITION. Within twenty (20) 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 such lender to facilitate the financing or refinancing of the
Demised Premises.
Page 6
All financial statements shall be confidential and shall be used only for the
purposes set forth herein.
ARTICLE FOURTEEN: PROFESSIONAL SERVICE FEES
14.01. Amount and Manner of Payment of Service Fees. Fees due to the
Principal and Cooperating Brokers shall be calculated and paid in accordance
with Article 1.11 as follows:
A. Landlord agrees to pay to the Principal Brokers a fee for negotiating
this Lease equal to the percentage stated in Section 1.11B of each monthly
Rent payment at the time such payment is due.
B. Landlord agrees to pay to the Brokers a fee for negotiating this Lease
equal to the percentage stated in Section 1.11B of the total Rent to become
due to Landlord during the term of this Lease. Said fees shall be payable to
the Brokers 50% on the date of the execution of this Lease. and 50% upon
occupancy by Tenant. (See Addendum, (S)8)
ARTICLE FIFTEEN: ENVIRONMENTAL REPRESENTATIONS AND INDEMNITY
15.01. TENANT'S COMPLIANCE WITH ENVIRONMENTAL LAWS. Tenant, at Tenant's
expense, shall comply with all laws, rules, orders, ordinances, directions,
regulations and requirements of federal, state, county and municipal authorities
pertaining to Tenant's use of the Property and with the recorded covenants,
conditions and restrictions, including, without limitation, all applicable
federal, state and local laws, regulations or ordinances pertaining to air and
water quality, Hazardous Material (as defined hereinafter), waste disposal, air
emissions and other environmental matters, all zoning and other land use
matters, and with any direction of any public officer or officers, pursuant to
law, which shall impose any duty upon Landlord or Tenant with respect to the use
or occupation of the Property. (See Addendum, (S)9)
15.02. TENANT'S INDEMNIFICATION. Tenant shall not cause or authorize any
hazardous material to be brought upon, kept or used in or about the Property by
Tenant, its agents, employees, contractors or invitees without the prior written
consent of Landlord. If Tenant breaches the obligations stated in the preceding
Section or sentence, or if the presence of Hazardous Material on the Property
caused or permitted by Tenant results in contamination of the Property or any
other property, or if contamination of the Property or any other property by
Hazardous Material otherwise occurs for which Tenant is legally liable to
Landlord for damage resulting therefrom, then Tenant shall indemnify, defend and
hold Landlord harmless from any and all claims, judgments, damages, penalties,
fines, costs, liability or losses (including, without limitation, damages for
the loss or restriction on use of rentable or unusable space or of any amenity
or appurtenance of the Property, damages arising from any adverse impact on
marketing of building space or land area, and sums paid in settlement of claims,
reasonable attorneys' fees, consultant fees and expert fees) which arise during
or after the Lease Term as a result of such contamination. This indemnification
of Landlord by Tenant includes, without limitation, costs incurred in connection
with any investigation of site conditions or any clean-up, remedial work,
removal or restoration work required by any federal, state or local government
agency or political subdivision because of Hazardous Material present in the
soil or groundwater on or under the Property. Without limiting the foregoing, if
the presence of any Hazardous Material on the Property or any other property
caused or permitted by Tenant results in any contamination of the Property,
Tenant shall promptly take all actions at its sole expense as are necessary to
return the Property to the condition existing prior to the introduction of any
such Hazardous Material to the Property, provided that Landlord's approval of
such actions shall first be obtained. The foregoing indemnity shall survive the
expiration or earlier termination of this Lease.
Page 7
15.05. DEFINITIONS. For purposes of this Article 15, the term "Hazardous
Material" shall mean any pollutant, toxic substance, hazardous waste, hazardous
material, hazardous substance, or oil as defined in or pursuant to the Resource
Conservation and Recovery Act, as amended, the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, the Federal Clean Water
Act, as amended, or any other federal, state or local environmental law,
regulation, ordinance, rule, or bylaw, whether existing as of the date hereof,
previously enforced or subsequently enacted.
15.06. SURVIVAL. The indemnities contained in this Article 15 shall survive
the expiration or earlier termination of this Lease.
ARTICLE SIXTEEN: MISCELLANEOUS
16.01. FORCES MAJEURE. In the event performance by Landlord or Tenant of any
term, condition or covenant in this Lease (except the payment of Rent) is
delayed or prevented by any Act of God, strike, lockout, shortage of material or
labor, restriction by any governmental authority, civil riot, flood, or any
other cause not within its control, the period for performance of such term,
condition or covenant shall be extended for a period equal to the period such
party is so delayed or hindered.
16.02. INTERPRETATION. The captions of the Articles or Sections of this
Lease are to assist the parties in reading this Lease and are not a part of the
terms or provisions of this Lease. Whenever required by the context of this
Lease, the singular shall include the plural and the plural shall include the
singular. For convenience, each party hereto is referred to in the neuter
gender, but the masculine, feminine and neuter genders shall each include the
other. In any provision relating to the conduct, acts or omissions of Tenant,
the term "Tenant" shall include Tenant's agents, employees, contractors,
invitees, successors or others using the Demised Premises with Tenant's
expressed or implied permission.
16.03. WAIVERS. All waivers must be in writing and signed by the waiving
party. Landlord's failure to enforce any provisions of this Lease or its
acceptance of late installments of Rent shall not be a waiver and shall not
estop Landlord from enforcing that provision or any other provision of this
Lease in the future. No statement on a payment check from Tenant or in a letter
accompanying a payment check shall be binding on Landlord. Landlord may, with or
without notice to Tenant, negotiate, cash, or endorse such check without being
bound to the conditions of such statement.
16.04. SEVERABILITY. A determination by a court of competent jurisdiction
that any provision of this Lease or any part thereof is invalid or unenforceable
shall not cancel or invalidate the remainder of such provision or this Lease,
which shall remain in full force and effect.
16.05. JOINT AND SEVERAL LIABILITY. All parties signing this Lease as Tenant
shall be jointly and severally liable for all obligations of Tenant.
16.06. INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS. This Lease is the
only agreement between the parties pertaining to the lease of the Demised
Premises and no other agreements are effective. All amendments to this Lease
shall be in writing and signed by all parties. Any other attempted amendment
shall be void.
16.07. NOTICES. All notices required or permitted under this Lease shall be
in writing and shall be personally delivered or shall be deemed to be delivered,
whether actually received or not, when deposited in the United States mail,
postage pre-paid, registered or certified mail, return receipt requested,
addressed as stated herein. Notices to Tenant shall be delivered to the address
specified in Section 1.03 above. Notices to any other party hereto shall be
delivered to the address specified in Article One as the address for such party.
Any party hereto may change its notice address upon written notice to the other
parties.
16.08. ATTORNEY'S FEES. If on account of any breach or default by any party
hereto in its obligations to any other party hereto, it shall become necessary
for the nondefaulting party to employ an attorney to enforce or defend any of
its rights or remedies hereunder, the defaulting party agrees to pay the
nondefaulting party its reasonable attorneys' fees, whether or not suit is
instituted in connection therewith.
16.09. VENUE. All obligations hereunder, including but not limited to the
payment of fees to the Principal Broker, shall be performable and payable in the
county in which the Property is located.
16.10. GOVERNING LAW. The laws of the State of Texas shall govern this
Lease.
16.11. SURVIVAL. All obligations of any party hereto not fulfilled at the
expiration or the earlier termination of this Lease shall survive such
expiration or earlier termination as continuing obligations of such party.
16.12. BINDING EFFECT. This Lease shall inure to the benefit of and be
binding upon each of the parties hereto and their respective heirs,
representatives, successors and assigns; provided, however, Landlord shall have
no obligation to Tenant's successors or assigns unless the rights or interests
of such successors or assigns are acquired in accordance with the terms of this
Lease.
16.13. EXECUTION AS OFFER. The execution of this Lease by the first party to
do so constitutes an offer to lease the Demised Premises. Unless within the
number of days stated in Section 1.14 above after the date of its execution by
the first party to do so, this Lease is signed by the other party and a fully
executed copy is delivered to the first party, such offer shall be automatically
withdrawn and terminated.
Page 8
ARTICLE SEVENTEEN: ADDITIONAL PROVISIONS
Additional provisions may be set forth in the blank space below, and/or an
Exhibit or Exhibits may be attached hereto which shall be made a part of this
Lease for all purposes.
17.01 Expansion Option. Landlord hereby grants Tenant the option to lease the
adjacent spaces on each side of the Demised Premises in accordance with
the following terms. If, during the original term of this Lease, the space
consisting of approximately 79,750 square feet which is adjacent on one
side or the space of approximately 149,750 square feet which is adjacent
on the other side to the Demised Premises (the "Additional Space") shall
become available for lease, after the initial lease of such space to third
parties, and provided that Tenant is not then in default hereunder and has
not assigned this Lease or sublet the premises (or a part hereof), Tenant
shall have the first right and option to lease the Additional Space. When
the Additional Space becomes available, or at Landlord's option, up to six
(6) months prior to the date that the Additional Space is scheduled to
become available, Landlord shall first offer, in writing, to lease such
space to Tenant upon the same terms and conditions and at the same rental
rate, as would be offered by Landlord to third parties. If within ten (10)
business days after Landlord delivers Tenant such written offer, Landlord
does not receive notice in writing that Tenant elects to lease all (and
not part) of the Additional Space and within ten (10) days thereafter
Tenant does not execute a lease on the Additional Space, the Tenant's
right to lease the Additional Space shall terminate and Lessee shall have
no further rights pursuant to this paragraph.
EFFECTIVE as of the date stated in Section 1.01 above.
BROKERS: LANDLORD:
COLLIERS BALDWIN REALTORS PRIMERA COPPELL PROPERTIES I, LTD.
- ------------------------- ----------------------------------
Principal Broker, Member of the a Texas limited partnership
Greater Dallas Association of
REALTORS(R), Inc. By: Primera Consolidated, L.L.C.
General Partner
By: /S/ DAVID JACKSON By: /S/ RALPH HEINS
----------------- ----------------
Name: David Jackson Name: Ralph Heins
------------- -----------
Address: 9400 N. Central, Suite 250 Title: Manager
-------------------------- -------
Dallas, Texas 75231 Date of Execution by Landlord:
------------------- ---------
Telephone:
-------------------
License No.:
------------------ TENANT:
FOSTER & RUDD CUSTOM CHROME, INC.
- ------------- -------------------
Cooperating Broker
By: /S/ GORDON S. FOSTER By: /S/ IGNATIUS J. PANZICA
-------------------- -----------------------
Name: Gordon S. Foster Name: Ignatius J. Panzica
---------------- -------------------
Address: 12900 Preston Road, Suite 550 Title: Chairman and Chief Executive
----------------------------- ----------------------------
Dallas, Texas 75230 Officer
----------------------------- -------
----------------------------- Date of Execution by Tenant:
-----------
Telephone: 214/233-2383
------------
License No.:
------------
********************************************************************************
[For voluntary use only by members of the Greater Dallas Association of
REALTORS(R), Inc.]
Page 9
GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
EXHIBIT A
FLOOR PLAN/SITE PLAN
PROPERTY ADDRESS OR DESCRIPTION: 1111 Executive Drive, Coppell, Texas
------------------------------------
DATE OF LEASE: December 3, 1996
----------------
INITIALS: LANDLORD: INITIALS: TENANT:
---------- -----------
GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
EXHIBIT B
LEGAL DESCRIPTION OF PROPERTY
PROPERTY ADDRESS OR DESCRIPTION: 1111 Executive Drive, Coppell, Texas
------------------------------------
DATE OF LEASE: December 3, 1996
----------------
Lot 5, Block 7, of the Replat of all of Blocks 5 and 6 and part
of Block 7 of Park West Commerce Center, an Addition to the City
of Coppell, Dallas County, Texas, according to the plat thereof
recorded in Volume 95017, Page 00398, Map Records of Dallas
County, Texas.
INITIALS: LANDLORD: INITIALS: TENANT:
--------- ---------
GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
EXHIBIT C
RENEWAL OPTIONS
PROPERTY ADDRESS OR DESCRIPTION: 1111 Executive Drive, Coppell, Texas
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DATE OF LEASE: December 3, 1996
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1. Option(s) to Extend Term
Landlord hereby grants to Tenant one (1) option(s) [the "Option(s)"]
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to extend the Lease Term for additional term(s) of five (5) years each [the
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"Extension(s)"], on the same terms, conditions and covenants set forth in the
Lease Agreement, except as provided below. Each Option shall be exercised only
by written notice delivered to the Landlord at least one hundred eighty
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(180) days before the expiration of the Lease Term or the preceding Extension
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of the Lease Term. If Tenant fails to deliver Landlord written notice of the
exercise of an Option within the prescribed time period, such Option and any
succeeding Options shall lapse, and there shall be no further right to extend
the Lease Term. Each Option shall be exercisable by Tenant on the express
condition that at the time of the exercise, and at all times prior to the
commencement of such Extension(s), Tenant shall not be in default under any of
the provisions of this Lease. The foregoing Option(s) are personal to Tenant and
may not be exercised by any assignee or subtenant.
2. Calculation of Rent
The Base Rent during the Extension(s) shall be determined by one of the
following methods: [INDICATED BY CHECKING THE APPROPRIATE BOX UPON THE
EXECUTION OF THE LEASE AGREEMENT]
[ ] (a) Consumer Price Index Adjustment
[X] (b) Fair Rental Value Adjustment
[ ] (c) Fixed Rental Adjustment
A. Consumer Price Index Adjustment
The monthly rent during the particular Extension shall be determined by
multiplying the monthly installment of Base Rent during the Lease Term by a
fraction determined as follows:
(1) The numerator shall be the latest Index.
(2) The denominator shall be the initial Index.
If such computation would reduce the rent for the particular Extension,
it shall be disregarded, and the rent during the immediately preceding period
shall apply instead.
The Index, as defined herein, shall mean the Consumer Price Index for
Urban Consumers (all items), Dallas/Fort Worth, Texas, area (1984 = 100)
published by the United States Department of Labor, Bureau of Labor Statistics.
The initial Index shall mean the Index published for the nearest calendar
month preceding the commencement date of the Lease Term. The latest Index
shall mean the Index published for the nearest calendar month preceding the
first day of the Extension.
If a base year other than 1984 is adopted, the Index shall be converted
in accordance with the appropriate conversion factor. If the Index is
discontinued or revised, such other Index or computation with which it is
replaced shall be used in order to obtain substantially the same result as
would have been obtained it if had not been discontinued or revised.
B. Fair Rental Value Adjustment
The Base Rent shall be increased on the first day of the particular
Extension to the "Fair Rental Value" of the Demised Premises, determined in the
following manner:
(1) If the Landlord and Tenant have not been able to agree on the Fair
Rental Value Adjustment prior to the date the option is required to he
exercised, the rent for the Extension shall he determined as follows: Within
fifteen (15) days following the exercise of the option, Landlord and Tenant
shall endeavor in good faith to agree upon a single appraiser. If Landlord
and Tenant are unable to agree upon a single appraiser within said fifteen
(15) day period, each shall then, by written notice to the other, given
within ten (10) days after said fifteen (15) day period, appoint one
appraiser. Within ten (10) days after the two appraisers are appointed, they
shall appoint a third appraiser. If either Landlord or Tenant fails to
appoint its appraiser within the prescribed time period the single appraiser
appointed shall determine the Fair Rental Value of the Demised Premises.
Each party shall hear the cost of the appraiser appointed by it and the
parties shall share equally the cost of the third appraiser.
(2) The "Fair Rental Value" of the Demised Premises shall mean the price
that a ready and willing tenant would pay as of the commencement of the
Extension as monthly rent to a ready and willing landlord or demised premises
comparable to the Demised Premises if such property were exposed for lease on
the open market for a reasonable period of time and taking into account all
of the purposes for which such property may be used and not just the use
proposed to be made of the Demised Premises by Tenant. The Fair Rental Value
of the Demised Premises shall be the average of the two of the three
appraisals which are closest in amount, and the third appraisal shall be
disregarded. In no event shall the rent be reduced by reason of such
computation. If the Fair Rental Value is not determined prior to the
commencement of the Extension, then Tenant shall continue to pay to Landlord
the rent applicable to the Demised Premises immediately prior to such
Extension until the Fair Rental Value is determined, and when it is
determined, Tenant shall pay to Landlord within ten (10) days after receipt
of such notice the difference between the rent actually paid by Tenant to
Landlord and the new rent determined hereunder.
C. Fixed Adjustments
The Base Rent shall be increased to the following amounts on the following
dates:
Date Amount
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N/A N/A
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INITIALS: LANDLORD: INITIALS: TENANT:
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GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
EXHIBIT D
RIGHT OF FIRST REFUSAL FOR ADDITIONAL SPACE
PROPERTY ADDRESS OR DESCRIPTION: 1111 Executive Drive, Coppell, Texas
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DATE OF LEASE: December 3, 1996
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1. During the initial Lease Term, Tenant shall have a right of first refusal
("Right of First Refusal") to lease the space shown on the floor plan attached
hereto as Exhibit A, known as Suite ______________, containing approximately
______________ square feet of area (the "Additional Space"), on the same terms
and conditions that Landlord is prepared to accept from any third party. When
Landlord receives a legally sufficient offer to lease the Additional Space from
a third party which Landlord desires to accept, Landlord shall present the same,
in writing, to Tenant, and Tenant shall thereafter have ten (10) days in which
to accept or reject such offer in writing. If Tenant rejects such offer or fails
to accept the same in writing within such time, then Landlord shall be free to
lease the Additional Space to such third party on substantially the same terms
and conditions offered to Tenant in the foregoing manner. If Landlord does not
enter into such lease with such third party, the Right of First Refusal shall
apply again and Landlord shall be required to submit any future offer to Tenant
in the foregoing manner.
2. The Right of First Refusal shall, at Landlord's election, be null and void
if Tenant is in default under the Lease on the date Landlord would otherwise
notify Tenant of the offer concerning the Additional Space or at any time
thereafter and prior to commencement of the lease for the Additional Space.
After Tenant validly exercises the Right of First Refusal provided herein, the
parties shall execute an amendment to the Lease adding the Additional Space, or
a new lease for the Additional Space, or such other documentation as Landlord
shall require, promptly after Landlord shall prepare the same, in order to
confirm the leasing of such Additional Space to Tenant, but an otherwise valid
exercise of the Right of First Refusal contained herein shall be fully
effective, whether or not such confirmatory documentation is executed.
3. The Right of First Refusal shall apply only with respect to the entire
Additional Space and may not be exercised with respect to only a portion
thereof, unless only a portion shall first become the subject of a legally
sufficient offer acceptable to Landlord [in which case, the Right of First
Refusal shall apply to such portion(s) which is subject to such offer(s)]. If
the Additional Space, or any portion thereof, is the subject of an offer which
includes other space at the Property, and such offer is acceptable to Landlord,
the Right of First Refusal shall apply to the entire space which is the subject
of such offer, and Tenant shall be obligated to either accept or refuse to lease
such entire space on such terms and conditions included in such offer.
4. If Tenant exercises the Right of First Refusal, Landlord does not guarantee
that the Additional Space will be available on the commencement date for the
lease thereof if the then existing occupants of the Additional Space shall
holdover for any reason beyond Landlord's reasonable control. In such event,
Tenant's sole recourse shall be that the rent with respect to the Additional
Space shall be abated until Landlord legally delivers possession of the same to
Tenant. Tenant's exercise of such Right of First Refusal shall not operate to
cure any default by Tenant of any of the terms or provisions in the Lease, nor
to extinguish or impair any rights or remedies of Landlord arising by virtue of
such default. If the Lease or Tenant's right to possession of the Demised
Premises shall terminate in any manner whatsoever before Tenant shall exercise
the right herein provided, or if Tenant shall have subleased or assigned all or
any portion of the Demised Premises, then immediately upon such termination,
sublease or assignment, the Right of First Refusal shall simultaneously
terminate and become null and void. Such right is personal to Tenant. Under no
circumstances whatsoever shall a subtenant under a sublease of the Demised
Premises, or the assignee under a partial assignment of the Lease, have any
right to exercise the Right of First Refusal. Tenant agrees that time is of the
essence in this provision.
INITIALS: LANDLORD: INITIALS: TENANT:
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GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
EXHIBIT F
EXPENSE REIMBURSEMENT
PROPERTY ADDRESS OR DESCRIPTION: 1111 Executive Drive, Coppell, Texas
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DATE OF LEASE: December 3, 1996
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1. Expense Reimbursement
Tenant shall pay the Landlord, as additional rental hereunder, a portion of
the following expenses, as defined hereafter, incurred, levied or assessed for
or against the Demised Premises: [Check those that are to apply. Boxes not
checked do not apply.]
[X] Ad Valorem Taxes
[X] Insurance Premiums
[X] Common Area Maintenance Charges (CAM)
[X] Operating Expenses
(herein collectively called "Reimbursement")
2. Expense Reimbursement Limitations
The amount of Tenant's Reimbursement obligation shall be determined by one of
the following methods: [Check only the one applicable box]
[ ] Base year/Expense Stop Adjustment
[X] Pro Rata Adjustment
[ ] Fixed Amount Adjustment
The calculation for each of said methods is set forth under Section 4 below.
3. Expense Reimbursement Payments
Tenant agrees to pay the applicable Reimbursement within thirty (30) days
after receiving an invoice therefor from Landlord. If at any time during the
Lease Term or any renewals or extensions Landlord has reason to believe that at
some time within the immediately succeeding 12-month period Tenant will owe
Landlord a payment pursuant to this provision, Landlord may direct Tenant to pay
monthly an estimated portion of the projected future amount. Tenant agrees that
any such payment directed by Landlord shall be due and payable monthly on the
same day that the Base Rent is due. Any Reimbursement relating to partial
calendar years shall be prorated accordingly.
4. Definitions
A. Ad Valorem Taxes: All general real estate taxes, general and
special assessments, parking surcharges, rent taxes, and other similar
governmental charges levied against the Property for each calendar year.
B. Insurance Premiums: All insurance premiums attributable to the
Property, including, but not limited to, premiums for fire, casualty, and
extended coverage, liability coverage, and loss of rents coverage.
C. Common Area Maintenance Charges: All costs of the ownership,
operation, and maintenance of the common area, including, but not limited to,
those costs for security, lighting, painting, cleaning, leasing, inspecting,
and repairing which may be incurred by Landlord, in its discretion, including a
reasonable allowance for Landlord's overhead and management. The term "common
area" is defined as that part of the Property intended for the common use of
all tenants, including, but not limited to, the parking areas, landscaping,
loading areas, sidewalks, malls, promenades (enclosed or otherwise), public
rest rooms, meeting rooms, corridors, and curbs. Common area maintenance shall
not include depreciation on Landlord's original investment, cost of tenant
improvements, real estate brokers' fees, and interest or depreciation on
capital investments.
D. Operating Expenses: All costs of management, operation, and
maintenance of the Property, including, but not limited to, wages, salaries,
janitorial services, maintenance, repairs, and cost of utilities. Operating
expenses shall not include depreciation on Landlord's original investment, cost
of tenant improvements, real estate brokers' fees, and interest or depreciation
on capital investments.
E. Base Year/Expense Stop Adjustment: If the Landlord's ad valorem
taxes, insurance premiums, common area maintenance charges and/or operating
expenses for the Property for any calendar year during the term hereof or
during any extension of this lease increase over (1) such amounts paid by
Landlord for the Base Year N/A , or (2) $ N/A per square foot per
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year [choose one], Tenant agrees to pay its share of such increase based on the
square footage contained in the Demised Premises in proportion to the square
footage of leasable area of the Property.
F. Pro Rata Adjustment: Tenant shall pay to Landlord its pro rata
share of the total amount of Landlord's insurance premiums, ad valorem taxes,
common area maintenance charges, and/or operating expenses for any calendar
year during the term hereof and during any extension of this lease. Tenant's
pro rata share of such amount shall be based on the square footage contained in
the Demised Premises in proportion to the square footage of the leasable area
of the Property.
Estimated Expenses per month:
Ad Valorem Taxes $3,000.00 per month
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Insurance Premiums $ 350.00 per month
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Common Area Maintenance Charges $ 650.00 per month
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Operating Expenses $4,000.00 per month
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The above listed expenses are estimates only and the actual expenses may vary
from such amounts. Tenant shall pay to Landlord its pro rata share of the
actual expenses pursuant to Section 4.F. above.
INITIALS: LANDLORD: INITIALS: TENANT:
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GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
EXHIBIT H
Page 1 of 3
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CONSTRUCTION OF IMPROVEMENTS
PROPERTY ADDRESS OR DESCRIPTION: 1111 Executive Drive, Coppell, Texas
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DATE OF LEASE: December 3, 1996
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1. Construction of Improvements:
A. Landlord agrees to construct (or complete) a building and other
improvements upon the Demised Premises in accordance with detailed Plans and
Specifications to be prepared forthwith by Landlord and delivered to Tenant.
Upon approval by Tenant, two or more sets of said Plans and Specifications
shall be signed by both parties, with one signed set retained by Tenant.
Changes to said Plans and Specifications thereafter shall be made only by
written addenda signed by both parties.
B. Upon approval of said Plans and Specifications, Landlord shall
forthwith begin construction and pursue same to completion with reasonable
diligence in a good and workmanlike manner.
2. Completion Date:
A. It is estimated by Landlord that the building and other improvements
shall be completed by January 1 , 1997.
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B. Landlord shall notify Tenant in writing when construction has been
completed. Tenant shall thereupon inspect the building and other improvements,
and if same have in fact been completed in accordance with the Plans and
Specifications, the Lease Term shall begin upon the date of completion with
Base Rent due and payable as provided in Article Three of the Lease.
C. If the building and other improvements have not in fact been completed
in accordance with the Plans and Specifications, written notification of the
items deemed incomplete shall be given by Tenant to Landlord immediately
following inspection. Landlord shall forthwith proceed to finish the
incomplete items, and the lease term shall begin upon the date that such items
are in fact complete.
D. Completion, as used herein, shall mean substantial completion.
Substantial completion shall mean at such time as the Landlord obtains a
Certificate of Occupancy issued by the local municipal authorities whose
jurisdiction includes the Demised Premises, and is the stage when the
construction is sufficiently complete in accordance with the Plans and
Specifications that the Tenant can occupy of utilize the Demised Premises for
its intended use, except for minor "punch list" items remaining to be
completed.
3. Letter of Acceptance: Tenant agrees to execute and deliver to Landlord,
with a copy to the Principal Broker, a Letter of Acceptance, addressed to
Landlord and signed by Tenant (or its authorized representative) acknowledging
that construction has been completed in accordance with the Plans and
Specifications and acknowledging the Commencement Date of the Lease Term.
4. Taking of Possession: The taking of possession of the Demised Premises by
Tenant shall be deemed conclusively to be acknowledgment by Tenant that
construction has been completed in accordance with Plans and Specifications
(except for latent defects) and that the Lease Term has begun as of the date of
completion.
5. Failure to Complete: In the event that the building and other improvements
have not been completed in accordance with the Plans and Specifications by
February 1 , 1997, or by such date as extended by application of Section
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16.01, Tenant shall have the right and option to terminate this Lease by giving
written notice of Tenant's intention to terminate as of a certain date not less
than fifteen (15) days prior to said certain date. If the building and other
improvements have not been completed by said certain date, the lease shall, at
the option of Tenant, terminate with no further liability of one party to the
other.
6. Such improvements are based on a total cost of $63,842 to be paid by
Landlord. If the improvements cost less, the Base Rent shall be reduced $0.01
per square foot per year for each $3,000 saved, and if the improvements cost
more, the Base Rent shall be increased $0.01 per square foot for each $3,000 in
additional costs. The Base Rent shall be adjusted only in even increments of
$0.01 per square foot based on an increase or decrease in costs of at least
$3,000.
7. The improvements to be provided are described in the memorandum attached
hereto as pages 2 and 3 of this Exhibit H and in the drawings prepared by
Ultratech, dated December 4, 1996.
INITIALS: LANDLORD: INITIALS: TENANT:
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GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
EXHIBIT H CONTINUED
Page 2 of 3
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CONSTRUCTION OF IMPROVEMENTS CONTINUED
PROPERTY ADDRESS OR DESCRIPTION: 1111 Executive Drive, Coppell, Texas
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DATE OF LEASE: December 3, 1996
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MEMORANDUM
DATE: December 6, 1996
TO: Ralph Heins
FROM: Ken McCall
RE: Custom Chrome Buildout
The following cost factors are based on the Plans received from Ultratech dated
12/04/96 #21197D01 Sheet 2 of 2.
Electrical:
Permits
New 400 amp service
Install 50 new 400w MH high bay fixtures
Install 11 480v drops at tenant's equipment location
Re-locate approx. 28 existing light fixtures
Cost: $ 31,945.00
RAMP:
Install 50' ramp north of Fire Pump Room
Cost: 7,030.00
Employee Entrance:
Close up first bay door next to office with Metal door and
add landing
Cost: 4,636.00
Wrought Iron Fence:
Install Painted iron fence with hydraulic closed Gate.
Cost: 2,200.00
MIS Room:
Construct one 13 X 9 room with ceiling, two light fixtures
One Sprinkler Drop, insulated walls and double doors
Cost: 3,898.00
INITIALS: LANDLORD: INITIALS: TENANT:
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GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
EXHIBIT H CONTINUED
Page 3 of 3
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CONSTRUCTION OF IMPROVEMENTS CONTINUED
PROPERTY ADDRESS OR DESCRIPTION: 1111 Executive Drive, Coppell, Texas
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DATE OF LEASE: December 3, 1996
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Concrete Pad/Fence:
Construct 4 x 8 concrete pad with 8' chain fence with 2 four
foot doors
Cost: $ 660.00
Office Repair:
Remove 12 x 18 sq. ft. of carpet and install VCT
Repaint all interior walls
Cost: 900.00
Card Swipes w/Buzzer: Tax incl.
Install two card readers
Cost: 4,000.00
Dock Seals: Tax incl.
Relocate 2 sets of dock seals and lights
Cost: 600.00
Fire Safety Equipment: Tax incl.
Strobe light, Audible Horns, Fire House Stations (prices
depend on city requirement and may vary)
Cost: 4,000.00
Cost: $59,869.00
Tax: 3,973.35
Total: 63,842.35
Sincerely:
/s/ Ken McCall
INITIALS: LANDLORD: INITIALS: TENANT:
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GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
EXHIBIT I
ADDENDUM NUMBER ONE TO LEASE
PROPERTY ADDRESS OR DESCRIPTION: 1111 Executive Drive, Coppell, Texas
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DATE OF LEASE: December 3, 1996
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ADDENDUM NUMBER ONE TO LEASE
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THIS ADDENDUM NUMBER ONE TO LEASE ("Addendum") is attached to and made
a part of the certain Commercial Lease Agreement ("Lease") dated December 3,
1996, between Landlord and Tenant. The capitalized terms used in this Addendum
shall have the meanings set forth in the Lease, unless otherwise defined herein,
Landlord and Tenant hereby agree that the following are additional terms and
provisions of the Lease, and to the extent of any inconsistency between the
terms and provisions of the Lease and this Addendum, the terms of this Addendum
shall control:
1. Early Entry. Tenant and Tenant's representatives may enter the
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Demised Premises and install trade fixtures and equipment in the Demised
Premises prior to the Commencement Date, and such installation of equipment and
fixtures shall not be deemed the Commencement Date of the Lease or constitute
possession of the Demised Premises for purposes of this Lease.
2. Compliance with Laws. Notwithstanding anything to the contrary in the
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Lease, Tenant shall have no obligation whatsoever to make, or pay for, any
alterations to the Demised Premises which are of a capital or structural nature
and are required by applicable law, ordinance, private restriction of insurance
rating organization unless made necessary by either Tenant's particular use of
the Demised Premises (as opposed to warehouse, light manufacturing and
distribution uses generally) or alterations voluntarily made to the Demised
Premises by Tenant.
3. Landlord's Access. Notwithstanding anything to the contrary in the
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Lease, Landlord shall conduct all of Landlord's activities on the Demised
Premises in a manner designed to cause the least possible interruption to Tenant
and Tenant's use of the Demised Premises.
4. Tenant's Obligation to Repair. In no event shall Tenant's obligation
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to repair under this subsection extend to (i) claims for damage and repairs
waived under Section 5.06; (ii) damage caused by any defects in the design,
construction or materials of the Demised Premises, including the Demised
Premises and improvements installed therein by Landlord; (iii) damage caused in
whole or in part by the negligence or willful misconduct of Landlord or
Landlord's agents, employees, invitees or licensees, (iv) repairs covered under
operating expenses otherwise paid by Tenant; (v) reasonable wear and tear; or
(vi) conditions repaired or otherwise cured pursuant to any warranties of
Landlord's contractors.
5. Alterations, Additions and Improvements. Notwithstanding anything to
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the contrary in the Lease, Landlord's consent shall not be necessary for
alterations, additions or improvements made to the Demised Premises which are
not structural and do not affect the building systems, provided that such
alterations, additions or improvements cost less than Twenty Thousand Dollars
($20,000) each and are otherwise performed in accordance with the terms of this
Lease.
6. Default. Tenant shall not be deemed to be in default under this
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Section 11.01(b) if such default is incapable of cure within said period and
Tenant has commenced to complete the cure of such default within said thirty
(30) day period and is proceeding diligently.
INITIALS: LANDLORD: INITIALS: TENANT:
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GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
EXHIBIT I CONTINUED
ADDENDUM NUMBER ONE TO LEASE CONTINUED
PROPERTY ADDRESS OR DESCRIPTION: 1111 Executive Drive, Coppell, Texas
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DATE OF LEASE: December 3, 1996
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ADDENDUM NUMBER ONE TO LEASE
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7. Subordination. Notwithstanding anything to the contrary herein, it
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shall be a condition precedent to the effectiveness of this Lease that Tenant
receive a fully-executed (and notarized) non-disturbance agreement in form
reasonably satisfactory to Tenant from any lender or ground lessor with a lien
on the Demised Premises as of the date of this Lease.
8. Brokers. Landlord and Tenant each warrants and represents for the
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benefit of the other that it has had no dealings with any real estate broker or
agent in connection with the negotiation of this Lease, except for any Broker
specified in the Basic Lease Information, and that it knows of no other real
estate broker or agent who is or might be entitled to a real estate brokerage
commission or finder's fee in connection with this Lease. Landlord shall
indemnify and hold harmless Tenant from and against any claims by the Broker
stated in the Basic Lease Information. Each party shall indemnify and hold
harmless the other from and against any and all liabilities or expenses arising
out of claims made by any broker (other than the Broker stated in the Basic
Lease Information) or individual for commissions or fees resulting from the
actions of the indemnifying party in connection with this Lease.
9. Environmental Matters. Notwithstanding anything to the contrary
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in the Lease, Tenant shall have the right, without the need for Landlord's
consent, to keep on the Demised Premises the following Hazardous Materials:
oil, chemicals and paint for motorcycle maintenance and repair
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- --------------------------------------------------------------------------------
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all of which are customary and normal to Tenant's business, provided that all
such Hazardous Materials are used in compliance with all applicable laws.
INITIALS: LANDLORD: INITIALS: TENANT:
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GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
EXHIBIT H CONTINUED
Page 2 of 3
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CONSTRUCTION OF IMPROVEMENTS CONTINUED
PROPERTY ADDRESS OR DESCRIPTION: 1111 Executive Drive, Coppell, Texas
------------------------------------
DATE OF LEASE: December 3, 1996
----------------
MEMORANDUM
DATE: December 6, 1996
TO: Ralph Heins
FROM: Ken McCall
RE: Custom Chrome Buildout
The following cost factors are based on the Plans received from Ultratech dated
12/04/96 #21197D01 Sheet 2 of 2.
Electrical:
Permits
New 400 amp service
Install 50 new 400w MH high bay fixtures
Install 11 480v drops at tenant's equipment location
Re-locate approx. 28 existing light fixtures
Cost: $ 31,945.00
RAMP:
Install 50' ramp north of Fire Pump Room
Cost: 7,030.00
Employee Entrance:
Close up first bay door next to office with Metal door and
add landing
Cost: 4,636.00
Wrought Iron Fence:
Install Painted iron fence with hydraulic closed Gate.
Cost: 2,200.00
MIS Room:
Construct one 13 X 9 room with ceiling, two light fixtures
One Sprinkler Drop, insulated walls and double doors
Cost: 3,898.00