Exhibit 10.18(d)
LEASE
THIS LEASE (the "Lease") is made effective as of the 1st day of July,
1997, between JAMES E. HELZER ("Landlord"), having an address of 8110 Russell
Curry Road, Arlington, Texas 76017, and JEH ACQUISITION CORP., a Delaware
corporation, having an address of c/o TDA Industries, Inc., 122 East 42nd
Street, Suite 1116, New York, New York 10168 ("Tenant").
W I T N E S S E T H:
SECTION 1. PREMISES. In consideration of the rent agreed to be paid by
Tenant to Landlord, and in consideration of the covenants of the respective
parties set forth in this Lease, Landlord leases and lets unto Tenant, and
Tenant leases from Landlord, the land legally described on Schedule "A" attached
hereto and made a part hereof, and the building located thereon (the "Building")
containing approximately 1,500 square feet of office space and 5,000 square feet
of warehouse space and having an address of 1800 Tarrant Lane, Colleyville,
Texas (the land and Building are collectively referred to herein as the
"Premises").
SECTION 2. TERM OF LEASE. The term of this Lease shall be for a term of
five (5) years commencing on July 1, 1997 (the "Lease Commencement Date") and
ending on June 30, 2002 (the "Lease Termination Date"). The term "Lease Year" as
used herein shall mean the twelve consecutive month period commencing on the
Lease Commencement Date and each twelve consecutive month period thereafter
during the Lease term.
SECTION 3. RENTAL. Tenant covenants and agrees that it will pay to
Landlord for the use of the Premises the following rental:
A. Fixed Rent. For the period commencing on the Lease Commencement Date
until June 30, 2000, Tenant shall pay fixed rent ("Fixed Rent") for the Premises
at the annual rate of Forty-Two Thousand and 00/100 Dollars ($42,000.00),
payable in monthly installments of Three Thousand Five Hundred and 00/1000
Dollars ($3,500.00) per month, payable on the first day of each month, up to and
including June 1, 2000. For the Lease Year commencing on July 1, 2000, the
annual Fixed Rent shall increase by five percent (5%) and the Fixed Rent, as so
increased, shall be annual Fixed Rent until the Lease Termination Date. If
Tenant exercises its option(s) to renew the term of this Lease pursuant to
Section 4 of this Lease, the annual Fixed Rent for the first Lease Year of the
Renewal Term shall be equal to the annual Fixed Rent for the last Lease Year of
the initial Term and thereafter the annual Fixed Rent shall increase by five
percent (5%) on the commencement of the second, fifth, and eighth Lease Year of
the Renewal Term(s).
B. Sales, Use and Excise Taxes. Tenant shall also pay with all Fixed
Rent due under this Lease an amount equal to any tax on all amounts classified
as rent which may be now or hereafter imposed by any lawful authority or agency.
C. Representation by Landlord. Landlord represents to Tenant that the
Fixed Rent does not exceed the fair rental value of the Premises as of the date
hereof.
D. Due Date of Fixed Rent Payments. Except as otherwise expressly
stated herein, all Fixed Rent due from Tenant shall be payable on the first day
of each month during the term of this Lease, in advance, at the same address
designated for the giving of notices to Landlord under this Lease.
SECTION 4. EXTENSIONS. Tenant has two (2) options to extend the term of
this Lease for two (2) additional periods of five (5) years each (individually
an "Extension Term" and collectively the "Extension Terms") to commence
immediately upon the expiration of the initial term or immediately preceding
Extension Term, as the case may be, upon the same terms and conditions as
contained in this Lease. In order to exercise the renewal options granted
herein, Tenant shall notify Landlord in writing not less than thirty (30) days
prior to the expiration of the initial term or the Extension Term, as the case
may be, that it is exercising its option to renew the term. Fixed Rent during
each Extension Term shall be determined in accordance with the procedures set
forth in Section 3A. of this Lease.
SECTION 5. USE OF PREMISES. The Premises shall be used for any purpose
permitted by applicable laws, including a warehouse and showroom for roofing
materials and supplies and other building supplies and materials. At all times
during the term of this Lease, Tenant shall maintain and keep in effect all
permits and licenses necessary for the operation of Tenant's business on the
Premises and conduct its business in a lawful manner.
SECTION 6. MAINTENANCE AND CARE OF PREMISES.
A. Landlord shall, at its own cost and expense, diligently,
promptly and in a good workmanlike manner make all maintenance, repairs and
replacements to (i) the structural components of the Building, including,
without limitation, the roof, roofing system, exterior walls, bearing walls,
support beams, foundations, columns, exterior doors, and windows and lateral
support to the Building; (ii) insure watertightness of the Building (including
caulking of the flashings) and repairs to the roof, roofing system, curtain
walls, windows and skylights if required to insure watertightness; and (iii) any
items required to be maintained by Tenant pursuant to Section 6.B. which were
damaged by the negligence or more culpable conduct of Landlord or its agents or
employees. In addition, Landlord, at its expense, shall replace any electrical,
plumbing, heating, air conditioning or other mechanical installation if, in
Tenant's reasonable opinion, such electrical, plumbing, heating, air
conditioning or other mechanical installation can no longer be maintained in
good condition through routine repairs and maintenance by Tenant pursuant to
Section 6.B. of this Lease.
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B. Tenant shall, at its own cost and expense, diligently,
promptly and in a good workmanlike manner: (i) maintain the interior of the
Building in a clean and attractive condition; (ii) maintain and repair all
electrical, plumbing, heating, air conditioning or other mechanical
installations and equipment; (iii) keep the lawn and landscaping in an
attractive condition; (iv) maintain the parking lot; and (v) as may be
necessary, maintain, repair and/or replace any items to be maintained by
Landlord pursuant to Section 6.A. of this Lease if damage to such items is
caused by the negligence or more culpable conduct of Tenant or its agents or
employees.
SECTION 7. INSURANCE. Tenant, at its sole expense, shall procure and
maintain during the term of this Lease a general commercial liability policy of
insurance insuring and naming Landlord and Tenant against liability occasioned
by accident on or about the Premises. Such policy shall be written by an
insurance company which is authorized to do business in the State in which the
Premises is located and shall be in the amount of not less than a combined
single limit of not less than $1,000,000.00.
Landlord shall, at Landlord's sole expense, procure and maintain during
the term of this Lease fire and extended coverage, vandalism and malicious
mischief insurance with an "All Risks" endorsement, naming both Landlord and
Tenant as insured parties and loss payees (as their interests may appear)
against loss by fire, flood, windstorm and all other insurable casualties in an
amount no less than eighty percent (80%) the full replacement value of the
Building, or such other amount as may be agreed upon by Landlord and Tenant.
SECTION 8. ASSIGNMENT OR SUBLETTING. Tenant shall not assign this Lease
or any estate or interest therein, or sublet the Premises or any part thereof,
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. Notwithstanding anything else to the contrary
contained in this Lease, Tenant shall have the right, without the consent of
Landlord, to assign this Lease or sublet all or part of the Premises to a
Related Corporation of Tenant (as hereinafter defined) or to a Successor
Corporation of Tenant (as hereinafter defined). The term "Related Corporation"
shall mean a corporation, partnership or other business entity, which, directly
or indirectly, controls, is controlled by, or is under common control with
another corporation, partnership or other business entity of Tenant. If more
than fifty percent (50%) of the voting stock of the corporation shall be owned
by another corporation or by a partnership or other business entity, the
corporation whose stock is so owned shall be deemed to be controlled by the
corporation, partnership or business entity owning such stock. The term
"Successor Corporation" shall mean a corporation or other business entity into
or with which another corporation or business entity shall be merged or
consolidated or to which all or substantially all of the assets of such other
corporation or other business entity shall be transferred.
SECTION 9. TAXES, ASSESSMENTS AND UTILITIES. Landlord covenants and
agrees to pay promptly before delinquency all charges for real estate taxes and
assessments; and Tenant covenants and agrees to pay promptly before delinquency
all charges for electricity,
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water and other utilities servicing the Premises. In addition, Tenant, at
Tenant's expense, shall provide for its own garbage collection and janitorial
services for the Premises.
SECTION 10. CASUALTY.
If during the term of this Lease the Premises are damaged or destroyed
by fire or other casualty, Landlord agrees, at its sole expense, promptly to
repair and restore the Premises in the same condition they were in immediately
prior to the damage or destruction. During such period of repair and
restoration, the Fixed Rent shall abate or be reduced to the extent that Tenant
is deprived of the full use of the Premises (the amount of such abatement shall
be based on both the physical extent of the damage or destruction and the extent
to which the damage or destruction causes interference with or impairment of the
operation of the business of Tenant, having regard to the extent to which Tenant
may be required to discontinue or alter its business operations on the
Premises); provided, however, if the damage to the Premises (i) cannot be
repaired or restored within one hundred twenty (120) days following the
occurrence of the fire or other casualty, or (ii) the damage to the Premises can
be repaired or restored within that period, but such damage is not repaired or
restored during that period, then Tenant may terminate this Lease, effective as
of the date of the occurrence of the fire or other casualty by giving written
notice to Landlord. If Tenant elects to terminate this Lease, this Lease shall
be deemed to have been terminated as of the date of the fire or other casualty,
and any advance payments on account of Fixed Rent received by Landlord from
Tenant for periods after the fire or other casualty shall be refunded to Tenant.
Insurance proceeds with respect to the fire or other casualty shall be payable
to Landlord and Tenant as their respective interests may appear.
SECTION 11. EMINENT DOMAIN.
A. In the event that: (i) the whole or any part of the Building shall
be taken during the term of this Lease or any extension or renewal thereof for
any public or quasi-public use under any governmental law, ordinance, regulation
or by right of eminent domain, (ii) all or any portion of the parking area for
the Building shall be taken for any public or quasi-public use so as to, in
Tenant's reasonable judgment, render the parking inadequate for Tenant's
business; or (iii) if access to the adjacent roadways from the existing curb
cuts shall be denied as a result of a taking for any public or quasi-public use
(any of such events being hereinafter referred to as a "taking"), Tenant shall
have the option of terminating this Lease as of a date no later than the date
possession is required by the condemning authority, such termination date to be
specified in a notice of termination to be given by Tenant to Landlord. Fixed
Rent shall be prorated as of the termination date and any advance payments on
account of Fixed Rent received by Landlord from Tenant for periods after the
taking shall be refunded to Tenant.
B. In the event of any taking which does not give rise to an option to
terminate or in the event of a taking which does give rise to an option to
terminate and Tenant elects not to terminate, Landlord shall promptly restore or
repair the Building to the same condition as existed immediately prior to such
taking insofar as is reasonably possible. The award and any excess shall be held
in trust by Landlord and used for such purpose. A just and proportionate part of
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the Fixed Rent payable hereunder shall be abated from the date of such taking
until ten (10) days after Landlord has restored the Premises and thereafter the
Fixed Rent shall be reduced in proportion to the reduction in the then rental
value of the Premises after the taking in comparison with the rental value prior
to the taking.
C. Landlord shall not agree to any condemnation award without the prior
written consent of Tenant, which will not be unreasonably withheld or delayed.
D. In the event of any taking Tenant shall have the right to recover
from the condemning authority: (i) Tenant's moving expenses; (ii) depreciation
to and cost of removing Tenant's trade fixtures; (iii) Tenant's loss of
business; and (iv) the value of the loss of the leasehold estate.
SECTION 12. TENANT DEFAULT. If Tenant shall fail to pay the Fixed Rent
or other charges required to be paid by Tenant hereunder or to observe any of
the covenants or obligations on Tenant's part to be performed hereunder or to
comply with any of the other provisions of this Lease, such act or omission
shall constitute a default by Tenant under this Lease. In the event of a default
by Tenant, Landlord may give written notice to Tenant and if Tenant thereafter
fails to cure any such default involving the payment of money within ten (10)
days after the date on which such notice was given, or if the default involves
some act or omission other than the payment of money and shall not be cured
within thirty (30) days after the date on which such notice was given (provided,
however, if the default involves some act or omission other than the payment of
money which cannot be cured within thirty (30) days after the date on which such
notice was given, Landlord shall not exercise any remedies unless the cure
thereof is not undertaken promptly within such period and thereafter
expeditiously completed), then in any such event the Landlord shall have the
right to terminate this Lease or exercise any other remedies available to it
under Texas law.
SECTION 13. LANDLORD DEFAULT. If Landlord shall fail to pay when due
any amounts required to be paid by Landlord under this Lease or to observe any
of the covenants or obligations on Landlord's part to be performed under this
Lease or to comply with any other provisions of this Lease, such act or omission
shall constitute a default by Landlord under this Lease. In the event of a
default by Landlord, Tenant may give written notice to Landlord and if Landlord
thereafter fails to cure any such default involving the payment of money within
ten (10) days after the date on which such notice was given, or if the default
involves some act or omission other than the payment of money and shall not be
cured within thirty (30) days after the date on which such notice was given
(provided, however, if the default involves some act or omission other than the
payment of money which cannot be cured within thirty (30) days after the date on
which such notice was given, Tenant shall not exercise any of its remedies
unless the cure thereof is not undertaken promptly within such period and
thereafter expeditiously completed), then Tenant may, at Tenant's option,
perform any such term, provision or condition and any payments made by Tenant in
connection therewith shall be immediately due and owing by Landlord to Tenant,
and Tenant shall have the right to deduct the amount thereof, together with the
interest at the maximum legal rate thereon, from the Fixed Rents then due or
thereafter
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coming due under this Lease. In addition, Tenant shall have a right to terminate
this Lease or exercise any other remedies available to it under Texas law.
SECTION 14. ATTORNEY'S FEES In the event of any litigation arising out
of this Lease between Landlord and Tenant, the prevailing party in such
litigation shall be entitled to recover from the non-prevailing party all costs
and expenses incurred in connection with such litigation, including reasonable
attorneys' fees and paralegals' fees, whether incurred prior to trial, at trial,
on appeal or in any bankruptcy or administrative proceeding.
SECTION 15. COVENANT AGAINST LIENS. Landlord's interest in the Premises
shall not be subject to liens for improvements made by Tenant and Tenant shall
have no power or authority to create any lien or permit any lien to attach to
Tenant's leasehold or to the estate, reversion or other estate of Landlord in
the Premises or on the improvements of which the Premises are a part. All
materialmen, contractors, artisans, mechanics and laborers and other persons
contracting with Tenant with respect to the Premises or any part thereof, or any
such party who may avail himself of any lien against the realty (whether same
shall proceed in law or in equity) are hereby charged with notice that they
shall look solely to Tenant to secure payment of any amounts due for work done
or material furnished to Tenant at the Premises. Tenant shall advise all persons
furnishing designs, labor, materials or services to the Premises in connection
with Tenant's improvement(s) thereof of the provisions of this Section.
SECTION 16. RIGHT OF FIRST REFUSAL. Landlord grants Tenant the right of
first refusal to purchase the Premises in accordance with the terms of this
Section 16. Landlord shall notify Tenant no later than three (3) business days
after Landlord receives an offer to purchase the Premises from a third party,
and Tenant shall thereafter have the right to purchase the Premises from
Landlord on the same terms and conditions as stated in the offer made by the
third party to purchase the Premises from the Landlord. Tenant shall have twenty
(20) days after receipt of Landlord's notice of such offer in which to notify
Landlord in writing whether or not it elects to purchase the Premises. If Tenant
elects to purchase the Premises, Landlord and Tenant shall execute a contract
providing for the purchase of the Premises by Tenant according to the terms set
forth in the third party's offer.
SECTION 17. [INTENTIONALLY OMITTED]
SECTION 18. HAZARDOUS WASTE.
A. Except for Hazardous Materials (as defined in Section 18.C. of this
Lease) as may typically be found in building material businesses, Tenant shall
not use, generate, manufacture, produce, store, release, discharge, or dispose
of, on, under or about the Premises or land surrounding the Premises
(collectively, the "Property") any Hazardous Materials. Tenant shall, at its
sole cost and expense, engage in any assessment or remediation work required by
any federal, state or local laws, rules, regulations, codes or ordinances in
connection with any Hazardous Materials introduced to the Property by Tenant or
Tenant's employees or agents.
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To the extent permitted by then applicable law, Tenant shall
protect, indemnify, defend and hold harmless Landlord from and against any and
all claims, liabilities, losses, actions, costs and expenses (including
attorneys' fees and costs of defense, whether incurred out of court, at trial,
on appeal or in any bankruptcy or administrative proceeding) incurred by
Landlord as the result of the introduction to the Property by Tenant or Tenant's
agents or employees of any Hazardous Materials.
B. Landlord represents and warrants to Tenant that there are no
Hazardous Materials located in, on or under the Property. Landlord shall, at its
sole cost and expense, engage in any assessment or remediation work required by
any federal, state or local laws, rules, regulations, codes or ordinances in
connection with any Hazardous Materials used existing, stored, released or
disposed of on or about the Property, except for any Hazardous Materials
introduced to the Property by Tenant or Tenant's agents or employees.
To the extent provided by then applicable law, Landlord shall protect,
indemnify, defend and hold harmless Tenant from and against any and all claims,
liabilities, losses, actions, costs and expenses (including attorneys' fees and
costs of defense, whether incurred out of court, at trial, on appeal or in any
bankruptcy or administrative proceeding) incurred by Tenant as a result of (i) a
breach of any of Landlord's representations and warranties set forth in Section
18.B. of this Lease; or (ii) any use, generation, manufacture, production,
storage, introduction, release, discharge or disposal of on, under or about the
Property of any Hazardous Material, except for those Hazardous Materials
introduced to the Property by Tenant.
C. "Hazardous Materials" shall include, without limitation, (i)
those substances included within the definitions of "hazardous substances,"
"hazardous materials," "toxic substances" or "solid waste" under all present
and future federal, state and local laws (whether under common law, statute,
rule, regulation or otherwise) relating to the protection of human health or
the environment, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 and the
Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, et seq., all
as heretofore and hereafter amended, or in any regulations promulgated
pursuant to said laws; (ii) such other substances, materials and wastes which
are or become regulated under applicable local, state or federal law or by
the United States government or which are or become classified as hazardous
or toxic under federal, state or local laws or regulations; and (ii) any
material, waste or substance which contains petroleum, asbestos or
polychlorinated biphenyls, is designated as a "hazardous substance" pursuant
to Section 311 of the Clean Water Act of 1977, 33 U.S.C. Sections 1251, et
seq. (33 U.S.C. Section 1321) or listed pursuant to Section 307 of the Clean
Water Act of 1977 (33 U.S.C. Section 1317) or contains any flammable,
explosive or radioactive material.
D. The terms and provisions of this Section 18 shall survive the
termination of this Lease.
SECTION 19. SHORT-FORM LEASE. The parties agree, at the request of
either party, to promptly execute two (2) originals of an instrument, in
recordable form, which will
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constitute a short form of this Lease, setting forth the description of the
Premises, the terms of this Lease, and any other portions thereof, excepting the
rental provisions, as either party may request. The cost of preparing and
recording this short form of this Lease shall be borne by the party requesting
the execution and recording of the same.
SECTION 20. FORCE MAJEURE. Anything in this Lease to the contrary
notwithstanding, neither Landlord nor Tenant shall be deemed in default with
respect to the performance of any of the terms, covenants and conditions of this
Lease and the other party shall not be entitled to exercise any remedies stated
herein or available at law or in equity if a failure to perform shall be due to
any strike, lockout, civil commotion, war-like operation, invasion, rebellion,
hostilities, military or usurped power, sabotage, governmental regulations or
controls, inability to obtain any material, service or financing, Acts of God or
other cause beyond the control of Landlord or Tenant, as the case may be.
SECTION 21. SURRENDER OF DEMISED PREMISES. Tenant shall deliver and
surrender to Landlord possession of the Premises upon expiration of this Lease,
and Tenant shall remove all of Tenant's personal property, trade fixtures and
equipment from the Premises upon expiration of this Lease.
SECTION 22. QUIET ENJOYMENT. Landlord represents that it has title to
the land described on Schedule "A" and full right and authority to lease the
Premises, and Tenant shall peacefully and quietly hold and enjoy the Premises
for the full term hereof so long as it does not default in the performance of
any of the provisions hereof beyond applicable grace periods.
SECTION 23. WAIVER OF LANDLORD'S LIEN. Landlord hereby waives any lien
it may have, statutory or otherwise, on any of Tenant's property, furniture,
fixtures and equipment on the Premises during the entire term of this Lease, and
Landlord agrees to execute any written instrument confirming such waiver as may
be requested by Tenant or Tenant's lender.
SECTION 24. NOTICES. The Fixed Rent accruing hereunder shall be paid
to Landlord at the following address:
Mr. James E. Helzer
8110 Russell Curry Road
Arlington, Texas 76017
until Tenant is notified otherwise in writing and all notices given to Landlord
hereunder shall be forwarded to Landlord postage prepaid, by registered or
certified mail, return receipt
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requested, or by express or courier service, at the foregoing address until
Tenant is notified otherwise in writing. All notices given to Tenant hereunder
shall be forwarded to Tenant at:
Mr. Fred Friedman
JEH Acquisition Corp.
c/o TDA Industries, Inc.
122 E. 42nd Street, Suite 1116
New York, New York 10168
with a copy to: Carlton, Fields, Ward, Emmanuel,
Smith & Cutler, P.A.
One Harbour Place
777 South Harbour Island Boulevard
Tampa, Florida 33602-5799
Attn: Nathaniel L. Doliner, Esquire
by registered or certified mail, return receipt requested, postage prepaid, or
by personal delivery or express or courier service, until Landlord is notified
otherwise in writing. Any notice or demand required to be given or that may be
given hereunder shall be deemed complete upon the date of receipt thereof, or if
delivery is refused, on the date of attempted delivery thereof. Either party
hereto may change its address to any other address in the United States of
America by notice in writing given to the other party in the manner herein
provided.
SECTION 25. TITLE OF SECTIONS. The titles of the sections throughout
this Lease are for convenience and reference only and the words contained
therein shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Lease.
SECTION 26. BINDING EFFECT. Except as herein otherwise expressly
provided, the terms and provisions hereof shall be binding upon and shall inure
to the benefit of the heirs, executors, administrators, successors and assigns
of Landlord and the permitted assigns of Tenant.
SECTION 27. INVALIDITY OF PARTICULAR PROVISION. If any term or
provision of this Lease or the application hereof to any person or circumstance
shall to any extent be invalid or unenforceable, the remainder of this Lease or
the application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable shall not be affected
thereby, and each term and provision of this Lease shall be valid and enforced
to the fullest extent permitted by law.
SECTION 28. CONSTRUCTION. This Lease has been executed in the State
of Texas and shall be construed in accordance with the laws thereof.
SECTION 29. ENTIRE AGREEMENT. This Lease and the Schedule attached
hereto and by reference made a part hereof constitute the entire agreement
between the parties hereto and no portion thereof may be altered, modified or
amended in any manner whatsoever unless same shall be in writing and signed by
the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease
effective as of the date first above written.
Signed, sealed and delivered
in the presence of:
[Illegible] /s/ JAMES E. HELZER
- --------------------------------- -----------------------------------
Name: [Illegible] JAMES E. HELZER
[Illegible]
- ---------------------------------
Name: [Illegible] LANDLORD
Witnesses as To Landlord
[Illegible]
- --------------------------------- JEH ACQUISITION CORP., a Delaware
Name: [Illegible] corporation
[Illegible] By: [Illegible]
- --------------------------------- ----------------------------
Name: [Illegible] Name:
----------------------------
Its:
----------------------------
Witnesses as to Tenant
TENANT
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SCHEDULE "A"
LEGAL DESCRIPTION OF LAND
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SCHEDULE A
Legal Description
Lot 1R, Block 2, PONCE ADDITION, an addition to the City of Colleyville,
Tarant County, Texas, according to the plat thereof filed of record in the
plat records of Tarrant County, Texas.
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