EXHIBIT 99.1
Industrial Real Estate Lease
CABOT PROPERTIES, INC.
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INDUSTRIAL REAL ESTATE LEASE
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Multi-Tenant Net Form
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TABLE OF CONTENTS
ARTICLE ONE - BASIC TERMS......................................................1
ARTICLE TWO - PREMISES.........................................................2
ARTICLE THREE - LEASE TERM.....................................................2
ARTICLE FOUR - RENT............................................................3
ARTICLE FIVE - PROPERTY TAXES..................................................4
ARTICLE SIX - UTILITIES........................................................5
ARTICLE SEVEN - INSURANCE......................................................5
ARTICLE EIGHT - COMMON AREAS...................................................7
ARTICLE NINE - USE OF PREMISES.................................................9
ARTICLE TEN - CONDITION AND MAINTENANCE OF PREMISES...........................12
ARTICLE ELEVEN - DAMAGE OR DESTRUCTION........................................14
ARTICLE TWELVE - CONDEMNATION.................................................15
ARTICLE THIRTEEN - ASSIGNMENT AND SUBLETTING..................................15
ARTICLE FOURTEEN - DEFAULTS AND REMEDIES......................................16
ARTICLE FIFTEEN - PROTECTION OF LENDERS.......................................19
ARTICLE SIXTEEN - LEGAL COSTS.................................................20
ARTICLE SEVENTEEN - MISCELLANEOUS PROVISIONS..................................21
EXHIBIT A - THE PROPERTY.....................................................A-1
EXHIBIT B - THE PREMISES.....................................................B-1
EXHIBIT C - RULES AND REGULATIONS............................................C-1
EXHIBIT D - LANDLORD'S WORK..................................................D-1
EXHIBIT E - MEMORANDUM OF ACCEPTANCE OF LEASE................................E-1
EXHIBIT F - GUARANTY.........................................................F-1
EXHIBIT 9.04 - SIGNAGE....................................................9.04-1
EXHIBIT 9.05 - LOCATION OF OUTSIDE STORAGE AREA...........................9.05-1
ARTICLE ONE - BASIC TERMS
The following terms used in this Lease shall have the meanings set forth below.
1.01 Date of Lease: June 24, 2005
1.02 Landlord (legal entity): CIVF I-TX1B01&B02, M01-M05, W04, W07-W10, L.P.
1.03 Tenant (legal entity): CAI, LP, a Texas limited partnership
1.04 Tenant's Guarantor: Conns, Inc., a Delaware corporation
1.05 Address of Property: 1132 Valwood Parkway, Carrollton, Texas
1.06 Property Rentable Area: Approximately 193,600 rentable square feet
1.07 Premises Rentable Area: Approximately 140,800 rentable square feet
1.08 Tenant's Initial Pro Rata Share: 44.5%, increasing to 72.7% on October 1,
2005
1.09 Lease Term: Seven years ten months beginning on August 15, 2005
1.10 Lease Commencement Date: August 15, 2005 as to Suite 120 and October 1,
2005 as to Suite 160
1.11 Permitted Uses: Warehouse and related office, consumer appliance,
electronics and lawn maintenance equipment, including lawnmowers, service
and repair use
1.12 Broker(s): The Staubach Company and Bradford Companies
1.13 Initial Security Deposit: $37,546.67
1.14 Parking Spaces Allocated to Tenant:Tenant's Pro Rata Share of the Parking
Spaces in the Common Areas of the Property
1.15 Base Rent:
Time Period Monthly Base Rent
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8/15/05-2/14/06 $0.00
2/15/06 - 3/31/06 $20,122.67 ($2.80SF for Suite 120)
4/1/06 - 1/31/08 $32,853.33 ($2.80/SF)
2/1/08 - 1/31/10 $35,200.00 ($3.00/SF)
2/1/10 - 5/31/13 $37,546.67 ($3.20/SF)
1.16 Other Charges Payable by Tenant:
(i) Real Property Taxes (Article Five);
(ii) Utilities (Article Six);
(iii) Insurance Premiums (Article Seven);
(iv) CAM Expenses (Article Eight);
1.17 Address of Landlord for Notices:
c/o Cabot Properties, Inc.
One Beacon Street, Suite 1700
Boston, MA 02108
Attn: Asset Management
1.18 Address of Tenant for Notices:
CAI, LP
c/o Conn Appliances, Inc., its general partner
3295 College Street
Beaumont, TX 77701
Attn: Thomas J. Frank, CEO
Attn; Sydney K. Boone, Jr., Corporate General Counsel
1.19 Fiscal Year: January - December
1.20 Mortgagee: New York Life Insurance Company
1.21 Address of Landlord for Rent Payments:
Cabot Industrial Value Fund
Dept. 5601 PO Box 201560 Dallas, TX 75320-1560
1.22 Exhibits:
Exhibit A - The Property
Exhibit B - The Premises
Exhibit C - Rules & Regulations
Exhibit D - Landlord's Work
Exhibit E - Memorandum of Acceptance of Premises
Exhibit F - Guaranty
ARTICLE TWO - PREMISES
2.01 Premises. The Premises are described in Exhibit B and are a part of
the Property, which is described in Exhibit A. The Property includes all the
land, building(s), and all other improvements located on the land including the
common areas described in Article Eight.
ARTICLE THREE - LEASE TERM
3.01 Lease of Premises for Lease Term. Landlord leases the Premises to
Tenant and Tenant leases the Premises from Landlord for the Lease Term. The
Lease Term shall begin on the Lease Commencement Date.
3.02 Delay in Commencement. Landlord shall not be liable to Tenant if
Landlord shall not deliver possession of Suite 120 to Tenant on August 1, 2005
or Suite 160 on October 1, 2005. Landlord's non-delivery of the Premises to
Tenant on the applicable date shall not affect this Lease or the obligations of
Tenant under this Lease, and the relevant Lease Commencement Date shall be
postponed to the date possession of that portion of the Premises shall be
delivered to Tenant. In such event, Landlord and Tenant shall execute an
amendment to this Lease setting forth the relevant Lease Commencement Date and
expiration date of this Lease. Failure to execute such amendment shall not
affect the Lease Commencement Date and expiration date of this Lease.
Notwithstanding the foregoing, if the Premises is not delivered within 120 days
of the Lease Commencement Date, Tenant upon ten days' prior written notice to
landlord may terminate this Lease.
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3.03 Early Occupancy. If Tenant shall occupy the Premises prior to the
Lease Commencement Date, Tenant's occupancy of the Premises shall be subject to
all of the provisions of this Lease. Early occupancy of the Premises shall not
advance the expiration date of this Lease and shall not advance the rent
schedule.
3.04 Holding Over. Tenant shall vacate the Premises upon the expiration or
earlier termination of this Lease. Tenant shall reimburse Landlord for and
indemnify Landlord against all damages, costs, liabilities and expenses,
including attorneys' fees, which Landlord shall incur on account of Tenant's
delay in so vacating the Premises. If Tenant shall not vacate the Premises upon
the expiration or earlier termination of this Lease, the Base Rent shall be
increased to 150% of the Base Rent then in effect and Tenant's obligation to pay
Additional Rent shall continue, but nothing herein shall limit any of Landlord's
rights or Tenant's obligations arising from Tenant's failure to vacate the
Premises, including, without limitation, Landlord's right to repossess the
Premises and remove Tenant therefrom at any time after the expiration or earlier
termination of this Lease and Tenant's obligation to reimburse and indemnify
Landlord as provided in the preceding sentence.
ARTICLE FOUR - RENT
4.01 Base Rent. On the first day of each month during the Lease Term,
Tenant shall pay to Landlord the Base Rent in lawful money of the United States,
in advance and without offset, deduction, or prior demand. The Base Rent shall
be payable at Address of Landlord for Rent Payments or at such other place or to
such other person as Landlord may designate in writing from time to time.
4.02 Additional Rent. All sums payable by Tenant under this Lease other
than Base Rent shall be deemed "Additional Rent;" the term "Rent" shall mean
Base Rent and Additional Rent. Landlord shall estimate in advance and charge to
Tenant the following costs, to be paid with the Base Rent on a monthly basis
throughout the Lease Term: (i) all Real Property Taxes for which Tenant is
liable under Section 5.01 and 5.02 of the Lease, (ii) all utility costs (if
utilities are not separately metered) for which Tenant is liable under Section
6.01 of the Lease, (iii) all insurance premiums for which Tenant is liable under
Sections 7.01 and 7.06 of the Lease and (iv) all CAM Expenses for which Tenant
is liable under Section 8.04 of the Lease. Collectively, the aforementioned Real
Property Taxes, insurance, utility, and CAM Expenses shall be referred to as the
"Total Operating Costs". Landlord may adjust its estimates of Total Operating
Costs at any time, but not more than twice annually, based upon Landlord's
experience and reasonable anticipation of costs. Such adjustments shall be
effective as of the next Rent payment date after notice to Tenant with
reasonable supporting documentation if requested by Tenant. Within one hundred
twenty (120) days after the end of each Fiscal Year during the Lease Term,
Landlord shall deliver to Tenant a statement (the "Statement") prepared in
accordance with generally accepted accounting principles setting forth, in
reasonable detail, the Total Operating Costs paid or incurred by Landlord during
the preceding fiscal year and Tenant's Pro Rata Share of such expenses. Within
thirty (30) days after Tenant's receipt of the Statement, there shall be an
adjustment between Landlord and Tenant, with payment to or credit given by
Landlord (as the case may be) in order that Landlord shall receive the entire
amount of Tenant's share of such costs and expenses for such period. Provided
Tenant has paid its monthly installments of its Pro Rata Share of Total
Operating Costs as previously billed by Landlord, Tenant (and its accountants
and representatives) will have the right, within 30 days of receipt of the
Statement, to notify Landlord that it would like to audit Landlord's books and
records with respect to the Total Operating Costs. Such audit is to be at
Tenant's sole cost and expense (except as provided in the following sentence)
and is to performed and completed within three months of the receipt of the
Statement by Tenant. If such audit reveals that the Total Operating Costs billed
to Tenant exceed the actual Total Operating Costs by more than five percent,
Landlord shall pay the reasonable costs of such audit. Such audit may not be
performed by anyone being compensated on a contingency basis. In addition to its
obligation to pay Base Rent and its Pro Rata Share of Total Operating Expenses,
Tenant is required hereunder to pay directly to suppliers, vendors, carriers,
contractors, etc. certain insurance premiums, utility costs, personal property
taxes, maintenance and repair costs and other expenses, collectively "Additional
Expenses." If Landlord pays for any Additional Expenses in accordance with the
terms of this Lease, Tenant's obligation to reimburse such costs shall be an
Additional Rent obligation payable in full with the next monthly Rent payment.
Unless this Lease provides otherwise, Tenant shall pay all Additional Rent then
due with the next monthly installment of Base Rent. Landlord acknowledges and
agrees that no Additional Rent shall be payable with respect to Suite 160 prior
to the Lease Commencement Date for such portion of the Premises.
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4.03 Late Charge. Tenant hereby acknowledges that late payment by Tenant to
Landlord of Rent and other amounts due hereunder will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any loan secured by the Building. Accordingly, if any
installment of Rent or any other sums due from Tenant shall not be received by
Landlord within ten (10) days following the due date, Tenant shall pay to
Landlord a late charge equal to five percent (5%) of such overdue amount. The
parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event constitute a waiver
of Tenant's default with respect to such overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies granted hereunder.
4.04 Interest. Any Rent or other amount due to Landlord, if not paid within
thirty (30) days of when due, shall bear interest from the date due until paid
at the rate of ten percent (10%) per annum. Payment of interest shall not excuse
or cure any default hereunder by Tenant.
4.05 Tenant's Pro Rata Share. Tenant's Pro Rata Share shall be calculated
by dividing the Premises Rentable Area by the Property Rentable Area. Tenant's
Pro Rata Share is set forth in Section 1.08 and is subject to adjustment based
on the aforementioned formula.
ARTICLE FIVE - PROPERTY TAXES
5.01 Real Property Taxes. Tenant shall pay Tenant's Pro Rata Share of Real
Property Taxes on the Property payable during the Lease Term. Tenant shall make
such payments in accordance with Section 4.02. If Landlord shall receive a
refund of any Real Property Taxes with respect to which Tenant shall have paid
Tenant's Pro Rata Share, Landlord shall refund to Tenant Tenant's Pro Rata Share
of such refund after deducting therefrom the reasonable costs and expenses
incurred in connection therewith.
5.02 Definition of "Real Property Tax". "Real Property Tax" shall mean
taxes, assessments (special, betterment, or otherwise), levies, fees, rent
taxes, excises, impositions, charges, water and sewer rents and charges, and all
other government levies and charges, general and special, ordinary and
extraordinary, foreseen and unforeseen, which are imposed or levied upon or
assessed against the Property or any Rent or other sums payable by any tenants
or occupants thereof. Real Property Tax shall include Landlord's costs and
expenses of contesting any Real Property Tax, but shall specifically exclude any
penalties and/or interest assessed due to Landlord's failure to timely pay all
Real Property Taxes. If at any time during the term the present system of ad
valorem taxation of real property shall be changed so that in lieu of the whole
or any part of the ad valorem tax on real property, or in lieu of increases
therein, there shall be assessed on Landlord a capital levy or other tax on the
gross rents received with respect to the Property or a federal, state, county,
municipal, or other local income, franchise, excise or similar tax, assessment,
levy, or charge (distinct from any now in effect) measured by or based, in whole
or in part, upon gross rents, then all of such taxes, assessments, levies, or
charges, to the extent so measured or based, shall be deemed to be a Real
Property Tax.
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5.03 Personal Property Taxes. Tenant shall pay directly all taxes charged
against trade fixtures, furnishings, equipment, inventory, or any other personal
property belonging to Tenant. Tenant shall use its best efforts to have personal
property taxed separately from the Property. If any of Tenant's personal
property shall be taxed with the Property, Tenant shall pay Landlord the taxes
for such personal property within thirty (30) days after Tenant receives a
written statement from Landlord for such personal property taxes.
ARTICLE SIX - UTILITIES
6.01 Utilities. Tenant shall promptly pay, directly to the appropriate
supplier, the cost of all natural gas, heat, cooling, energy, light, power,
sewer service, telephone, water, refuse disposal and other utilities and
services supplied to the Premises, allocable to the period from the time Tenant
shall first enter the Premises, throughout the Lease Term and thereafter as long
Tenant shall remain in the Premises (collectively, "the Occupancy Period"),
together with any related installation or connection charges or deposits
(collectively "Utility Costs"). All utilities to the Premises shall be
separately metered. If any are not separately metered, all costs associated with
the installation and approval of separate meters shall be borne by the Landlord.
Landlord shall not be liable for damages, consequential or otherwise, nor shall
there be any rent abatement arising out of any curtailment or interruption
whatsoever in utility services, unless due to the negligent acts or omissions of
Landlord. Utilities serving the Common Areas (as defined in Article Eight)
exclusively shall be accounted for as described in Article Eight.
ARTICLE SEVEN - INSURANCE
7.01. Liability Insurance. During the Occupancy Period, Tenant shall
maintain in effect commercial general liability insurance insuring Tenant
against liability for bodily injury, property damage (including loss of use of
property) and personal injury at the Premises, including contractual liability.
Such insurance shall name Landlord, its property manager and any mortgagee, as
additional insureds. The initial amount of such insurance shall be Three Million
Dollars ($3,000,000) per occurrence and shall be subject to periodic increases
specified by Landlord based upon inflation, increased liability awards,
recommendation of Landlord's professional insurance advisers, and other relevant
factors. The liability insurance obtained by Tenant under this Section 7.01
shall (i) be primary and (ii) insure Tenant's obligations to Landlord under
Section 7.09. The amount and coverage of such insurance shall not limit Tenant's
liability nor relieve Tenant of any other obligation under this Lease. Landlord
may also obtain commercial general liability insurance in an amount and with
coverage determined by Landlord insuring Landlord against liability with respect
to the Premises and the Property. The policy obtained by Landlord shall not
provide primary insurance, shall not be contributory and shall be excess over
any insurance maintained by Tenant.
7.02 Worker's Compensation Insurance. During the Occupancy Period, Tenant
shall maintain in effect Worker's Compensation Insurance (including Employers'
Liability Insurance) in the statutory amount covering all employees of Tenant
employed or performing services at the Premises, in order to provide the
statutory benefits required by the laws of the state in which the Premises are
located. Such coverage may be maintained by Tenant through self-insurance as
permitted from time to time by Texas law.
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7.03 Automobile Liability Insurance. During the Occupancy Period, Tenant
shall maintain in effect Automobile Liability Insurance, including but not
limited to, passenger liability, on all owned, non-owned, and hired vehicles
used by Tenant's employees in connection with the Premises, with a combined
single limit per occurrence of not less than One Million Dollars ($1,000,000)
for injuries or death of one or more persons or loss or damage to property.
7.04 Personal Property Insurance. During the Occupancy Period, Tenant shall
maintain in effect Personal Property Insurance covering leasehold improvements
paid for by Tenant and Tenant's personal property and fixtures from time to time
in, on, or at the premises, in an amount not less than 100% of the full
replacement cost, without deduction for depreciation, providing protection
against events protected under "All Risk Coverage," as well as against sprinkler
damage, vandalism, and malicious mischief. Any proceeds from the Personal
Property Insurance shall be used for the repair or replacement of the property
damaged or destroyed, unless this Lease is terminated under an applicable
provision herein. If the Premises are not repaired or restored following damage
or destruction in accordance with other provisions herein, Landlord shall
receive any proceeds from the Personal Property Insurance allocable to Tenant's
leasehold improvements.
7.05 Intentionally Omitted.
7.06 Landlord's Property and Rental Income Insurance. During the Lease
Term, Landlord shall maintain in effect all risk insurance covering loss of or
damage to the Property in the amount of its replacement value with such
endorsements and deductibles as Landlord shall determine from time to time.
Landlord shall have the right to obtain flood, earthquake, and such other
insurance as Landlord shall determine from time to time or shall be required by
any lender holding a security interest in the Property. Landlord shall not
obtain insurance for Tenant's fixtures or equipment or building improvements
installed by Tenant. During the Lease Term, Landlord may maintain a rental
income insurance policy, with loss payable to Landlord, in such amounts as it
deems necessary and appropriate. Tenant shall not do or permit anything to be
done which shall invalidate any such insurance. Any increase in the cost of
Landlord's insurance due to Tenant's use or activities at the Premises shall be
paid by Tenant to Landlord as Additional Rent hereunder.
7.07 Payment of Insurance Premiums. Landlord shall pay the premiums of the
insurance policies maintained by Landlord under Section 7.06 and Section 7.01
(if applicable), and Tenant shall reimburse Landlord for Tenant's Pro Rata Share
of such premiums in accordance with Section 4.02. Tenant shall pay directly the
premiums of the insurance policies maintained by Tenant under Sections 7.01,
7.02, 7.03 and 7.04.
7.08 General Insurance Provisions.
7.08 (a) Any insurance which Tenant shall be required to maintain under
this Lease shall include a provision which requires the insurance carrier to
give Landlord not less than thirty (30) days' written notice prior to any
cancellation or modification of such coverage.
7.08 (b) Prior to the earlier of Tenant's entry into the Premises or the
Commencement Date, Tenant shall deliver to Landlord an insurance company
certificate that Tenant maintains the insurance required by Sections 7.01, 7.02,
7.03, 7.04 and 7.05 and not less than thirty (30) days prior to the expiration
or termination of any such insurance, Tenant shall deliver to Landlord renewal
certificates therefor. Tenant shall provide Landlord with copies of the policies
promptly upon request from time to time. If Tenant shall fail to deliver any
certificate or renewal certificate to Landlord required under this Lease within
the prescribed time period or if any such policy shall be canceled or modified
during the Lease Term without Landlord's consent, Landlord may obtain such
insurance, in which case Tenant shall reimburse Landlord, as Additional Rent,
for 110% of the cost of such insurance within ten (10) days after receipt of a
statement of the cost of such insurance.
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7.08 (c) Tenant and Landlord shall maintain all insurance required under
this Lease with companies having a "General Policy Rating" of A -; X or better,
as set forth in the most current issue of the Best Key Rating Guide.
7.08 (d) Landlord and Tenant, on behalf of themselves and their
insurers, each hereby waive any and all rights of recovery against the other,
the officers, members, partners, employees, agents, or representatives of the
other and the officers, members, partners, employees, agents or representatives
of each of the foregoing, for loss of or damage to its property or the property
of others under its control, if such loss or damage shall be covered by any
insurance policy in force (whether or not described in this Lease) at the time
of such loss or damage, or required to be carried under this Article Seven. All
property insurance carried by either party shall contain a waiver of subrogation
against the other party to the extent such right shall have been waived by the
insured party prior to the occurrence of loss or injury.
7.09 Indemnity. To the fullest extent permitted by law, Tenant hereby
waives all claims against Landlord, its agents, advisors, employees, members,
officers, directors, partners, trustees, beneficiaries and shareholders (each a
"Landlord Party") and the agents, advisors, employees, members, officers,
directors, partners, trustees, beneficiaries and shareholders of each Landlord
Party (collectively "the Indemnitees") for damage to any property or injury to
or death of any person in, upon or about the Premises or the Property arising at
any time and from any cause, and Tenant shall hold Indemnitees harmless from and
defend Indemnitees from and against all claims, liabilities, judgements,
demands, causes of action, losses, damages, costs and expenses including
reasonable attorney's fees for damage to any property or injury to or death of
any person arising in or from (i) the use or occupancy of the Premises by Tenant
or persons claiming under Tenant, except such as is caused by the sole
negligence or willful misconduct of Landlord, its agents, employees or
contractors, or (ii) arising from the negligence or willful misconduct of
Tenant, its employees, agents, contractors, or invitees in, upon or about the
Property, or (iii) arising out of any breach or default by Tenant under this
Lease. The foregoing shall include investigation costs and expenses incurred by
Landlord in connection with any claim or demand made under this Section. The
provisions of this Section 7.09 shall survive the expiration or termination of
this Lease with respect to any damage, injury, or death occurring prior to such
time.
ARTICLE EIGHT - COMMON AREAS
8.01 Common Areas. As used in this Lease, "Common Areas" shall mean all
areas within the Property which are available for the common use of tenants of
the Property and which are not leased or held for the exclusive use of Tenant or
other tenants, including, but not limited to, parking areas, driveways,
sidewalks, access roads, landscaping, and planted areas. Landlord, from time to
time, may change the size, location, nature, and use of any of the Common Areas,
convert Common Areas into leaseable areas, construct additional parking
facilities (including parking structures) in the Common Areas, and increase or
decrease Common Area land or facilities so long as any such change to the Common
Area land or facilities does not materially decrease or relocate the number of
Parking Spaces Allocated to Tenant as at and of the Lease Commencement Date, and
further so long as any such change does not unreasonably affect Tenant's ingress
and egress to the Premises for pickup and deliveries necessary for Tenant's
Permitted Use of the Premises. Such activities and changes shall not
unreasonably and materially affect Tenant's use of the Premises for its
Permitted Use.
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8.02 Use of Common Areas. Tenant shall have the non-exclusive right (in
common with other tenants and all others to whom Landlord has granted or may
grant such rights) to use the Common Areas for the purposes intended, subject to
such reasonable rules and regulations ("Rules and Regulations") as Landlord may
establish or modify from time to time and as initially set forth in Exhibit C.
Tenant shall abide by all such Rules and Regulations and shall use its
commercially reasonable efforts to cause others who use the Common Areas with
Tenant's express or implied permission to abide by Landlord's Rules and
Regulations. At any time, Landlord may close any Common Areas to perform any
acts in the Common Areas as, in Landlord's reasonable judgment, are desirable to
maintain or improve the Property, so long as such closure does not unreasonably
interfere with Tenant's use of the Premises for its Permitted Use. Tenant shall
not interfere with the rights of Landlord, other tenants, or any other person
entitled to use the Common Areas so long as such rights are not inconsistent
with Tenants use of the Common Areas as required by its Permitted Use.
8.03 Vehicle Parking. Tenant shall be entitled to use the Parking Spaces
Allocated to Tenant without paying any additional Rent. Tenant's parking shall
not be reserved and shall be limited to vehicles no larger than standard size
automobiles or pickup or sports utility vehicles. Tenant shall not cause large
trucks or other large vehicles to be parked within the Property or on the
adjacent public streets except in accordance with the Rules and Regulations.
Vehicles shall be parked only in striped parking spaces and not in driveways or
other locations not specifically designated for parking. Handicapped spaces
shall only be used by those legally permitted to use them. Tenant shall not park
at any time more vehicles in the parking area than the number of Parking Spaces
Allocated to Tenant.
8.04 Common Area Maintenance. Subject to Articles Eleven and Twelve,
Landlord shall maintain the Common Areas in good order, condition, and repair.
Common Area Maintenance expenses ("CAM Expenses") are all costs and expenses
associated with the operation and maintenance of the Common Areas and the repair
and maintenance of the heating, ventilation, air conditioning, plumbing,
electrical, utility, and safety systems (to the extent not performed by Tenant),
including, but not limited to, the following: gardening and landscaping; snow
removal; utility, water and sewage services for the Common Area; maintenance of
signs (other than tenants' signs); worker's compensation insurance; personal
property taxes; rentals or lease payments paid by Landlord for rented or leased
personal property used in the operation or maintenance of the Common Areas; fees
for required licenses and permits; routine maintenance and repair of roof
membrane, flashings, gutters, downspouts, roof drains, skylights and
waterproofing; maintenance of paving (including sweeping, striping, repairing,
resurfacing, and repaving); general maintenance; painting; lighting; cleaning;
refuse removal; security and similar items; reserves for roof replacement,
exterior painting and other appropriate reserves; and a property management fee
(not to exceed three percent (3%) of the gross rents of the Property for the
calendar year). Landlord may cause any or all of such services to be provided by
third parties and the cost of such services shall be included in CAM Expenses.
With respect to any CAM Expenses which are included for the benefit of the
Property and other property, Landlord shall make a reasonable allocation of such
cost between the Property and such other property. CAM Expenses shall not
include: (a) the cost of capital repairs and replacements, provided, however,
that the annual depreciation (based on the useful life of the item under
generally accepted accounting principles) of any such capital repair or
replacement to the Common Areas or the heating, ventilating, air-conditioning,
plumbing, electrical, utility and safety systems serving the Property shall be
included in the CAM Expenses each year during the term of this Lease; and (b)
the cost of capital improvements, provided, however, that the annual
depreciation (based on the useful life of the item under generally accepted
accounting principles) of any capital improvement undertaken to reduce CAM
Expenses or made in order to comply with legal requirements shall be included in
CAM Expenses each year during the term of this Lease. If, during any period for
which CAM Expenses are being computed, less than all of the Property is occupied
by tenants, or if Landlord is not supplying all tenants with the services being
supplied hereunder, CAM Expenses shall be reasonably estimated and extrapolated
by Landlord to determine the CAM Expenses that would have been incurred if the
Property were fully occupied for such year and such services were being supplied
to all tenants, and such estimated and extrapolated amount shall be deemed to be
CAM Expenses for such period.
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8.05 Tenant's Payment of CAM Expenses. Tenant shall pay Tenant's Pro Rata
Share of all CAM Expenses in accordance with Section 4.02. There may be an 8%
compounded cumulative annual cap on any increase to be paid by Tenant in
controllable CAM Expenses. Controllable CAM Expenses are all CAM Expenses other
than insurance and utilities.
ARTICLE NINE - USE OF PREMISES
9.01 Permitted Uses. Tenant may use the Premises only for the Permitted
Uses.
9.02 Manner of Use. Tenant shall not cause or permit the Premises to be
used in any way which shall constitute a violation of any law, ordinance,
restrictive covenants, governmental regulation or order, which shall interfere
with the rights of tenants of the Property, or which shall constitute a nuisance
or waste. Tenant shall obtain and pay for all permits, including a certificate
of occupancy and shall promptly take all actions necessary to comply with all
applicable statutes, ordinances, notes, regulations, orders, covenants and
requirements regulating the use by Tenant of the Premises, including the
Occupational Safety and Health Act and the Americans With Disabilities Act, to
the extent and only to the extent applicable to the interior space of the
Premises, the loading dock area for the Premises, and portion of the Premises
used exclusively by Tenant, its employees, agents and invitees. Landlord shall
be responsible for compliance with any state or Federal regulations, including
ADA and Texas Accessibility Standards, in the exterior and Common Areas of the
Property.
9.03 Hazardous Materials.
Tenant agrees not to dispose of or discharge or permit the disposal or
discharge of any Hazardous Substance on, in, or about the Premises. Tenant may
store minimal quantities of substances in the Premises which technically could
be considered Hazardous Substances; provided that such substances are of a type
and are held only in a quantity normally used in connection with the occupancy
or operation of the Premises for a Permitted Use (such as cleaning fluids and
supplies normally used in the day to day operation of retail store operations
and repair and service operations) and such substances are being held, stored
and used in complete and strict compliance with all applicable laws. Tenant will
promptly furnish to Landlord copies of all notices given by Tenant, its agents,
or employees, to any governmental agency, court, or other entity, or received by
Tenant, its agents, or employees from any governmental agency, court, or other
entity, in connection with any Hazardous Substance relating to the Premises.
Tenant will promptly notify Landlord of the pendency or threat of private or
governmental claims or judicial or administrative actions relating to
environmental impairment or regulatory requirements relating to Hazardous
Substances on the Premises caused by the acts or omissions of Tenant, its agents
or employees. If Tenant defaults in any of its obligations under this Section,
in addition to all other rights and remedies available to Landlord under this
Lease or at law or in equity, Landlord will have the right (but not the
obligation) to cure such default (at Tenant's sole expense), including the
repair of the Premises. The amount so paid by Landlord, together with any
reasonable attorneys' fees incurred by Landlord, will be immediately due from
Tenant to Landlord as Additional Rent. Tenant will indemnify, protect, defend,
and hold Landlord harmless from and against any and all claims, demands, losses,
liabilities, and penalties (including, without limitation, reasonable attorneys'
fees at all trial and appellate levels, whether or not suit is brought) arising
from or out of the presence of any Hazardous Substance on the Premises or any
violation of any local, state or federal environmental law, regulation,
ordinance or administrative or judicial order relating to any Hazardous
Substance, provided such has been caused by the acts or omissions of Tenant, its
agents, contractors, employees or invitees. The provisions of this Section 9.03
shall survive the expiration or earlier termination of this Lease.
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As used in this Lease, the term "Hazardous Material" shall mean any
flammable items, explosives, radioactive materials, oil, hazardous or toxic
substances, material or waste or related materials, including any substances
defined as or included in the definition of "hazardous substances", "hazardous
wastes", "hazardous materials" or "toxic substances" now or subsequently
regulated under any applicable federal, state or local laws or regulations,
including without limitation petroleum-based products, paints, solvents, lead,
cyanide, DDT, printing inks, acids, pesticides, ammonia compounds and other
chemical products, asbestos, PCBs and similar compounds, and including any
different products and materials which are subsequently found to have adverse
effects on the environment or the health and safety of persons. Other than
described in the immediately preceding paragraph, Tenant shall not cause or
permit any Hazardous Material to be generated, produced, brought upon, used,
stored, treated or disposed of in or about the Property by Tenant, its agents,
employees, contractors, sublessees or invitees without (a) the prior written
consent of Landlord, and (b) complying with all applicable Federal, State and
Local laws or ordinances pertaining to the transportation, storage, use or
disposal of such Hazardous Materials, including but not limited to obtaining
proper permits. Landlord shall be entitled to take into account such other
factors or facts as Landlord may reasonably determine to be relevant in
determining whether to grant or withhold consent to Tenant's proposed activity
with respect to Hazardous Material. In no event, however, shall Landlord be
required to consent to the installation or use of any storage tanks on the
Property.
If Tenant's transportation, storage, use or disposal of Hazardous Materials
on the Premises results in the contamination of the soil or surface or ground
water or loss or damage to person(s) or property, then Tenant agrees to: (a)
notify Landlord immediately of any contamination, claim of contamination, loss
or damage, (b) after consultation with the Landlord, clean up the contamination
in full compliance with all applicable statutes, regulations and standards and
(c) indemnify, defend and hold Landlord harmless from and against any claims,
suits, causes of action, costs and fees, including attorney's fees and costs,
arising from or connected with any such contamination, claim of contamination,
loss or damage. Tenant agrees to fully cooperate with Landlord and provide such
documents, affidavits and information as may be requested by Landlord (i) to
comply with any environmental law, (ii) to comply with the request of any
lender, purchaser or tenant, and/or (iii) for any other reason deemed necessary
by Landlord in its sole discretion. Tenant shall notify Landlord promptly in the
event of any spill or other release of any Hazardous Material at, in, on, under
or about the Premises which is required to be reported to a governmental
authority under any environmental law, will promptly forward to Landlord copies
of any notices received by Tenant relating to alleged violations of any
environmental law and will promptly pay when due any fine or assessment against
Landlord, Tenant or the Premises relating to any violation of an environmental
law for which Tenant is responsible during the term of this Lease. If a lien is
filed against the Premises by any governmental authority resulting from the need
to expend or the actual expending of monies arising from an act or omission,
whether intentional or unintentional, of Tenant, its agents, employees or
invitees, or for which Tenant is responsible, resulting in the releasing,
spilling, leaking, leaching, pumping, emitting, pouring, emptying or dumping of
any Hazardous Material into the waters or onto land located within or without
the State where the Premises is located, then Tenant shall, within thirty (30)
days from the date that Tenant is first given notice that such lien has been
placed against the Premises (or within such shorter period of time as may be
specified by Landlord if such governmental authority has commenced steps to
cause the Premises to be sold pursuant to such lien) either (i) pay the claim
and remove the lien, or (ii) furnish a cash deposit, bond, or such other
security with respect thereto as is satisfactory in all respects to Landlord and
is sufficient to effect a complete discharge of such lien on the Premises.
Landlord shall have the right, but not the obligation, without in any way
limiting Landlord's other rights and remedies under this Lease, to enter upon
the Premises, or to take such other actions as it deems necessary or advisable,
to investigate, clean up, remove or remediate any Hazardous Materials or
contamination by Hazardous Materials present on, in, at, under or emanating from
the Premises or the Property in violation of Tenant's obligations under this
Lease or under any laws regulating Hazardous Materials. Notwithstanding any
other provision of this Lease, Landlord shall have the right, at its election,
in its own name or as Tenant's agent, to negotiate, defend, approve and appeal,
at Tenant's expense, any action taken or order issued by any governmental agency
or authority with any governmental agency or authority against Tenant, Landlord
or the Premises or Property relating to any Hazardous Materials or under any
related law or the occurrence of any event or existence of any condition that
would cause a breach of any of the covenants set forth in this Section 9.03.
Prior to or promptly after the expiration or termination of this Lease, Landlord
may require an environmental audit of the Premises by a qualified environmental
consultant. Tenant shall pay the costs of such an environmental audit if such
audit discloses any Hazardous Materials in, on or under the Premises as a result
of Tenant's violation of the provisions of this Section 9.03, and shall, at it
sole cost and expense, take all actions recommended in such audit to remediate
any environmental conditions. The provisions of this Section 9.03 shall survive
the expiration or earlier termination of this Lease. This Section 9.03
specifically excludes Tenant from any liability emanating from any pre-existing
environmental condition occurring at the time of the Lease Commencement Date,
any environmental contamination emanating from a neighboring tenant or landlord,
or any of Landlord's invitees, vendors or guests, actions causing environmental
contamination. Landlord represents and warrants to Tenant that it has not done
anything at the Property in violation of any Environmental Laws since the date
of the Phase I delivered by Landlord to Tenant.
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9.04 Signs and Auctions. Tenant shall not place any signs on the Property
except that described and set forth in Exhibit 9.04, without Landlord's prior
written consent. Tenant shall comply with all applicable laws and governmental
requirements with respect to such signage and shall provide Landlord with
written confirmation from the applicable authorities of such compliance. Tenant
shall not conduct or permit any auctions or sheriff's sales at the Property.
9.05 Outside Storage Area. Tenant may construct an enclosed, screened area
to be used for the storage and repair of lawn equipment in the location shown on
Exhibit 9.06. Tenant shall present Landlord with plans for such enclosure for
Landlord's consent, which shall not be unreasonably withheld. Tenant shall
comply with all applicable laws and governmental requirements with respect to
such enclosure and shall provide Landlord with written confirmation from the
applicable authorities of such compliance.
9.06 Landlord's Access. Landlord or its agents may enter the Premises at
all reasonable times and upon reasonable notice as provided herein, to show the
Premises to potential buyers, investors or tenants or other parties; to do any
other act or to inspect and conduct tests in order to monitor Tenant's
compliance with all applicable environmental laws and all laws governing the
presence and use of Hazardous Material; or for any other purpose Landlord deems
necessary, so long as such does not unreasonably interfere with Tenant's use of
the Premises. Landlord shall give Tenant 24 hours' prior notice (which may be
oral) of such entry, except in the case of an emergency, in which event Landlord
shall make reasonable efforts to notify Tenant. Landlord may place customary
"For Sale" signs in the Common Areas, but not on the Premises, and , during the
last six (6) months of the Lease Term, "For Lease" signs on the Premises.
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ARTICLE TEN - CONDITION AND MAINTENANCE OF PREMISES
10.01 Existing Conditions. Except as set forth on Exhibit D, Tenant shall
accept the Property and the Premises in their condition as of the execution of
the Lease, subject to all recorded matters, laws, ordinances, and governmental
regulations and orders. Tenant acknowledges that neither Landlord nor any agent
of Landlord has made any representation as to the condition of the Property or
the suitability of the Property for Tenant's intended use except as provided
herein. Tenant represents and warrants that Tenant has made its own inspection
of and inquiry regarding the condition of the Property and is not relying on any
representations of Landlord or any Broker with respect thereto except as
provided herein. Tenant agrees to execute promptly a Memorandum of Acceptance of
Premises in the form set forth in Exhibit E to this Lease when Tenant is
satisfied as to the delivery of the Premises as required by this Lease.
10.02 Exemption of Landlord from Liability. Tenant shall insure its
personal property under an all risk full replacement cost property insurance
policy as provided in Section 7.04. 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 or about the Property, 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 in or about Property, or from other
sources or places; or (d) any act or omission of any other tenant of the
Property. Tenant shall give Landlord prompt notice upon the occurrence of any
accident or casualty at the Premises. 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 10.02
shall not, however, exempt Landlord from liability for the negligence or willful
misconduct of Landlord and its agents, employees and contractors.
10.03 Landlord's Obligations. Subject to the provisions of Article Eleven
(Damage or Destruction) and Article Twelve (Condemnation), and except for damage
caused by any act or omission of Tenant, or Tenant's employees, agents,
contractors or invitees, Landlord, at its cost, shall keep the foundation, roof
(including both substructure and exterior), building systems (other than the
heating, ventilating and air conditioning system), structural supports and
exterior walls of the improvements on the Property in good order, condition and
repair. However, Landlord shall not be obligated to maintain or repair windows,
doors, plate glass or the surfaces of walls. Tenant shall promptly report in
writing to Landlord any defective condition known to it which Landlord is
required to repair.
10.04 Tenant's Obligations.
10.04 (a) Repair and Maintenance. Except as provided in Section 10.03,
Article Eleven (Damage or Destruction) and Article Twelve (Condemnation), Tenant
shall keep all portions of the Premises, including the electrical, plumbing,
restrooms, lighting, man doors, dock doors, levelers, shelters, seals and
bumpers (if any), windows, walls, floors, and the heating, ventilating and air
conditioning systems and equipment in good order, condition and repair
(including repainting and refinishing, as needed). If any portion of the
Premises or any system or equipment in the Premises which Tenant shall be
obligated to repair can not be fully repaired or restored, Tenant shall promptly
replace such portion of the Premises or system or equipment, regardless of
whether the benefit of such replacement extends beyond the Lease Term; but if
the benefit or useful life of such replacement extends beyond the Lease Term,
the useful life of such replacement shall be prorated over the remaining portion
of the Lease Term. Tenant shall provide for the regular inspection and
maintenance of the heating and air conditioning system by a heating and air
conditioning contractor,. In the event Tenant does not so provide, Landlord
shall have the right, upon written notice to Tenant, to undertake the
responsibility for maintenance of the heating and air conditioning system at
Tenant's expense. Landlord shall, at Tenant's expense, repair any damage to the
portions of the Property Landlord shall be required to maintain caused by
Tenant's acts or omissions.
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10.04 (b) Tenant's Expense. Tenant shall fulfill all of Tenant's
obligations under this Section 10.04 at Tenant's sole expense. If Tenant shall
fail to maintain, repair or replace the Premises as required by this Section
10.04, Landlord may, upon ten (10) days' prior notice to Tenant (except that no
notice shall be required in the case of an emergency), enter the Premises and
perform such maintenance or repair (including replacement, as needed) on behalf
of Tenant. In such case, Tenant shall reimburse Landlord for all costs
reasonably incurred in performing such maintenance, repair or replacement
immediately upon demand.
10.05 Alterations, Additions, and Improvements.
10.05 (a) Tenant's Work. Tenant shall not make any installations,
alterations, additions, or improvements in or to the Premises which are
structural, cause any roof penetrations or cost in excess of $50,000, including,
without limitation, any apertures in the walls, partitions, ceilings or floors,
without on each occasion obtaining the prior written consent of Landlord, which
shall not be unreasonably withheld, delayed or denied. Any such work so approved
by Landlord shall be performed only in accordance with plans and specifications
therefor approved by Landlord within twenty (20) business days after Landlord's
receiving such plans and specifications (failure of Landlord to approve or
disapprove within such twenty (20) business day period shall be deemed to be
Landlord's approval of such plans and specifications. Tenant shall procure at
Tenant's sole expense all necessary permits and licenses before undertaking any
work on the Premises and shall perform all such work in a good and workmanlike
manner employing materials of good quality and so as to conform with all
applicable zoning, building, fire, health and other codes, regulations,
ordinances and laws and with all applicable insurance requirements. If requested
by Landlord, Tenant shall furnish to Landlord prior to commencement of any such
work a bond or other security acceptable to Landlord assuring that any work by
Tenant will be completed in accordance with the approved plans and
specifications and that all subcontractors will be paid. Tenant shall employ for
such work only contractors approved by Landlord and shall require all
contractors employed by Tenant to carry worker's compensation insurance in
accordance with statutory requirements and commercial general liability
insurance covering such contractors on or about the Premises with a combined
single limit not less than $3,000,000 and shall submit certificates evidencing
such coverage to Landlord prior to the commencement of such work. Tenant shall
indemnify and hold harmless Landlord from all injury, loss, claims or damage to
any person or property occasioned by or growing out of such work. Landlord may
inspect the work of Tenant at reasonable times and given notice of observed
defects. Upon completion of any such work, Tenant shall provide Landlord with
"as built" plans, copies of all construction contracts and proof of payment for
all labor and materials.
10.05 (b) No Liens. Tenant shall pay when due all claims for labor and
material furnished to the Premises and shall at all times keep the Property free
from liens for labor and materials. Tenant shall give Landlord at least twenty
(20) days' prior written notice of the commencement of any work on the Premises,
regardless of whether Landlord's consent to such work is required. Landlord may
record and post notices of non-responsibility on the Premises.
10.06 Condition upon Termination. Upon the expiration or termination of
this Lease, Tenant shall surrender the Premises to Landlord broom clean and in
the condition which Tenant shall have been required to maintain the Premises
under this Lease. Tenant shall not be obligated to repair any damage which
Landlord is required to repair under Article Eleven (Damage or Destruction).
Landlord may require Tenant to remove any alterations, additions or improvements
(whether or not made with Landlord's consent) prior to the expiration of the
Lease and to restore the Premises to their prior condition, reasonable wear and
tear excepted, all at Tenant's expense. With respect to any alterations,
additions or improvements which require Landlord's approval, at the time of such
approval Landlord shall specify if Tenant shall not required to remove the same,
and such items shall become Landlord's property and shall be surrendered to
Landlord upon the expiration or earlier termination of the Lease, except that
Tenant may remove any of Tenant's machinery or equipment which can be removed
without damage to the Property. Tenant shall repair, at Tenant's expense, any
damage to the Property caused by the removal of any such machinery or equipment.
In no event, however, shall Tenant remove any of the following materials or
equipment (which shall be deemed Landlord's property), without Landlord's prior
written consent; unless the same shall have been installed by Tenant at its
expense: any power wiring or wiring 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.
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ARTICLE ELEVEN - DAMAGE OR DESTRUCTION
11.01 Damage to Premises.
11.01 (a) If the Premises shall be destroyed or rendered untenantable,
either wholly or in part, by fire or other casualty ("Casualty"), Tenant shall
immediately notify Landlord in writing upon the occurrence of such Casualty. In
the event of any Casualty damaging 25% or more of the Premises, Landlord may
elect either to (i) repair the damage caused by such casualty as soon as
reasonably possible, in which case this Lease shall remain in full force and
effect, or (ii) terminate this Lease as of the date the casualty occurred.
Landlord shall notify Tenant within thirty (30) days after receipt of notice of
the occurrence of the casualty whether Landlord elects to repair the damage or
terminate this Lease. If Landlord shall elect to repair the damage, and, if the
damage shall have been due to an act or omission of Tenant, or Tenant's
employees, agents, contractors or invitees, Tenant shall pay Landlordthe
difference between the actual cost of repair and any insurance proceeds received
by Landlord. In the event Landlord cannot complete the repairs to the Premises
within 180 days of the Casualty (which time frame shall be certified to Tenant
in writing by Landlord and its contractor prior to commencing repair), then
Tenant may elect to terminate this Lease by providing Landlord written notice of
its election within ten (10) days of its receipt of notification from Landlord
that the Premises will not be repaired within the 180-day time period.
11.01 (b) If the casualty to the Premises shall occur during the last
six (6) months of the Lease Term and the damage shall be estimated by Landlord
to require more than thirty (30) days to repair, either Landlord or Tenant may
elect to terminate this Lease as of the date the casualty shall have occurred,
regardless of the sufficiency of any insurance proceeds. The party electing to
terminate this Lease shall give written notification to the other party of such
election within ten (10) days after Tenant's notice to Landlord of the
occurrence of the casualty.
11.02 Temporary Reduction of Rent. If the Property shall be destroyed or
damaged by casualty and Landlord shall determine to repair or restore the
Property pursuant to the provisions of this Article Eleven, any Rent payable
during the period of such damage, repair and/or restoration shall be reduced
according to the degree, if any, to which Tenant's use of the Premises shall be
impaired. Such reduction shall not exceed the sum of one year's payment of Base
Rent, insurance premiums and Real Property Taxes. Except for such possible
reduction in Rent, insurance premiums and Real Property Taxes, Tenant shall not
be entitled to any compensation, reduction or reimbursement from Landlord as a
result of any damage, destruction, repair, or restoration of the Property.
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11.03 Waiver. Tenant waives the protection of any statute, code or judicial
decision which shall grant a tenant the right to terminate a lease in the event
of the damage or destruction of the leased property and the provisions of this
Article Eleven shall govern the rights and obligations of Landlord and Tenant in
the event of any damage or destruction of or to the Property.
ARTICLE TWELVE - CONDEMNATION
12.01 Condemnation. If more than fifteen percent (15%) of the floor area of
the Premises or more than fifteen percent (15%) of the parking on the Property
shall be taken by eminent domain either Landlord or Tenant may terminate this
Lease as of the date the condemning authority takes title or possession, by
delivering notice to the other within ten (10) days after receipt of written
notice of such taking (or in the absence of such notice, within ten (10) days
after the condemning authority shall take title or possession). If neither
Landlord nor Tenant shall terminate this Lease, this Lease shall remain in
effect as to the portion of the Premises not taken, except that the Base Rent
shall be reduced in proportion to the reduction in the floor area of the
Premises. If this Lease shall be terminated, any condemnation award or payment
shall be distributed to the Landlord. Tenant shall have no claim against
Landlord for the value of the unexpired lease term or otherwise.
ARTICLE THIRTEEN - ASSIGNMENT AND SUBLETTING
13.01 Landlord's Consent Required. No portion of the Premises or of
Tenant's interest in this Lease shall be acquired by any other person or entity,
whether by sale, assignment, mortgage, sublease, transfer, operation of law, or
act of Tenant, without Landlord's prior written consent, except as provided in
Section 13.02 below. Landlord shall have the right to grant or withhold its
consent as provided in Section 13.04 below. Any attempted transfer without
consent shall be void and shall constitute a non curable breach of this Lease.
Notwithstanding the foregoing, Tenant may assign this Lease or sublet the
Premises, without obtaining Landlord's consent, to (i) any parent, subsidiary or
affiliate of Tenant, (ii) to any partnership, corporation or other business
entity into or with Tenant shall be merged, converted or consolidated or to
which all of Tenant's assets may be transferred (an "Affiliate Transfer").
Tenant shall provide Landlord with ten days' prior notice of an Affiliate
Transfer and shall provide Landlord with reasonable documentation with respect
to such transaction.
13.02 No Release of Tenant. No assignment or transfer shall release Tenant
or change Tenant's primary liability to pay the Rent and to perform all other
obligations of Tenant under this Lease. Landlord's acceptance of Rent from any
other person shall not be a waiver of any provision of this Article Thirteen.
Consent to one transfer shall not be deemed a consent to any subsequent transfer
or a waiver of the obligation to obtain consent on subsequent occasions. If
Tenant's assignee or transferee shall default under this Lease, Landlord may
proceed directly against Tenant without pursuing remedies against the assignee
or transferee. Landlord may consent to subsequent assignments or modifications
of this Lease by Tenant's transferee without notifying Tenant or obtaining its
consent, and such action shall not release Tenant from any of its obligations or
liabilities under this Lease as so assigned or modified.
13.03 Offer to Terminate. If Tenant shall desire to assign this Lease or
sublease all or any part of the Premises other than an Affiliate Transfer,
Tenant shall offer to Landlord in writing, the right to terminate this Lease as
of the date specified in the offer. If Landlord shall elect in writing to accept
the offer to terminate within twenty (20) days after receipt of notice of the
offer, this Lease shall terminate as of the date specified in such offer and all
the terms and provisions of this Lease governing termination shall apply. If
Landlord shall not so elect, Tenant shall then comply with the provisions of
this Article Thirteen applicable to such assignment of sublease.
15
13.04 Landlord's Consent. Tenant's request for consent under Section 13.01
shall set forth the details of the proposed sublease, assignment or transfer,
including the name, business and financial condition of the prospective
transferee, financial details of the proposed transaction (e.g., the term of and
the rent and security deposit payable under any proposed assignment or
sublease), and any other information Landlord deems relevant. Landlord shall
respond to any such request within thirty (30) days of receipt of the request
accompanied by all relevant information. Landlord shall have the right to
withhold consent, reasonably exercised, or to grant consent, based on the
following factors: (i) the business of the proposed assignee or subtenant and
the proposed use of the Premises; (ii) the net worth and financial condition of
the proposed assignee or subtenant; (iii) Tenant's compliance with all of its
obligations under this Lease; and (iv) such other factors as Landlord may
reasonably deem relevant. If Tenant shall assign or sublease, the following
shall apply: Tenant shall pay to Landlord as Additional Rent fifty percent (50%)
of the Proceeds (defined below) on such transaction (such amount being
Landlord's share) as and when received by Tenant, unless Landlord shall give
notice to Tenant and the assignee or subtenant that Landlord's Share shall be
paid by the assignee or subtenant to Landlord directly. Proceeds shall mean (a)
all rent and all fees and other consideration paid for or in respect of the
assignment or sublease, including fees under any collateral agreements less (b)
the rent and other sums payable under this Lease (in the case of a sublease of
less than all of the Premises, allocable to the subleased premises) and all
costs and expenses directly incurred by Tenant in connection with the execution
and performance of such assignment or sublease for reasonable real estate
broker's commissions and reasonable costs of renovation or construction of
tenant improvements required under such assignment or sublease. Tenant shall be
entitled to recover such reasonable costs and expenses, including build-out
modifications and leasing commissions, before Tenant shall be obligated to pay
Landlord's Share to Landlord. Tenant shall provide Landlord a written statement
certifying all amounts to be paid from any assignment or sublease of the
Premises within thirty (30) days after the transaction shall be signed and from
time to time thereafter on Landlord's request, and Landlord may inspect Tenant's
books and records to verify the accuracy of such statement. On written request,
Tenant shall promptly furnish to Landlord copies of all the transaction
documentation, all of which shall be certified by Tenant to be complete, true
and correct. Tenant shall promptly reimburse Landlord for all legal costs and
expenses incurred by Landlord in connection with a request for a sublease or
assignment of this Lease, not to exceed $2,000 per occurrence.
ARTICLE FOURTEEN - DEFAULTS AND REMEDIES
14.01 Covenants and Conditions. Tenant's performance of each of Tenant's
obligations under this Lease is a condition as well as a covenant. Tenant's
right to continue in possession of the Premises is conditioned upon such
performance. Time is of the essence in the performance by Tenant of all
covenants and conditions.
14.02 Defaults. Each of the following shall be an event of default under
this Lease:
14.02 (a) Tenant shall abandon the Premises;
14.02 (b) Tenant shall fail to pay Rent or any other sum payable under
this Lease within ten (10) days after written notice from Landlord;
14.02 (c) Tenant shall fail to perform any of Tenant's other obligations
under this Lease and such failure shall continue for a period of thirty (30)
days after notice from Landlord; provided that if more than thirty (30) days
shall be required to complete such performance, Tenant shall not be in default
if Tenant shall commence such performance within the thirty (30) day period and
shall thereafter diligently pursue its completion.
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14.02 (d) (i) Tenant shall make a general assignment or general
arrangement for the benefit of creditors; (ii) a petition for adjudication of
bankruptcy or for reorganization or rearrangement shall be filed by or against
Tenant and shall not be dismissed within sixty (60) days; (iii) a trustee or
receiver shall be appointed to take possession of substantially all of Tenant's
assets located at the Premises or Tenant's interest in this Lease and possession
shall be subjected to attachment, execution or other judicial seizure which
shall not be discharged within sixty (60) days. If a court of competent
jurisdiction shall determine that any of the acts described in this subsection
(d) is not a default under this Lease, and a trustee shall be appointed to take
possession (or if Tenant shall remain a debtor in possession) and such trustee
or Tenant shall assign, sublease, or transfer Tenant's interest hereunder, then
Landlord shall receive, as Additional Rent, the excess, if any, of the rent (or
any other consideration) paid in connection with such assignment, transfer or
sublease over the rent payable by Tenant under this Lease.
14.03 Remedies. On the occurrence of an event of default by Tenant,
Landlord may, at any time thereafter, with or without notice or demand (except
as provided in Section 14.02) and without limiting Landlord in the exercise of
any right or remedy which Landlord may have:
14.03 (a) Terminate this Lease by written notice to Tenant or by entry,
at Landlord's option. Tenant shall then immediately quit and surrender the
Premises to Landlord, but Tenant shall remain liable as hereinafter provided.
Following termination, without prejudice to other remedies Landlord may have by
reason of Tenant's default or of such termination, Landlord may (i) peaceably
reenter the Premises upon voluntary surrender by Tenant or remove Tenant
therefrom and any other persons occupying the Premises, using such legal
proceedings as may be available; (ii) repossess the Premises or relet the
Premises or any part thereof for such term (which may be for a term extending
beyond the Lease Term), at such rental and upon such other terms and conditions
as Landlord in Landlord's sole discretion shall determine, with the right to
make alterations and repairs to the Premises; and (iii) remove all personal
property therefrom. Following termination, Landlord shall have all the rights
and remedies of a landlord provided at law and in equity. The amount of damages
Tenant shall pay to Landlord following termination shall include all Rent unpaid
up to the termination of this Lease, costs and expenses incurred by Landlord due
to such Event of Default and, in addition, Tenant shall pay to Landlord as
damages, at the election of Landlord (if Landlord shall elect subsection (y)
below, it may cease such election at any time), either (x) the discounted
present value (at the then Federal Reserve Bank discount rate) of the aggregate
Rent and other charges due during the period commencing with such termination
and ending on the expiration date of this Lease, or (y) amounts equal to the
Rent and other charges which would have been payable by Tenant had this Lease or
Tenant's right to possession not been so terminated, payable upon the due dates
therefor specified herein following such termination and until the expiration
date of this Lease, provided, however, that if Landlord shall re-let the
Premises during such period, Landlord shall credit Tenant with the net rents
received by Landlord from such re-letting, such net rents to be determined by
first deducting from the gross rents as and when received by Landlord from such
re-letting the expenses incurred or paid by Landlord in terminating this Lease,
and the expenses of re-letting, including, without limitation, altering and
preparing the Premises for new tenants, brokers' commissions, legal fees and all
other similar and dissimilar expenses properly chargeable against the Premises
and the rental therefrom, it being understood that any such reletting may be for
a period equal to or shorter or longer than the remaining Lease Term; and
provided, further, that (i) in the no event shall Tenant be entitled to receive
any excess of such net rents over the sums payable by Tenant to Landlord
hereunder and (ii) in no event shall Tenant be entitled in any suit for the
collection of damages pursuant to this subsection (y) to a credit in respect of
any net rents from a re-letting except to the extent that such net rents are
actually received by Landlord prior to the commencement of such suit. If the
Premises or any part thereof should be re-let in combination with other space,
then proper apportionment on a square foot area basis shall be made of the rent
received from such re-letting and of the expenses of re-letting. In calculating
the Rent and other charges under subsection (x) above, there shall be included,
in addition to the Rent other considerations agreed to be paid or performed by
Tenant, on the assumption that all such considerations would have remained
constant (except as herein otherwise provided) for the balance of the full Term
hereby granted. Landlord may, but need not, re-let the Premises or any part
thereof for such rent and on such terms as it shall determine (including the
right to re-let the Premises for a greater or lesser term than the Lease Term,
the right to re-let the Premises as part of a larger area and the right to
change the character or use made of the Premises). Suit or suits for the
recovery of such damages, or any installments thereof, may be brought by
Landlord from time to time at its election, and nothing contained herein shall
be deemed to require Landlord to postpone suit until the date when the Term of
this Lease would have expired if it had not been terminated hereunder. In lieu
of any other damages or indemnity and in lieu of full recovery by Landlord of
all sums payable under the foregoing provisions of this Section 14.03 (a),
Landlord may, by notice to Tenant, at any time after this Lease shall be
terminated under this Article Fourteen or shall be otherwise terminated for
breach of any obligation of Tenant and before such full recovery, elect to
recover, and Tenant shall thereupon pay, as liquidated damages, an amount equal
to the aggregate of the Base Rent and Additional Rent due for the twelve (12)
months ended immediately prior to such termination plus the amount of Base Rent
and Additional Rent of any kind accrued and unpaid at the time of termination.
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14.03 (b) Maintain Tenant's right to possession, in which case this
Lease shall continue in effect whether or not Tenant has abandoned the Premises.
In such event, Landlord shall be entitled to enforce all of Landlord's rights
and remedies under this Lease, including the right to recover the rent as it
becomes due.
14.03 (c) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state in which the Property is
located.
14.04 Repayment of "Free Rent". If this Lease provides for a postponement
of any Base Rent or Additional Rent, a period of "free" Rent, reduced Rent, or
other Rent concession, such postponed Rent, "free" Rent, reduced Rent or other
Rent concession shall be referred to herein as "Abated Rent." Tenant
acknowledges that its right to receive credit for the Abated Rent is absolutely
conditioned upon Tenant's full, faithful and punctual performance of its
obligations under this Lease. Therefore, if an event of default shall occur
during the first three (3) years of the Lease Term, three (3) months of the
Abated Rent (at the rate of $20,122.67 per month) shall immediately become due
and payable in full and this Lease shall be enforced as if there were no such
Rent abatement or other Rent concession for such three (3) month period.
14.05 Automatic Termination; Damages. Notwithstanding any other term or
provision hereof to the contrary, this Lease shall terminate on the occurrence
of any act which affirms the Landlord's intention to terminate the Lease as
provided in Section 14.03 hereof, including the filing of an unlawful detainer
action against Tenant. On any termination, Landlord's damages for default shall
include all costs and fees, including reasonable attorneys' fees that Landlord
shall incur in connection with the filing, commencement, pursuing and/or
defending of any action in any bankruptcy court or other court with respect to
the Lease, the obtaining of relief from any stay in bankruptcy restraining any
action to evict Tenant, or the pursuing of any action with respect to Landlord's
right to possession of the Premises. All such damages suffered (apart from Base
Rent and other Rent payable hereunder) shall constitute pecuniary damages which
shall be reimbursed to Landlord prior to assumption of the Lease by Tenant or
any successor to Tenant in any bankruptcy or other proceedings.
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14.06 Cumulative Remedies. Except as otherwise expressly provided herein,
any and all rights and remedies which Landlord may have under this Lease and at
law and equity shall be cumulative and shall not be deemed inconsistent with
each other, and any two or more of all such rights and remedies may be exercised
at the same time to the greatest extent permitted by law.
ARTICLE FIFTEEN - PROTECTION OF LENDERS
15.01 Subordination. This Lease shall be automatically subordinate to any
ground lease, deed of trust or mortgage encumbering the Property, any advances
made on the security thereof and any renewals, modifications, consolidations,
replacements or extensions thereof, whenever made or recorded. Tenant shall
cooperate with Landlord and any lender which shall acquire a security interest
in the Property or the Lease. Tenant shall execute such further documents and
assurances as such lender may require, provided that Tenant's obligations under
this Lease shall not be increased in any material way , and Tenant shall not be
deprived of its rights under this Lease. If any ground lessor, beneficiary or
mortgagee elects to have this Lease prior to the lien of its ground lease, deed
of trust or mortgage and gives written notice thereof to Tenant, this Lease
shall be deemed prior 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. Landlord shall obtain a
non-disturbance agreement from Landlord's mortgagee within thirty (30) days of
the execution of this Lease.
15.02 Attornment. If Landlord's interest in the Property is acquired by 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 Property and recognize such transferee or successor
as Landlord under this Lease, provided that any such person or entity agrees in
writing that for so long as Tenant is not in continuing default under the terms
of this Lease, Tenant's right to peaceful enjoyment of and possession to the
Premises shall not be disturbed. Tenant waives the protection of any statute or
rule of law which shall give Tenant any right to terminate this Lease or
surrender possession of the Premises upon the transfer of Landlord's interest.
From and after any such attornment, mortgagee or any such transferee shall not
be: (a) liable for any act or omission of any prior landlord (including
Landlord); or (b) liable for or incur any obligation with respect to the
construction of the Property or any improvements of the Property except as set
forth in this lease; or (c) subject to any offsets or defenses which Tenant
might have against any prior landlord (including Landlord); or (d) bound by any
rent or additional rent which Tenant might have paid more than one month in
advance to any prior landlord (including Landlord); or (e) bound by any
amendment or modification of the Lease, or any consent to any assignment or
sublease, made without the mortgagee's prior written consent if such consent is
required under the applicable loan documents; or (f) responsible for the return
of any security deposit not actually received by such mortgagee; or (g) liable
for any obligation with respect to any breach of warranties or representations
made by any prior landlord (including Landlord), or its agents or
representatives, of any nature under the lease or otherwise; or (h) liable for
consequential damages.
15.03 Signing of Documents. Tenant shall sign and deliver such reasonable
instrument or documents necessary or appropriate to evidence such attornment or
subordination as agreed to herein or agreement to do so, so long as such
document recognizes and agrees to Tenant's right to such possession and peaceful
enjoyment of the Premises.
15.04 Estoppel Certificates. Within ten (10) days after Landlord's request,
Tenant shall execute, acknowledge and deliver to Landlord a written statement
certifying, if true: (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; (iv) that, to Tenant's then existing knowledge, Landlord is not in
default under this Lease (or if Landlord is claimed to be in default, setting
forth such default in reasonable detail); and (v) such other information with
respect to Tenant or this Lease as Landlord may reasonably request or which any
prospective purchaser or encumbrancer of the Property may reasonably require, so
long as such requirements do not add any additional obligations or liabilities
to Tenant that are not contained in this Lease. Landlord may deliver any such
statement by Tenant to any prospective purchaser or encumbrancer of the
Property, and such purchaser or encumbrancer may rely conclusively upon such
statement as true and correct. If Tenant shall not deliver such statement to
Landlord within such ten (10) day period, Landlord, and any prospective
purchaser or encumbrancer, 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 month's Base Rent or other charges have been paid in advance;
and (iv) that, to Tenant's then existing knowledge, Landlord is not in default
under this Lease.
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15.05 Tenant's Financial Condition. The financial statements of the
Guarantor of this Lease are filed with the Securities and Exchange Commission as
required, and are available to Landlord on Guarantor's website at www.conns.com.
If at any time they are not publicly available, within ten (10) days after
request from Landlord from time to time, Tenant shall deliver to Landlord
Guarantor's audited financial statements for the latest available two (2) fiscal
years. Such delivered financial statements may be delivered to Landlord's
mortgagees and lenders and prospective mortgagee, lenders and purchasers. All
financial statements shall be confidential and shall be used only for the
purposes set forth in this Lease.
ARTICLE SIXTEEN - LEGAL COSTS
16.01 Legal Proceedings. If Tenant or Landlord is in breach or default
under this Lease, it shall reimburse the non-defaulting party upon demand for
any costs or expenses that the non-defaulting party shall incur in connection
with any such breach or default, as provided in this Section. Such costs shall
include legal fees and costs incurred for the negotiation of a settlement,
enforcement of rights or otherwise. Tenant shall also indemnify Landlord against
and hold Landlord harmless from all costs, expenses, demands and liability,
including without limitation, legal fees and costs, Landlord shall incur if
Landlord shall become or be made a party to any claim or action (a) instituted
by Tenant against any third party, or by any third party against Tenant, or by
or against any person holding any interest under or using the Premises by
license of or agreement with Tenant; (b) for foreclosure of any lien for labor
or material furnished to or for Tenant or such other person; or (c) otherwise
arising out of or resulting from any act or transaction of Tenant or such other
person; Tenant shall defend Landlord against any such claim or action at
Tenant's expense with counsel reasonably acceptable to Landlord or, at
Landlord's election, Tenant shall reimburse Landlord for any legal fees or costs
Landlord shall incur in any such claim or action.
16.02 Landlord's Consent. Tenant shall pay Landlord's reasonable fees and
expenses, including, without limitation, legal, engineering and other
consultants' fees and expenses, not to exceed $2,500 in total, incurred in
connection with Tenant's request for Landlord's consent under Article Thirteen
(Assignment and Subletting) or in connection with any other act by Tenant which
requires Landlord's consent or approval under this Lease, subject to the
limitations contained herein.
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ARTICLE SEVENTEEN - MISCELLANEOUS PROVISIONS
17.01 Non-Discrimination. Tenant agrees that it will not permit any
discrimination against, or segregation of, any person or group of persons on the
basis of race, color, sex, creed, national origin or ancestry in the leasing,
subleasing, transferring, occupancy, tenure or use of the Premises or any
portion thereof.
17.02 Landlord's Liability; Certain Duties.
17.02 (a) Bind and Inure; Limitation of Landlord's Liability. The
obligations of this Lease shall run with the land, and this Lease shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. No owner of the Property shall be liable under this
Lease except for breaches of Landlord's obligations occurring while owner of the
Property. The obligations of Landlord shall be binding upon the assets of
Landlord which comprise the Property but not upon other assets of Landlord. No
individual partner, trustee, stockholder, officer, member, director, employee,
advisors or beneficiary of Landlord or any partner, trustee, stockholder,
officer, member, director, employee, advisor or beneficiary of any of the
foregoing, shall be personally liable under this Lease and Tenant shall look
solely to Landlord's interest in the Property in pursuit of its remedies upon an
event of default hereunder, and the general assets of Landlord, its partners,
trustees, stockholders, members, officers, employees, advisors or beneficiaries
of Landlord, and the partners, trustees, stockholders, members, officers,
employees, advisors or beneficiary of any of the foregoing, shall not be subject
to levy, execution or other enforcement procedure for the satisfaction of the
remedies of Tenant.
17.02 (b) Notice. Tenant shall give written notice of any failure by
Landlord to perform any of its obligations under this Lease to Landlord and,
subject to any such mortgagee executing an agreement whereby the mortgagee
agrees to recognized Tenant's right to peaceful use and enjoyment of the
Premises so long as Tenant is not in continuous default under the terms of this
Lease, to any mortgagee or beneficiary under any deed of trust encumbering the
Property whose name and address shall have been furnished to Tenant. Landlord
shall not be in default under this Lease unless Landlord (or such mortgagee or
beneficiary) shall fail to cure such non-performance within thirty (30) days (or
sooner based upon the emergency nature of Tenant's claim) after receipt of
Tenant's notice. However, if such non-performance shall reasonably require more
than thirty (30) days to cure, Landlord shall not be in default if such cure
shall be commenced within such thirty (30) day period and thereafter diligently
pursued to completion. Tenant acknowledges that it has been advised, that as of
the date hereof, the mortgagee is as referenced in Article One - Basic Terms.
17.03 Severability. A determination by a court of competent jurisdiction
that any provision of this Lease or any part thereof is illegal or unenforceable
shall not cancel or invalidate the remainder of such provision of this Lease,
which shall remain in full force and effect.
17.04 Interpretation. The captions of the Articles or Sections of this
Lease 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. 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 Premises with Tenant's
expressed or implied permission. This Lease shall not, and nothing contained
herein, shall create a partnership or other joint venture between Landlord and
Tenant.
17.05 Incorporation of Prior Agreements; Modifications. This Lease is the
only agreement between the parties pertaining to the lease of the Premises and
no other agreements shall be effective. All amendments to this Lease shall be in
writing and signed by all parties. Any other attempted amendment shall be void.
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17.06 Notices. All notices, requests and other communications required or
permitted under this Lease shall be in writing and shall be personally delivered
or sent by certified mail, return receipt requested, postage prepaid or by a
national overnight delivery service which maintains delivery records. Notices to
Tenant shall be delivered to Tenant's Address for Notices. Notices to Landlord
shall be delivered to Landlord's Address for Notices. All notices shall be
effective upon delivery (or refusal to accept delivery). Either party may change
its notice address upon written notice to the other party.
17.07 Waivers. All waivers shall be in writing and signed by the waiving
party. Landlord's failure to enforce any provision of this Lease or its
acceptance of Rent shall not be a waiver and shall not prevent 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 such check without being bound by to the conditions of such
statement.
17.08 No Recordation. Tenant shall not record this Lease. Either Landlord
or Tenant may require that a notice, short form or memorandum of this Lease
executed by both parties be recorded. The party requiring such recording shall
pay all transfer taxes and recording fees.
17.09 Binding Effect; Choice of Law. This Lease shall bind any party who
shall legally acquire any rights or interest in this Lease from Landlord or
Tenant, provided that Landlord shall have no obligation to Tenant's successor
unless the rights or interests of Tenant's successor are acquired in accordance
with the terms of this Lease. The laws of the state in which the Property is
located shall govern this Lease.
17.10 Corporate Authority; Partnership Authority. If Tenant is a
corporation, each person signing this Lease on behalf of Tenant represents and
warrants that (s)he has full authority to do so and that this Lease binds the
corporation. If Tenant is a partnership or limited liability company, each
person or entity signing this Lease for Tenant represents and warrants that he
or it is a general partner of the partnership or a manager or managing member of
the company, that he or it has full authority to sign for the partnership and
that this Lease binds the partnership or company and all general partners of the
partnership or the company and its members.
17.11 Guaranty. As a condition to this Lease being executed by Landlord,
Guarantor is concurrently herewith executing a Guaranty of Lease in the form of
Exhibit F which guaranties Tenant's obligations under this Lease..
17.12 Force Majeure. If either party can not perform any of its obligations
due to events beyond its reasonable control, the time provided for performing
such obligations shall be extended by a period of time equal to the duration of
such events. Events beyond the parties' reasonable control include, but are not
limited to, acts of God, war, civil commotion, labor disputes, strikes, fire,
flood or other casualty, shortages of labor or material, government regulation
or restriction and weather conditions.
17.13 Execution of Lease. This Lease may be executed in counterparts and,
when all counterpart documents are executed, the counterparts shall constitute a
single binding instrument. Landlord's delivery of this Lease to Tenant shall not
be deemed to be an offer to lease and shall not be binding upon either party
until executed and delivered by both parties.
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17.14 Survival. All representations and warranties of Landlord and Tenant,
and all obligation of Tenant to pay Additional Rent hereunder, shall survive the
termination of this Lease.
17.15 Examination of Lease. Submission of this Lease to Tenant shall not
constitute an option to lease, and this Lease shall not be effective until
execution and delivery by both Landlord and Tenant.
17.16 Security Deposit. Upon the execution of this Lease, Tenant shall
deposit with Landlord the Security Deposit. Landlord may, at its option, apply
all or part of the Security Deposit to any unpaid Rent or other charges due from
Tenant, cure any other defaults of Tenant, or compensate Landlord for any loss
or damage which Landlord may suffer due to Tenant's default. If Landlord shall
so use any part of the Security Deposit, Tenant shall restore the Security
Deposit to its full amount within ten (10) days after Landlord's request. No
interest shall be paid on the Security Deposit, no trust relationship is created
herein between Landlord and Tenant with respect to the Security Deposit, and the
Security Deposit may be commingled with other funds of Landlord. Upon expiration
or termination of this Lease not resulting from Tenant's default and after
Tenant shall have vacated the Premises in the manner required by this Lease,
Landlord shall pay to Tenant any balance of the Security Deposit not applied
pursuant to this Section 17.16.
17.17 Limitation of Warranties. Landlord and Tenant expressly agree that
there are and shall be no implied warranties of merchantability, habitability,
suitability, fitness for a particular purpose or of any other kind arising out
of this Lease, and there are no warranties which extend beyond those expressly
set forth in this Lease. Without limiting the generality of the foregoing,
Tenant expressly acknowledges that Landlord has made no warranties or
representations concerning any hazardous materials or other environmental
matters affecting any part of the Property and Landlord hereby expressly
disclaims and Tenant waives any express or implied warranties with respect to
any such matters.
17.18 No Other Brokers. Each party represents and warrants to the other
that the Brokers are the only agents, brokers, finders or other parties with
whom such party has dealt who may be entitled to any commission or fee with
respect to this Lease or the Premises or the Property. Each party agrees to
indemnify and hold the other party harmless from any claim, demand, cost or
liability, including, without limitation, attorneys' fees and expenses, asserted
by any party other than the Brokers based upon dealings of that party with the
indemnifying party.
17.19 Renewal Options. Provided (a) Tenant or an entity which is the Tenant
as a result of an Affiliate Transfer or an assignment of the Lease which was
approved by Landlord and (b) no Event of Default exists or would exist but for
the passage of time in the giving of notice, or both, at the time an option may
be exercised and at the time the Renewal Option (as defined below) commences,
Landlord grants to Tenant two options (the "Renewal Options") to extend this
Lease with respect to all of the Premises for two additional consecutive periods
of five (5) years (each, a "Renewal Period"). The Renewal Options may be
exercised by Tenant delivering written notice to Landlord at least six (6)
months prior to the expiration of the then current Lease Term. In the event that
Tenant fails timely to give such notice to Landlord, this Lease shall
automatically terminate at the end of the Lease Term, and Tenant shall have no
further option to extend the Lease Term. Tenant may not exercise the second
Renewal Option without having exercised the first Renewal Option
The rate of base Rent (the "Renewal Rental Rate") for the first Renewal Period
shall be $3.40 per square foot for the first two years of the first Renewal
Period and $3.60 per square foot for the third through fifth years of the first
Renewal Period. The Renewal Rental Rate for the second Renewal Period shall be
equal to ninety-five percent of the then current market rental rate at the
Property charged by Landlord for the Renewal Period, taking into account all
relevant factors, but in no event shall the Renewal Rental Rate be less than the
Rent in effect for the last year of the first Renewal Period Lease Term. No
earlier than ten (10) months prior to the expiration of the first Renewal Period
Tenant may send Landlord a written notice (the "Rental Rate Request") seeking
Landlord's determination of the Renewal Rental Rate for the second Renewal
Period. Not later than thirty (30) days following Landlord's receipt of the
Rental Rate Request, Landlord shall provide Tenant with Landlord's good faith
estimate ("Landlord's FMV Notice") of such Renewal Rental Rate. Tenant shall
have fifteen (15) days from its receipt of Landlord's FMV Notice to notify
Landlord whether Tenant accepts or rejects Landlord's determination of the
Renewal Rental Rate. If Tenant is unwilling to accept Landlord's determination
of the Renewal Rental Rate as set forth in Landlord's FMV Notice, and if the
parties are unable to reach agreement thereon within thirty (30) days after the
delivery of Tenant's notice to Landlord rejecting such rental determination,
then the Renewal Option shall lapse, the Lease shall automatically terminate at
the end of the Term and Tenant shall have no further option to extend the term
of this Lease.
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Landlord and Tenant shall execute an amendment to this Lease within thirty (30)
days after the determination of the Renewal Rental Rate, which amendment shall
set forth the extended Lease Term and the Renewal Rental Rate. Except for the
change in the rate of Rent, the Renewal Period shall be subject to all of the
terms and conditions of this Lease and the Premises shall be delivered in their
then "as is" condition at the time the Renewal Period commences unless otherwise
agreed to in writing by Landlord and Tenant.
Neither any option granted to Tenant in this Lease or in any collateral
instrument to renew or extend the Lease Term, nor the exercise of any such
option by Tenant, shall prevent Landlord from exercising any option or right
granted or reserved to Landlord in this Lease or in any collateral instrument or
that Landlord may otherwise have, to terminate this Lease or any renewal or
extension of the Lease Term either during the original Lease Term or during the
renewed or extended term. Any renewal or extension right granted to Tenant shall
be personal to Tenant and may not be exercised by any assignee, subtenant or
legal representative of Tenant. Any termination of this Lease shall serve to
terminate any such renewal or extension of the Lease Term, whether or not Tenant
shall have exercised any option to renew or extend the Lease Term. No option
granted to Tenant to renew or extend the Lease Term shall be deemed to give
Tenant any further option to renew or extend.
BALANCE OF PAGE LEFT BLANK INTENTIONALLY
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17.20 Right of First Refusal. Landlord shall grant to Tenant the exclusive,
continuing and irrevocable right of first refusal to lease any additional space
in the building before Landlord completes a lease to a third party. Landlord
shall give notice to Tenant that it has received a bona fide offer from a third
party within five (5) business days from its receipt of such offer. Tenant shall
notify Landlord in writing within ten (10) business days after it receives
Landlord's notice of its intent to lease all or a portion of the space requested
by any third party on the terms set forth in the third party's bona fide offer
to Landlord.
Signed on June 24, 2005
LANDLORD:
CIVF I-TX1B01&B02, M01-M05, W04, W07-W10, L.P.
By: CIVF I-TX GP, LLC, a Delaware limited liability company, its general partner
By: Cabot Industrial Value Fund, L.P., a Delaware limited partnership, its
sole member
By: Cabot Industrial Value Fund Manager, LLC, its general partner
By: Cabot Properties, Inc., its managing member
By: /s/Stephen P. Vallarelli
------------------------
Hereunto duly authorized
Print Name: Stephen P. Vallarelli
Title: Vice President
Signed on June 16, 2005.
TENANT:
CAI, LP, a Texas limited partnership
By: Conn Appliances, Inc., a Texas corporation, its general partner
By: /s/ Thomas J. Frank
-------------------
Thomas J. Frank, CEO
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EXHIBIT A - THE PROPERTY
A - 1
EXHIBIT B - THE PREMISES
B - 1
EXHIBIT C - RULES AND REGULATIONS
1. No advertisements, pictures or signs of any sort shall be displayed on or
outside the Premises without the prior written consent of Landlord. This
prohibition shall include any portable signs or vehicles placed within the
parking lot, common areas or on streets adjacent thereto for the purpose of
advertising or display.
2. Tenant shall not park or store motor vehicles, trailers or containers outside
the Premises after the conclusion of normal daily business activity except in
approved areas specifically designated by Landlord, acting reasonably.
3. Tenant shall not use any method of heating or air-conditioning other than
that supplied by Landlord without the prior written consent of Landlord.
4. All window coverings and window films or coatings installed by Tenant and
visible from outside of the building require the prior written approval of
Landlord. Except for dock shelters and seals as may be expressly permitted by
Landlord, no awnings or other projections shall be attached to the outside walls
of the building.
5. Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance on, in or around the Premises unless approved by Landlord.
Tenant shall not use, keep or permit to be used or kept any flammable or
combustible materials without proper governmental permits and approvals.
6. Tenant shall not use, keep or permit to be used or kept food or other edible
materials in or around the Premises in such a manner as to attract rodents,
vermin or other pests. Tenant shall not permit cooking in or about the Premises
other than in microwave ovens.
7. Tenant shall not use or permit the use of the Premises for lodging or
sleeping, for public assembly, or for any illegal or immoral purpose.
8. [Intentionally Deleted]
9. Tenant shall park motor vehicles only in those general parking areas as
designated by Landlord except for active loading and unloading. During loading
and unloading of vehicles or containers if loaded or unloaded in any area other
than that designated for Tenant's use for such purposes, Tenant shall not
unreasonably interfere with traffic flow within the industrial park and loading
and unloading areas of other tenants.
10. Storage of propane tanks, whether interior or exterior, shall be in secure
and protected storage enclosures approved by the local fire department and, if
exterior, shall be located in areas specifically designated by Landlord. Safety
equipment, including eye wash stations and approved neutralizing agents, shall
be provided in areas used for the maintenance and charging of lead-acid
batteries. Tenant shall protect electrical panels and building mechanical
equipment from damage from forklift trucks.
11. Tenant shall not disturb, solicit or canvas any occupant of the Building or
industrial park and shall cooperate to prevent same.
12. No person shall go on the roof of the Property without Landlord's permission
except to perform obligations under its lease.
C - 1
13. No animals (other than seeing eye dogs) or birds of any kind may be brought
into or kept in or about the Premises.
14. Machinery, equipment and apparatus belonging to Tenant which cause noise or
vibration that may be transmitted to the structure of the Building to such a
degree as to be objectionable to Landlord or other tenants or to cause harm to
the Building shall be placed and maintained by Tenant, at Tenant's expense, on
vibration eliminators or other devices sufficient to eliminate the transmission
of such noise and vibration.
15. All goods, including material used to store goods, delivered to the Premises
of Tenant shall be immediately moved into the Premises and shall not be left in
parking or exterior loading areas overnight, except within containers normally
used by Tenant for such storage, including trucks and container vehicles, so
long as such containers are located within Tenant's designated area for such.
16. Tractor trailers which must be unhooked or parked with dolly wheels beyond
the concrete loading areas must use steel plates or wood blocks of sufficient
size to prevent damage to the asphalt paving surfaces. No parking or storing of
such trailers will be permitted in the auto parking areas of the industrial park
or on streets adjacent thereto.
17. Forklifts which operate on asphalt paving areas shall not have solid rubber
tires and shall use only tires that do not damage the asphalt.
18. Tenant shall be responsible for the safe storage and removal of all pallets.
Pallets shall be stored behind screened enclosures at locations approved by the
Landlord.
19. Tenant shall be responsible for the safe storage and removal of all trash
and refuse. All such trash and refuse shall be contained in suitable receptacles
stored behind screened enclosures at locations approved by Landlord. Landlord
reserves the right to remove, at Tenant's expense and without further notice,
any trash or refuse left elsewhere outside of the Premises or in the industrial
park.
20. Tenant shall not store or permit the storage or placement of goods or
merchandise in or around the common areas surrounding the Premises. No displays
or sales of merchandise shall be allowed in the parking lots or other common
areas.
21. Tenant shall appoint an Emergency Coordinator who shall be responsible for
assuring notification of the local fire department in the event of an emergency,
assuring that sprinkler valves are kept open and implementing the Factory Mutual
"Red Tag Alert" system including weekly visual inspection of all sprinkler
system valves on or within the Premises.
___/s/______ Landlord
____/s/_____ Tenant
C - 2
EXHIBIT D - LANDLORD'S WORK
1. Landlord will deliver the Premises with all mechanical, electrical,
plumbing, dock doors and lights in good working order. Landlord will
deliver all HVAC units servicing the Premises, in good working order and
shall warrant such units for the first six months of the Lease Term and
agrees to any required repairs or replacements in that time frame.
2. Landlord will provide Tenant will an improvement allowance of $140,800 (the
"TI Allowance") to be used by Tenant for improvements to the Premises and
for moving, construction management or cabling. Landlord will pay Tenant
the TI Allowance upon presentation of paid invoices, all requisite
governmental approvals and lien waivers.
3. Landlord shall pay up to $2,000 of the cost of Tenant's space planning and
architectural and engineering drawings relating to Tenant's improvements to
the Premises.
D - 1
EXHIBIT E - MEMORANDUM OF ACCEPTANCE OF LEASE
LANDLORD: CABOT INDUSTRIAL VALUE FUND - I
TENANT: ___________________________________
LEASE DATE: ___________________________________
PREMISES: Located at _______________
Tenant hereby accepts the Premises as being in the condition required
under the Lease, with all Landlord's Work completed (except for minor punchlist
items which Landlord agrees to complete).
The Commencement Date of the Lease is hereby established as_______________,
and the Expiration Date is______________.
TENANT: ___________________________________,
a __________________________________
By:_________________________________
Print Name:_____________________
Its: ___________________________
Date:___________________________
By:_________________________________
Print Name:_____________________
Its:____________________________
Date:___________________________
Approved and Agreed:
LANDLORD:
CIVF - I ________________
By: Cabot Industrial Value Fund Manager
LLC, its General Partner
By: Cabot Properties, Inc., its Manager
By:____________________________
Its:___________________________
E - 1
EXHIBIT F - GUARANTY
WHEREAS, CIVF I - TX1B01&B02, M01-M05, W04, W07-W10, L.P., having an office at
One Beacon Street, Suite 1700, Boston, MA 02108 ("Landlord") has entered into a
certain Lease (the "Lease") dated as of ___________, 2005 with CAI, LP, a Texas
limited partnership, having an office at c/o Conn Appliances, Inc., 3295 College
Street, Beaumont, TX 77701 ("Tenant"), a copy of the Lease being attached hereto
as Exhibit A; and
WHEREAS, Landlord would not enter into the Lease but for the undertakings
of Conn's, Inc., a Delaware corporation, having an office at c/o Conn
Appliances, Inc., 3295 College Street, Beaumont, TX 77701 ("Guarantor"), as set
forth herein; and
WHEREAS, Guarantor has a substantial financial interest in the Tenant and
will derive a direct benefit from the execution of the Lease by Landlord.
NOW THEREFORE, for good and valuable consideration, the receipt of which is
hereby acknowledged, and as a material inducement to Landlord to execute the
Lease, the undersigned agrees as follows:
1. Guaranty. The undersigned Guarantor hereby unconditionally guarantees
the full and timely performance by Tenant of each and every term, condition and
covenant to be performed by Tenant under the Lease, including without implied
limitation the Tenant's obligation to pay such rents, charges, costs and
impositions as are set forth in the Lease. Guarantor further agrees to defend
with counsel acceptable to Landlord, and to indemnify and save Landlord harmless
from and against any and all loss, cost, damage or liability arising out of any
breach by Tenant of any of the terms, conditions and covenants of the Lease, or
out of any breach of warranty or misrepresentation made by Tenant under the
Lease or heretofore or hereafter made to Landlord, including reasonable
attorneys' fees and any other costs incurred by Landlord in connection
therewith.
2. Direct Enforcement. The undertakings contained in this Guaranty shall be
the personal liability of Guarantor. Guarantor acknowledges that after any event
of default by Tenant in the performance of any term, condition or covenant of
the Lease, the liability of Guarantor under this Guaranty shall be primary and
that, in the enforcement of its rights, Landlord shall be entitled to look to
Guarantor for the performance of the obligations of Tenant which Guarantor has
guaranteed, without first commencing any action or proceedings against Tenant,
and likewise, enforcement of Landlord's rights against Tenant shall not impair
the right of Landlord to enforce this Guaranty, and any such action by Landlord
shall not operate as a release of the liability of Guarantor under this
Guaranty. The guaranteed obligations include both payment and performance. The
obligations of the Guarantor shall be absolute and unconditional and shall
remain in full force and effect until all amounts due pursuant to the Lease have
been paid in full and all of Tenant's obligations thereunder have been performed
in full.
3. Guarantor's Performance of Tenant's Obligations. Guarantor agrees that,
in addition to any other rights given to Landlord hereby, in the event of any
default by Tenant in the performance of any term, condition or covenant of the
Lease, it will forthwith cause Tenant to, or will itself, pay, perform and
observe said term, condition or covenant of the Lease.
4. Subrogation. From and after the occurrence of any default by Tenant in
the performance of any term, condition, covenant or obligation under the Lease,
Guarantor agrees that it will not accept or receive any dividend, payment or
reimbursement from Tenant, including any payment on account of any indebtedness
from Tenant to Guarantor, and that if Guarantor does then receive any such
dividend, payment or reimbursement the same shall be held in trust for Landlord
and forthwith will be turned over to Landlord in the form received.
F - 1
5. Financial Condition. Guarantor files its audited financial statementws
with the reports required by the Securities and Exchange Commission annually, as
well as interim unaudited statements. These reports and financial statements are
available to the public at www.conns.com.
6. Waivers. Guarantor agrees that none of its obligations and no right
against Guarantor hereunder shall in any way be discharged, impaired, or
otherwise affected by any extension of time for, or by any partial of complete
waiver of the performance of any of Tenant's obligations under the Lease, or by
any other alteration, amendment, assignment, expansion, extension or
modification in or to the Lease, or by any release or waiver of any term,
covenant or condition of the Lease, or by any delay in the enforcement of any
rights against Tenant, Guarantor or any other person or entity under the Lease.
Without limitation, Guarantor agrees that the Lease may be altered, amended,
assigned, expanded, extended or modified from time to time on such terms and
provisions as may be satisfactory to Landlord without notice to or further
assent by Guarantor, and Guarantor hereby waives notice of acceptance of this
Guaranty, notice of any obligations guaranteed hereby or of any action taken or
omitted in reliance hereon, and notice of any defaults of Tenant under the Lease
and waives presentment, demand for payment or performance, protest, notice of
dishonor, nonpayment or nonperformance of any such obligations, suit or taking
of other action by Landlord against, and any other notice to, any party liable
thereon and waives suretyship defenses generally, other than full and timely
payment and performance of all obligations hereby guaranteed, and Guarantor
agrees to cause Tenant to preserve the enforceability of all instruments hereby
guaranteed, as modified with Landlord's consent, and to cause Tenant to refrain
from any act or omission which might be the basis for a claim that Guarantor has
any defense to Guarantor's obligations hereunder, exclusive only of the defense
that Tenant has fully and timely paid and performed all obligations hereby
guaranteed. No invalidity, irregularity or unenforceability of all or any part
of such obligations or of any security therefor and no insolvency, bankruptcy,
liquidation proceeding or dissolution affecting Tenant or Guarantor shall
affect, impair or be a defense to this Guaranty. The liability of the Guarantor
hereunder is primary and unconditional and shall not be subject to any offset,
defense (other than the defense of full and timely payment and performance) or
counterclaim of Guarantor.
7. Enforceability. Guarantor represents that this Guaranty, and the Lease
hereby guaranteed, as originally delivered and as modified, amended or
supplemented, have been duly authorized and are the legal, valid and binding
obligations of Guarantor and Tenant, enforceable in accordance with their
respective terms, and Guarantor further agrees that no invalidity of any such
Guaranty shall affect or impair Guarantor's liability under this Guaranty.
8. Recourse. This instrument is intended to be fully effective in
accordance with its terms notwithstanding any exculpatory provisions
inconsistent herewith contained in the Lease.
9. Notices. All notices or other communications required or provided to be
sent by either party shall be in writing and shall be sent by: (i) by United
States Postal Service, certified mail, return receipt requested, (ii) by any
nationally known overnight delivery service for next business day delivery,
(iii) delivered in person, or (iv) sent by telecopier or facsimile machine which
automatically generates a transmission report that states the date and time of
the transmission, the length of the document transmitted and the telephone
number of the recipient's telecopier or facsimile machine (with a copy thereof
sent in accordance with clause (i), (ii) or (iii) above). All notices shall be
deemed to have been given upon receipt, except that notices sent pursuant to
clause (iv) shall be deemed to have been received (i) on the date of
transmission, if so transmitted before 5:30 p.m. (local time of the recipient)
on a day other than a Saturday, Sunday or holiday recognized by banks in
Massachusetts (a "Business Day"), or (ii) on the next Business Day, if so
transmitted on or after 5:30 p.m. (local time of the recipient) on a Business
Day or if transmitted on a day other than a Business Day. All notices shall be
addressed to the parties at the addresses below:
F - 2
To Landlord: Cabot Properties, Inc,
One Beacon Street, Suite 1700
Boston, MA 02108
To Guarantor: c/o Conn's, Inc.
3295 College Street
Beaumont, TX 77701
Attn: Thomas J. Frank, CEO
Attn: Sydney K. Boone, Jr., Corporate General
Counsel
Any address or name specified above may be changed by notice given to the
addressee by the other party in accordance with provisions above. The inability
to deliver notice because of a changed address of which no notice was given as
provided above, or because of rejection or other refusal to accept any notice,
shall be deemed to be the receipt of the notice as of the date of such inability
to deliver or rejection or refusal to accept. Any notice to be given by any
party hereto may be given by the counsel for such party.
10. Successors and Assigns. This Guaranty shall be binding upon Guarantor
and its successors or assigns, and shall inure to the benefit of Landlord, its
successors or assigns. Guarantors agree that this Guaranty shall be assignable
by Landlord in connection with an assignment of Landlord's interest in the
Lease. The benefit of this Guaranty shall extend to any successor of Landlord as
owner of the Property (or any portion thereof).
11. Applicable Law. This instrument shall be construed in accordance with
the laws of Massachusetts. The Guarantor hereby consents to the jurisdiction of
the state and federal courts of the Commonwealth of Massachusetts.
12. Waiver of Jury Trial. THE PARTIES HERETO WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY(IES) AGAINST ANY
F - 3
OTHER PARTY(IES) ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
GUARANTY OR THE RELATIONSHIP OF THE PARTIES CREATED HEREUNDER.
Executed as a sealed instrument as of the 16th day of June, 2005.
GUARANTOR:
CONN'S INC.
By:__________________________
Name: Thomas J. Frank
Title: Chairman and CEO
State of Texas )
) ss.
County of Jefferson )
Before me, the undersigned, this 16th day of June, 2005, personally
appeared Thomas J. Frank, known to me to be the Chairman and CEO of CONN'S INC.,
a Delaware corporation, and that as such officer, acknowledged the execution of
the same to be for and on behalf of said corporation.
In witness whereof, I hereunto set my hand.
----------------------
Notary Public:
My Commission Expires:
F - 4
EXHIBIT 9.04 - SIGNAGE
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9.04 - 1
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9.04 - 2
EXHIBIT 9.05 - LOCATION OF OUTSIDE STORAGE AREA
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9.05 - 1