Exhibit 10.6
INDUSTRIAL REAL ESTATE LEASE (Multiple-Tenant Facility)
ARTICLE ONE: BASIC TERMS
This Article One contains the Basic Terms of this Lease between the
Landlord and Tenant named below. Other Articles, Sections and Paragraphs of the
Lease referred to in this Article One explain and define the Basic Terms and are
to be read in conjunction with the Basic Terms.
Section 1.01. Date of Lease: June 16, 2000
Section 1.02. Landlord (include legal entity): American National Insurance
Company Address of Landlord: One Moody Plaza, Galveston, Texas 77550 Attn:
Mortgage and Real Estate Department
Section 1.03. Tenant (include legal entity): CAI, L.P., a Texas limited
partnership Address of Tenant: 2755 Liberty, Beaumont, Texas 77702
Section 1.04.1. Premises: (include street address, approximate square
footage and description of leased space) 8550-A Market Street, Houston, Texas
77029 --- approximately 229,500 square feet of space.
Section 1.04.2 Property: The land upon which the Premises are located: See
legal description attached as Exhibit "A"
Section 1.05. Lease Term: 5 years 0 months beginning on September 1, 2000
and ending on August 31, 2005.
Section 1.06. Permitted Uses: (See Article Five) The Property shall be used
and occupied by Tenant solely for the purpose of warehousing and storage of
appliances and related inventory; provided, however, Hazardous Substances, as
defined below, shall not be permitted to be stored, warehoused or enter onto the
Property.
Section 1.07. Tenant's Guarantor: (If none, so state) Conn Appliances,
Inc., a Texas corporation
Section 1.08. Tenant's Share: A fraction, the numerator of which is the
square feet of the Premises (229,500) and the denominator of which is the square
feet of leasable space in the building(s) on the Property (665,333).
Section 1.09. Intentionally Omitted.
Section 1.10. Initial Security Deposit: (See Section 3.03) $N/A
Section 1.11. Vehicle Parking Spaces Allocated to Tenant: None specifically
allocated to Tenant. Tenant shall share on a non-exclusive basis all parking
spaces with Landlord's other commercial warehouse tenants at the Property,
utilizing warehouse space generally in the same manner as Tenant.
Section 1.12. Rent and Other Charges Payable by Tenant:
(a) BASE RENT: (i) Seventy-one Thousand One Hundred Forty-five and no/100
Dollars ($71,145.00) per month, as provided in Section 3.01, during the first
three (3) calendar years; (ii) $73,400.00 per month during the fourth (4th) year
of the Lease and beginning with the installment that is due September 1, 2003;
and (iii) ($75,735.00 per month during the fifth (5th) year of the Lease
beginning with the monthly installment that is due September 1, 2004.
(b) OTHER PERIODIC PAYMENTS: (i) Tenant's Share of Real Property Taxes
above the "Base Real Property Taxes" (See Section 4.02); (ii) Utilities (See
Section 4.03); (iii) Increased Insurance Premiums above "Base Premiums" (See
Section 4.04); (iv) Impounds for Tenant's Share of Insurance Premiums and
Property Taxes (See
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Section 4.07); (v) Tenant's Share of the Basic Operating Costs above the Base
Year Operating Costs (see Section 4.08); and (vi) Maintenance, Repairs and
Alterations (See Article Six).
Section 1.13. Costs and Charges Payable by Landlord: (a) Base Real Property
Taxes (See Section 4.02); (b) Base Insurance Premiums (See Section 4.04(c)); (c)
Base Year Operating Costs (See Section 4.08); (d) Maintenance and Repair (See
Article Six).
Section 1.14. Intentionally Omitted.
Section 1.15. Riders: The following Riders are attached to and made a part
of this Lease: (If none, so state) Legal Description, Exhibit "A": Guaranty
Agreement, Exhibit "B": Landlord's Agreement, Exhibit "C" and Agreement
Regarding Adjacent Property, Exhibit "D".
ARTICLE TWO: LEASE TERM
Section 2.01. 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 is for the period stated in Section 1.05 above and shall
begin and end on the dates specified in Section 1.05 above, unless the beginning
or end of the Lease Term is changed under any provision of this Lease. The
"Commencement Date" shall be the date specified in Section 1.05 above for the
beginning of the Lease Term, unless advanced or delayed under any provision of
this Lease.
Section 2.02. Delay in Commencement. Landlord shall deliver possession of
the Premises to Tenant on or before three (3) business days after full execution
of this Lease by both parties. If Landlord does not deliver possession of the
Premises to Tenant by such period, Tenant may elect to cancel this Lease by
giving written notice to Landlord. If Tenant gives such notice, the Lease shall
be canceled and neither Landlord nor Tenant shall have any further obligations
to the other.
Section 2.03. Early Occupancy. If Tenant occupies the Premises prior to the
Commencement Date, Tenant's occupancy of the Premises shall be subject to all of
the provisions of this Lease, except for the obligations to pay Base Rent and
Other Periodic Payments. Early occupancy of the Premises shall not advance the
expiration date of this Lease.
Section 2.04. 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 which Landlord incurs from
Tenant's delay in vacating the Premises. If Tenant does not vacate the Premises
upon the expiration or earlier termination of the Lease and Landlord thereafter
accepts rent from Tenant, Tenant's occupancy of the Premises shall be a
"month-to-month" tenancy, subject to all of the terms of this Lease applicable
to a month-to-month tenancy, except that the Base Rent then in effect shall be
increased by fifty percent (50%).
Section 2.05. Option Period. Tenant shall have the right to extend the term
of this Lease for one five-year period at a monthly base rental rate of EIGHTY
THOUSAND THREE HUNDRED TWENTY-FIVE AND NO/100 DOLLARS ($80,325.00) by delivering
written notice of the exercise of such option on or before December 31, 2004.
Failure by Tenant to give such written notice to Landlord shall constitute a
waiver of such right.
Section 2.06. Special One-Time Right to Cancel. Tenant shall have the
one-time right to cancel and terminate this Lease, such, termination to be
effective on August 31, 2003, by delivering written notice of such election of
termination to Landlord on or before February 28, 2003 together with the
following amounts to be retained by Landlord as consideration for such Tenant
cancellation: (i) Three (3) months rent using the rent required during the
fourth year of this Lease (i.e., $73,440.00) and (ii) forty percent (40%) of any
leasing commission paid by Landlord to any broker in connection with the
execution of this Lease.
Section 2.07. Termination Rights With Respect to Turning Basin Lease. Upon
execution of this Lease by both of the parties hereto, and the payment of the
first full month's rent by Tenant to Landlord, and for one hundred eighty (180)
days thereafter, Tenant may freely (i) terminate that lease by C & D Warehouse,
Inc., as lessee, and Landlord, as lessor, and dated September 12, 1997 affecting
property at 2005 Turning Basin Drive, Houston, Texas 77029 (the "TB Lease"), or
(ii) in one or more increments, reduce the square footage of the space leased by
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the tenant pursuant to the TB Lease to an area or areas which is or are wholly
contained within a firewall so that each complete area within a firewall at such
premises is either wholly occupied by the tenant of the TB Lease or not occupied
at all by such tenant (the "Lease Reduction"). In the event Tenant timely elects
to cause the Lease Reduction, Landlord shall and Tenant shall cause the tenant
of the TB Lease to enter into a lease amendment amending the TB Lease in a
manner reasonably satisfactory to Landlord and Tenant and reducing the rent and
other charges payable by Tenant thereunder on a pro-rata basis based on the
square footage released compared to Tenant's total square footage under the TB
Lease. In such event, Landlord and Tenant agree to execute any documents
reasonably required to effectuate such termination or reduction in space.
Tenant's rights of termination or reduction shall terminate after such one
hundred eighty (180) day period.
ARTICLE THREE: BASE RENT
Section 3.01. Time and Manner of Payment. Upon execution of this Lease,
Tenant shall pay Landlord the Base Rent in the amount stated in Paragraph
1.12(a) above for the first month of the Lease Term. On the first day of the
second month of the Lease Term and each month thereafter, Tenant shall pay
Landlord the Base Rent, in advance, without offset, deduction or prior demand.
The Base Rent shall be payable at Landlord's address or at such other place as
Landlord may designate in writing.
Section 3.02. Intentionally Omitted.
Section 3.03. Intentionally Omitted.
Section 3.04. Termination; Advance Payments. Upon termination of this Lease
under Article Seven (Damage or Destruction), Article Eight (Condemnation) or any
other termination not resulting from Tenant's default, and after Tenant has
vacated the Premises in the manner required by this Lease, Landlord shall refund
or credit to Tenant (or Tenant's successor) the unused portion of the Security
Deposit, any advance rent or other advance payments made by Tenant to Landlord,
and any amounts paid for real property taxes and other reserves which apply to
any time periods after termination of the Lease.
ARTICLE FOUR: OTHER CHARGES PAYABLE BY TENANT
Section 4.01. Additional Rent. All charges payable by Tenant other than
Base Rent are called "Additional Rent." Unless this Lease provides otherwise,
Tenant shall pay all Additional Rent then due with the next monthly installment
of Base Rent. The term "rent" shall mean Base Rent and Additional Rent.
Section 4.02. Property Taxes.
(a) Real Property Taxes. Landlord shall pay the "Base Real Property Taxes"
on the Property during the Lease Term. Base Real Property Taxes are real
property taxes applicable to the Property as shown on the tax bill for calendar
year 2001. Tenant shall pay Landlord Tenant's Share of the amount, if any, by
which the real property taxes during the Lease Term exceed the Base Real
Property Taxes. Subject to Paragraph 4.02(c), Tenant shall make such payments
within fifteen (15) days after receipt of Landlord's statement showing the
amount and computation of such increase.
(b) Definition of "Real Property Tax." "Real Property Tax" means: (i) any
fee, license fee, license tax, business license fee, commercial rental tax,
levy, charge, assessment, penalty or tax imposed by any taxing authority against
the Property; (ii) any tax on the Landlord's right to receive, or the receipt
of, rent or income from the Property or against Landlord's business of leasing
the Property; (iii) any tax or charge for fire protection, streets, sidewalks,
road maintenance, refuse or other services provided to the Property by any
governmental agency; (iv) any tax imposed upon this transaction or based upon a
reassessment of the Property due to a change of ownership, as defined by
applicable law, or other transfer of all or part of Landlord's interest in the
Property; and (v) any charge or fee replacing any tax previously included within
the definition of real property tax. "Real property tax" does not, however,
include Landlord's federal or state income, franchise, inheritance or estate
taxes.
(c) Joint Assessment. If the Property is not separately assessed, Landlord
shall reasonably determine Tenant's share of the real property tax payable by
Tenant under Paragraph 4.02(a) from the assessor's worksheets
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or other reasonably available information. Tenant shall pay such share to
Landlord within fifteen (15) days after receipt of Landlord's written statement
(d) Personal Property Taxes.
(i) Tenant shall pay all taxes charged against trade fixture, furnishings,
equipment or any other personal property belonging to Tenant. Tenant shall try
to have personal property taxed separately from the Property.
(ii) If any of Tenant's personal property is taxed with the Property,
Tenant shall pay Landlord the taxes for the personal property within fifteen
(15) days after Tenant receives a written statement from Landlord for such
personal property taxes.
Section 4.03. Utilities. Tenant shall pay, directly to the appropriate
supplier, the cost of all natural gas, heat, light, power, sewer service,
telephone, water, refuse disposal and other utilities and services supplied to
the Premises. However, if any services or utilities are jointly metered with
other property, Landlord shall make a reasonable determination of Tenant's
proportionate share of the cost of such utilities and services and Tenant shall
pay such share to Landlord within fifteen (15) days after receipt of Landlord's
written statement.
Section 4.04. Insurance Policies.
(a) Liability Insurance. During the Lease Term, Tenant shall maintain a
policy of commercial general liability insurance (sometimes known as broad form
comprehensive general liability insurance), insuring Tenant against liability
for bodily injury, property damage (including loss of use of property) and
personal injury arising out of the operation, use or occupancy of the Premises
and the common areas of the Property. Tenant shall name Landlord as an
additional insured under such policy. The initial amount of such insurance shall
be Two Million Five Hundred Thousand Dollars ($2,500,000) per occurrence and
shall be subject to periodic increase 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
Paragraph 4.04(a) shall (i) be primary and non-contributing; (ii) contain
cross-liability endorsements; and (iii) insure Landlord against Tenant's
performance under Section 5.05, if the matters giving rise to the indemnity
under Section 5.05 result from the negligence of Tenant. The amount and coverage
of such insurance shall not limit Tenant's liability nor relieve Tenant of any
other obligation under this Lease. Tenant shall provide Landlord with copies of
such policies on an annual basis and upon written demand from Landlord. Landlord
may also obtain comprehensive public liability insurance in an amount and with
coverage determined by Landlord insuring Landlord against liability arising out
of ownership, operation, use or occupancy of the Property. The policy obtained
by Landlord shall not be contributory and shall not provide primary insurance.
Should Landlord reasonably require additional insurance or increased coverage,
Tenant shall use its best efforts to secure such additional insurance.
(b) Property and Rental Income Insurance. During the Lease Term, Landlord
shall maintain policies of insurance covering loss of or damage to the Property
in the full amount of its replacement value. Such policy shall contain an
Inflation Guard Endorsement and shall provide protection against all perils
included within the classification of fire, extended coverage, vandalism,
malicious mischief, special extended perils (all risk), sprinkler leakage and
any other perils which Landlord deems reasonably necessary. Landlord shall have
the right to obtain flood and earthquake insurance. Landlord shall not obtain
insurance for Tenant's fixtures or equipment or building improvements installed
by Tenant on the Property. During the Lease Term, Landlord shall also maintain a
rental income insurance policy, with loss payable to Landlord, in an amount
equal to one year's Base Rent, plus estimated real property taxes and insurance
premiums. Tenant shall be liable for the payment of any deductible amount under
Landlord's or Tenant's insurance policies maintained pursuant to this Section
4.04 in an amount not to exceed Ten Thousand Dollars ($10,000.00). Tenant shall
not do or permit anything to be done which invalidates any such insurance
policies.
(c) Payment of Premiums.
(i) Landlord shall pay the "Base Premiums" for the insurance policies
maintained by Landlord under Paragraph 4.04(b). The "Base Premiums" are the
insurance premiums paid by Landlord during the calendar year 2001.
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(ii) Tenant shall pay Landlord Tenant's Share of the amount, if any, by
which the insurance premiums for all policies maintained by Landlord under
Paragraph 4.04(b) have increased over the Base Premiums, whether such increases
result from the nature of Tenant's occupancy, any act or omission of Tenant, the
requirement of any lender referred to in Article Eleven (Protection of Lenders),
the increased value of the Property or general rate increases. Tenant shall pay
Landlord the increases over the Base Premiums within fifteen (15) days after
receipt by Tenant of a copy of the premium statement or other evidence of the
amount due. If the insurance policies maintained by Landlord cover improvements
or real property other than the Property, Landlord shall also deliver to Tenant
a statement of the amount of the premiums applicable to the Property showing, in
reasonable detail, how such amount was computed. If the Lease Term expires
before the expiration of the insurance period, Tenant's liability shall be pro
rated on an annual basis.
(d) General Insurance Provisions.
(i) Any insurance which Tenant is 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.
(ii) If Tenant fails to deliver any policy, certificate or renewal to
Landlord required under this Lease within the prescribed time period or if any
such policy is canceled or modified during the Lease Term without Landlord's
consent, Landlord may obtain such insurance, in which case Tenant shall
reimburse Landlord for the cost of such insurance within fifteen (15) days after
receipt of a statement that indicates the cost of such insurance.
(iii) Tenant shall maintain all insurance required under this Lease with
companies holding a "General Policy Rating" of A+ or better, as set forth in the
most current issue of "Best Key Rating Guide". Landlord and Tenant acknowledge
the insurance markets are rapidly changing and that insurance in the form and
amounts described in this Section 4.04 may not be available in the future.
Tenant acknowledges that the insurance described in this Section 4.04 is for the
primary benefit of Landlord. If at any time during the Lease Term, Tenant is
unable to maintain the insurance required under the Lease, Tenant shall
nevertheless maintain insurance coverage which is customary and commercially
reasonable in the insurance industry for Tenant's type of business, as that
coverage may change from time to time. Landlord makes no representation as to
the adequacy of such insurance to protect Landlord's or Tenant's interests.
Therefore, Tenant shall obtain any such additional property or liability
insurance which Tenant deems necessary to protect Landlord and Tenant.
(iv) Unless prohibited under any applicable insurance policies maintained,
Landlord and Tenant each hereby waive any and all rights of recovery against the
other, or against the officers, employees, agents or representatives of the
other, for loss of or damage to its property or the property of others under its
control, if such loss or damage is covered by any insurance policy in force
(whether or not described in this Lease) at the time of such loss or damage.
Upon obtaining the required policies of insurance, Landlord and Tenant shall
give notice to the insurance carriers of this mutual waiver of subrogation.
Section 4.05. Late Charges. Tenant's failure to pay rent promptly may cause
Landlord to incur unanticipated costs. The exact amount of such costs are
impractical or extremely difficult to ascertain. Such costs may include, but are
not limited to, processing and accounting charges and late charges which may be
imposed on Landlord by any ground lease, mortgage or trust deed encumbering the
Property. Therefore, if Landlord does not receive any rent payment within ten
(10) days after it becomes due, Tenant shall pay Landlord a late charge equal to
ten percent (10%) of the overdue amount. The parties agree that such late charge
represents a fair and reasonable estimate of the costs Landlord will incur by
reason of such late payment.
Section 4.06. Interest on Past Due Obligations. Any amount owed by Tenant
to Landlord which is not paid when due shall bear interest at the rate of
fifteen percent (15%) per annum from the due date of such amount. However,
interest shall not be payable on late charges to be paid by Tenant under this
Lease. The payment of interest on such amounts shall not excuse or cure any
default by Tenant under this Lease. If the interest rate specified in this Lease
is higher than the rate permitted by law, the interest rate is hereby decreased
to the maximum legal interest rate permitted by law.
Section 4.07. Impounds for Insurance Premiums and Real Property Taxes. If
requested by any ground lessor or lender to whom Landlord has granted a security
interest in the Property, or if Tenant is more than ten (10) days late in the
payment of rent more than once in any consecutive twelve (12) month period,
Tenant shall pay
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Landlord a sum equal to one-twelfth (1/12) of the annual real property taxes,
insurance premiums and common area charges payable by Tenant under this Lease,
together with each payment of Base Rent. Landlord shall hold such payments in a
non-interest bearing impound account. If unknown, Landlord shall reasonably
estimate the amount of real property taxes and insurance premiums when due.
Tenant shall pay any deficiency of funds in the impound account to Landlord upon
written request. If Tenant defaults under this Lease, Landlord may apply any
funds in the impound account to any obligation then due under this Lease.
Section 4.08. Common Area Maintenance and Base Operating Costs.
(a) The term "Common Areas" as used in this Lease shall mean all areas and
facilities around the Premises and within the exterior boundaries of the
Property which are provided and designated from time to time by Landlord for the
general use and convenience of Tenant and other tenants of the building or
buildings located on the Property and their respective employees and invitees.
Common Areas include, without limitation, any lobby areas, walkways, parking
facilities, arcades, landscaped areas, sidewalks, service quarters, hallways,
restrooms (if not part of the Premises), stairways, elevators, walls, fire
stairs, electronic closets, aisles, truck docks, plazas, service areas, and all
other common and service areas of the Property or any area intended for such
use.
(b) Landlord shall maintain the Common Areas in the same general condition
and state of repair as existing on the Commencement Date.
(c) Tenant shall have the non-exclusive right to use the Common Areas along
with other tenants entitled to use the same, subject to Landlord's absolute
right to adopt rules with respect to the Common Areas and modify, alter,
diminish or eliminate any of the Common Areas.
(d) Landlord shall have the right to do the following, all without consent
or liability to Tenant: (i) establish and enforce rules and regulations
concerning the maintenance, management, use and operation of the Common Areas;
(ii) temporarily close any of the Common Areas for maintenance, alteration or
improvement purposes; (iii) select, appoint and/contract with any person for the
purpose of operating or maintaining the Common Areas; (iv) change the size, use,
shape or nature of any of the Common Areas. Landlord shall use reasonable
efforts to minimize any interference with Tenant's use of and access to the
Premises resulting from Landlord's exercise of such rights.
(e) Landlord shall pay the "Base Year Operating Costs" for the cost of
reasonably maintaining the Common Areas as described more fully below.
(f) Tenant shall also pay Tenant's Share of any increases in the Basic
Operating Costs (hereinafter defined) for the Property and any improvements
located thereon (collectively, the "Facility") over and above the Base Year
Operating Costs.
(g) The "Base Year Operating Costs" shall mean the Basic Operating Costs of
the Facility for the calendar year 2001. Within one hundred twenty (120) days,
or as soon thereafter as possible upon conclusion of each calendar year of the
Term, Landlord shall furnish to Tenant a statement of actual Basic Operating
Costs for such year and, within ten (10) days thereafter, Tenant shall pay
Tenant's Share of such increase.
(h) "Basic Operating Costs" shall mean the operating expenses of the
Facility and all expenditures by Landlord to maintain the Facility, including,
without limitation, parking and related facilities and such additional
facilities in subsequent years as may be determined by Landlord to be necessary
in accordance with sound and reasonable practices for facilities of like kind
and character, together with a management fee of four percent (4%) of such
costs. All operating expenses shall be determined on an accrual basis in
accordance with generally accepted accounting principles which shall be
consistently applied. Such operating expenses shall include all expenses, costs,
and disbursements of every kind and nature which Landlord shall pay, or become
ultimately to pay, in connection with the ownership, operation and maintenance
of the Facility.
(i) Basic Operating Costs shall exclude the cost of any maintenance
performable by Landlord or Tenant on the Premises and required pursuant to the
terms of Article 6 of this Lease.
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ARTICLE FIVE: USE OF PROPERTY
Section 5.01. Permitted Uses. Tenant may use the Premises only for the
Permitted Uses set forth in Section 1.06 above.
Section 5.02. Manner of Use. Tenant shall not cause or permit the Premises
to be used in any way which constitutes a violation of any Governmental
Requirements, defined below, which annoys or interferes with the rights of other
tenants of Landlord, or which constitutes a nuisance or waste. Tenant shall
obtain and pay for all permits, including a Certificate of Occupancy, required
for Tenant's occupancy of the Premises and shall promptly take all actions
necessary to comply with all applicable Laws regulating the use by Tenant of the
Premises, including the Occupational Safety and Health Act. "Governmental
Requirements" includes all current and future federal, state and local laws,
rules, orders, ordinances, regulations, requirements and directives including
those of any governmental agencies and commissions having jurisdiction.
Section 5.03. Hazardous Substances and Indemnity. (a) Tenant shall not
cause or permit any Hazardous Substance (as hereinafter defined) to be used,
stored, deposited, generated or disposed of on or in the Property by Tenant, its
agents, contractors, (including, without limitation, tenant's depositors)
invitees (collectively the "Tenant Parties" and individually a "Tenant Party").
TENANT SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS LANDLORD, ITS AGENTS,
CONTRACTORS (INCLUDING, WITHOUT LIMITATION, ANY PROPERTY MANAGER) AND INVITEES
(COLLECTIVELY THE "LANDLORD PARTIES" AND INDIVIDUALLY A "LANDLORD PARTY") FROM
AND AGAINST ANY AND ALL SUITS, ACTIONS, CLAIMS, DEMANDS, DAMAGES, FINES,
JUDGMENTS, SETTLEMENTS, PENALTIES, LIABILITIES, LOSSES, COSTS AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, A DECREASE IN VALUE OF THE PROPERTY, DAMAGES
CAUSED BY LOSS OR RESTRICTION OF RENTABLE OR USABLE SPACE OR ANY DAMAGES CAUSED
BY ADVERSE IMPACT ON MARKETING OF THE SPACE, AND ANY AND ALL SUMS PAID FOR
SETTLEMENT OF CLAIMS AND REASONABLE ATTORNEYS' AND CONSULTANTS FEES ARISING
DURING OR AFTER THE LEASE TERM) ARISING OUT OF, AS A RESULT OF OR CAUSED BY THE
USE, GENERATION, STORAGE, DEPOSIT OR DISPOSAL OF ANY HAZARDOUS SUBSTANCE ON OR
IN THE PROPERTY BY ANY TENANT PARTY OR OTHER CONTAMINATION OF THE PROPERTY FOR
WHICH ANY TENANT PARTY IS LEGALLY LIABLE (COLLECTIVELY, "ENVIRONMENTAL CLAIMS"),
EVEN IF SUCH ENVIRONMENTAL CLAIMS ARE ATTRIBUTABLE IN PART TO THE NEGLIGENCE,
GROSS NEGLIGENCE OR STRICT LIABILITY OF ANY LANDLORD PARTIES, BUT TENANT'S
OBLIGATION TO INDEMNIFY THE LANDLORD PARTIES SHALL NOT EXTEND TO THE PERCENTAGE
OF RESPONSIBILITY OF THE LANDLORD PARTIES IN CONTRIBUTING TO SUCH ENVIRONMENTAL
CLAIMS. THIS INDEMNIFICATION INCLUDES, WITHOUT LIMITATION, EXCEPT AS PROVIDED IN
THE IMMEDIATELY PRECEDING SENTENCE, ANY AND ALL COSTS INCURRED BECAUSE OF ANY
INVESTIGATION, CLEANUP, REMOVAL, MONITORING, REMEDIATION AND RESTORATION,
WHETHER VOLUNTARY OR REQUIRED BY ANY APPLICABLE LAWS. WITHOUT LIMITING THE
FOREGOING, IF THE TENANT CAUSES OR PERMITS THE PRESENCE OF ANY HAZARDOUS
SUBSTANCE ON THE PROPERTY WHICH RESULTS IN CONTAMINATION, TENANT SHALL PROMPTLY,
AT ITS SOLE EXPENSE, TAKE ANY AND ALL NECESSARY ACTIONS TO RETURN THE PROPERTY
TO THE CONDITION EXISTING PRIOR TO THE PRESENCE OF ANY SUCH HAZARDOUS SUBSTANCE
ON THE PROPERTY. TENANT SHALL IMMEDIATELY NOTIFY LANDLORD OF ANY SUCH REMEDIAL
ACTION.
Tenant shall take all reasonable actions necessary to verify and confirm
that no Hazardous Substances are being stored or deposited in or on the Premises
pursuant to a Depository Contract, as defined below, or otherwise. Tenant shall
undertake all tests, inspections, surveillance, and observations as reasonably
necessary to confirm that no items being stored in or at the Premises are or
contain Hazardous Substances. Tenant shall include in its depository agreement
and on its warehouse receipts language by which the Depositors unconditionally
affirm that no Hazardous Substances are or will be, or permitted to be, stored
or brought onto the Premises, and shall use its best efforts to obtain a signed
depository agreement containing such language from each and every Depositor that
places goods in or at the Property.
(b) Definition. As used herein, "Hazardous Substance" means any substance
that is regulated or hereafter is regulated by the State of Texas or the United
States government, including, without limitation, (a) any "hazardous waste" as
defined by the Resource Conservation and Recovery Act of 1976, as amended from
time to time, and
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regulations promulgated thereunder, and (b) any "hazardous substance" as defined
by the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, and regulations promulgated thereunder. The
term "Hazardous Substance" includes any and all material or substances that are
defined as "hazardous waste," "extremely hazardous waste" or a "hazardous
substance" pursuant to Governmental Requirements. The term "Hazardous Substance"
includes but is not restricted to, asbestos, polychlorobiphenyls ("PCBs") and
petroleum products (to the extent such petroleum products are being stored by
depository or for others for compensation in the Premises, or are in amounts
exceeding what is reasonably necessary to fuel, lubricate or otherwise run and
maintain reasonable equipment and machinery at the Property in a warehouse
capacity), lead, cyanide, or DDT.
(c) Tenant's Liability. WITHOUT IN ANY WAY NEGATING THE ABSOLUTE
PROHIBITION AGAINST THE USE, STORAGE, GENERATION, DEPOSIT OR DISPOSAL OF ANY
HAZARDOUS SUBSTANCE ON THE PROPERTY OR WITHOUT LIMITING THE GENERALITY OF THE
INDEMNITY AND DEFINITION OF ENVIRONMENTAL CLAIMS IN SECTION 5.03(a), TENANT
HEREBY AGREES THAT IT SHALL BE FULLY LIABLE FOR ALL SUITS, ACTIONS, CLAIMS,
DEMANDS, DAMAGES, FINES, JUDGMENTS, SETTLEMENTS, PENALTIES, LIABILITIES, LOSS,
COSTS AND EXPENSES (INCLUDING COURT COSTS AND REASONABLE ATTORNEYS AND
CONSULTANT'S FEES AND REASONABLE LITIGATION EXPENSE) (INDIVIDUALLY A "CLAIM" AND
COLLECTIVELY THE "CLAIMS") ARISING OUT OF, AS A RESULT OF OR CAUSED BY THE USE,
STORAGE, GENERATION, DEPOSIT OR DISPOSAL OF ANY HAZARDOUS SUBSTANCE KEPT ON THE
PROPERTY, AND TENANT SHALL GIVE IMMEDIATE NOTICE TO LANDLORD OF ANY VIOLATION OR
POTENTIAL VIOLATION OF THE PROVISIONS OF SECTION 5.03. TENANT SHALL INDEMNIFY,
DEFEND AND HOLD HARMLESS THE LANDLORD PARTIES FROM AND AGAINST ANY AND ALL
CLAIMS OF WHATEVER KIND OR NATURE, KNOWN OR UNKNOWN, CONTINGENT OR OTHERWISE,
ARISING OUT OF, AS A RESULT OF OR CAUSED BY: (A) THE PRESENCE, DISPOSAL, RELEASE
OR THREATENED RELEASE OF ANY SUCH HAZARDOUS SUBSTANCE THAT IS ON, FROM OR
AFFECTING THE SOIL, WATER, VEGETATION, BUILDINGS, PERSONAL PROPERTY, PERSONS,
ANIMALS OR OTHERWISE LOCATED ON OR AROUND THE PROPERTY; (B) ANY PERSONAL INJURY
(INCLUDING DEATH) OR PROPERTY DAMAGE (REAL OR PERSONAL) ARISING OUT, AS A RESULT
OF OR CAUSED BY SUCH HAZARDOUS SUBSTANCE; (C) ANY LAWSUIT BROUGHT OR THREATENED,
SETTLEMENT REACHED OR GOVERNMENT ORDER RELATING TO SUCH HAZARDOUS SUBSTANCE; OR
(D) ANY VIOLATION OF ANY GOVERNMENTAL REQUIREMENTS EVEN IF ANY OF THE CLAIMS
REFERRED TO IN THIS SUBPARAGRAPH 5.03(C) ARE ATTRIBUTABLE IN PART TO THE
NEGLIGENCE, GROSS NEGLIGENCE OR STRICT LIABILITY OF ANY LANDLORD PARTIES, BUT
TENANT'S OBLIGATIONS TO INDEMNIFY THE LANDLORD PARTIES SHALL NOT EXTEND TO THE
PERCENTAGE OF RESPONSIBILITY OF THE LANDLORD PARTIES IN CONTRIBUTING TO SUCH
CLAIMS. THE PROVISIONS OF THIS SECTIONS 5 SHALL BE IN ADDITION TO ANY OTHER
OBLIGATIONS AND LIABILITIES TENANT MAY HAVE TO LANDLORD AT LAW OR IN EQUITY AND
SHALL SURVIVE THE TRANSACTIONS CONTEMPLATED HEREIN AND SHALL SURVIVE THE
TERMINATION OF THIS LEASE. THE LIABILITY OF TENANT PARTIES AND THE INDEMNITIES
PROVIDED BY TENANT SHALL NOT IN ANY EVENT EXTEND TO THE PRESENCE OF ANY
HAZARDOUS SUBSTANCE ON THE PROPERTY ON THE COMMENCEMENT DATE OF THIS LEASE, NOR
TO THE PRESENCE OF ANY HAZARDOUS SUBSTANCE INTRODUCED ONTO THE PROPERTY BY ANY
OTHER TENANT OF LANDLORD OR PARTIES UNDER SUCH OTHER TENANTS WHICH COULD NOT
HAVE BEEN REASONABLY PREVENTED BY TENANT.
Section 5.04. Signs and Auctions. Tenant shall not place any signs on the
Property without Landlord's prior written consent. Tenant shall not conduct or
permit any auctions or sheriff's sales at the Property.
Section 5.05. General Indemnity and Waiver. Tenant shall INDEMNIFY, DEFEND
and HOLD HARMLESS Landlord Parties from and against any and all Claims arising
out of, as a result of or caused by any of the following: (a) Tenant's use or
occupancy of the Property; (b) the conduct of Tenant's business or anything else
done or permitted by any Tenant Party to be done in or about the Property, or
its use of the Property (including, without limitation, use by any depositor or
other Tenant Party); (c) any breach or default in the performance of Tenant's
obligations under this lease; (d) any misrepresentation or breach of warranty by
Tenant under this Lease; or (e) other acts, omissions or strict liability of any
Tenant Party including, without limitation, any depositor. Tenant shall DEFEND
Landlord Parties against any such Claims at Tenant's expense with counsel
reasonably acceptable
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to Landlord Parties, or, at Landlord's election, Tenant shall reimburse Landlord
for any reasonable attorneys fees or costs incurred by Landlord in connection
with any such Claim. As a material part of the consideration to Landlord, Tenant
assumes all risk of damage to property or injury to persons (including death) in
or about the Property at the instance of or request of or attendant to the
business or pleasure of Tenant to the extent arising out of as a result of or
caused by any cause, and Tenant hereby WAIVES all such Claims in respect thereof
against the Landlord Parties, EVEN IF ANY SUCH CLAIMS ARE ATTRIBUTABLE IN PART
TO THE NEGLIGENCE, GROSS NEGLIGENCE OR STRICT LIABILITY OF ANY LANDLORD PARTIES.
Section 5.06. Landlord's Access. Landlord or its agents may enter the
Property at all reasonable times to show the Premises to potential buyers,
investors or tenants or other parties; to do any other act; or for any other
purpose Landlord deems necessary. Landlord shall give Tenant twenty-four (24)
hours prior notice of such entry, except in the case of an emergency. Landlord
may place customary "For Sale" or "For Lease" signs on the Property.
Section 5.07. Quiet Possession. If Tenant pays the rent and complies with
all other terms of this Lease, Tenant may occupy and enjoy the Premises for the
full Lease Term, subject to the provisions of this Lease. Landlord represents
that it has no current, actual knowledge that the building in which the Premises
are located is in violation of any ordinance, building code or regulation of the
City of Houston or any other governmental entity having jurisdiction over the
Premises, including, but not limited to, the Americans With Disabilities Act.
Section 5.08. Depository Contracts. Tenant hereby assigns and grants a
security interest to Landlord in and to all indemnities and rights to
reimbursements and contributions contained in any Depository Contract, as
defined below, or arising at law or in equity (including, without limitation,
the Resource Conservation and Recovery Act of 1976 (commonly referred to as the
Solid Waste Disposal Act), 42 U.S.C. 6901 et seq., the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601
et seq., and the Texas Solid Waste Disposal Act, Texas Health and Safety Code
Annotated, Sections 361-001-361-510 (Vernon Supp. 1992)), to secure Tenant's
performance and payment obligations with respect to Sections 5.03 and 5.05 of
this Lease and with respect to the payment and performance of any other
obligation required of Tenant pursuant to this Lease, including, without
limitation, the payment of base rent and other sums required to be paid
hereunder, and any other of Tenant's indemnification obligations. Tenant agrees
to take all such further actions as necessary or required to perfect Landlord's
security interest described in this Section 5.08. This Lease or a copy of this
Lease may be filed at any time by Landlord, and Tenant hereby authorizes such
filing, as a UCC Financing Statement. A "Depository Contract" includes, without
limitation, any contract or arrangement, whether written or otherwise, in which
Tenant accepts, transfers, stores or warehouses raw materials, finished goods or
other personal property of any kind or character owned by persons or entities
other than Tenant or any of its Affiliated Entities ("Depositors"). Should
Landlord so elect, in its sole discretion, Tenant agrees to modify its standard
form of Depository Contract to provide for a direct indemnity from Depositors to
Landlord, in form and substance satisfactory to Landlord, in its sole and
absolute discretion. Thereafter, Tenant shall enter into new Depository
Contracts using the form of Depository Contract as so modified.
ARTICLE SIX: CONDITION OF PROPERTY; MAINTENANCE, REPAIRS AND ALTERATIONS
Section 6.01. Existing Conditions. Tenant accepts the Premises on an
"as-is" basis, in its 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 Premises or the suitability of the
Premises for Tenant's intended use. Tenant represents and warrants that Tenant
has made its own inspection of and inquiry regarding the condition of the
Premises and is not relying on any representations of Landlord or any Broker
with respect thereto. Landlord shall not be required to undertake any "tenant
finish" or tenant improvements whatsoever, nor shall Landlord reimburse Tenant
with respect to any such costs.
Section 6.02. Landlord's Obligations. Subject to the provisions of Article
Seven (Damage or Destruction) and Article Eight (Condemnation), and except for
damage caused by any act or omission of Tenant, or Tenant's employees, agents,
contractors or invitees, Landlord shall keep the foundation, roof and structural
portions of exterior walls of the improvements on the Premises 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. Landlord shall not
be obligated to make any repairs under this Section 6.02 until a reasonable time
after receipt of a written notice from Tenant of the need for such repairs.
Tenant waives the benefit of any present or future law which might give Tenant
the right to repair the Premises at Landlord's expense or to terminate the Lease
because of the condition of the
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Property. Except as set forth in this Section 6.02 or as specifically set forth
elsewhere in this Lease, Landlord shall have no other maintenance obligations
with respect to the Premises. As of the Commencement Date, Landlord represents
and warrants that the improvements located on the Premises are in compliance
with the applicable governmental statutes and regulations, including, without
limitation, applicable fire codes and the ADA. In the event such improvements
are, in fact, in violation of any such laws, statutes, regulations or ordinance,
Landlord, at its own cost, shall immediately cause the Premises to become in
compliance with such matters. Landlord shall not be responsible for the
compliance with such codes, statutes or regulations with respect to any
improvements, modifications, alterations or additions made by Tenant.
In no event shall Landlord have any obligation or responsibility for
providing any police or security service for the Property. Tenant shall be
solely responsible for, and shall assume all risk to, persons and property while
in, on or about the Property.
Section 6.03. Exemption of Landlord from Liability. LANDLORD SHALL NOT BE
LIABLE FOR ANY DAMAGE OR INJURY TO THE PERSON, BUSINESS (OR ANY LOSS OF INCOME
THEREFROM), GOODS, WARES, MERCHANDISE OR OTHER PROPERTY OF TENANT, TENANT'S
EMPLOYEES, INVITEES, CUSTOMERS OR ANY OTHER PERSON IN OR ABOUT THE PREMISES,
INCLUDING, WITHOUT LIMITATION, SUCH DAMAGE OR INJURY CAUSED BY OR RESULTING
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 THE PREMISES OR FROM OTHER SOURCES OR PLACES; OR
(D) ANY ACT OR OMISSION OF ANY OTHER TENANT OF LANDLORD OR THIRD PARTY,
INCLUDING, WITHOUT LIMITATION, CRIMINAL ACTS. 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; AND EVEN IF SUCH DAMAGE OR
INJURY IS ATTRIBUTABLE IN PART TO THE NEGLIGENCE, GROSS NEGLIGENCE OR STRICT
LIABILITY OF LANDLORD, OR ANY PROPERTY MANAGER.
Section 6.04. Tenant's Obligations.
(a) Except as provided in Section 6.02, Article Seven (Damage or
Destruction) and Article Eight (Condemnation), Tenant shall keep all portions of
the Premises (including structural, nonstructural, interior, exterior, and
landscaped areas, portions, systems and equipment) in good order, condition and
repair (including interior repainting and refinishing, as needed). If any
portion of the Premises or any system or equipment in the Premises which Tenant
is obligated to repair cannot be fully repaired or restored, Tenant shall
promptly replace such portion of the Premises or system or equipment in the
Premises, regardless of whether the benefit of such replacement extends beyond
the Lease Term. Tenant shall maintain any heating and air conditioning systems
at the Premises. Without limiting any of the foregoing, it is agreed and
acknowledged that Tenant shall be responsible for the maintenance of all
existing fire prevention systems including, without limitation, sprinklers,
hoses, fire detectors and sensors, alarms and fire extinguishers, and Landlord
shall have no responsibility in connection with any such matters. Landlord shall
have the right, upon written notice to Tenant, to undertake the responsibility
for preventive maintenance of the heating and air conditioning system at
Tenant's expense. In addition, Tenant shall, at Tenant's expense, repair any
damage to the roof, foundation or structural portions of walls caused by
Tenant's acts or omissions. It is the intention of Landlord and Tenant that, at
all times during the Lease Term, Tenant shall maintain the Premises in an
attractive, first-class and fully operative condition.
(b) Tenant shall fulfill all of Tenant's obligations under this Section
6.04 at Tenant's sole expense. If Tenant fails to maintain, repair or replace
the Premises as required by this Section 6.04, 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 incurred in performing such maintenance
or repair immediately upon demand. Landlord's reservation of rights under this
Lease, such as the right to enter upon or maintain the improvements, shall not
be deemed to create any duty on the part of Landlord to exercise any such right,
and Landlord expressly advises Tenant that Landlord's intention is that Tenant
shall have full responsibility for all such matters.
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Section 6.05. Alterations, Additions, and Improvements.
(a) Tenant shall not make any alterations, additions or improvements to the
Premises without Landlord's prior written consent, except for non-structural
alterations which do not exceed Twenty-five Thousand Dollars ($25,000.00) in
cost cumulatively over the Lease Term and which are not visible from the outside
of any building of which the Property is part. Landlord may require Tenant to
provide demolition and/or lien and completion bonds in form and amount
satisfactory to Landlord. Tenant shall promptly remove any alterations,
additions or improvements constructed in violation of this Paragraph 6.05(a)
upon Landlord's written request. All alterations, additions and improvements
shall be done in a good and workmanlike manner, in conformity with all
applicable laws and regulations, and by a contractor approved by Landlord. 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.
(b) Tenant shall pay when due all claims for labor and material furnished
to the Premises. Tenant shall give Landlord at least twenty (20) days' prior
written notice of the commencement of any work on the Property, regardless of
whether Landlord's consent to such work is required. Landlord may elect to
record and post notices of non-responsibility on the Property or Premises.
Section 6.06. Condition upon Termination. Upon the termination of the
Lease, Tenant shall surrender the Premises to Landlord, broom clean and in the
same condition as received except for ordinary wear and tear which Tenant was
not otherwise obligated to remedy under any provision of this Lease. However,
Tenant shall not be obligated to repair any damage which Landlord is required to
repair under Article Seven (Damage or Destruction). In addition, Landlord may
require Tenant to remove any alterations, additions or improvements (whether or
not made with Landlord's consent) prior to the expiration of the Lease and to
restore the Premises to its prior condition, all at Tenant's expense. All
alterations, additions and improvements which Landlord has not required Tenant
to remove shall become Landlord's property and shall be surrendered to Landlord
upon the expiration or earlier termination of the Lease, except that Tenant may
remove any of Tenant's machinery or equipment which can be removed without
material damage to the Premises. Tenant shall repair, at Tenant's expense, any
damage to the Premises 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: any power wiring or power panels; lighting or lighting
fixtures; wall coverings; drapes, blinds or other window coverings; carpets or
other floor coverings; heaters, air conditioners or any other heating or air
conditioning equipment; fencing or security gates; or other similar building
operating equipment and decorations.
ARTICLE SEVEN: DAMAGE OR DESTRUCTION
Section 7.01. Partial Damage to Premises.
(a) Tenant shall notify Landlord in writing immediately upon the occurrence
of any damage to the Premises. If the Premises is only partially damaged (i.e.,
less than fifty percent (50%) of the Premises is untenantable as a result of
such damage or less than fifty percent (50%) of Tenant's operations are
materially impaired) and if the proceeds received by Landlord from the insurance
policies described in Paragraph 4.04(b) are sufficient to pay for the necessary
repairs, this Lease shall remain in effect and Landlord shall repair the damage
as soon as reasonably possible. Landlord may elect (but is not required) to
repair any damage to Tenant's fixtures, equipment, or improvements.
(b) If the insurance proceeds received by Landlord are not sufficient to
pay the entire cost of repair, or if the cause of the damage is not covered by
the insurance policies which Landlord maintains under Paragraph 4.04(b),
Landlord may elect either to (i) repair the damage 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 damage occurred. Landlord shall
notify Tenant within thirty (30) days after receipt of notice of the occurrence
of the damage whether Landlord elects to repair the damage or terminate the
Lease. If Landlord elects to repair the damage, Tenant shall pay Landlord the
"deductible amount" (if any) under Landlord's insurance policies and if the
damage was due to an act or omission of Tenant, or Tenant's employees, agents,
contractors or invitees, the difference between the actual cost of repair and
any insurance proceeds received by Landlord. If Landlord elects to terminate the
Lease, Tenant may elect to continue this Lease in full force and effect, in
which case Tenant shall repair any damage to the Premises and any building in
which the Premises is located. Tenant shall pay the cost of such repairs, except
that upon satisfactory
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completion of such repairs, Landlord shall deliver to Tenant any insurance
proceeds received by Landlord for the damage repaired by Tenant. Tenant shall
give Landlord written notice of such election within ten (10) days after
receiving Landlord's termination notice.
(c) If the damage to the Premises occurs during the last six (6) months of
the Lease Term and such damage will require more than thirty (30) days to
repair, either Landlord or Tenant may elect to terminate this Lease as of the
date the damage 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 thirty (30) days after
Tenant's notice to Landlord of the occurrence of the damage.
Section 7.02. Substantial or Total Destruction. If the Premises is
substantially or totally destroyed by any cause whatsoever (i.e., the damage to
the Premises is greater than partial damage as described in Section 7.01), and
regardless of whether Landlord receives any insurance proceeds, this Lease shall
terminate as of the date the destruction occurred. Notwithstanding the preceding
sentence, if the Premises can be rebuilt within six (6) months after the date of
destruction, Landlord may elect to rebuild the Premises at Landlord's own
expense, in which case this Lease shall remain in full force and effect.
Landlord shall notify Tenant of such election within thirty (30) days after
Tenant's notice of the occurrence of total or substantial destruction. If
Landlord so elects, Landlord shall rebuild the Premises at Landlord's sole
expense, except that if the destruction was caused by an act or omission of
Tenant, Tenant shall pay Landlord the difference between the actual cost of
rebuilding and any insurance proceeds received by Landlord.
Section 7.03. Temporary Reduction of Rent. If the Premises is destroyed or
damaged and Landlord or Tenant repairs or restores the Premises pursuant to the
provisions of this Article Seven, any Base Rent or Other Periodic Payments
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
is impaired. Except for possible reduction in Base Rent and Other Periodic
Payments, Tenant shall not be entitled to any compensation; reduction or
reimbursement from Landlord as a result of any damage, destruction, repair, or
restoration of or to the Premises.
Section 7.04. Waiver. Tenant waives the protection of any statute, code or
judicial decision which grants a tenant the right to terminate a lease in the
event of the substantial or total destruction of the leased Premises. Tenant
agrees that the provisions of Section 7.02 above shall govern the rights and
obligations of Landlord and Tenant in the event of any substantial or total
destruction to the Premises.
ARTICLE EIGHT: CONDEMNATION
If all or any portion of the Premises is taken under the power of eminent
domain or sold under the threat of that power (all of which are called
"Condemnation"), this Lease shall terminate as to the part taken or sold on the
date the condemning authority takes title or possession, whichever occurs first.
If more than twenty percent (20%) of the floor area of the building in which the
Premises is located, or which is located on the Premises, is taken, either
Landlord or Tenant may terminate this Lease as of the date the condemning
authority takes title or possession, by delivering written 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
takes title or possession). If neither Landlord nor Tenant terminates this
Lease, this Lease shall remain in effect as to the portion of the Premises not
taken, except that the Base Rent and Additional Rent shall be reduced in
proportion to the reduction in the floor area of the building on the Premises.
Any Condemnation award or payment shall be distributed in the following order:
(a) first, to any ground lessor, mortgagee or beneficiary under a deed of trust
encumbering the Premises, the amount of its interest in the Premises; and (b)
second, to Landlord. Tenant may, however, seek to recover from the condemning
authority an independent award, so long as such award does not decrease the
amount of Landlord's recovery. If this Lease is not terminated, Landlord shall
repair any damage to the Premises caused by the Condemnation, except that
Landlord shall not be obligated to repair any damage for which Tenant has been
reimbursed by the condemning authority. If the severance damages received by
Landlord are not sufficient to pay for such repair, Landlord shall have the
right to either terminate this Lease or make such repair at Landlord's expense.
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ARTICLE NINE: ASSIGNMENT AND SUBLETTING
Section 9.01. Landlord's Consent Required. No portion of the Premises or of
Tenant's interest in this Lease may 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 9.02 below. Landlord's consent to the sub-letting of all or any portion
shall not be unreasonably withheld, delayed or conditioned. In the event that
Landlord fails to disapprove the proposed assignment, subletting or licensing of
the Premises (in whole or in part) within twenty (20) business days from and
after the date that Landlord receives Tenant's request to assign, sublet or
license the Premises, and provided the request for approval is given in
compliance with the notice provisions of this Lease and such request notifies
Landlord that Landlord's failure to respond within such twenty (20) business day
period is deemed an acceptance of such request, then such assignment, subletting
or licensing of the Premises shall be deemed to have been approved by Landlord
without condition. If Tenant requests Landlord's consent to a specific
assignment or sublease, Tenant will give Landlord (i) the name and address of
the proposed assignee or subtenant, (ii) the basic terms of the proposed
assignment or sublease, and (iii) reasonably satisfactory information to
establish the financial responsibility, financial condition, business and
business history of the proposed assignee or subtenant, and its proposed initial
use of the Premises, accompanied by evidence that the assignment or sublease
requires Tenant's sub-tenant to comply with Section 5.03 to the extent that it
prevents the use, storage, depositing, generation or disposal of on or in the
Property of Hazardous Substances and not otherwise operate the Property in
conflict with any terms of this Lease. Conditioned that the foregoing
information is furnished and is reasonably credible, reliable, and true, and the
prospective assignee or sub-lessee assumes Tenant's obligations pursuant to this
Lease and agrees to abide by all restrictions herein, Landlord's failure to
consent shall be deemed "unreasonable" and the requirement for Landlord's
consent will be waived.
Section 9.02. Tenant Affiliate. Notwithstanding the foregoing, Tenant may,
without the approval of Landlord, assign this sublease, or any part thereof, or
sub-sublease the Premises in whole or in part, to: (a) any corporation or other
legal entity which has the power to direct Tenant's management and operation, or
any corporation whose management and operation is controlled by Tenant; or (b)
any corporation a majority of whose voting stock is owned by Tenant; or (c) any
corporation or other entity in which or with which Tenant is merged or
consolidated, in accordance with applicable statutory provisions for merger or
consolidation of corporations or other entities, so long as the liabilities of
the corporations or other entities participating in such merger or consolidation
are assumed by the corporation or other entity surviving such merger or created
by such consolidation; or (d) any corporation or other entity acquiring this
lease and substantially all of Tenant's assets; or (e) any corporate or other
successor to a successor corporation or entity becoming such by either of the
methods described in subsections (c) or (d); or (f) any entity (or member of a
group of affiliated entities) which is acquiring the majority of Tenant's retail
stores located in the Houston, Texas, "Area of Dominant Influence for Media
Coverage" (as such term is commonly defined in the advertising industry), or (g)
as permitted in Exhibit "C" attached hereto. Tenant must deliver written notice
of any such assignment to Landlord.
Section 9.03. No Release of Tenant. No transfer permitted by this Article
Nine, whether with or without Landlord's consent, 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
is not a waiver of any provision of this Article Nine. Consent to one transfer
is not a consent to any subsequent transfer. If Tenant's transferee defaults
under this Lease, Landlord may proceed directly against Tenant without pursuing
remedies against the transferee. Landlord may consent to subsequent assignments
or modifications of this Lease by Tenant's transferee, without notifying Tenant
or obtaining its consent. Such action shall not relieve Tenant's liability under
this Lease.
Section 9.04. Intentionally Omitted.
Section 9.05. Landlord's Consent.
Tenant's request for consent to any transfer described in Section 9.01
shall set forth in writing the details of the proposed transfer, including the
name, business and financial condition of the prospective transferee, financial
details of the proposed transfer (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 have the right to withhold
consent, in its sole and absolute discretion.
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Section 9.06. No Merger. No merger shall result from Tenant's sublease of
the Premises under this Article Nine, Tenant's surrender of this Lease or the
termination of this Lease in any other manner. In any such event, Landlord may
terminate any or all subtenancies or succeed to the interest of Tenant as
sublandlord under any or all subtenancies.
ARTICLE TEN: DEFAULTS; REMEDIES
Section 10.01. 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 of all covenants and
conditions.
Section 10.02. Defaults. Tenant shall be in material default under this
Lease:
(a) If Tenant abandons the Premises or if Tenant's vacation of the Premises
results in the cancellation of any insurance described in Section 4.04;
(b) If Tenant fails to pay rent or any other charges when due, following
Tenant's receipt of five (5) days' written notice that any such payment has not
been received by Landlord; provided, however, no such notice shall be required
to be made by Landlord and such default shall be automatic without further
action by or notice from Landlord on Tenant's third (3rd) failure to timely pay
rent during any twelve (12) month period;
(c) If Tenant fails to perform any of Tenant's non-monetary obligations
under this Lease for a period of thirty (30) days after written notice from
Landlord; provided that if more than thirty (30) days are required to complete
such performance, Tenant shall not be in default if Tenant commences such
performance within the thirty (30)-day period and thereafter diligently pursues
its completion. However, Landlord shall not be required to give such notice if
Tenant's failure to perform constitutes a non-curable breach of this Lease. The
Notice required by this Paragraph is intended to satisfy any and all notice
requirements imposed by law on Landlord and is not in addition to any such
requirement.
(d) (i) If Tenant makes a general assignment or general arrangement for the
benefit of creditors; (ii) if a petition for adjudication of bankruptcy or for
reorganization or rearrangement is filed by or against Tenant and is not
dismissed within thirty (30) days; (iii) if a trustee or receiver is appointed
to take possession of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease and possession is not restored to
Tenant within thirty (30) days; or (iv) if substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease is subjected to
attachment, execution or other judicial seizure which is not discharged within
thirty (30) days. If a court of competent jurisdiction determines that any of
the acts described in this subparagraph (d) is not a default under this Lease,
and a trustee is appointed to take possession (or if Tenant remains a debtor in
possession) and such trustee or Tenant transfers 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 or sublease
over the rent payable by Tenant under this Lease.
(e) If any guarantor of the Lease revokes or otherwise terminates, or
purports to revoke or otherwise terminate, any guaranty of all or any portion of
Tenant's obligations under the Lease. Unless otherwise expressly provided, no
guaranty of the Lease is revocable.
Section 10.03. Remedies. On the occurrence of any material default by
Tenant, Landlord may, at any time thereafter with or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have:
(a) Terminate Tenant's right to possession of the Premises by any lawful
means, in which case this Lease shall terminate and Tenant shall immediately
surrender possession of the Premises to Landlord. In such event, Landlord shall
be entitled to recover from Tenant all damages incurred by Landlord by reason of
Tenant's default, including (i) the worth at the time of the award of the unpaid
Base Rent, Additional Rent and other charges which Landlord had earned at the
time of the termination; (ii) the worth at the time of the award of the amount
by which the unpaid Base Rent, Additional Rent and other charges which Landlord
would have earned after termination until the time of the award exceeds the
amount of such rental loss that Tenant proves Landlord could have reasonably
avoided; (iii) the worth at the time of the award of the amount by which the
unpaid Base Rent, Additional Rent and
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other charges which Tenant would have paid for the balance of the Lease Term
after the time of award exceeds the amount of such rental loss that Tenant
proves Landlord could have reasonably avoided; and (iv) any other amount
necessary to compensate Landlord for all the detriment proximately caused by
Tenant's failure to perform its obligations under the Lease or which in the
ordinary course of things would be likely to result therefrom, including, but
not limited to, any costs or expenses Landlord incurs in maintaining or
preserving the Premises after such default, the cost of recovering possession of
the Premises, expenses of reletting, including necessary renovation or
alteration of the Premises, Landlord's reasonable attorneys' fees incurred in
connection therewith, and any real estate commission paid or payable, and any
costs described in Section 10.05. As used in subparts (i) and (ii) above, the
"worth at the time of the award" is computed by allowing interest on unpaid
amounts at the rate of fifteen percent (15%) per annum, or such lesser amount as
may then be the maximum lawful rate. As used in subpart (iii) above, the "worth
at the time of the award" is computed by discounting such amount at the discount
rate of the Federal Reserve Bank of Dallas (or if no longer in existence, the
Federal Reserve Bank closest to the Premises) at the time of the award, plus one
percent (1%). If Tenant has abandoned the Premises, Landlord shall have the
option of (i) retaking possession of the Premises and recovering from Tenant the
amount specified in this Paragraph 10.03(a), or (ii) proceeding under Paragraph
10.03(b);
(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;
(c) Pursue any other remedy now or hereafter available to landlord under
the laws or judicial decisions of the state in which the Premises is located.
Section 10.04. Intentionally Omitted.
Section 10.05. Additional Damages. Landlord's damages shall include all
costs and fees, including reasonable attorneys' fees that Landlord incurs 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.
Section 10.06. Cumulative Remedies. Landlord's exercise of any right or
remedy shall not prevent it from exercising any other right or remedy.
ARTICLE ELEVEN: PROTECTION OF LENDERS
Section 11.01. Subordination. Landlord shall have the right to subordinate
this Lease to any ground lease, deed of trust or mortgage encumbering the
Premises, 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 is
acquiring a security interest in the Premises or the Lease. Tenant shall execute
such further documents and assurances as such lender may reasonably require,
provided that Tenant's obligations under this Lease shall not be increased in
any material way (the performance of ministerial acts shall not be deemed
material), and Tenant shall not be deprived of its rights under this Lease.
Tenant's right to quiet possession of the Premises during the Lease Term shall
not be disturbed if Tenant pays the rent and performs all of Tenant's
obligations under this Lease and is not otherwise in default. If any ground
lessor, beneficiary or mortgagee elects to have this Lease 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.
Section 11.02. Attornment. If Landlord's interest in the Premises 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 Premises and recognize such transferee
or successor as Landlord under this Lease. Tenant waives the protection of any
statute or rule of law which gives or purports to give Tenant any right to
terminate this Lease or surrender possession of the Premises upon the transfer
of Landlord's interest.
Section 11.03. Signing of Documents. Tenant shall sign and deliver any
instrument or documents necessary or appropriate to evidence any such attornment
or subordination or agreement to do so. If Tenant fails to do so
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within ten (10) days after written request, Tenant hereby makes, constitutes and
irrevocably appoints Landlord, or any transferee or successor of Landlord, the
attorney-in-fact of Tenant to execute and deliver any such instrument or
document.
Section 11.04. Estoppel Certificates.
(a) Upon Landlord's written request, Tenant shall execute, acknowledge and
deliver to Landlord a written statement certifying: (i) that none of the terms
or provisions of this Lease have been changed (or if they have been changed,
stating how they have been changed; (ii) that this Lease has not been cancelled
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 Landlord is not in
default under this Lease (or, if Landlord is claimed to be in default, stating
why); and (v) such other representations or information with respect to Tenant
or the Lease as Landlord may reasonably request or which any prospective
purchaser or encumbrancer of the Premises may require. Tenant shall deliver such
statement to Landlord within ten (10) days after Landlord's request. Landlord
may give any such statement by Tenant to any prospective purchaser or
encumbrancer of the Premises. Such purchaser or encumbrancer may rely
conclusively upon such statement as true and correct.
(b) If Tenant does 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 cancelled 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 Landlord is not
in default under the Lease. In such event, Tenant shall be estopped from denying
the truth of such facts.
Section 11.05. Tenant's Financial Condition. Upon Landlord's written
request, which may be made from time to time but no more frequently than once in
any calendar year, Tenant shall furnish to Landlord, within twenty (20) days of
Tenant's receipt of the request therefor, copies of Tenant's most recent
financial statement. All financial statements provided by Tenant will be
confidential and shall be used only by Landlord to verify the net worth of
Tenant.
ARTICLE TWELVE: LEGAL COSTS
Section 12.01. Legal Proceedings. If Tenant or Landlord shall be in breach
or default under this Lease, such party (the "Defaulting Party") shall reimburse
the other party (the "Nondefaulting Party") upon demand for any costs or
expenses that the Nondefaulting Party incurs in connection with any breach or
default of the Defaulting Party under this Lease, whether or not suit is
commenced or judgment entered. Such costs shall include legal fees and costs
incurred for the negotiation of a settlement, enforcement of rights or
otherwise. Furthermore, if any action for breach of or to enforce the provisions
of this Lease is commenced, the court in such action shall award to the party in
whose favor a judgment is entered, a reasonable sum as attorneys' fees and
costs. The losing party in such action shall pay such attorneys' fees and costs.
Tenant shall also indemnify Landlord against and hold Landlord harmless from all
costs, expenses, demands and liability Landlord may incur if Landlord becomes or
is 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; (c) otherwise arising out of or resulting from
any act or transaction of Tenant or such other person; or (d) necessary to
protect Landlord's interest under this Lease in a bankruptcy proceeding, or
other proceeding under Title 11 of the United States Code, as amended. 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 incurs in any such
claim or action.
Section 12.02. Landlord's Consent. Tenant shall pay Landlord's reasonable
attorneys' fees incurred in connection with Tenant's request for Landlord's
consent under Article Nine (Assignment and Subletting), or in connection with
any other act which Tenant proposes to do and which requires Landlord's consent.
ARTICLE THIRTEEN: MISCELLANEOUS PROVISIONS
Section 13.01. Non-Discrimination. Tenant promises, and it is a condition
to the continuance of this Lease, that there will be no discrimination against,
or segregation of, any person or group of persons on the basis of race,
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color, sex, creed, national origin or ancestry in the leasing, subleasing,
transferring, occupancy, tenure or use of the Premises or any portion thereof.
Section 13.02. Landlord's Liability; Certain Duties.
(a) As used in this Lease, the term "Landlord" means only the current owner
or owners of the fee title to the Premises or the leasehold estate under a
ground lease of the Premises at the time in question. Each Landlord is obligated
to perform the obligations of Landlord under this Lease only during the time
such Landlord owns such interest or title. Any Landlord who transfers its title
or interest is relieved of all liability with respect to the obligations of
Landlord under this Lease to be performed on or after the date of transfer.
However, each Landlord shall deliver to its transferee all funds that Tenant
previously paid if such funds have not yet been applied under the terms of this
Lease.
(b) Tenant shall give written notice of any failure by Landlord to perform
any of its obligations under this Lease to Landlord and to any ground lessor,
mortgagee or beneficiary under any deed of trust encumbering the Premises whose
name and address have been furnished to Tenant in writing. Landlord shall not be
in default under this Lease unless Landlord (or such ground lessor, mortgagee or
beneficiary) fails to cure such non-performance within thirty (30) days after
receipt of Tenant's notice. However, if such non-performance reasonably requires
more than thirty (30) days to cure, Landlord shall not be in default if such
cure is commenced within such thirty (30)-day period and thereafter diligently
pursued to completion.
(c) Notwithstanding any term or provision herein to the contrary, the
liability of Landlord for the performance of its duties and obligations under
this Lease is limited to Landlord's interest in the Premises; and further
provided, none of Landlord's partners, shareholders, officers or other
principals shall have any personal liability under this Lease.
Section 13.03. 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 or
this Lease, which shall remain in full force and effect.
Section 13.04. Interpretation. The captions of the Articles or Sections of
this Lease are to assist the parties in reading this Lease and are not a part of
the terms or provisions of this Lease. Whenever required by the context of this
Lease, the singular shall include the plural and the plural shall include the
singular. 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.
Section 13.05. 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 are effective. All amendments to this Lease
shall be in writing and signed by all parties. Any other attempted amendment
shall be void.
Section 13.06. Notices. All notices 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. Notices to Tenant shall be delivered
to the address specified in Section 1.03 above, except that upon Tenant's taking
possession of the Premises, the Premises shall be Tenant's address for notice
purposes. Notices to Landlord shall be delivered to the address specified in
Section 1.02 above. All notices shall be effective upon delivery. Either party
may change its notice address upon written notice to the other party.
Section 13.07. Waivers. All waivers must 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 to the conditions of such
statement.
Section 13.08. No Recordation. Tenant shall not record this Lease without
prior written consent from Landlord. However, either Landlord or Tenant may
require that a "Short Form" memorandum of this Lease executed by both parties be
recorded. The party requiring such recording shall pay all transfer taxes and
recording fees.
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Section 13.09. Binding Effect; Choice of Law. This Lease binds any party
who legally acquires any rights or interest in this Lease from Landlord or
Tenant. However, 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 Premises is located
shall govern this Lease.
Section 13.10. Corporate Authority; Partnership Authority. If Tenant is a
corporation, each person signing this Lease on behalf of Tenant represents and
warrants that he has full authority to do so and that this Lease binds the
corporation. If Tenant is a partnership, each person or entity signing this
Lease for Tenant represents and warrants that he or it is a general partner of
the partnership, that he or it has full authority to sign for the partnership
and that this Lease binds the partnership and all general partners of the
partnership. Tenant shall give written notice to Landlord of any general
partner's withdrawal or addition.
Section 13.11. Joint and Several Liability. All parties signing this Lease
as Tenant shall be jointly and severally liable for all obligations of Tenant.
Section 13.12. Force Majeure. If Landlord cannot perform any of its
obligations due to events beyond Landlord's 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 Landlord's 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.
Section 13.13. 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.
Section 13.14. Survival. All representations and warranties of Landlord and
Tenant shall survive the termination of this Lease.
ADDITIONAL PROVISIONS MAY BE SET FORTH IN A RIDER OR RIDERS ATTACHED HERETO
OR IN THE BLANK SPACE BELOW. IF NO ADDITIONAL PROVISIONS ARE INSERTED, PLEASE
DRAW A LINE THROUGH THE SPACE BELOW.
SEE EXHIBIT "A", EXHIBIT "B", EXHIBIT "C" AND EXHIBIT "D"
ATTACHED HERETO AND INCORPORATED HEREIN BY THIS REFERENCE.
Landlord and Tenant have signed this Lease at the place and on the dates
specified adjacent to their signatures below and have initialed all Riders which
are attached to or incorporated by reference in this Lease.
NOTICE OF INDEMNIFICATION
TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT CONTAINS CERTAIN
INDEMNIFICATION PROVISIONS PURSUANT TO SECTIONS 5.03 AND 5.05.
LANDLORD
AMERICAN NATIONAL INSURANCE COMPANY
Signed on 6/16/00 By: /s/ SCOTT F. BRAST
-----------------------------------
Name: SCOTT F. BRAST
Its: Vice President
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TENANT
CAI, L.P., a Texas limited partnership
By: CONN APPLIANCES, INC., a Texas corporation,
Its General Partner
Signed on 6-15-2000 By: /s/ Thomas J. Frank
---------------------------------------
Thomas J. Frank, CEO
IN ANY REAL ESTATE TRANSACTION, IT IS RECOMMENDED THAT YOU CONSULT WITH A
PROFESSIONAL, SUCH AS A CIVIL ENGINEER, INDUSTRIAL HYGIENIST OR OTHER PERSON
WITH EXPERIENCE IN EVALUATING THE CONDITION OF THE PROPERTY, INCLUDING THE
POSSIBLE PRESENCE OF ASBESTOS, HAZARDOUS MATERIALS AND UNDERGROUND STORAGE
TANKS.
LANDLORD AND TENANT SHOULD ALSO RETAIN LEGAL COUNSEL TO ADVISE THEM ON THE
MATTERS CONTAINED IN THIS LEASE, AND SHOULD RELY UPON THE ADVICE OF SUCH LEGAL
COUNSEL.
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EXHIBIT "A"
TRACT I:
All that certain 12.8608 acres of land out of the John Brown Survey, Abstract 8,
in Harris County, Texas, and being more particularly described by metes and
bounds as follows:
BEGINNING at a 5/8 inch iron rod marking the northwest corner of that certain
15.2305 acres of land described as "Tract Two" in a deed dated March 15, 1976,
from BMA Properties, Inc. to Magnum Land Corporation, recorded in the Official
Public Records of Real Property of Harris County, Texas, under film code number
###-##-####;
THENCE South 79DEG. 00' 06" East, 584.14 feet along the south right-of-way line
of Market Street (120 feet wide), to a 1/2 inch iron rod for corner;
THENCE South 00DEG. 01' 43" East, 428.60 feet to a 1/2 inch iron rod for corner;
THENCE North 89DEG. 52' 11" East, 254.59 feet to a 1/2 inch iron rod for corner
located in the east line of said 15.2305 acre tract;
THENCE South 00DEG. 08' 07" West, 342.91 feet along the west line of that
certain 8.02 acres of land described in a deed dated September 18, 1959, from
Ben Robinson, et ux, to Ben Robinson Land Company, recorded in Volume 3810, Page
315, of the Deed Records of Harris County, Texas, to a 5/8 inch iron rod for
corner marking the southeast corner of said 15.2305 acre tract;
THENCE North 89DEG. 48' 57" West, 827.63 feet along the north line of the
Houston North Shore Railroad Company (80 feet wide), to a 5/8 inch iron rod for
corner marking the southwest corner of said 15.2305 acre tract;
THENCE North 00DEG. 00' 53" East, 879.72 feet along the east line of that
certain 11.6193 acres of land described in a deed dated March 15, 1976, from BMA
Real Estate Corporation to Magnum Land Corporation, recorded in the Official
Public Records of Real Property of Harris County, Texas, under film code number
###-##-####, to the POINT OF BEGINNING and containing 12.8608 acres (560,216
square feet) of land.
TRACT II:
All that certain 2.3634 acres of land out of the John Brown Survey, Abstract 8,
in Harris County, Texas, and being more particularly described by metes and
bounds as follows:
COMMENCING at a 5/8 inch iron rod marking the Northwest corner of that certain
15.2305 acres of land described as "Tract Two" in a deed dated March 15, 1976,
from BMA Properties, Inc. to Magnum Land Corporation, recorded in the Official
Public Records of Real Property of Harris County, Texas under film code number
###-##-####; THENCE South 79DEG. 00' 06" East, 584.14 feet along the south
right-of-way line of Market Street (120 feet wide) to the POINT OF BEGINNING of
the herein described parcel;
THENCE South 00DEG. O1' 43" East, 428.60 feet to a 1/2 inch iron rod for corner;
THENCE North 89DEG. 52' 11" East, 254.59 feet to a 1/2 inch iron rod for corner
located in the east line of said 15.2305 acre tract;
THENCE North 00DEG. 08' 07" East, 378.33 feet along the west line of that
certain 8.02 acres of land described in a deed dated September 18, 1959, from
Ben Robinson, et ux, to Ben Robinson Land Company, recorded in Volume 3810, Page
315, of the Deed Records of Harris County, Texas, to a 5/8 inch iron rod for
corner marking the northeast corner of said 15.2305 acre tract;
Page 1 of 2 Pages
EXHIBIT "A"
THENCE North 79DEG. 00' 06" West, 260.48 feet along the south line of said
Market Street to the POINT OF BEGINNING and containing 2.3634 acres (102,948
square feet) of land.
TRACT III:
All that certain 11.6133 acres of land out of the John Brown Survey, Abstract 8,
in Harris County, Texas, and being more particularly described by metes and
bounds as follows:
BEGINNING at a 5/8 inch iron rod marking the northwest corner of that certain
15.2305 acres of land described as "Tract Two" in a deed dated March 15, 1976,
from BMA Properties, Inc. to Magnum Land Corporation, recorded in the Official
Public Records of Real Property of Harris County, Texas, under film code number
###-##-####;
THENCE South 00DEG. 00' 53" West, 879.72 feet along the east line of that
certain 11.6193 acres of land described in a deed dated March 15, 1976, from BMA
Real Estate Corporation to Magnum Land Corporation, recorded in the Official
Public Records of Real Property of Harris County, Texas, under film code number
###-##-####, to a 5/8 inch iron rod for corner;
THENCE North 89DEG. 50' 31" West, 125.92 feet along the north line of the
Houston North Shore Railroad Company (80 feet wide), to a 5/8 inch iron rod for
angle point;
THENCE North 89DEG. 46' 18" West, 417.07 feet along said railroad north line, to
a 5/8 inch iron rod for corner;
THENCE North 00DEG. 00' 31" East, 973.45 feet along the east line of that
certain 10 foot wide strip of land for road right-of-way described in a deed
dated February 21, 1973, from O'Meara Chandler to City of Houston, recorded in
the Official Public Records of Real Property of Harris County, Texas, under film
code number ###-##-####,. to a 5/8 inch iron rod for corner;
THENCE North 50DEG. 12' 42" East, 12.73 feet to a 5/8 inch iron rod for corner;
THENCE South 78DEG. 58' 37" East, 543.31 feet, along the south right-of-way line
of Market Street (120 feet wide) to the POINT OF BEGINNING, and containing
11.6133 acres of land, and being the same property described in deed dated March
15, 1976, from BMA Properties, Inc. to Magnum Land Corporation, recorded in the
Official Public Records of Real Property of Harris County, Texas, under film
code number ###-##-####.
Page 2 of 2 Pages
EXHIBIT "B"
GUARANTY
For Value Received, CONN APPLIANCES, INC., a Texas corporation, hereinafter
called Guarantor, in consideration of the premises and of the benefits that will
accrue (whether directly or indirectly) to Tenant and Guarantor from that
certain Lease between American National Insurance Company as Landlord, and CAI,
L.P. as Tenant, covering approximately 229,500 square feet in the building
located at 8550-A Market Street, Houston, Texas 77029 (the "Lease"), which
consideration is acknowledged by Guarantor to be new, independent and
sufficient, and as a material inducement to Landlord to enter the Lease,
Guarantor does hereby unconditionally, fully and absolutely guarantee without
offset or deduction, the prompt payment when due of all sums payable by Tenant
under the Lease, and to do or cause to be done, or perform or cause to be
performed, all duties, covenants and obligations of Tenant under the Lease, for
the full Term of the Lease and any renewals thereof, this Guaranty constituting
an absolute and unconditional guaranty of (1) full payment, and not of
collection, and (2) that Tenant will perform punctually and faithfully under and
in accordance with the terms of the Lease. Guarantor further agrees to indemnify
and hold harmless Landlord from any and all losses, damages, costs, and expenses
(including, without limitation, costs of court and attorney's fees incurred by
Landlord) in the event of any default or breach by Guarantor of its obligations
under this Guaranty.
Guarantor hereby agree that Guarantor, as principal obligor, will pay or
otherwise provide for or bring about promptly when due all payments required of
Tenant under the Lease and the timely and full performance of all duties,
covenants and obligations of Tenant under the Lease, notwithstanding any fact or
circumstance, including, but not limited to, (1) the liquidation, dissolution,
receivership, insolvency or bankruptcy of Tenant, including the discharge of any
of Tenant's debts or obligations in such proceedings, (2) the making by Tenant
of an assignment for the benefit of its creditors, (3) the reorganization,
arrangement, composition or readjustment of Tenant, or (4) any proceeding
affecting the status, existence or assets of Tenant. Without limiting the
foregoing, Guarantor expressly and specifically agrees that it will not be
necessary or required, and Guarantor shall not be entitled to require, that
Landlord shall file suit or proceed to or obtain a judgment against Tenant or
any other party, or make any effort of collection from Tenant or any other
party, or exercise any remedy or remedies provided in the Lease or by law
before, or as a condition precedent to, enforcing the liability of Guarantor
hereunder; and Guarantor, knowingly and with the express intention of
extinguishing legal rights (if any may exist), hereby waives any and all rights,
whether existing by rule, statute, general law, equity or otherwise, to assert
or require that (1) Landlord previously seek or obtain judgment against Tenant
or any other party prior to Landlord's suing Guarantor for the enforcement of
this Guaranty, or (2) Landlord joins Tenant or any other party in any suit
against Guarantor for the enforcement of this Guaranty.
Guarantor waives notice of the acceptance of this Guaranty (such acceptance
being hereby conclusively presumed). The obligations of Guarantor shall be
continuous from the date hereof until the payment and performance hereby
guaranteed has been fully paid or performed, and Guarantor's obligations
hereunder shall continue in full force and effect notwithstanding (1) any
release of Tenant or any other party liable for payment or performance under the
Lease, (2) any changes, modifications, amendments, assignments or extensions of
the Lease, or (3) any waiver or forbearance on the part of Landlord in enforcing
payment or performance by Tenant under the Lease.
Guarantor stipulates that in accordance with Article 1302-2.06, Vernon's
Annotated Civil Statutes of Texas, the directors of Guarantor have determined
that the action taken pursuant hereto may reasonably be expected to benefit the
Guarantor, directly or indirectly.
This Guaranty (1) constitutes the entire agreement between Guarantor and
Landlord and supersedes all prior agreements or understandings, both written and
oral, regarding the subject matter hereof, (2) shall inure to the benefit of
Landlord and Landlord's successors and assigns, and (3) may be modified or
amended only by a written instrument signed by Guarantor and Landlord and dated
subsequent to the date of this Guaranty.
Failure of Landlord to insist upon strict performance or observance of any
of the terms, provisions or covenants of the Lease or to exercise any right
therein contained shall not be construed
as a waiver or relinquishment for the future of any such term, provision,
covenant or right, but the same shall continue and remain in full force and
effect. Receipt by Landlord of any monetary sum or acceptance of performance of
any obligation of Tenant under the Lease with knowledge of the default or breach
of any provision of the Lease shall not be deemed a waiver of such breach.
Guarantor further agrees that in any right of action which shall accrue to
Landlord with respect to the Lease or under this Guaranty, Landlord may, at its
option, proceed against Tenant alone (without having made any prior demand upon
Guarantor or having commenced any action against Guarantor or having obtained or
having attempted to satisfy any judgment against Guarantor) or may proceed
against Guarantor and Tenant, jointly or severally, or may proceed against
Guarantor alone (without having made any prior demand upon Tenant or having
commenced any action against Tenant or having obtained or having attempted to
satisfy any judgment against Tenant other than as may be required by the Lease).
Under no circumstances shall the liability of Guarantor under this Guaranty be
terminated either with respect to any period of time when the liability of
Tenant under the Lease continues or with respect to any circumstances as to
which the liability of Tenant has not been fully discharged by performance.
The stated rights and remedies of Landlord under this Guaranty against
Guarantor with respect to the liability of Guarantor hereunder shall be
understood as not excluding any other legal or equitable rights and remedies of
Landlord against Guarantor not expressly set forth herein, but shall be
understood as being cumulative of all such other legal and equitable rights and
remedies of Landlord not expressly stated herein.
All terms and provisions hereof shall inure to the benefit of the
successors and assigns of Landlord and shall be binding upon the heirs, legal
representatives, administrators and successors of Guarantor.
EXECUTED by Guarantor on the day and year shown opposite Guarantor's
signature below.
Date: June 15, 2000 CONN APPLIANCES, INC.
A Texas Corporation
By: /s/ Thomas J. Frank, CEO
------------------------
Thomas J. Frank, CEO
EXHIBIT "C"
LANDLORD'S AGREEMENT
The undersigned, as Lessor ("Lessor"), has entered into a lease (such
lease, including all amendments, modifications, renewals, and extensions
thereto, being hereinafter referred to as the "Lease"), with CAI, L.P., a Texas
limited partnership, as lessee ("Lessee"), with respect to a portion of the real
property more particularly described on Exhibit "A" attached hereto and made a
part hereof (the "Real Estate"). Conn Appliances, Inc. (the "General Partner")
is sole general partner of Lessee. A true and complete copy of the Lease is
attached hereto as Exhibit "B". The premises leased to Lessee by the Lease are a
part of the Real Estate and are more particularly described in the Lease (the
"Premises").
Lessor has been informed that Chase Bank of Texas, National Association,
individually and as Administrative Agent, the ("Lender") is providing loans to
Lessee, the General Partner of Lessee and certain of its subsidiaries to be used
by Lessee, the General Partner and those subsidiaries for various purposes. In
connection with such financing, Lessee and the General Partner intend to grant
to Lender (i) a first leasehold deed of trust or mortgage (the "Leasehold
Mortgage") on Lessee's interest in the Lease and (ii) a security interest and
first lien (the "Security Interest") in and to Lessee's and General Partner's
interest in the personal property more particularly described in Exhibit "C"
attached hereto and made a part hereof (all of such personal property being
hereinafter collectively referred to as the "Collateral"), pursuant (i) to a
Credit Agreement among, Lessee, the General Partner, certain subsidiaries of the
General Partner and Lender, (ii) to various security agreements and pledge
agreements such as the one contained in the Leasehold Mortgage, and (iii) to
certain financing statements and other documents filed in connection therewith
((i), (ii), and (iii) collectively the "Loan Documents"). Lessor has also been
informed that owners of a majority of the issued and outstanding stock of the
General Partner (the "Stock") intend to pledge such Stock as security for the
above-referenced financings.
For Ten Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee
hereby represent, warrant, and agree, for the benefit of Lender, as follows:
1. Notwithstanding any provisions to the contrary in the Lease, Lessor
hereby consents to the grant of the Leasehold Mortgage on Lessee's interest in
the Lease to the Agent for the benefit of the Lender (or to a trustee for the
benefit of the Agent for the benefit of the Lender), and to the grant of the
Security Interest in the Collateral pursuant to the Loan Documents. Lessor
hereby further consents to the (x) recording of the Leasehold Mortgage against
the Premises, and (y) filing of any and all financing statements or other
documents executed by Lessee and required under the Uniform Commercial Code of
the State in which the Premises is located in order to perfect the Leasehold
Mortgage on Lessee's interest in the Lease and the Security Interest in the
Collateral. In connection therewith, Lessor agrees to execute a memorandum of
Lease in recordable form and in such form as is reasonably required by Lender
and is reasonably acceptable to Lessor, provided, however, Lessee shall be
obligated to simultaneously execute a Termination of Memorandum which will be
held by Lessor for recording upon expiration or termination of the Lease.
2. Lessor and Lessee hereby agree as follows:
(a) Promptly upon default by Lessee under the Lease, Lessor shall give
to the Lender written notice of such default. Such notice shall be effective in
accordance with the notice provision set forth in Article 26 of the Lease, at
the following address (or at such alternative address as the Lender may have
given Lessor by prior written notice):
Chase Bank of Texas, National Association
712 Main Street
Houston, Texas 77002
Attn: Mr. James R. Dolphin
(b) Lessor shall accept performance by Lender or its designee of any
term,
covenant, condition or agreement to be performed by Lessee under the Lease with
the same force and effect as though performed by Lessee;
(c) Upon the occurrence of a non-monetary default under the Lease by
Lessee, which default Lender intends to cure but Lender is prevented from curing
such non-monetary default within the time period set forth in the Lease because
such default is of a personal nature to Lessee (such as a bankruptcy) or any
cure by Lender first requires possession of the Premises by Lender, so long as
Lender is proceeding diligently and in good faith to cure such non-monetary
default, Lender shall be entitled to such additional time as may be necessary to
cure such non-monetary default provided, however, under no circumstances, shall
Lender be entitled to more than seventy-five (75) days to cure such non-monetary
default from the date of Lessor's original notice to Lessee and Lender regarding
such non-monetary default.
(d) Lender or its trustee or designee shall have the right, without
Lessor's consent, (i) to foreclose the Leasehold Mortgage or to accept
assignment of Lessee's interest in the Lease in lieu of foreclosure of the
Leasehold Mortgage; and (ii) to foreclosure on the Stock or to accept assignment
or endorsement of the Stock, in lieu of foreclosure, or to otherwise realize on
its Security Interest in some or all of the Collateral.
3. All of the Collateral shall be and remain subject to the Leasehold
Mortgage and to the Security Interest until such time as the Leasehold Mortgage
and the Security Interest shall be released by the Lender.
4. Lessor hereby agrees that any lien for rent or similar charges, whether
arising by operation of law or otherwise, whether now existing or hereafter to
arise, and each and every right which Lessor now has or hereafter may have,
either to levy or distrain upon the Collateral or to claim or assert title to
the Collateral, or make any other claim against the Collateral, whether under
the Lease or the laws of the State in which the Premises are located, or under
any other applicable Federal, State, municipal or local law, ordinance or
otherwise, or under any mortgage now in effect or hereafter executed, whether by
reason of a default under the Lease or otherwise, shall be subject and
subordinate in every respect to all of the terms, provisions and conditions of
the Leasehold Mortgage and the Loan Documents and to the Security Interest in
the Collateral. Lender and its agents and legal representatives, (i) may remove
any or all of the Collateral located at the Premises from the Premises (a)
whenever Lender, in its sole discretion, believes such removal is necessary to
protect the Security Interest in the Collateral; or (b) whenever Lender seeks to
sell or foreclose upon the Collateral and (ii) subject to the terms and
provisions of the Lease, and upon one (1) business day's written notice to
Lessor shall have access to the Premises and the Collateral at all times. Lender
shall be liable for any and all damages to the Premises related directly or
indirectly to the removal by Lender of the Collateral and shall restore the
Premises to their condition prior to such removal. Further, Lender agrees to
indemnify and hold Lessor harmless from any and all claims, damages, causes of
action, and costs and expenses incurred by Lessor as a result of Lender's access
to the Premises and the removal of the Collateral therefrom. Further, Lender
agrees that in the event Lender fails to remove the Collateral from the Premises
within twenty (20) days after receipt of notice from Lessor to remove the
Collateral, Lender shall be deemed to have abandoned the Collateral, whereupon
Lessor shall be entitled to dispose of the Collateral as Lessor deems
appropriate in its sole discretion without any obligation to account for the
proceeds of such disposition to either Lessee or Lender.
5. Lessor hereby recognizes and acknowledges that any claim that Lender may
now have or hereafter have against the Collateral is and at all times shall be
and shall be deemed to be superior to any lien, security interest or claim of
any kind or nature whatsoever which Lessor now has or hereafter may have against
the Collateral, whether by statute, the Lease or otherwise.
6. Lender may, without affecting the validity of this Agreement, increase
the amount of, or extend the time of payment of, any indebtedness of Lessee to
Lender or alter the performance of any of the terms and conditions of any
agreement between Lessee and Lender, including, without limitation, the
Leasehold Mortgage and the Loan Documents, without the consent of, or notice to,
Lessor and without in any manner whatsoever impairing or affecting the Leasehold
Mortgage or the Security Interest in the Collateral.
7. The rights of Lender and Lessor under this Agreement are in addition to,
and cumulative of, any rights granted to, or for the benefit of, Lender and
Lessor under the terms of the Lease or this Agreement. This Agreement shall
inure to the benefit of Lender and Lessor and their respective successors and
assigns and shall be binding upon the heirs, personal representatives,
successors and assigns of Lender, Lessor, Lessee, and General Partner, as
applicable.
8. Upon payment in full of the loan evidenced by the Leasehold Mortgage,
Lender shall immediately record an appropriate release of its liens pursuant
thereto in the appropriate real property records of Harris County, Texas. Lessee
shall reimburse Lender for the cost of any such recordation.
9. Lender may assign all or any portion of its interest in the loan
evidenced by the Loan Documents to other parties and act as agent for such
participating lenders with respect to this Landlord's Agreement.
IN WITNESS WHEREOF, Lessor, Lessee and Lender have caused this Agreement to
be duly executed as of this day of ,
----------- -----------------------------
2000.
Lessor: AMERICAN NATIONAL INSURANCE COMPANY
Date: ,2000 By:
---------------- ----------------------------------
Name:
-------------------------------------
Its:
---------------------------------
Lessee: C.A.I., L.P., a Texas limited partnership
By: CONN APPLIANCES, INC., a Texas
corporation, its General Partner
Date: ,2000 By:
---------------- ------------------------------
Thomas J. Frank, Chairman\CEO
Lender: CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, Agent
Date: ,2000 By:
---------------- ----------------------------------
Name:
-------------------------------------
Its:
---------------------------------
Attach:
Exhibit "A" - Attach Real Property Description
Exhibit "B" - Attach Full Copy of Lease
Exhibit "C" - Attach Copy of Collateral Description
Exhibit " " - Attach Memorandum of Lease
--
EXHIBIT "D"
AGREEMENT REGARDING ADJACENT PROPERTY
1. Landlord is the owner of property adjacent to the Property with an
address of 8550-B Market Street, Houston, Texas 77029 on which there exists an
additional 48,960 square foot warehouse or warehouse space (the "Additional
Space".).
2. For a period of up to six (6) months, from the Commence Date, on a
monthly basis, at Tenant's option, Tenant may reserve the Additional Space by
paying to Landlord, on the same dates and pursuant to the same terms as rentals
are payable under the lease, the monthly sum of $7,588.80, being one-half (1/2)
of the agreed Base Rent for such 48,960 square foot space.
3. During the time that Tenant shall reserve such Additional Space, Tenant
shall have the right, with five (5) business days written notice to Landlord, to
incorporate the Additional Space into the provisions of the Lease on the same
terms and conditions as provided therein as to the original space under the
Lease, except that from and after the fifth business day after Tenant's election
to incorporate the Additional Space, Tenant will be authorized to store
merchandise in the Additional Space; at and after which time 100 % of the Base
Rental stated above (instead of one-half as theretofore payable) will become due
and payable and Tenant will also thereafter be required to pay Other Period
Payments attributable to the Additional Space in the same manner as payable
under the Lease for the original space thereunder. Tenant has no right of entry
or to store inventory at the Additional Space until five (5) business days after
proper exercise of its rights to such space as described above.
4. At any time during the six (6) month period that Tenant shall maintain
the reservation of space, Tenant may cease paying the monthly sum stated in
Paragraph 2. above, in which event Tenant's reservation will terminate on the
1st day of the calendar month for which the monthly sum is not paid.
5. This Agreement shall terminate one hundred eighty (180) days after the
date described in Section 1.01 of the Lease.