EXHIBIT 10.3
INDUSTRIAL LEASE AGREEMENT
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Between
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION,
As Landlord,
And
ADVANCED MATERIALS, INC.,
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As Tenant
PROJECT:
00000 XXXXXX XXXXX
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XXXXXXX XXXXXX, XXXXX 00000
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TABLE OF CONTENTS
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PARAGRAPH: PAGE:
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1. Basic Lease Information and Certain Defined Terms 1
2. Premises and Term 2
3. Commencement Date 2
4. Rent, Security Deposit, Reimbursable Expenses and Escrow 3
Payments
5. Excess Common Area Charges 4
6. Taxes 5
7. Landlord's Repairs 5
8. Tenant's Repairs and Maintenance 5
9. Alterations 6
10. Signs 6
11. Rules and Regulations 7
12. Utilities 7
13. Landlord and Tenant Insurance 7
14. Waiver of Subrogation 8
15. Fire and Casualty Damage 8
16. Liability and Indemnification 9
17. Use 9
18. Inspection 9
19. Assignment and Subletting 10
20. Condemnation 11
21. Delivery of Premises at End of Term; Holding Over 11
22. Quiet Enjoyment 12
23. Default by Tenant 12
24. Remedies of Landlord 13
25. Default by Landlord 15
26. Subordination; Attornment; Estoppel Certificates 15
27. Mechanic's Liens 16
28. Hazardous Materials 16
29. Force Majuere 17
30. Prior Agreements; Severability; Illegality; Maximum
Interest 17
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31. Brokers 17
32. Condition and Acceptance of Premises 17
33. Notices 18
34. Landlord's Lien 18
35. Miscellaneous 19
36. Additional Provisions 19
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EXHIBITS:
Exhibit "A" - Building Site Plan and Description of Premises
Exhibit "B" - Legal Description of the Land
Exhibit "C" - Acceptance of Premises Memorandum
Exhibit "D" - Leasehold Improvements Work Agreement
Exhibit "E" - Rules and Regulations
Exhibit "F" - Tenant Estoppel Letter
Exhibit "G" - Option to Reduce Square Footage
Exhibit "H" - Option to Reduce Square Footage Site Plan
Exhibit "I" - Renewal Option
Exhibit "J" - Common Area Charges Cap
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INDUSTRIAL LEASE AGREEMENT
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1. BASIC LEASE INFORMATION AND CERTAIN DEFINED TERMS.
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Lease Date: December 1 , 1995
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Tenant: ADVANCED MATERIALS, INC., a California corporation
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Tenant's Address: 00000 Xxxxx Xxxxxx Xxxx
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Xxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
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Contact: Xxxxx Xxxxxxx Telephone:(000) 000-0000
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Landlord: NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION,
a Delaware corporation
Landlord's Address: Greystone Realty Corporation, as Agent for COPY TO:
-------------------------------------------- Greystone
New York Life Insurance Corporation Realty
-------------------------------------------- Corporation
Two Pickwick Plaza 0000 Xxxx Xxx.
-------------------------------------------- Suite 1201
Xxxxxxxxx, Xxxxxxxxxxx 00000 Dallas, Texas
-------------------------------------------- 75201
Guarantor(s): N/A
Project: --------------------------------------------
11420 Xxxxxx Drive
--------------------------------------------, as
more specifically defined in PARAGRAPH 2.
Description: Approximately 100,000 square feet
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per Job #1201184
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Premises: As indicated by the cross-hatched area on EXHIBIT "A"
attached to this Lease, situated in the building
constituting a part of the Project and shown on EXHIBIT "A"
(the "BUILDING") located on the land described on EXHIBIT
"B" attached to this Lease (the "LAND").
Permitted Use: General warehouse, including but not limited to
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manufacturing, fabrication, assembly, warehousing &
distribution (other than retail) of foam & related products
60 months, plus the remainder of the month in which the
Commencement Date occurs, commencing on the Commencement
Date (Dec. 1, 1995) and being estimated to end at 5:00 p.m.
Nov. 30, 2000, subject to adjustment and earlier termination
as provided in this Lease.
Base Rent:
Rate Per Square Foot of
Net Rentable Area in the
Months Monthly Annual Premises Per Annum
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1-60 $27,500 $330,000 $3.30
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Security Deposit: $ 27,500
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Tenant's Proportionate
Share: 48.09%, which is the percentage obtained by
dividing (i) 100,000 square feet, which is the Net
Rentable Area in the Premises by (ii) 207,936
square feet, which is the Net Rentable Area in the
Building.
Base Year: Calendar Year 1995
Broker or Agent: Corporate Realty Advisors/Xxxx Xxxxxx
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2. PREMISES AND TERM. In consideration of the mutual obligations of
Landlord and Tenant set forth herein, Landlord leases to Tenant, and Tenant
hereby takes from Landlord the Premises, together with all rights, privileges,
easements, appurtenances, and amenities belonging to or in any way pertaining to
the Premises, to have and to hold, subject to the terms, covenants and
conditions in this Lease. The term of this Lease ("TERM") shall commence on the
Commencement Date (hereinafter defined) and shall be for the period therefor
specified in PARAGRAPH 1. The Land, the Building, and the other improvements
located on the Land are collectively referred to as the "PROJECT". Landlord
reserves the right to change from time to time the dimensions and location of
any improvements outside the Premises. For example, and without limiting the
foregoing, Landlord may construct additional buildings or improvements on the
Land, remove buildings or improvements not necessary for Tenant's use of the
Premises for the Permitted Use or substitute for any parking area other areas
reasonably accessible to the tenants of the Project. Notwithstanding the
foregoing, Tenant shall have continuous access to the premises at all times.
3. COMMENCEMENT DATE. [XXXX APPLICABLE PARAGRAPH]
[x] A. EXISTING IMPROVEMENTS COMMENCEMENT DATE. The "COMMENCEMENT DATE"
shall be the estimated Commencement Date specified in PARAGRAPH 1. Tenant
acknowledges that (i) it has inspected and accepted the Premises, (ii) the
Building and improvements comprising the same, or of which the Premises form a
part, are suitable for the purpose for which the Premises are leased, (iii) the
Premises are in good and satisfactory condition, and (iv) no representations as
to the repair of the Premises, nor promises to alter, remodel or improve the
Premises have been made by Landlord (unless otherwise expressly set forth in
this Lease). If this Lease is executed before the Premises become vacant or
otherwise available and ready for occupancy, or if any present tenant or
occupant of the Premises holds over, and Landlord cannot, using good faith
efforts, acquire possession of the Premises prior to the date above recited as
the Commencement Date of this Lease, Landlord shall not be deemed to be in
default hereunder, nor in any way liable to Tenant because of such failure, and
Tenant agrees to accept possession of the Premises at such time as Landlord is
able to tender the same, which date shall thenceforth be deemed to be the
"Commencement Date".
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B. After the Commencement Date, Tenant shall, upon demand, execute and
deliver to Landlord an Acceptance of Premises Memorandum in the form attached
hereto as EXHIBIT "C". If the Commencement Date is other than the first day
of a calendar month, the Term also shall include the remainder of the
calendar month in which the Commencement Date occurs, such that the Term
shall be for the full number of months stated in PARAGRAPH 1 plus the
remainder of the month in which the Commencement Date occurs.
4. RENT, SECURITY DEPOSIT, REIMBURSABLE EXPENSES AND ESCROW PAYMENTS.
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A. Tenant agrees to pay to Landlord base rent ("BASE RENT") for the
Premises, in advance, without demand, notice, deduction or set off, at the rates
provided in PARAGRAPH 1. The first full monthly installment of Base Rent, plus
the other monthly charges set forth in XXXXXXXXX 0X xxxxx, shall be due and
payable on the Lease Date and subsequent monthly installments shall be due and
payable on or before the first day of each calendar month succeeding the
Commencement Date (other than the month for which Base Rent is paid on the Lease
Date), except that all payments due hereunder for any fractional calendar month
shall be prorated. If the Commencement Date is not the first day of a month,
Base Rent for the fractional month in which the Commencement Date occurs shall
be due on the Commencement Date.
B. In addition, Tenant agrees to deposit with Landlord on the date hereof
the Security Deposit provided in PARAGRAPH 1, which shall be held by Landlord,
without obligation for interest, as security for the performance of Tenant's
obligations under this Lease, it being expressly understood and agreed that this
Security Deposit is not an advance rental deposit or a measure of Landlord's
damages in case of Tenant's default. Upon each occurrence of an Event of
Default (hereinafter defined), Landlord may use all or part of the Security
Deposit to pay past due rent or other payments due Landlord under this Lease,
and the cost of any other damage, injury, expense or liability caused by such
Event of Default without prejudice to any other remedy provided herein or
provided by law. On demand, Tenant shall pay Landlord the amount that will
restore the Security Deposit to its original amount. The Security Deposit shall
be deemed the property of Landlord, but any remaining balance of such Security
Deposit after payment and performance of all of Tenant's obligations under this
Lease shall be returned to Tenant within 30 days of the end of this Lease.
C. In addition to Base Rent and Tenant's other obligations hereunder,
Tenant agrees to pay Tenant's proportionate share (as defined in PARAGRAPH 1)
of the following costs and expenses (collectively, the "REIMBURSABLE
EXPENSES"): (i) Excess Common Area Charges (hereinafter defined) payable by
Tenant in accordance with PARAGRAPH 5, (ii) Excess Taxes (hereinafter
defined) payable by Tenant pursuant to XXXXXXXXX 0, (xxx) Excess Insurance
Expenses (hereinafter defined) payable by Tenant pursuant to PARAGRAPH 13,
(iv) the cost of any repair, replacement, or capital expenditures required
under any governmental law or regulation that was not applicable to the
Building at time of original construction, such costs to be amortized over
such reasonable period as Landlord shall determine, (v) the cost of any
capital improvements made to common areas of the Building after the date of
this Lease that is required under interpretations or regulations issued from
time to time under provisions of the Tex. Rev. Civ. Stat. Xxx. Art. 9102
and/or the provisions of the American With Disabilities Act of 1990, 42
U.S.C. Sections 12101-12213 (collectively, the "DISABILITY ACTS"), amortized
over such period as Landlord shall reasonable determine, together with
interest at the Prime Rate on the unamortized balance thereof, (vi)
replacement reserves for capital items and other operating expenses required
by this Lease. Common Area Charges Cap. See Exhibit "J". During each month
of the Term of this Lease, on the same day that Base Rent is due hereunder,
Tenant shall escrow with Landlord an amount equal to 1/12th of Tenant's
proportionate share of such Reimbursable Expenses, as estimated by Landlord.
Tenant authorizes Landlord to use the funds deposited with Landlord under
this XXXXXXXXX 0X to pay such Reimbursable Expenses. On or before December
31 of each calendar year during the Lease Term, or as soon thereafter as
reasonably practical, Landlord shall give Tenant written notice of its
estimate of Reimbursable Expenses for the ensuing calendar year
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(provided Landlord's failure to do so shall not waive Tenant's obligations,
and until such estimate is provided the estimate of Reimbursable Expenses for
the prior year shall be used). Landlord shall be entitled to revise its
projection of such Reimbursable Expenses at any time and if Landlord so
revises such projection, Tenant shall pay to Landlord, on the same day as
Base Rent is due hereunder, an amount equal to 1/12th of Tenant's
proportionate share of such Reimbursable Expenses pursuant to Landlord's
revised estimate thereof. By April 30 of each calendar year (or as soon
thereafter as may be reasonably practicable) during the Term hereof Landlord
shall determine the actual Reimbursable Expenses for the preceding calendar
year and shall notify Tenant thereof. If the Tenant's total escrow payments
are less than Tenant's actual proportionate share of all such Reimbursable
Expenses, Tenant shall pay the difference to Landlord within ten (10) days
after demand. If the total escrow payments of Tenant are more than Tenant's
actual proportionate share of all such Reimbursable Expenses, Landlord shall
retain such excess and credit it against Tenant's next annual escrow payments.
D. In the event Tenant fails to make any Base Rent or other payment
due under this Lease when payment is due, to help defray the additional cost
to Landlord for processing such late payments, Tenant shall pay to Landlord
on demand a late charge in an amount equal to five percent (5%) of such
payment; and the failure to pay such amount within five (5) days after demand
therefor shall be an additional Event of Default hereunder. The provision
for such late charge shall be in addition to all of Landlord's other rights
and remedies hereunder or at law and shall not be construed as liquidated
damages or interest or as limiting Landlord's remedies in any manner. In
addition, to the extent allowed by law, rent that is more than 30 days past
due shall bear interest at the highest applicable rate of interest that may
then be lawfully charged on such past due amounts (after taking into account
any late charges or other amounts paid or payable hereunder if and to the
extent they are held to constitute interest) or, if there is no such highest
rate, then at a rate equal to eighteen percent (18%) per annum.
E. All of Tenant's obligations for the payment of money other than Base
Rent and performance of its covenants hereunder, constitutes material
consideration for Landlord's lease of the Premises hereunder and shall
constitute additional rent.
5. EXCESS COMMON AREA CHARGES. In addition to other amounts required to
be paid by Tenant hereunder, each calendar year (other than the Base Year)
Tenant shall pay to Landlord Tenant's proportionate share of the amount by which
the following costs and expenses (collectively, the "COMMON AREA CHARGES")for
such calendar year exceed the Common Area Charge for the Base Year (such excess
being referred to herein as the "EXCESS COMMON AREA CHARGES"):
A. The cost of repair, maintenance and replacement of: (i) the exterior
of the Building (including painting), other than structural repairs and
replacements for which Landlord is responsible pursuant to PARAGRAPH 7; (ii) all
mechanical, electrical, plumbing, sewer, sprinkler and other life-safety
equipment and systems forming a part of the Project (other than the cost of
repair, replacement and maintenance of the items which are Tenant's
responsibility pursuant to PARAGRAPH 8 which shall be paid entirely by Tenant as
provided in PARAGRAPH 8); (iii) any spur or other track servicing the Project,
including any amounts payable by Landlord in any agreement relating to such
tracks; and (iv) all other common areas and facilities constituting a part of
the Project (including, but not limited to, all paved areas surrounding the
Building).
B. The cost of maintenance and replacement of the grass, shrubbery and
other landscaping in and about the Project.
C. The cost of maintaining in a good, neat, clean and sanitary condition
all parking areas, driveways, alleys and grounds in and about the Project
(including trash removal).
D. The cost of maintaining and landscaping any property or facility that
is operated, maintained or landscaped by any property owner or community owner
association to which any of the Project is subject (including the cost of any
dues or other charges assessed by any such association).
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E. The cost of operating and maintaining any property, facilities or
services provided for the common use of Tenant and other tenants of the
Project, which costs shall include, without limitation, management fees and
security (if furnished by Landlord), wages and employee benefits payable to
employees of Landlord whose duties are connected with the operation and
maintenance of the Project, amounts paid to contractors or subcontractors for
work or services performed in connection with the operation and maintenance
of the Project, all service, supplies, repairs, replacements and other
expenses for maintaining and operating the Project, and any other facilities
or services provided for the common use of Tenant and other tenants of the
Project. COMMON AREA CHARGES CAP. SEE EXHIBIT "J"
6. TAXES.
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A. Landlord agrees to pay all taxes, assessments and governmental charges
of any kind and nature that accrue against any of the Project (collectively
referred to herein as "TAXES"). If at any time during the Term of this Lease,
there shall be levied, assessed or imposed on Landlord a capital levy or other
tax directly on the rents received herefrom and/or a franchise tax, assessment,
levy or charge measured by or based, in whole or in part, upon such rents from
the Project, then all such taxes, assessments, levies or charges, or the part
thereof so measured or based, shall be deemed to be included within the term
"Taxes" for the purposes hereof. Landlord shall have the right to employ a tax
consulting firm to attempt to assure a fair tax burden on the Project within the
applicable taxing jurisdiction. Tenant agrees to pay its proportionate share of
the cost of any such consultant incurred in any year following the Base Year.
B. In addition to other amounts required to be paid by Tenant hereunder,
each calendar year Tenant shall pay to Landlord Tenant's proportionate share of
the amount by which Taxes for such calendar year exceed Taxes for the Base
Year (such excess being referred to herein as the "EXCESS TAXES").
C. Tenant shall be liable for all taxes levied or assessed against any
personal property or fixtures placed in the Premises. If any such taxes are
levied or assessed against Landlord or Landlord's property and (i) Landlord pays
the same or (ii) the assessed value of Landlord's property is increased by
inclusion of such personal property and fixtures and Landlord pays the increased
taxes, then, upon demand Tenant shall pay to Landlord the amount of such
increase in taxes. In addition, if the Building is a multiple occupancy
building and the cost of any improvements constructed to the Tenant's Premises
is disproportionately higher than the cost of improvements constructed to the
premises of other tenants of the Building, then upon demand Tenant shall pay the
amount of Taxes attributable to such disproportionately more expensive
improvements, in addition to Tenant's proportionate share of Taxes.
7. LANDLORD'S REPAIRS.
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Landlord's maintenance, repair and replacement obligations are limited to
those set forth in this PARAGRAPH 7. Landlord, at its own cost and expense,
shall be responsible only for roof replacement and for repair and replacement of
only the foundation and the structural members of the exterior walls of the
Building, reasonable wear and tear excluded. The terms "roof" and "walls" as
used herein shall not include skylights, windows, glass or plate glass, doors,
special store fronts or office entries. Tenant shall immediately give Landlord
written notice of defect or need for repairs after which Landlord shall have
reasonable opportunity to repair same or cure such defect. Landlord shall cause
to be maintained and repaired the common area in and about the Building in a
reasonable and prudent manner including any spur track, with the cost thereof
being a part of the Common Area Charges.
8. TENANT'S REPAIRS AND MAINTENANCE.
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A. Tenant, at its own cost and expense, reasonable wear and tear
excluded, shall (i) maintain all parts of the Premises (including, but not
limited to, the floor slab (example: floor chips and other surface work) of the
Premises and the mechanical, electrical, plumbing, sewer, security, sprinkler
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and other life-safety equipment, fixtures and systems forming a part of the
Premises), in good, neat, clean, sanitary and operable condition and (ii)
promptly make all necessary repairs and replacements to the Premises in a
good and workmanlike manner. In addition to the foregoing, Tenant shall, at
its sole expense, repair any damage to the Project caused by the negligent or
intentional acts or omissions of Tenant or Tenant's employees, agents or
invitees, or caused by Tenant's default hereunder; provided that if the
damage is to the structure of Building or the mechanical, electrical or
plumbing systems of the Building, or any improvements outside the Premises,
Landlord may elect to cause such repair to be done by a contractor selected
by Landlord, with Tenant to be responsible for the cost thereof. Tenant's
repair obligations shall include, but shall not be limited to, repair of
windows, glass and other doors, interior walls, interior finish work and
finishes, floors and floor coverings, downspouts, gutters, all heating and
air conditioning, fire and security systems in or about the Premises, dock
boards, truck doors, dock bumpers, all electrical and plumbing lines, systems
and fixtures within the Premises, and all termite and pest control within the
Premises.
B. In addition to Tenant's other obligations hereunder, Tenant, at its
own cost and expense, shall enter into a regularly scheduled preventive
maintenance/service contract with a maintenance contractor approved by Landlord
for servicing all hot water, heating and air conditioning systems and equipment
within or serving the Premises. The service contract must include all services
suggested by the equipment manufacturer in its operations/maintenance manual and
an executed copy of such contract must be provided to Landlord prior to the date
Tenant takes possession of the Premises.
C. The amount of Tenant's rental obligation set forth in PARAGRAPH 4A
above does not include the cost of items for which Tenant is responsible under
this PARAGRAPH 8 or as a part of Common Area Charges, and Landlord's performance
of repair, replacement, maintenance and other items is not a condition to
payment of such rental obligations.
9. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements to or of the Premises or any part thereof, nor attach any fixtures
or equipment thereto, without first obtaining Landlord's written consent. Any
such alterations, additions or improvements to the Premises consented to by
Landlord, if made by Landlord for Tenant, shall be paid for by Tenant within ten
(10) days after receipt of Landlord's statement therefor; and Tenant shall
reimburse Landlord for the cost thereof plus 15% of the actual cost to reimburse
Landlord for its overhead. At the option of the Landlord, all such alterations,
additions and improvements shall become Landlord's property (including, but not
limited to, any and all floor coverings, wall coverings, baseboards, doors,
door fixtures, windows, skylights, walls, electrical wiring and switches, lights
and light fixtures, plumbing, bathroom and/or kitchen fixtures, security and
fire detection equipment, sprinklers, and all heating and/or air conditioning
equipment, but excluding furniture, trade fixtures and other items, whether or
not specifically mentioned above that are unattached and readily movable) and,
at the end of the Lease Term, shall remain on the Premises without compensation
to Tenant unless Landlord elects by written notice to Tenant to have Tenant
remove same, in which event Tenant shall promptly restore the Premises to their
condition prior to the installation of such alterations, additions and
improvements. In any case, no alterations shall be made by Tenant which shall
alter the basic structural soundness of the improvements, which penetrate
exterior walls, windows, doors or the roof, or which, in Landlord's opinion,
adversely affect any mechanical, electrical or plumbing systems of the Project.
10. SIGNS. Any signage, decorations, advertising media, blinds,
draperies, window treatments, bars, and security installations Tenant desires
for the Premises shall be subject to Landlord's prior written approval. Tenant
shall repair, paint, and/or replace the Building facis surface to which its
signs are attached upon vacation of the Premises, or the removal or alteration
of its signage, all at Tenant's sole cost and expense. Tenant shall not (i)
make any changes to the exterior of the Premises, (ii) install any exterior
lights, decorations, balloons, flags, pennants, banners or painting, or (iii)
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erect or install any signs, windows or door lettering, placards, decorations or
advertising media of any type which can be viewed from the exterior of the
Premises, without Landlord's prior written consent. All signs, decorations,
advertising media, blinds, draperies and other window treatment or bars or other
security installations visible from outside the Premises shall conform in all
respects to the criteria established by Landlord and to the requirements of all
covenants, conditions and restrictions applicable to the Project.
11. RULES AND REGULATIONS. Tenant agrees to abide by all rules and
regulations imposed by Landlord, as the same may be changed from time to time
with reasonable notice to Tenant. The initial rules and regulations are as set
forth in EXHIBIT "E" attached hereto. The rules and regulations are imposed for
the cleanliness, good appearance, proper maintenance, and good order and
reasonable use of the Premises and the Project by all tenants and their clients,
agents, invitees, customers and employees. Breach of the rules and regulations
shall be grounds for termination of this Lease if after notice in writing to
Tenant, Tenant fails to cure such breach within 20 days of the date such notice
is delivered by Landlord or if Tenant shall habitually (i.e., 3 or more times
within any calendar year) violate the rules and regulations. Landlord shall not
be liable for the failure of Tenant, another tenant, or any other person, or any
of their agents or employees, to conform to the rules and regulations.
12. UTILITIES. Landlord agrees to provide normal water, sewer, gas and
electricity service as same may be available to the Premises. Tenant shall
timely pay for all water, gas, heat, light, power, telephone, sewer, sprinkler
charges and other utilities and services used on or at the Premises, together
with any taxes, penalties, deposits, surcharges or the like pertaining to the
Tenant's use of the Premises, and any maintenance charges for utilities. Tenant
shall pay all impact fees associated with utility hook-ups, meter installations
or services to the Premises. Landlord shall have the right to cause any of said
services to be separately metered to Tenant at Tenant's expense. Tenant shall
pay its pro rate share, as reasonably determined by Landlord, of all charges for
jointly metered utilities (including, but not limited to the cost of utilities
consumed in connection with providing electrical power for the Building's
canopy lighting, the lighting of the parking facilities and other common areas
and facilities associated with the Building, the Building's fire pump room and
irrigation system, as well as other electricity gauged by the "house meter").
Landlord shall not be liable for any interruption or failure of utility service
on the Premises. Tenant acknowledges that it is aware of the type and quantity
of utilities currently available to the Premises and agrees that same is
adequate for Tenant's purposes.
13. LANDLORD AND TENANT INSURANCE.
A. Landlord shall maintain insurance covering the Building in an amount
not less than eighty percent (80%) of the "replacement cost" thereof insuring
against the perils and costs of Fire, Lightning, Extended Coverage, Vandalism
and Malicious Mischief and such other insurance as Landlord shall deem
necessary. In addition to other amounts required to be paid by Tenant
hereunder, each calendar year (other than the Base Year) Tenant shall pay to
Landlord Tenant's proportionate share of the amount by which the cost of
procuring insurance under this PARAGRAPH 13A for such calendar year exceeds the
cost of procuring such insurance for the Base Year (such excess being referred
to herein as the "EXCESS INSURANCE EXPENSES").
B. Tenant, at its own expense, shall maintain during the Term of this
Lease a policy or policies of worker's compensation and comprehensive general
liability insurance, including personal injury and property damage, with
contractual liability endorsement, in the amount of One Million Dollars
($1,000,000.00) for property damage and One Million Dollars ($1,000,000) per
occurrence for personal injuries or deaths of persons occurring in or about the
Premises. Tenant, at its own expense, also shall maintain during the Term of
this Lease (i) fire and extended coverage insurance covering the replacement
cost of all alterations, additions, partitions and improvements installed or
placed on the Premises by Tenant or by Landlord on behalf of Tenant, and all of
Tenant's personal property contained within the Premises
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and (ii) business interruption insurance insuring loss of profits in the event
of an insured peril damaging the Premises. Said policies shall (i) name
Landlord as an additional insured and insure Landlord's contingent liability
under this Lease (except for the worker's compensation policy, which instead
shall include a waiver of subrogation endorsement in favor of Landlord), (ii) be
issued by an insurance company which is acceptable to Landlord, (iii) provide
that said insurance shall not be cancelled unless thirty (30) days prior written
notice shall have been given to Landlord, and (iv) provide primary coverage to
Landlord when any policy issued to Landlord is similar or duplicate in coverage,
and Landlord's policy shall be excess over Tenant's policies. All insurance
policies carried by Tenant hereunder shall expressly provide (by endorsement or
otherwise) that Landlord's rights thereunder shall be assignable to Landlord's
mortgagee who shall be shown as an additional insured thereon. Said policy or
policies or certificates thereof shall be delivered to Landlord by Tenant upon
commencement of the Term of the Lease and upon each renewal of said insurance.
C. Tenant will not permit the Premises to be used for any purpose or in
any manner that would (i) void the insurance thereon, (ii) increase the
insurance risk, or (iii) cause the disallowance of any sprinkler credits,
including without limitation, use of the Premises for the receipt, storage or
handling of any product, material or merchandise that is explosive or highly
inflammable. If any increase in the cost of any insurance on the Premises or
the Building of which the Premises are a part is caused by Tenant's use of the
Premises, or because Tenant vacates the Premises, then Tenant shall pay the
amount of such increase to Landlord.
14. WAIVER OF SUBROGATION. Landlord and Tenant hereby waive and release
each other (but only to the extent of the insurance coverage required to be
maintained by the respective parties hereunder) of and from any and all rights
of recovery, claim, action or cause of action, against each other, their agents,
officers and employees, for any liability, loss or damage that may occur to the
Premises, improvements or the Building of which the Premises and a part, or
personal property (building contents) within the Building and/or Premises as the
result of any fire or other casualty required to be insured against under this
Lease. Each party to this Lease agrees immediately after execution of this
Lease to give each insurance company, which has issued to it policies of fire
and extended coverage insurance, written notice of the terms of the mutual
waivers contained in this Paragraph and to have the insurance policies properly
endorsed to reflect such waivers.
15. FIRE AND CASUALTY DAMAGE.
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A. If the Premises or the Building should be damaged or destroyed by fire
or other peril, Tenant immediately shall give written notice to Landlord. If
the Building of which the Premises are a part should be totally destroyed by any
peril covered by the insurance to be provided by Landlord under PARAGRAPH 13A
above, or if they should be so damaged thereby that, in Landlord's estimation,
rebuilding or repairs cannot be completed within one hundred eighty (180) days
after the date of Landlord's actual knowledge of such damage, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective upon the date of the occurrence of such damage.
B. If the Building of which the Premises are a part, should be damaged by
any peril covered by the insurance to be provided by Landlord under PARAGRAPH
13A above, and in Landlord's estimation, rebuilding or repairs can be
substantially completed within one hundred eighty (180) days after the date of
Landlord's actual knowledge of such damage, this Lease shall not terminate, and
Landlord shall restore the Premises to substantially its previous condition,
except that Landlord shall not be required to rebuild, repair or replace any
part of the partitions, fixtures, additions and other improvements that may have
been constructed, erected or installed in, or about the Premises for the benefit
of, or by or for Tenant. Effective upon the date of the occurrence of such
damage and ending upon substantial completion, if the Premises are untenantable
in whole or part during such period, the rent shall be reduced to such extent as
may be fair and reasonable under all of the circumstances. If such repairs and
rebuilding have not been substantially completed within one hundred eighty (180)
days
8
remedy, may terminate this Lease by delivering written notice of termination to
Landlord in which event the rights and obligations hereunder shall cease and
terminate (except as expressly provided to the contrary herein).
C. Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness accrued by a mortgage or deed of trust covering the
Premises requires that the insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this Lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made known by any such holder, whereupon all rights and obligations hereunder
shall cease and terminate (except as expressly provided to the contrary herein).
16. LIABILITY AND INDEMNIFICATION. Except for any claims, rights of
recovery and causes of action that Tenant has released, Landlord shall hold
Tenant harmless and defend Tenant against any and all claims or liability for
any injury or damage to any person in, on or about the Project, when such injury
or damage shall be caused by an affirmative act of negligence by Landlord, its
agents, servants and employees (unless the indemnified loss is caused wholly or
in part by Tenant's or any other party's negligence, in which event this
indemnity shall not apply to the allocable share of such loss resulting from
Tenant's or such other party's negligence). Except for any claims, rights of
recovery and causes of action that Landlord has released, Tenant shall
indemnify, protect, hold harmless and defend Landlord, its agents, employees,
contractors, partners, directors, officers and any affiliates of the
above-mentioned parties (collectively the "LANDLORD AFFILIATES") from and
against any and all obligations, suits, losses, judgments, actions, damages,
claims or liability (including, without limitation, all costs, attorneys' fees,
and expenses incurred in connection therewith) in connection with any loss,
injury or damage (i) to any person or property whatsoever occurring in, on or
about the Project, when such injury or damage shall be caused by the act,
neglect, fault of, or omission of any duty with respect to the same by Tenant,
its agents, servants, employees, or invitees (ii) arising from the conduct of
management of any work done by or for Tenant in or about the Project, (iii)
arising from transactions of the Tenant, or (iv) arising from a breach,
violation or non-performance of any term, provision, covenant or agreement of
Tenant hereunder, or a breach or violation by Tenant of any court order or any
law, regulation, or ordinance of any federal, state or local authority
(collectively, the "LOSSES"). If any claim is made against Landlord or Landlord
Affiliates, (other than any claim made directly by Tenant against Landlord or
Landlord Affiliates) Tenant, at its sole cost and expense, shall defend any such
claim, suit or proceeding by or through attorneys reasonably satisfactory to
Landlord. The provisions of this PARAGRAPH 16 shall survive the expiration or
termination of this Lease with respect to any claims or liability occurring
prior to such expiration or termination.
17. USE. The Premises shall be used only for the Permitted Use described
in PARAGRAPH 1 and for such other lawful purposes as may be incidental thereto,
and not otherwise prohibited by this Lease. Tenant acknowledges that it does
not intend to use the Premises to serve the public. Tenant shall comply with
(1) all governmental laws, ordinances and regulations applicable to the use and
occupancy of the Premises, and promptly shall comply with all governmental
orders and directives for the correction, prevention and abatement of nuisances
in or upon, or connected with, the Premises, all at Tenant's sole expense, (2)
the requirements of all deed restrictions, restrictive covenants, conditions and
restriction affecting the Building and/or the Land, and (3) the requirements of
any applicable association having jurisdiction with respect to the Building.
18. INSPECTION. Landlord and Landlord's agents and representatives
shall have the right to enter the Premises during business hours upon prior
reasonable notice except in the event of an emergency to (i) inspect the
Premises, (ii) make such repairs as may be required or permitted pursuant to
this Lease, and (iii) show the Premises to prospective purchasers of, or parties
who are anticipated to provide financing with respect to, the Building.
Notwithstanding the foregoing,
9
Landlord shall have the right to enter the Premises at any time, without notice
to Tenant, in case of an emergency posing a threat to persons or property.
During the period that is six (6) months prior to the end of the Term, upon
telephonic notice to Tenant, Landlord and Landlord's representatives may enter
the Premises during business hours for the purpose of showing the Premises. In
addition, Landlord shall have the right to erect a suitable sign on the Premises
stating the Premises are available. Tenant shall notify Landlord in writing at
least thirty (30) days prior to vacating the Premises and shall arrange to meet
with Landlord for a joint inspection of the Premises prior to vacating. If
Tenant fails to give such notice or to arrange for such inspection, then
Landlord's inspection of the Premises shall be deemed correct for the purpose of
determining Tenant's responsibility for repairs and restoration of the Premises.
19. ASSIGNMENT AND SUBLETTING
A. Tenant shall not assign (either voluntarily or by operation of law),
transfer or encumber this Lease, or any interest therein, sublet any of the
Premises, or grant any other right or license to use or occupy any of the
Premises, or permit any of the foregoing, without the prior written consent of
Landlord, which shall not be unreasonably withheld. Landlord's refusal to
consent shall not be deemed unreasonable if subtenant's usage is not typical for
a Class A industrial project or subtenant has a history of allowing trash to
collect in common areas or over parking the allocated pedestrian and/or truck
parking areas of the project. Any attempted assignment, subletting, transfer,
encumbrance or grant by Tenant in violation of the terms and covenants of this
Paragraph shall be void and shall constitute an Event of Default under this
Lease. No assignment, subletting or other transfer, whether consented to by
Landlord or not, shall relieve Tenant of its liability hereunder. In the event
Tenant desires to sublet the Premises, or any portion thereof, or assign this
Lease Tenant shall give written notice thereof to Landlord at least sixty (60)
days prior to the proposed commencement date of such subletting or assignment,
which notice shall set forth the name of the proposed sublessee or assignee, the
relevant terms of any proposed sublessee or assignee, the relevant terms of any
proposed sublease or assignment, a copy of the proposed sublease/assignment
documents (including any related documents forming a part of the transaction)
and copies of financial reports and other relevant financial information of the
proposed sublessee or assignee.
B. In addition to, but not in limitation of, Landlord's right to
approve of any sublessee or assignee, Landlord shall have the option, in its
sole discretion, in the event of any proposed subletting or assignment for
the remaining term of the Lease, to terminate this Lease, or in case of a
proposed subletting of less than the entire Premises for the remaining term
of the Lease, to recapture the portion of the Premises to be sublet, as of the
date the subletting or assignment is to be effective. The option shall be
exercised, if at all, by Landlord giving Tenant written notice thereof within
sixty (60) days following Landlord's receipt of Tenant's written notice as
required above. If this Lease shall be terminated with respect to the entire
Premises pursuant to this Paragraph, the Term of this Lease shall end on the
date stated in Landlord's notice as the effective date of the sublease or
assignment as if that date had been originally fixed in this Lease for the
expiration of the Term hereof; provided, however, that effective on such date
Tenant shall pay Landlord all amounts, as estimated by Landlord, payable by
Tenant to such date with respect to taxes, insurance, repairs, maintenance,
restoration and other obligations, costs or charges which are the
responsibility of Tenant hereunder. Further, upon any such cancellation
Landlord and Tenant shall have no further obligations or liabilities to each
other under this Lease, except with respect to obligations or liabilities
which have accrued hereunder as of such cancellation date (in the same manner
as if such cancellation date were the date originally fixed in this Lease for
the expiration of the term hereof) and except for those obligations and
liabilities which, by the express terms of this Lease, are to survive any
expiration or termination hereof. If Landlord recaptures only a portion of
the Premises under this Paragraph, the Base Rent during the unexpired Term
hereof shall xxxxx proportionately based on the rent per square foot
contained in this Lease as of the date immediately prior to such recapture.
C. Upon the occurrence of an assignment or subletting, whether or not
consented to by Landlord, or mandated by judicial intervention, Tenant hereby
assigns, transfers and conveys to Landlord all rents or other sums received or
receivable by Tenant under any such assignment or sublease, which are in excess
of the rents and other sums payable by Tenant under this Lease, and agrees to
pay such amounts to Landlord within ten (10) days after receipt.
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D. If this Lease is assigned to any person or entity pursuant to the
provisions of the United States Bankruptcy Code, 11 U.S.C. Section 101 et. seq.
(the "BANKRUPTCY CODE"), any and all monies or other consideration payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Landlord, shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the estate of Tenant within
the meaning of the Bankruptcy Code. Any and all monies or other considerations
constituting Landlord's property under the preceding sentence not paid or
delivered to Landlord shall be held in trust for the benefit of Landlord and be
promptly paid or delivered to Landlord. Any person or entity to which this
Lease is assigned pursuant to the provisions of the Bankruptcy Code, shall be
deemed, without further act or deed, to have assumed all of the obligations
arising under this Lease on and after the date of such assignment. Any such
assignee shall upon demand execute and deliver to Landlord an instrument
confirming such assumption.
E. Any assignee, sublessee or transferee of Tenant's interest in this
Lease (all such assignees, sublessees and transferees being hereinafter referred
to as "TRANSFEREES"), by accepting any such assignment, sublease or transfer
shall be deemed to have assumed Tenant's obligations hereunder, and shall be
deemed to have assumed liability to Landlord for all amount paid to persons
other than Landlord by such Transferees in contravention of this Paragraph. No
assignment, subletting or other transfer, whether consented to by Landlord or
not or permitted hereunder shall relieve Tenant of its liability hereunder. If
an Event of Default occurs while the Premises or any part thereof are assigned
or sublet, then Landlord, in addition to any other remedies herein provided, or
provided by law, may collect directly from such Transferee all rents payable to
the Tenant and apply such rent against any sums due Landlord hereunder. No such
collection shall be construed to constitute a novation or a release of Tenant
from the further performance of Tenant's obligations hereunder.
20. CONDEMNATION. If more than fifty percent (50%) of the Premises are
taken for any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by a conveyance in lieu thereof,
and the taking prevents or materially interferes with the use of the Premises
for the purpose for which there were leased to Tenant, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective on the date of such taking. If less than fifty percent (50%)
of the Premises are taken for any public or quasi-public use under any
governmental law, ordinance or regulation, or by right of eminent domain, or by
a conveyance in lieu thereof, this Lease shall not terminated, but the rent
payable hereunder during the unexpected portion of this Lease shall be reduced
prorata or to such other extent as may be fair and reasonable under all of the
circumstances. All compensation awarded in connection with or as a result of
any of the foregoing proceedings shall be the property of Landlord; and Tenant
hereby assigns any interest in any such award to Landlord; provided, however,
Landlord shall have no interest in any award made to Tenant for loss of business
or goodwill of for the taking of Tenant's fixtures and improvements, if a
separate award for such items is made to Tenant.
21. DELIVERY OF PREMISES AT END OF TERM: HOLDING OVER. At the termination
of this Lease by its expiration or otherwise, Tenant immediately shall deliver
possession of the Premises to Landlord broom clean, with all repairs and
maintenance required herein to be performed by Tenant completed, in as good a
condition as delivered on the Commencement Date, reasonable wear and tear
expected. If, for any reason, Tenant retains possession of the Premises or any
part thereof after such termination, or fails to complete any repairs required
hereby, then Landlord may, at its option, serve written notice upon Tenant that
such holding over constitutes either (i) the creation of a month to month
tenancy, upon the terms and conditions set forth in this Lease, or (ii) creation
of a tenancy at sufferance, in any case upon the terms and conditions set forth
in this Lease; provided, however, that the monthly rental (or daily rental under
(ii)) shall, in addition to all other sums which are to be paid by Tenant
hereunder, whether or not as additional rent, be equal to one and one-half
(1-1/2) times the rental being paid monthly to Landlord under this Lease
immediately prior to such termination (prorated in the case of (ii) on the basis
of a 365-day year for each day Tenant remains in possession). If
11
no such notice is served, then a tenancy sufferance shall be deemed to be
created at the rent in the preceding sentence. Tenant shall also pay to
Landlord all damages sustained by Landlord resulting from retention of
possession by Tenant, including the loss of any proposed subsequent tenant for
any portion of the Premises. The provisions of this Paragraph shall not
constitute a waiver by Landlord of any right to re-entry as herein set forth;
nor shall receipt of any rent or any other act in apparent affirmance of the
tenancy operate as a waiver of the right to terminate this Lease for a breach of
any of the terms, covenants, or obligations herein on Tenant's part to be
performed. No holding over by Tenant, whether with or without consent of
Landlord, shall operate to extend this Lease except as otherwise expressly
provided. The preceding provisions of this PARAGRAPH 21 shall not be construed
as consent for Tenant to retain possession of the Premises in the absence of
written consent thereto by Landlord. If any property of Tenant is left in the
Premises after Tenant vacates or abandons the Premises then such property shall
be deemed abandoned by Tenant, and same shall (at Landlord's option) by
Landlord's property and Landlord may dispose of, sell or use same without
liability to Tenant; provided, however, that Landlord may elect not to own such
property and may require Tenant to remove the property immediately, and if
Tenant fails to do so Landlord may remove, store and/or dispose of the property
as Landlord deems appropriate without liability to Tenant and at Tenant's
expense.
22. QUIET ENJOYMENT. Landlord covenants that on or before the
Commencement Date it will have good title to the Premises, free and clear of all
liens and encumbrances, excepting only the lien for current taxes not yet due,
such mortgage or mortgages as secure indebtedness owed by Landlord, zoning
ordinances and other building and fire ordinances and governmental regulations
relating to the use of such property, and easements, restrictions and other
conditions of record. If this Lease is a sublease, then Tenant agrees to take
the Premises subject to the provisions of the prior leases. Landlord represents
that it has the authority to enter into this Lease and that so long as Tenant
pays all amounts due hereunder and performs all other covenants and agreements
herein set forth, Tenant shall peaceably and quietly have, hold and enjoy the
Premises for the Term hereof without hindrance or molestation from Landlord
subject to the terms and provisions of this Lease.
23. DEFAULT BY TENANT. The occurrence of any one of the following events
shall constitute a material breach of this Lease by Tenant (an "EVENT OF
DEFAULT");
A. Any failure by Tenant to pay Base Rent or to make any other payment
required to be made by Tenant hereunder when due, and the continuation of such
failure for 10 days.
B. Tenant abandons, vacates, or substantially moves out of the Premises
and/or ceases business operations at the Premises, without continuing to pay
rent.
C. Any failure by Tenant to observe and perform any other provision of
this Lease to be observed or performed by Tenant, where such failure continues
for thirty (30) days (except where a different period of time is specified in
this Lease) after Landlord has given Tenant written notice. If the nature of
such default is such that the same can be cured by cannot reasonably be cured
within such twenty-day period, Tenant shall not be deemed to be in default in
Tenant shall, within such thirty (30) day period, commence cure and thereafter
diligently and continuously prosecute the same to completion, provided such
additional cure period shall not exceed an additional thirty (30) days.
D. The making or furnishing by Tenant of any warranty, representation or
statement to Landlord in connection with this Lease, or any other agreement to
which Tenant and Landlord are parties, which is or was false or misleading in
any material respect when made or furnished.
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E. The transfer of all or any substantial portion of the assets of Tenant
or the incurring of any material obligation by Tenant, unless such transfer or
obligation is incurred in the ordinary course of Tenant's business or in good
faith for fair equivalent consideration, or with Landlord's consent and the
assumption of this Lease by the assignee.
F. Tenant's becoming insolvent as defined in the Federal Bankruptcy Code,
admission in writing of its insolvency or of its present or prospective
inability to pay its debts as they become due, the inability or failure of
Tenant to pay all or any material portion (in number of dollar amount) of its
debts as they become due, Tenant's permission or sufferance of a judgment to
exist against it which affects Tenant's ability to conduct its business in the
ordinary course (unless enforcement thereof is stayed pending appeal), Tenant's
making or proposing an assignment for the benefit of creditors, or any class
thereof, for purposes of effecting a moratorium upon or extension or composition
of its debts, proposing any such moratorium, extension or composing, or
commencing or proposing to commence any bankruptcy, reorganization or insolvency
proceeding, or other proceeding under any federal, state or other law for the
relief of debtors.
G. Tenant's failure to obtain the dismissal, within thirty (30) days
after the commencement thereof, of any bankruptcy, reorganization or insolvency
proceeding, or other proceeding under any law for the relief of debtors,
instituted against it by one or more third parties or failure to actively oppose
any such proceeding, or, in any such proceeding, defaulting or filing any answer
admitting the material allegations upon which the proceeding was based or
alleging its willingness to have an order for relief entered or its desire to
seek liquidation, reorganization or adjustment of any of its debts.
H. The appointment of any receiver, trustee or custodian to take
possession of all or any substantial portion of the assets of Tenant, or the
formation of any committee of Tenant's creditors, or any class thereof, for the
purpose of monitoring or investigating the financial affairs of Tenant or
enforcing such creditors' rights.
I. Any other event, occurrence, action or failure that is an Event of
Default under any other provision of this Lease.
24. REMEDIES OF LANDLORD. Upon the occurrence of any Event of Default,
Landlord, at its option, may exercise one (1) or more of the following remedies.
In addition, Tenant agrees in connection with each of the following Landlord
remedies that Section 93.002 of the Texas Property Code (if the Premises are
located in Texas) is not applicable, is superseded hereby and is waived for all
purposes under this Lease.
A. TERMINATION OF LEASE. Landlord may to the extent permitted under
applicable law, without judicial process, terminate this Lease by giving
written notice thereof to Tenant (whereupon all obligations and liabilities
of Landlord hereunder shall terminate) and without further notice repossess
the Premises, and be entitled to recover to the extent permitted under
applicable law all loss and damage Landlord may suffer by reason of such
termination, whether through inability to relet the Premises on satisfactory
terms or otherwise, including without limitation, accrued rent and interest
thereon, accrued late charges and interest thereon, the unamortized cost of
Tenant's improvements, broker's fees and commissions, attorneys' fees, moving
allowances, and any other costs incurred by Landlord in connection with
making or executing this Lease, the cost of recovering the Premises and costs
of reletting the Premises (including without limitation advertising costs,
brokerage fees, leasing commissions, reasonable attorneys' fees and
refurbishing costs).
B. REPOSSESSION AND RE-ENTRY. Landlord may, to the extent permitted
under applicable law, without judicial process, immediately terminated Tenant's
right of possession of the Premises (whereupon all obligations and liability of
Landlord hereunder shall terminate), but not terminate this Lease, and, without
notice or demand, enter upon the Premises or any part thereof and take absolute
possession of the same, expel or remove
13
Tenant and any other person or entity who may be occupying the Premises, by
force if necessary, change the locks, without having any civil or criminal
liability therefor, and at Landlord's option, Landlord may relet the Premises or
any part thereof for such terms and such rents as Landlord may in its sole
discretion elect. In the event of a termination of Tenant's possession of the
Premises under this Paragraph, Landlord shall have no obligation whatsoever to
tender to Tenant a key for new locks installed in the Premises and Tenant shall
have no further right to possession of the Premises. In the event Landlord
shall elect to relet the Premises, then rent received by Landlord from such
reletting shall be applied first, to the payment of any indebtedness other than
rent due hereunder from Tenant to Landlord (in such order as Landlord shall
designate), second, to the payment of any cost of such reletting, including,
without limitation, refurbishing costs, reasonable attorneys' fees, advertising
costs, brokerage fees and leasing commissions, and third, to the payment of rent
due and unpaid hereunder (in such order as Landlord shall designate), and Tenant
shall satisfy and pay any deficiency upon demand therefor from time to time.
Landlord shall not be responsible or liable for any failure to relet the
Premises or any part thereof or for any failure to collect any rent due upon any
such reletting. No such re-entry or taking of possession of the Premises by
Landlord shall be construed as an election on Landlord's part to terminate this
Lease unless a written notice or such intention to terminate the Lease is given
to Tenant. Notwithstanding any such reletting without termination of the Lease,
Landlord may at any time thereafter elect to terminate this Lease for such
previous breach. If Landlord relets the Premises (it being understood and
agreed that Landlord shall have no obligation whatsoever to relet the Premises),
either before or after the termination of this Lease, then for that portion of
the Premises that is subject to such new lease, all such rentals received from
such Lease shall be and remain the exclusive property of Landlord, and Tenant
shall not be, at any time, entitled to recover any such rental (through such
rental shall be credited by Landlord, to the extent provided above, against
those sums due from Tenant to Landlord).
C. CURE OF DEFAULT. Landlord may, to the extent and in the manner
permitted by applicable law, without judicial process, enter upon the Premises,
by force if necessary, and do whatever Tenant is obligated to do under the terms
of this Lease and Tenant agrees to reimburse Landlord on demand for any expenses
which Landlord may incur in effecting compliance with Tenant's obligation under
this Lease and Tenant further agrees that Landlord shall not be liable for any
damages resulting from such action, whether caused by negligence of Landlord or
otherwise.
D. CONTINUING OBLIGATIONS. Any repossession of or re-entering on the
Premises by Landlord under this Paragraph shall be without liability or
responsibility for damages to Tenant. No repossession of or re-entering upon
the Premises or any part thereof pursuant to any portion of this PARAGRAPH 24 or
otherwise and no reletting of the Premises or any part thereof pursuant to any
portion of this PARAGRAPH 24 shall relieve Tenant or any Guarantor of its
liabilities and obligations hereunder, all of which shall survive such
repossession or re-entering. In the event of any such repossession of or re-
entering upon the Premises or any part thereof by reason of the occurrence of a
default, Tenant will continue to pay to Landlord Rent required to be paid by
Tenant.
E. OTHER REMEDIES. In addition to the other remedies provided in this
Lease, Landlord shall be entitled, to the extent permitted by applicable law, to
injunctive relief in case of the violation, or attempted or threatened
violation, of any of the covenants, agreements, conditions or provisions of this
Lease, or to a decree compelling performance of any of the covenants,
agreements, conditions or provisions of this Lease, or to any other remedy
allowed to Landlord at law or in equity. Tenant shall indemnify and hold
Landlord harmless from any and all costs, expenses (including reasonable
attorneys' fees), claims and causes of action arising from or in connection with
any default by Tenant under this Lease.
F. CUMULATIVE REMEDIES. No right or remedy herein conferred upon or
reserved to landlord is intended to be exclusive of any other right or remedy,
and each and every right and remedy shall be cumulative and in addition to any
other remedy.
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G. NO WAIVERS. One or more waivers of any covenant, term or condition
of this Lease shall not be construed as a waiver of a subsequent breach of
the same covenant, term or condition. The consent or approval by either
party to or of any act by the other party requiring such consent or approval
shall not be deemed to waive or render unnecessary consent to or approval of
any subsequent similar act. No expiration or termination of the Term of this
Lease or Tenant's rights of possession hereunder, and no re-entry or
repossession of the Premises, and no reletting of the Premises, shall relieve
Tenant of its liabilities and obligations hereunder, all of which shall
survive such expiration, termination, re-entry, repossession or reletting.
Landlord's failure to insist upon the strict performance of any provision
hereof or to exercise any option, or remedy contained herein shall not
constitute a waiver thereof or of any provision, option, right or remedy in
the future. Receipt by Landlord of any rent or other sum with knowledge of
any breach or default hereunder shall not waive such breach or default, and
no waiver of any provision hereof shall occur unless made in writing.
Failure to declare any Event of Default immediately upon occurrence, or delay
in taking any action or remedy in connection therewith, shall not waive the
Event of Default or require the giving of any further notices or
opportunities to cure prior to exercise or remedies. Neither the acceptance
of late payments nor the giving of notice or opportunities to cure where none
are required shall ever constitute a waiver by Landlord or create any
obligation that Landlord give any future notices or opportunities to cure.
25. DEFAULT BY LANDLORD. Except as otherwise provided in this Lease,
Landlord shall be in default under this Lease if Landlord fails to perform any
of its obligations hereunder and said failure continues for a period of thirty
(30) days after written notice from Tenant to Landlord (unless such failure
cannot reasonably be cured within thirty (30) days and Landlord shall have
commended to cure said failure within said thirty (30) days and continues
diligently and continuously to cure the same). If Landlord shall be in default
under this Lease and, if as a consequence of such default, Tenant shall recover
a money judgment against Landlord, such judgment shall be satisfied only out of
the right, title and interest of Landlord in the Project as the same may then be
encumbered, and Landlord shall not be liable for any deficiency. In no event
shall Tenant have the right to levy execution against any property of Landlord
other than its interest in the Project as hereinbefore expressly provided.
26. SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATES.
A. This Lease is junior, subject, and subordinate to all ground leases,
mortgages, deeds or trust, and other security instruments of any kind now
covering the Project, or any portion thereof. Landlord reserves the right to
place liens or encumbrances on the Project, or any part thereof or interest
therein superior in lien rights and effect to this Lease. This Lease, at the
option of Landlord, shall be subject and subordinate to any and all such liens
or encumbrances now or hereafter imposed by Landlord without the necessity of
the execution and delivery of any further instruments on the part of Tenant to
effectuate such subordination. Notwithstanding the foregoing, Tenant covenants
and agrees to execute and deliver upon demand such further instruments
evidencing such subordination of this Lease as may be requested by Landlord.
Notwithstanding such subordination, Tenant agrees upon the foreclosure of any
such lien or encumbrance or upon the lienholder's becoming the owner of the
Premises or the Project to attorn to such lienholder or the purchaser at any
foreclosure sale, to accept such lienholder or purchaser as the Landlord under
this Lease, provided that Tenant's right to quiet possession of the Premises
under this Lease shall not be disturbed so long as Tenant shall pay the rent and
observe and perform all of the provisions of this Lease (to be observed and
performed by Tenant). Tenant hereby waives any right to terminate this lease
because of any such foreclosure, provided that the then owner shall agree to
Tenant's occupancy and right to quiet possession of the Premises.
B. In addition to and not in lieu of the foregoing, Tenant shall at any
time and from time to time upon not less than twenty (20) days prior notice to
landlord, execute, acknowledge and deliver to Landlord a statement
15
in writing substantially in the form of EXHIBIT "F" attached hereto. Any such
statement delivered pursuant to this Paragraph may be relied upon by any
prospective purchaser of the fee of the Property or any mortgagee, ground lessor
or other like encumbrancer thereof or any assignee of any such encumbrancer upon
the Property.
C. At any time when the holder of an outstanding mortgage, deed of trust
or other lien covering Landlord's interest in the Premises, or any superior
ground or master lessor, has given Tenant written notice of its lien or interest
in the Project, Tenant may not exercise any remedies for default by Landlord
hereunder unless and until said holder or superior lessor shall have received
written notice of such default and a reasonable time (not less than 30 days)
shall thereafter have elapsed without the default having been cured. Any such
holder or superior lessor may perform Landlord's obligations under this lease.
27. MECHANIC'S LIENS. Tenant has no authority, express or implied, to
create or place any lien or encumbrance of any kind or nature whatsoever
upon, or in any manner to bind, the interest of Landlord or Tenant in the
Premises or to charge the rentals payable hereunder for any claim in favor of
any person dealing with Tenant, including those who may furnish materials or
perform labor for any construction or repairs. Tenant covenants and agrees
that it will pay or cause to be paid all sums legally due and payable by it
on account of any labor performed or materials furnished in connection with
any work performed on the Premises and that it will save and hold Landlord
harmless from any and all loss, cost or expense based on or arising out of
asserted claims or liens against the leasehold estate or against the right,
title and interest of the Landlord in the Premises or under the terms of this
Lease. If any mechanic's or materialmen's lien, or other lien that arises or
is claimed as a result of any actual or alleged action, failure to act or
indebtedness of Tenant, is placed, claimed or asserted against the Premises
or Tenant's leasehold interest under this Lease, Tenant shall cause same to
be released of record within 5 days of demand by Landlord. Tenant agrees to
give Landlord immediate written notice of the placing of any lien or
encumbrance, or claim therefor, against the Premises or Tenant's leasehold
interest hereunder.
28. HAZARDOUS MATERIALS. Tenant shall never incorporate into, or
dispose of, at, in or under the Project any toxic or hazardous materials (as
defined hereafter). Tenant further agrees not to use at, place in, or store
at the Project any toxic or hazardous materials, except for those toxic or
hazardous materials that are either (a) office supplies or (b) kitchen
cleaning materials that are generally considered to be a household cleaner
and are purchased in a container not larger than one (1) gallon and then only
if (i) all such toxic or hazardous materials, supplies and materials are
properly labeled and contained, (ii) all such toxic or hazardous materials
are stored, handled, transported and disposed of in accordance with highest
accepted industry standards and all applicable laws, rules and regulations,
and (iii) if a material safety data sheet is required under applicable laws
to accompany the toxic or hazardous materials, supplies or materials, a copy
of such current material safety data sheet is provided to Landlord. For
purposes of this Lease, toxic or hazardous materials shall mean hazardous or
toxic chemicals or any materials containing hazardous or toxic chemicals at
levels or content which cause such materials to be classified as hazardous or
toxic as then prescribed by the highest industry standards or by the then
current levels or content as set from time to time by the U.S. Environmental
Protection Agency ("EPA") or the U.S. Occupational Safety and Health
Administration ("OSHA") or as defined under 29 CFR 1910 or 29 CFR 1925 or
other applicable governmental laws, rules or regulations. In the event there
is a spill of a toxic or hazardous materials (other than non-material spills
of permitted office supplies and kitchen cleaning supplies) at the Project,
Tenant shall notify Landlord of the method, time and procedure for any
clean-up and removal of such toxic or hazardous materials; and, Landlord
shall have the right to require reasonable changes in such method, time or
procedure. In the event there is a spill of a toxic or hazardous material
that comes from office supplies in the Premises, Tenant shall notify Landlord
if the spill would in any way endanger or pose a threat to Tenant's
employees, Building maintenance or custodial personnel, other Building
tenants or the general public. In the event of any breach of this provision
16
by Tenant or any contamination of the Project by Tenant, Tenant shall pay all
costs for the removal or abatement or clean-up of any toxic or hazardous
materials at the Project. This PARAGRAPH 28 shall survive the expiration or any
termination of this Lease.
29. FORCE MAJUERE. Neither Landlord nor Tenant shall be held responsible
for delays in the performance of its obligations hereunder when caused by
material shortages, weather, acts of God, labor disputes or other causes beyond
the reasonable control of Landlord (collectively, the "FORCE MAJEURE DELAYS").
Notwithstanding the above, Force Majuere shall never by applicable to the delay
in any payment called for in this Lease by Tenant and Landlord to each other.
30. PRIOR AGREEMENTS; SEVERABILITY; ILLEGALITY; MAXIMUM INTEREST. This
Lease constitutes the entire understanding and agreement of Landlord and Tenant
with respect to the subject matter of this Lease, and contains all of the
covenants and agreements of Landlord and Tenant with respect thereto. Landlord
and Tenant each acknowledge that no representations, inducements, promises or
agreements, oral or written, have been made by Landlord or Tenant, or anyone
acting on behalf of Landlord or Tenant, which are not contained herein, and any
prior agreements, promises, negotiations, or representations not expressly set
forth in this Lease are of no force or effect. This Lease may not be altered,
changed or amended except by an instrument in writing signed by both parties
hereto.
If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the Term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or
provisoin of this Lease that is illegal, invalid or unenforceable, there be
added, as a part of this Lease, a clause or provision as similar in terms to
such illegal, invalid or unenforceable clause or provision as may be possible
and be legal, valid and enforceable. It is the intention of Landlord and
Tenant to conform strictly to applicable usury laws. Accordingly,
notwithstanding anything to the contrary herein or in any other agreement
entered into in connection with or as security for this Lease, it is agreed
that the aggregate of all consideration which constitutes interest under
applicable law (including, but not limited to, any late charges that may
constitute interest under applicable law) that is taken, reserved, contracted
for, charged or received under this Lease or otherwise in connection with
this Lease shall under no circumstances exceed the maximum amount of interest
allowed by applicable law, and any excess shall be credited on Tenant's
obligations under this Lease (or, if all such obligations have been paid in
full, refunded to Tenant).
31. BROKERS. Tenant represents and warrants that it has dealt with no
broker, agent or other person in connection with this transaction or that no
broker, agent or other person brought about this transaction, other than the
broker or agent identified in the Basic Lease Information, and Tenant agrees to
indemnify and hold Landlord harmless from and against any claims by any other
broker, agent or other person claiming a commission or other form of
compensation by virtue of having dealt with Tenant with regard to this leasing
transaction.
32. CONDITION AND ACCEPTANCE OF PREMISES. Taking possession of the
Premises by Tenant shall be conclusive evidence that: (a) the improvements to
be constructed pursuant to EXHIBIT "D" attached hereto are substantially
complete except for "punch list" items (if any) or, if no improvements are to be
constructed, that the Premises are accepted "AS IS" and "WITH ALL FAULTS"; (b)
Tenant accepts the Premises as suitable for the purposes for which the Premises
are leased; (c) Tenant accepts the Premises as being in a good and satisfactory
condition; and (d) Tenant waives any known defects in the Premises, and any
other portion of the Project. Tenant acknowledges that no representations or
warranties regarding the condition of the Premises and the Building or any
portion thereof have been made by Landlord except as may be specifically set
forth herein. Landlord expressly disclaims, and Tenant hereby waives to the
full extent permitted by law, any implied warranty that the Premises, the
Building or any other portion of the Project are suitable for Tenant's intended
commercial purpose, and Tenant's obligation to pay rent hereunder is not
dependent
17
upon the condition of the Premises or the Building or any other portion of the
Project or the performance by Landlord of its obligations hereunder, and, except
as otherwise expressly provided herein in accordance with applicable law, Tenant
shall continue to pay the rent, without abatement, setoff, deduction,
notwithstanding any breach by Landlord of its duties or obligations hereunder,
whether express or implied. The foregoing shall not be construed to relieve
Landlord from its obligations which are expressly set forth in this Lease.
33. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivering of notice or the making of any payment by
Landlord to Tenant or with reference to the sending, mailing or delivering of
any notice or the making of any payment by Tenant to Landlord shall be deemed to
be complied with when and if the following steps are taken:
A. All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address for Landlord set forth in
PARAGRAPH 1 or at such other address as Landlord may specify from time to time
by written notice delivered in accordance herewith. Tenant's obligation to pay
rent and any other amounts to Landlord under the terms of this Lease shall not
be deemed satisfied until such rent and other amounts have been actually
received by Landlord.
B. All payments required to be made by Landlord to Tenant hereunder shall
be payable to Tenant at the address set forth in PARAGRAPH 1, or at such other
address within the continental United States as Tenant may specify from time to
time by written notice delivered in accordance herewith.
C. Any written notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered whether actually received or not when
deposited in the United States Mail, postage prepaid, Certified or Registered
Mail, addressed to the parties hereto at the respective addresses set out in
PARAGRAPH 1, or at such other address as they have heretofore specified by
written notice delivered in accordance herewith.
D. If and when included within the term "Landlord" , as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address for the receipt of notices
and payments to Landlord. If and when included within the term "Tenant", as
used in this instrument, there is more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Tenant. All parties
included within the terms "Landlord" and "Tenant", respectively, shall be bound
by notices given in accordance with the provisions of this Paragraph to the same
effect as if each had received such notice.
34. LANDLORD'S LIEN. In addition to any statutory lien for rent in
Landlord's favor, Landlord shall have and Tenant hereby grants to Landlord a
continuing security interest for all rentals and other sums of money becoming
due hereunder from Tenant and for the performance of all of its other
obligations hereunder, upon all goods, wares, equipment, fixtures, furniture,
inventory, and other personal property of Tenant or any subtenant now or
hereafter situated at the Premises, and such property shall not be removed
therefrom without the consent of Landlord until all arrearages in rent as well
as any and all other sums of money then due to Landlord hereunder shall first
have been paid and discharged and all other obligations of Tenant have been
fully performed and discharged. In the event any of the foregoing described
property is removed from the Premises in violation of the covenant in the
preceding sentence, the security interest shall continue in such property and
all proceeds and products, regardless of location. Upon the occurrence of an
Event of Default hereunder, or upon Tenant's threatened breach of its
obligations hereunder (including, without limitations, any threatened vacation
or abandonment of the Premises), in addition to all other rights and remedies,
Landlord shall have all rights and remedies under the Uniform Commercial Code,
including without limitation, the right to sell the
18
property described in this Paragraph at public or private sale upon five (5)
days' notice by Landlord. Tenant hereby agrees to execute such other
instruments, necessary or desirable under applicable law to perfect the security
interest hereby created. Landlord and Tenant agree that this Lease and security
agreement serves as a financing statement and that a copy, photographic or other
reproduction of this portion of this Lease may be filed of record by Landlord
and have the same force and effect as the original. This security agreement and
financing statement also covers fixtures located at the Premises and is to be
filed for record in the real estate records. The record owner of the Land is
Landlord.
35. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires. The captions
inserted in this Lease are for convenience only and in no way defines, limit or
otherwise describe the scope or intent of this Lease, or any provision hereof,
or in any way affect the interpretation of this Lease.
B. The terms, provisions and covenants contained in this Lease shall run
with the land and shall apply to, inure to the benefit of, and be binding upon,
the parties hereto and upon their respective heirs, executors, personal
representatives, legal representatives, successors and assigns, except as
otherwise herein expressly provided. Landlord shall have the right to transfer
and assign, in whole or in part, its rights and obligations in the Building and
property that are the subject of this Lease. Upon any Landlord's conveyance of
the Building or the Land, and the assignment of its rights under this Lease, to
another party ("SUCCESSOR"), such Landlord shall be released from its
obligations hereunder and the Successor shall become the "Landlord" hereunder
from and after the date of any such conveyance and assignment and shall
thereafter have all of the rights and obligations of the Landlord hereunder,
in accordance with the terms hereof, during the period of its ownership of the
Building. Each party agrees to furnish to the other, promptly upon demand, a
corporate resolution, proof of due authorization by partners, or other
appropriate documentation evidencing the due authorization of such party to
enter into this Lease.
C. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the Term of this Lease shall survive the
expiration or earlier termination of the Term hereof, including without
limitation, all payment obligations with respect to taxes and insurance and all
obligations concerning the condition and repair of the Premises. Upon the
expiration or earlier termination of the Term hereof, and prior to Tenant
vacating the Premises, Tenant shall pay to Landlord any amount reasonably
estimated by Landlord as necessary to put the Premises, including without
limitation, all heating and air conditioning systems and equipment thereon,
in good condition and repair, resonable wear and tear excluded. Tenant shall
also, prior to vacating the Premises, pay to Landlord the amount, as
estimated by Landlord, of Tenant's obligation hereunder for real estate taxes
and insurance premiums, common area maintenance, utility and other charges for
the year in which the Lease expires or terminates. All such amounts shall be
used and held by Landlord for payment of such obligations of Tenant hereunder,
with Tenant being liable for any additional costs therefor upon demand by
Landlord, or with any excess to be returned to tenant after all such obligations
have been determined and satisfied as the case may be. Any Security Deposit
held by Landlord shall be credited against the amounts due from Tenant under
this PARAGRAPH 35C.
D. All references in this Lease to "the date hereof" or similar references
shall be deemed to refer to the last date, in point of time, on which all
parties hereto have executed this Lease.
E. Submission of this Lease shall not be deemed to be a reservation of the
Premises. Landlord shall not be bound hereby until its delivery to Tenant of an
executed copy hereof signed by Landlord, already having been signed by Tenant,
and until such delivery Landlord reserves the right to exhibit and lease the
Premises to other prospective tenants. Notwithstanding anything contained
herein to the contrary, Landlord may withhold delivery or
19
possession of the Premises from Tenant until such time as Tenant has paid to
Landlord the Security Deposit required by PARAGRAPH 4B hereof and one month's
Base Rent (and Base Rent for the fractional month in which the Commencement Date
occurs) at set forth in PARAGRAPH 4A hereof.
F. Landlord and Tenant agree that the terms and conditions of this Lease
are confidential and the parties hereto agree not to disclose the terms of this
Lease to any third party (other than to its attorneys and accountants and other
than to parties who propose to purchase or finance the Building, or the Project,
or who propose to become investors in Landlord) except as may be required by law
or by the order of a court of competent jurisdiction.
G. See Page 20a.
36. ADDITIONAL PROVISIONS. XXXXXXXX X,X,X,X,X,X,X,X,X,X, attached hereto
are incorporated by reference herein.
LANDLORD:
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION, a Delaware corporation
By: Greystone Realty Corporation,
its authorized representative
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxxxx,
Executive Vice President
Date of Execution: 9/21/95
---------------
TENANT:
ADVANCED MATERIALS GROUP, INC,
----------------------------------
a California corporation
By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
-----------------------------
Its: President
-----------------------------
Date of Execution: 8/31/95
---------------
20
G. This Lease and the rights and obligations of the parties hereto shall
be interpreted, construed, and enforced in accordance with the Laws of the State
of Texas.
-20a-
EXHIBIT "A"
BUILDING SITE PLAN AND DESCRIPTION OF PREMISES
The Premises consists of the cross-hatched area in the Building as shown below.
This Exhibit is for the sole purpose of identifying the location of the Premises
in the Building. Nothing herein constitutes a representation, warranty or
covenant as to common area improvements, vehicular or rail access or any other
matter.
[MAP]
Exhibit "A" - Page 1
EXHIBIT "B"
LEGAL DESCRIPTION OF THE LAND
11420 XXXXXX
BEING all xx Xxx 0X, Xxxxx X of the revision of Black B and Block C of Xxxx 635
Business Park, 1st Installment, a addition to the City of Farmers Branch, Texas,
as filed in Volume 80017, page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, said
Lot 2R originally platted as Xxxx 0 xxxxxxx 0, Xxxxx X xx Xxxx 635 Business
Park, 1st Installment, an addition to the City of Farmers Branch, Texas, as
recorded in Volume 79042, Page 0000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, and
being more particularly described as follows:
BEGINNING at an iron road found for corner, being North a distance of 10.00 feet
from the North line of Royal Lane (a 100 foot R.O.W.) and said iron rod being in
the East line of Xxxxxx Street (a 64 foot R.O.W.);
THENCE NORTH along the East line of said Xxxxxx Street a distance of 89.78 feet
to an "x" cut found for corner, said "x" cut also being the beginning of a curve
to the right having a central angle of 09 degrees 17 minutes 10; and a radius of
646.20 feet;
THENCE along said curve, in a Northeasterly direction along said Xxxxxx Street,
and arc distance of 104.73 feet to an iron rod found for corner, said iron rod
being the point of tangency;
THENCE North 09 degrees 17 minutes 10 seconds East along Easterly line of
said Xxxxxx Street, a distance of 945.83 feet to an iron rod found for
corner, said iron rod being in the curving North line of Xxx 0X, Xxxxx X xx
Xxxx 000 Xxxxxxxx Xxxx, said curve being a curve to the left and having a
central angle of 48 degrees 14 minutes 09 seconds, a radius of 603.29 feet;
THENCE along said curve in a Northeasterly direction, an arc distance of 507.89
feet to an iron rod found for corner, said iron rod being the West line of
C.R.I. & P. Railroad ( a 100 foot R.O.W. at this point);
THENCE along the West line of said Railroad South 09 degrees 17 minutes 10
seconds West a distance of 1451.74 feet to an iron rod found for corner, said
iron rod being in the North line of said Royal Lane and said Railroad being a
150 foot right-of-way at this point;
THENCE South 89 degrees 35 minutes 38 seconds West along the North line of said
Royal Lane a distance of 310.07 feet to an iron rod found for corner;
THENCE North 45 degrees 00 minutes 00 seconds West a distance of 14.04 feet to
the POINT OF BEGINNING and containing 9.717 acres or 423,273 square feet of
land, more or less.
Exhibit "B" - Page 1
EXHIBIT "C"
ACCEPTANCE OF PREMISES MEMORANDUM
This Memorandum constitutes an acceptance by the Tenant of the Premises in
accordance with that certain Industrial Lease Agreement (the "LEASE") for space
in the _______________________________________________________________________
_______________________ located at 00000 Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxx
00000, executed on the ______ day of _____________, 19___, between New York Life
Insurance and Annuity Corporation, as Landlord, and Advanced Materials, Inc., a
California corporation, as Tenant.
Landlord and Tenant hereby agree that:
1. Except for those items shown on the attached "punchlist", which Landlord
will use reasonable efforts to remedy within _________________________ days
hereof, Landlord has fully completed the construction work required under
the terms of the Lease and the Work Letter attached to the Lease.
2. The Premises are tenantable and suitable, the Landlord has no further
obligation for construction (except as specified above), and Tenant by this
acceptance of the Premises, acknowledges that both the Property and the
Premises are satisfactory in all respects.
3. The Commencement Date of the Lease is hereby agreed to be the 1st day of
December, 1995.
4. The Expiration Date of the Lease is hereby agreed to be the 30th day of
November, 2000.
5. Tenant agrees that Landlord (except as provided in the Work Letter) has
made no warranties or representations about the suitability or other
aspects of the Premises.
Agreed and Executed this ________ day of ___________________________, 19 ____.
LANDLORD:
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION, a Delaware corporation
By:
__________________________
Name: Xxxxxxx X. Xxxxxxxxxx
___________________________
Title: Executive Vice President
___________________________
TENANT
ADVANCED MATERIALS, INC.,
a California corporation
By: /s/ Xxxxx Xxxxx
_____________________________
Name: Xxxxx Xxxxx
_____________________________
Title: President
_____________________________
Exhibit "C" - Page 1
EXHIBIT "D"
Tenant acknowledges that (i) it has inspected and accepts the premises in an "As
Is, Where Is" condition, (ii) the buildings and improvements comprising the same
are suitable for the purpose for which the premises are leased and Landlord has
made no warranty, representation, covenant, or agreement with respect to the
merchantability or fitness for any particular purpose of the Premises, (iii) the
Premises are in good and satisfactory condition, (iv) no representation as to
the repair of the Premises, nor promises to alter, remodel or improve the
Premises have been made by Landlord, except as in this Lease expressly provided,
and (v) there are no representations, or warranties, expressed, implied or
statutory, that extend beyond the description of the premises, except as
otherwise provided in this Lease.
EXHIBIT "E"
BUILDING RULES AND REGULATIONS
1. Landlord agrees to furnish to Tenant two keys without charge. Additional
keys will be furnished at a nominal charge.
2. Except for contractors performing routine services having no effect or
impact on the Premises or physical aspects os the Project (i.e., interior
plant care service or parking lot sweeping), Tenant will refer to Landlord,
for Landlord's approval and supervision before performance of any
contractual service, all contractors, contractor's representatives and
installations technicians rendering any service on or to the Premises for
Tenant. This provision shall apply to all work performed by or for Tenant
in the Project, including installations of equipment, electrical devices
and attachments and installations of any nature affecting floors, walls,
woodwork, trim, windows, ceilings, equipment or any other physical portion
of the Project. All wall and roof penetrations must in all cases be
performed by Landlord's approved contractor.
3. No Tenant shall at any time occupy any part of the Premises as sleeping or
lodging quarters or as a residence, or for retail purposes.
4. Except on prior written notice to Landlord of the type equipment or
machinery to be installed or used, and after Landlord's consent thereto,
Tenant shall not place, install or operate on the Premises or in any part
of the Project, large motors, compressors, any engine, oven, stove or
machinery or conduct mechanical operations therein. Tenant shall not xxxx
in the Premises nor place or use in or about the Premises any explosives,
gasoline, kerosene, oil, acids, caustics or any other inflammable,
explosives or toxic or hazardous material without the prior written consent
of Landlord.
5. Landlord will not be responsible for personal property, equipment, money or
jewelry lost or stolen from the Premises.
6. No birds, fowl or animals shall be brought into or kept in or about the
Project or the Premises, except seeing eye dogs.
7. Landlord may permit entrance to the Premises by use of pass keys controlled
by Landlord, without the prior written consent but with prior notice of
Tenant, for any person who is the employee, contractor or agent of
Landlord.
8. None of the Common Area entries, passages, doors, hallways or stairways
shall be blocked or obstructed nor shall any rubbish, litter, trash or
material of any nature be placed, emptied or thrown into these areas, nor
shall such areas be used at any time except for ingress or egress by Tenant
or Tenant's agents, employees or invitees.
9. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed and any damage
resulting to them from misuses, and the defacing or injury of any part of
the Project or Premises shall be borne by the person who shall occasion it.
No person shall waste water by interfering with the faucets or otherwise.
10. No person at the Premises shall create a nuisance or disturb adjoining
landowners or other occupants of the Project by the use of any musical
instruments, the making of loud or unseemly noises or strong or noxious
odors or any other unreasonable use or noise.
11. Nothing shall be thrown out of or disposed of at the Premises or the
Project except in approved receptacles.
12. Tenant shall not store any materials, equipment, products, stock, etc.
outside the Premises, for any consecutive twenty-four (24) hour period.
Exhibit "E" - Page 1
13. Tenant shall not erect any sign or other insignia upon any part of the
Project without the prior written consent of Landlord.
14 Tenant shall comply with all local, state and federal laws, codes and
ordinances relating to the Premises. In the event of fire, zoning or
building code or safety problems, Tenant shall comply with all applicable
governmental requirements.
15. Tenant shall at least on an annual basis have the heating, ventilation,
and/or air-conditioning system(s) and all fire, security, safety and fire
sprinkler systems serving the Premises completely checked out and repaired
if necessary. In addition, the Tenant shall have the filters on any
applicable system(s) changed at least on a quarterly basis.
16. Tenant shall not allow its trash accumulation to exceed the space provided
for its temporary storage and shall not allow such space to become
"unsightly" (within Landlord's sole discretion). Trash or debris shall not
be permitted to be gathered or stored except in receptacles properly
designed for its removal and disposal.
17. Vehicles may be parked only in areas marked or designated for parking. In
allocating parking at the Project, Landlord may designate specific parking
areas for specific types of vehicles. Landlord may provide such
designation by physical designation of the parking area by signs or other
markings, or by providing a map or drawing to tenant(s) of such
designations. The designation or location of parking spaces may be
modified by Landlord as necessary. No parking is allowed in delivery
areas, fire lanes, usual and ordinary traffic lanes or in any locations
which interferes with the safe and efficient ingress and egress of vehicles
on the Project.
18. Use of the parking areas is restricted to vehicles in operating condition.
No vehicles, including, without limitation, attached or unattached
trailers, may be parked at the Project more than seventy-two (72)
consecutive hours. Any vehicle parked on the Project more than seventy-two
(72) consecutive hours shall be considered abandoned and Landlord may have
the same towed away.
19. No vehicle or similar mechanical or body repairs may be conducted at any
time in the parking areas or at the Project.
20. If Tenant is notified that it is violating any applicable rule or
regulation, and Tenant thereafter fails to cure such violation within a
reasonable time, then Landlord, at its option, but without any obligation
to do so, may take action which Landlord deems appropriate to remedy the
violation(s). If any expense is incurred in doing so, then Tenant shall
pay Landlord therefor within ten (10) days after Landlord requests such
payment.
21. Landlord reserves the right to rescind any of these Rules and Regulations
and make such other and further rules and regulations as in the judgment of
Landlord shall from time to time be needed for the safety, protection, care
and cleanliness of the Project and/or Premises, the operation thereof and
the preservation of good order therein. New rules (when made and notice
thereof given to Tenant) shall be binding upon Tenant in like manner as if
originally herein prescribed. In the event of any conflict, inconsistency,
or other difference between the terms and provisions of these Rules and
Regulations, as now or hereafter in effect and the terms and provisions of
the attached Lease in effect between Landlord and Tenant, the Lease shall
control.
Exhibit "E" - Page 2
EXHIBIT "F"
TENANT ESTOPPEL LETTER
By Industrial Lease Agreement (the "Lease") dated ____________, the undersigned
("TENANT") has leased from New York Life Insurance and Annuity Corporation, or
its predecessors in interest ("LANDLORD") the lease premises located at ______
_______________________________________________________________ which are more
particularly described in the Lease. Landlord, as owner of the property
("PROPERTY") of which the lease premises are a part, intends [TO SELL THE
PROPERTY TO) [XXXXX X XXXX IN THE PROPERTY AS SECURITY FOR A LOAN TO] [ENTER
INTO A GROUND OR MASTER LEASE COVERING THE PROPERTY WITH] _________________
______________________________________________ [("BUYER")] [("LENDER")]
[("LESSEE")] who, as a condition to the [PURCHASE OF THE PROPERTY] [MAKING OF
SAID LOAN] [ENTERING INTO SAID LEASE], has required this Tenant Estoppel Letter.
In consideration of [BUYER'S] [LENDER'S] [LESSEE'S] agreement to [PURCHASE THE
PROPERTY] [MAKE SAID LOAN] [ENTER INTO SAID LEASE], Tenant agrees and certifies
to Landlord and to [BUYER] [LENDER] [LESSEE] as follows:
1. The leased premises and possession thereof are accepted; Landlord has
completed construction of all leasehold improvements, if any, required to
be constructed by Landlord under the Lease; the Lease is in full force and
effect; and the lease term begins on _________________________________
and ends on ______________________________________.
2. Tenant claims no present charge, lien or claim of offset against rent.
3. Rent is paid for the current month but is not paid and will not be paid
more than one month in advance. Base rent is $____________________ per
month and is due on the first day of each month. A security deposit in the
amount of $____________________ has been paid to Landlord.
4. There are no existing defaults by reason of any act or omission of the
Landlord except as follows: __________________________________________
______________________________________.
5. The Lease has not been modified, except in accordance with the amendments
dated as follows: ____________________________________________________
______________________________________.
6. Attached is a true and correct copy of the Lease together with all
amendments, modifications or renewals.
TENANT:
ADVANCED MATERIALS, INC., A
CALIFORNIA CORPORATION
By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
---------------------------
Title: President
--------------------------
Date: 8/31/95
--------------------------
Exhibit "F" - Page 1
Industrial Lease 3/4/93
EXHIBIT "G"
OPTION TO REDUCE SQUARE FOOTAGE
Landlord hereby grants to Tenant the right and option to reduce the square
footage of the lease premises from 100,000 square feet, to 66,998 square feet on
each of the first three (3) anniversaries of the commencement date (the
"Reduction Option"). If exercised the space returned by Tenant to Landlord
shall be approximately 33,002 square feet as shown on Exhibit "H" (the Reduction
Space). To exercise the Reduction Option, Tenant must (i) give Landlord written
notice of its exercise at least sixty (60) days prior to the anniversary date,
and (ii) vacate the approximate 33,002 square feet, as shown on Exhibit "H",
within sixty (60) days of providing Landlord written notice. After Tenant
vacates the Reduction Space, Landlord may elect to (i) build a wall separating
the Reduction Space from the remainder of Premises, (ii) separate the utility
systems and provide for separate controls for the utility systems in the
Reduction Space and remainder of Premises, and (iii) construct openings and
install three (3) dock high loading doors complete with dock bumpers and dock
levelers, in the Reduction Space. Tenant shall reimburse Landlord for one half
(1/2) of Landlords cost for creating the above mentioned improvements within
thirty (30) days of Landlord presenting Tenant an invoice evidencing such costs.
Tenant agrees at Tenant's sole cost and expense to remove any existing tenant
improvements which may encumber the construction of the new demising wall listed
in (i) above. Tenant shall remain responsible for the payment of Base Rent and
other Additional Rent for one hundred eighty (180) days after written exercise
of the Reduction Option. If Landlord while utilizing commercially reasonable
efforts and marketing the Reduction Space at market rental rates is successful
in releasing the Reduction Space within one hundred eighty (180) days of
Tenant's exercise of the Reduction Option, Landlord shall reimburse Tenant for
the difference in rent paid, if any (Base Rent and Additional Rent paid by
Tenant for the Reduction Space) minus (Base Rent and Additional Rent paid by new
tenant during same one hundred eighty (180) day period), provided that Tenant
has reimbursed Landlord for its share of improvements to the Reduction Space,
and provided that no other event of monetary default exists.
EXHIBIT "H"
OPTION TO REDUCE SQUARE FOOTAGE SITE PLAN
The Option to Reduce Square Footage consists of the cross-hatched area in the
Building as shown below. This Exhibit is for the sole purpose of identifying
the location of the Option to Reduce Square Footage in the Building. Nothing
herein constitutes a representation, warranty or covenant as to common area
improvements, vehicular or rail access or any other matter.
[MAP]
EXHIBIT "I"
RENEWAL OPTION
If, at the end of the primary term of this Lease, the Lessee is not in default
in any of the terms and conditions or covenants of the Lease, Lessee, but not
any assignee or subtenant of Lessee, is hereby granted an option to renew this
Lease for an additional sixty (60) months upon the same terms and conditions
contained in this Lease with the following exceptions:
A. The renewal option term will contain no further renewal options
unless expressly granted by Lessor in writing; and
B. The rental for the renewal term shall be based on the existing
base rent or the then prevailing rental rates, whichever is
greater, for properties of equivalent quality, size, utility and
location, with the length of the lease term and credit standing
of the Lessee to be taken into account.
If Lessee desires to renew this Lease, Lessee will notify the Lessor of its
intention to renew no later than six (6) months prior to the expiration date of
the lease; Lessor shall, within the next fifteen (15) days notify Lessee in
writing of the proposed renewal rate and the Lessee shall, within the next
thirty (30) days following receipt of the proposed rate, notify the Lessor in
writing of its acceptance of the proposed rental rate. Failure to accept the
proposed rental rate terminates any renewal option pursuant to this paragraph.
EXHIBIT "J"
COMMON AREA CHARGES CAP
Notwithstanding anything to the contrary set forth in Paragraph 5, in
calculating "Excess Common Area Charges" for calendar years subsequent to the
Base Year, when determining Tenant's share, "Excess Common Area Charges" may not
increase more than seven percent (7%) from the amount of "Common Area Charges"
for the immediately preceding calendar year.
Example 1995 Common Area Charges $.19 p.s.f.
1996 Common Area Charges $.23 p.s.f.
Tenant's "Excess Common Area Charges" $.0133 p.s.f.
1997 Common Area Charges $.26 p.s.f.
Tenant's "Excess Common Area Charges" $.0561 p.s.f.
Provided, the foregoing cap on "Common Area Charges" shall not apply to utility
cost. Tenant's share of these expenses shall always be based on the actual
amount of such expenses.
