Exhibit 10.115
L E A S E A G R E E M E N T
STATE OF TEXAS
COUNTY OF XXXXXX
This Lease Agreement is made and entered into by and between AMBERJACK LIMITED
PARTNERSHIP, a Texas Limited Partnership, hereinafter referred to as "Landlord",
and UNITED STATIONERS SUPPLY CO., AN ILLINOIS CORPORATION, hereinafter referred
to as "Tenant".
W I T N E S S E T H:
1. PREMISES and TERM
In consideration of the obligation of Tenant to pay rent as
herein provided, and in consideration of the other terms, provisions and
covenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby takes from Landlord certain premises situated within the County of
Xxxxxx, State of Texas, more particularly described on Exhibit "A" attached
hereto and incorporated herein by reference, and as follows:
Approximately 23,600 square feet of office/warehouse space located in
building "A" containing approximately 138,800 square feet and situated on a
tract of land out of the Xxxx Xxxxxxx Survey, Abstract 269, Houston, Xxxxxx
County, Texas, and being more particularly described on Exhibit "A"
attached hereto and made a part hereof. The address of this facility is
0000 Xxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000.
together with all rights, privileges, easements, appurtenances and immunities
belonging to or in any way pertaining to the premises and together with the
building and other improvements situated or to be situated upon said premises
(said real property, building and improvements being hereinafter referred to as
the "Premises").
TO HAVE AND TO HOLD the same for a term commencing on the
"commencement date" as March 1 1997, and ending eighteen (18) months
thereafter; provided, however, that in the event the "commencement date" is a
date other than the first day of a calendar month, said term shall extend for
said number of months in addition to the remainder of the calendar month
following the "commencement date".
Tenant acknowledges that no representations as to the repair of the Premises
have been made by Landlord, unless such are expressly set forth in this lease.
After such "commencement date" Tenant shall, upon demand, execute and deliver to
Landlord a letter of acceptance of delivery of the Premises. In the event of
any dispute as to substantial completion or work performed or required to be
performed by Landlord, the certificate of Landlord's architect or general
contractor shall be conclusive.
2. BASE RENT and SECURITY DEPOSIT
A. Tenant agrees to pay to Landlord rent for the Premises, in
advance, without demand, deduction or set off, for the entire term hereof as
follows: Month 1 to month 18 will be paid in equal monthly payments of Five
Thousand Nine Hundred Sixty-eight Dollars ($5,968.00). One such monthly
installment, plus monthly common area maintenance payments, shall be due
and payable on the date hereof and a like monthly installment shall be due
and payable on or before the first day of each calendar month succeeding the
commencement date recited above during the hereby demised term, except that
the rental payment for any fractional calendar month at the commencement or
end of the lease period shall be prorated. Failure by Tenant to pay any one
monthly installment of rent by the fifth (5th) day
from the date such payment was due shall be considered an event of default in
accordance with the provisions of Paragraph 18(a) of this Lease Agreement.
Upon such failure by Tenant to pay any rental installment within five (5)
days of when such installment is due, Tenant shall pay to Landlord, on
demand, a late charge in an amount equal to five percent (5%) of such
installment. Failure to pay such late charge within ten (10) days after
demand shall likewise be considered an 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 as limiting Landlord's remedies in any manner.
B. Tenant agrees to pay to Landlord, as additional rental, all
charges for any services, goods, or materials furnished by Landlord at
Tenant's request which are not required to be furnished by Landlord under
this lease (as well as all other sums payable by Tenant hereunder) within ten
(10) days after Landlord renders a statement therefor to Tenant. All past
due additional rental amounts shall bear interest from the date due until
paid at the maximum rate allowed by law.
C. In addition, Tenant agrees to deposit with Landlord on the
date hereof the sum of Six Thousand Six Hundred Eight Dollars ($6,608.00),
which sum shall be held by Landlord, without obligation for interest, as
security for the performance of Tenant's covenants and obligations under this
lease, it being expressly understood and agreed that such deposit is not an
advance rental deposit or a measure of Landlord's damages in case of Tenant's
default. Upon the occurrence of any event of default by Tenant, Landlord
may, from time to time, without prejudice to any other remedy provided herein
or provided by law, use such fund to the extent necessary to make good any
arrears of rent or other payments due Landlord hereunder, and any other
damage, injury, expense or liability caused by such event of default; and
Tenant shall pay to Landlord, on demand, the amount so applied in order to
restore the security deposit to its original amount. Although the security
deposit shall be deemed the property of Landlord, any remaining balance of
such deposit shall be returned by Landlord to Tenant within thirty (30) days
after termination of this lease, providing that all of Tenant's obligations
under this lease have been fulfilled.
3. USE
The demised Premises shall be used only for the purpose of receiving,
storing, shipping and selling (other than retail) products, materials and
merchandise made and/or distributed by Tenant and for such other lawful
purposes as may be incidental thereto. Outside storage, including, without
limitation, trucks and other vehicles, is prohibited without Landlord's prior
written consent. Tenant shall obtain, at its own cost and expense, any and
all licenses and permits necessary for any such use. Tenant shall comply
with all governmental laws, ordinances and regulations applicable to the
Tenant's use of the Premises, and shall promptly comply with all governmental
orders and directives for the correction, prevention and abatement of
nuisances caused by Tenant in, upon, or in connection with the Premises, all
at Tenant's sole expense. Tenant shall not permit any objectionable or
unpleasant odors, smoke, dust, gas, noise or vibrations to emanate from the
Premises, nor take any other action which would constitute a nuisance or
would disturb or endanger any other tenants of the building in which the
Premises are situated or unreasonably interfere with their use of their
respective Premises. Without Landlord's prior written consent, Tenant shall
not receive, store or otherwise handle any product, material or merchandise
which is explosive or highly inflammable. Tenant will not permit the Premises
to be used for any purpose or in any manner (including, without limitation,
any method of storage) which would render the insurance thereon void or the
insurance risk more hazardous or cause the State Board of Insurance or other
insurance authority to disallow any sprinkler credits.
4. TAXES *
A. Landlord agrees to pay, before they become delinquent, all
taxes, assessments, and governmental charges of any kind and nature whatsoever
(hereinafter collectively referred to as "taxes") lawfully levied or assessed
against the building and the grounds, parking areas, driveways and alleys around
the Building. If the Tenant's proportionate share of taxes levied or
assessed against the Building and the grounds, parking areas, driveways and
alleys around the Building during a real estate tax year, occurring within
the term hereof or during any renewal or extension of this term, shall exceed
an amount equal to the actual cost for this expense for the calendar year
1997 or $64,630.00, which is the total estimated taxes for the entire
building of which Tenant's prorated share at 17.0028% is $10,989.00, Tenant
shall pay to Landlord as additional rental, upon demand, the amount of such
excess. In the event any such amount is not paid within ten (10) days after
the date of Landlord's invoice to Tenant, the unpaid amount shall bear
interest from the date due until paid at the maximum interest rate allowed by
law.
* SEE SPECIAL PROVISIONS EXHIBIT "C" ATTACHED HERETO AND MADE A PART HEREOF
B. Tenant's "proportionate share", as used in this lease, shall mean
a fraction, the numerator of which is the space contained in the Premises and
the denominator of which is the entire space contained in the building(s).
C. If at any time during the term of this lease the present
method of taxation shall be changed so that in lieu of the whole or any part
of any taxes, assessments or governmental charges levied, assessed or imposed
on real estate and the improvements thereon, there shall be levied, assessed
or imposed on Landlord a capital levy or other tax directly on the rents
received therefrom and/or a franchise tax, assessment, levy or charge
measured by or based, in whole or in part, upon such rents for the present or
any future building(s) on the Premises, 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.
D. The Landlord shall have the right to employ a tax consulting firm
to attempt to assure a fair tax burden on the building and grounds within the
applicable taxing jurisdiction. Tenant shall pay to Landlord the amount of
Tenant's "proportionate share" (as defined in subparagraph 4.B above) of the
cost of such service.
E. Any payment to be made pursuant to this Paragraph 4 with
respect to the real estate tax year in which this lease commences or
terminates shall be prorated.
F. Tenant shall pay all ad valorem and similar taxes or assessments
levied upon or applicable to all equipment, fixtures, furniture, and other
property placed by Tenant in the Premises and all license and other fees or
charges imposed on the business conducted by Tenant on the Premises. It is
agreed that Tenant will also be responsible for ad valorem taxes on the value
of leasehold improvements to the extent that such leasehold improvements
exceed standard building allowances.
5. LANDLORD'S REPAIRS
Landlord shall, at his expense, maintain only the roof,
foundation, and the structural soundness of the exterior walls of the building
in good repair, reasonable wear and tear excepted. Tenant shall repair and pay
for any damage caused by the negligence of Tenant, or Tenant's employees, agents
or invitees, or caused by Tenant's default hereunder. The term "walls" as used
herein shall not include windows, glass or plate glass, doors, special store
fronts or office entries. Tenant shall promptly 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's liability with
respect to any defects, repairs or maintenance for which Landlord is responsible
under any of the provisions of this lease shall be limited to the cost of such
repairs or maintenance or the curing of such defect.
6. TENANT'S REPAIRS
A. Tenant shall, at its own cost and expense, keep and maintain all
parts of the Premises (except those for which Landlord is expressly
responsible under the terms of this lease) in good condition, reasonable wear
and tear excepted - See Xxxxxxx "X", xxxxxxxxx 00.x, promptly making all
necessary repairs and replacements, including, but not limited to, windows,
glass and plate glass, doors, special store fronts or office entries,
interior walls and finish work,
floors and floor covering, downspouts, gutters, truck doors, dock bumpers,
paving (not to exceed S2,000.00/year and is part of common area services),
plumbing work and fixtures, termite and pest extermination, regular removal
of trash and debris, keeping the parking areas, driveways, alleys and the
whole of the Premises in a clean and sanitary condition. Tenant shall not be
obligated to repair any damage caused by fire, tornado or other casualty
covered by the insurance to be maintained by Landlord pursuant to
subparagraph 13.A below, except that Tenant shall be obligated to repair all
wind damage to glass, except with respect to tornado or hurricane damage.
B. Tenant shall not damage any demising wall or disturb the
integrity and support provided by any demising wall and shall, at its sole cost
and expense, promptly repair any damage or injury to any demising wall caused by
Tenant or its employees, agents or invitees.
C. Tenant and its employees, customers and licensees shall have
the right to use the parking areas, if any, as may be designated by Landlord in
writing, subject to such reasonable rules and regulations as Landlord may from
time to time prescribe and subject to rights of ingress and egress of other
tenants. Landlord shall not be responsible for enforcing Tenant's parking
rights against any third parties. Landlord reserves the right to perform the
paving and landscape maintenance, exterior painting, common sewage line
plumbing, and care for the grounds around the Building, and Tenant shall be
liable for its proportionate share (as defined in subparagraph 4.B above) of the
cost and expense. If Tenant or any other particular tenant of the Building can
be clearly identified as being responsible for obstructions or stoppage of the
common sanitary sewage line, then Tenant, if Tenant is responsible, or such
other responsible tenant, shall pay the entire cost thereof, upon demand, as
additional rent. Tenant shall pay, when due, its share, determined as
aforesaid, of such costs and expenses along with the other tenants of the
building to Landlord upon demand, as additional rent, for the amount of its
share as aforesaid of such costs and expenses in the event Landlord elects to
perform or cause to be performed such work. In the event any such amount is
not paid within ten (10) days after the date of Landlord's invoice to Tenant,
the unpaid amount shall bear interest from the date due until paid at the
maximum interest rate allowed by law.
7. COMMON AREA MAINTENANCE *
A. Tenant agrees to pay Landlord $0.0271 per square foot per month as
its estimated share of the common area services which are provided by
Landlord for the mutual benefit of all tenants, including all expenses
incurred by Landlord with respect to the maintenance and operation of the
building and/or project of which the Premises are a part. These services may
include, but are not limited to, general landscaping, mowing of grass, care
of shrubs (including replacement of expired plants); operation and
maintenance of lawn sprinkler system; operation and maintenance of exterior
lighting; water service and sewer charges; repainting of exterior surfaces of
truck doors, handrails, downspouts, and other parts of the building which
require periodic preventive maintenance; parking lot maintenance; pro rata
share of the project's common area maintenance and monitoring service; and a
management fee equal to 3% of the gross rental due under this lease, payable
monthly.
* SEE SPECIAL PROVISIONS EXHIBIT "C" ATTACHED HERETO AND MADE A PART HEREOF
B. The actual cost of these services, other than Tenant's management fee,
shall be prorated among tenants on the basis of square footage occupied in
the same manner as provided in subparagraph 4.B above. Landlord shall send
Tenant an annual statement of actual common area service costs, along with
either an invoice or a rebate for the amount that Tenant's actual
proportionate share exceeded or was less than Tenant's $0.0271 per square
foot per month common area service payment for the year then ended. Tenant
agrees to reimburse Landlord within thirty (30) days after receipt of such
invoice from Landlord. Subject to Landlord's reasonable discretion, this
monthly common area service charge may be renegotiated periodically based
upon increases in Landlord's annual cost of providing these services,
provided, however, that at no time during the term of this lease shall an
increase, if any, in the monthly common area service charge payable by
Tenant, hereunder, exceed an aggregate of 5% per year cumulative as
calculated on an annual basis.
8. ALTERATIONS
Tenant shall not make any alterations, additions or
improvements to the Premises (including, but not limited to, roof and wall
penetrations) without the prior written consent of Landlord. If Landlord
consents to Tenant's contractors doing the work, Landlord may require, at
Landlord's sole option, that Tenant provide, at Tenant's expense, a lien and
completion bond in an amount equal to 1-1/2 times any and all estimated costs of
improvements, additions or alterations in the Premises to insure Landlord
against any liability or mechanic's and materialmen's lien which may arise in
accordance with Paragraph 23 of this Lease Agreement and to insure completion of
the work. Tenant may, without the consent of Landlord, but at its own cost and
expense and in a good workmanlike manner, erect such shelves, bins, machinery
and trade fixtures as it may deem advisable, without altering the basic
character of the Building or improvements and without overloading or damaging
such Building or improvements, and in each case complying with all applicable
governmental laws, ordinances, regulations and other requirements. All
alterations, additions, improvements and partitions erected by Tenant shall be
and remain the property of Tenant during the term of this lease; and Tenant
shall, unless Landlord otherwise elects as hereinafter provided, remove all
alterations, additions, improvements and partitions erected by Tenant and
restore the Premises to their original condition by the date of termination of
this lease or upon earlier vacating of the Premises, provided, however, that, if
Landlord so elects, prior to termination of this lease or upon earlier vacating
of the Premises, such alterations, additions, improvements and partitions shall
become the property of Landlord as of the date of termination of this lease or
upon earlier vacating of the Premises and shall be delivered up to the Landlord
with the Premises. All shelves, bins, machinery and trade fixtures installed by
Tenant may be removed by Tenant prior to the termination of this lease, if
Tenant so elects, and shall be removed by the date of termination of this lease
or upon earlier vacating of the Premises if required by Landlord. Upon any such
removal, Tenant shall restore the Premises to their original condition. All
such removals and restoration shall be accomplished in a good workmanlike manner
so as not to damage the primary structure or structural qualities of the
Buildings and other improvements situated on the Premises.
9. SIGNS
Tenant shall have the right to install signs upon the Premises only when
first approved in writing by Landlord and subject to any applicable
governmental laws, ordinances, regulations, Landlord's standard sign criteria
and other requirements. At Landlord's direction, Tenant shall be responsible
for the removal of all such signs by the termination of this lease. Such
installations and removals shall be made in such a manner as to avoid injury
or defacement of the building and other improvements, and Tenant shall be
responsible for the repair of any injury or defacement, including, without
limitation, discoloration caused by such installation and/or removal.
10. INSPECTION
Landlord and Landlord's agents and representatives shall have the
right to enter and inspect the Premises at any reasonable time during business
hours, on reasonable notice, for the purpose of ascertaining the condition of
the Premises or in order to make such repairs as may be required or permitted to
be made by Landlord under the terms of this lease. During the period that is
six (6) months prior to the end of the term hereof, Landlord and Landlord's
agents and representatives shall have the right to enter the Premises at any
reasonable time during business hours on reasonable notice, for the purpose of
showing the Premises and shall have the right to erect on the Premises a
suitable sign indicating the Premises are available. Tenant shall give written
notice to Landlord 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. In the event of Tenant's failure to give such notice or arrange
such joint inspection, Landlord's inspection at or after Tenant's vacating the
Premises shall be conclusively deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
11. UTILITIES
Landlord agrees to provide, at its cost, water, electricity and
telephone service connections into the Premises; but Tenant shall pay for all
water, gas, heat, light, power, telephone, sewer, sprinkler charges and other
utilities and services used on or from the Premises, together with any taxes,
penalties, surcharges or the like pertaining thereto and any maintenance charges
for utilities, and shall furnish all electric light bulbs and tubes. If any
such services are not separately metered to Tenant, Tenant shall pay its
proportionate share, as determined by Landlord, of all charges jointly metered
with other Premises. Landlord shall in no event be liable for any interruption
or failure of utility services on the Premises.
12. ASSIGNMENT and SUBLETTING
Tenant shall not have the right to assign this lease or to
sublet the whole or any part of the Premises without the prior written
consent of Landlord, which consent shall not unreasonably withheld or delayed
- See Exhibit "C", paragraph 28.g. Notwithstanding any permitted assignment
or subletting, Tenant shall at all times remain directly, primarily and fully
responsible and liable for the payment of the rent herein specified and for
compliance with all of its other obligations under the terms, provisions and
covenants of this lease. Upon the occurrence of an "event of default" as
hereinafter defined, if the Premises or any part thereof are then assigned or
sublet, Landlord, in addition to any other remedies herein provided or
provided by law, may, at its option, collect directly from such assignee or
subtenant all rents becoming due to Tenant under such assignment or sublease
and apply such rent against any sums due to Landlord from Tenant hereunder,
and no such collection shall be construed to constitute a novation or a
release of Tenant from the further performance of Tenant's obligations
hereunder. Notwithstanding the terms above, Landlord reserves the right to
either: 1) enter into a new Lease Agreement with the proposed assignee or
subtenant and terminate the lease coincident with occupancy by the new tenant
and commencement of the new lease; or, 2) Landlord and Tenant may mutually
agree to terminate this lease.
13. FIRE and CASUALTY DAMAGE *
A. Landlord agrees to maintain standard fire and extended
coverage insurance covering the Building, of which the Premises are a part, in
an amount not less than eighty percent (80%) (or such greater percentage as may
be necessary to comply with the provisions of any co-insurance clauses of the
policy) of the "replacement cost" thereof, as such term is defined in the
Replacement Cost Endorsement to be attached thereto insuring against the perils
of Fire, Lighting and Extended Coverage, such coverage and endorsements to be as
defined, provided and limited in the standard bureau forms prescribed by the
insurance regulatory authority for the State of Texas for use by insurance
companies admitted in the State of Texas for the writing of such insurance on
risks located within the State of Texas. Subject to the provisions of
subparagraphs 13.C, 13.D and 13.E below, such insurance shall be for the sole
benefit of Landlord and under its sole control. In addition Landlord agrees to
maintain general liability coverage insurance in an amount deemed prudent and
necessary by Landlord or required by mortgagee presently (or in the future)
holding a mortgage and/or deed(s) of trust constituting a lien against the
Building of which the Premises are a part. If the annual premiums charged
Landlord for insurance exceed the standard premium rates because the nature of
the Tenant's operation results in extra hazardous exposure, and if Landlord
permits such operations, then Tenant, upon receipt of appropriate premium
notices, shall reimburse Landlord for such increase in such premiums as
additional rent hereunder. Tenant shall maintain, at its own expense, fire and
extended coverage insurance on all of its personal property, including removable
trade fixtures, located in the Premises and on all additions and improvements
made by Tenant and not required to be insured by Landlord. In addition, Tenant
shall reimburse Landlord annually, as additional rent and upon receipt of notice
from Landlord, for Tenant's proportionate share of all amounts paid by Landlord
for insurance premiums which exceed an amount equal to the actual cost of such
premium for the calendar year 1997 or $6,070.00, which is the total estimated
insurance for the entire building. Tenant's prorated share at 17.0028% equates
to $1,032.00. In the event the Premises constitute a portion of a multiple-
occupancy building, Tenant shall be responsible for reimbursing Landlord for
Tenant's full proportionate share of such excess, as such share is defined in
subparagraph 4.B above. Said payment shall be made to Landlord within ten (10)
days after presentation to Tenant of Landlord's statement setting forth the
amount due. Any
payment to be made pursuant to this subparagraph A with respect to the year
in which this lease commences or terminates shall bear the same ratio to the
payment which would be required to be made for the full year as the part of
such year covered by the term of this lease bears to a full year. In the
event any such additional rental amount is not paid within ten (10) days
after the date of Landlord's invoice to Tenant, the unpaid amount shall bear
interest from the date due until paid at the maximum interest rate allowed by
law.
* SEE SPECIAL PROVISIONS EXHIBIT "C" ATTACHED HERETO AND MADE A PART HEREOF
B. If the buildings situated upon the Premises should be
damaged or destroyed by fire, tornado or other casualty, Tenant shall give
immediate written notice thereof to Landlord.
C. If the buildings situated upon the Premises should be totally
destroyed by fire, tornado, or other casualty, or if they should be so
damaged thereby that rebuilding or repairs cannot, in Landlord's estimation,
be completed within two hundred (200) days after the date upon which Landlord
is notified by Tenant of such damage occurs, 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.
D. If the Building of which the Premises is a part should be
damaged by any peril covered by the insurance to be provided by Landlord
under subparagraph 13.A above, but only to such extent that rebuilding or
repairs can, in Landlord's estimation, be completed within 200 days after the
date upon which Landlord is notified by Tenant of such damage, this lease
shall not terminate, and Landlord shall, at its sole cost and expense,
thereupon proceed with reasonable diligence to rebuild and repair such
buildings to substantially the condition in which they existed prior to such
damage, except that Landlord shall not be required to rebuild, repair or
replace any part of the partitions, fixtures, additions and other
improvements which may have been placed in, on or about the Premises by
Tenant. If the Premises are untenable in whole or in part following such
damage, the rent payable hereunder during the period in which they are
untenable shall be reduced to such extent as may be fair and reasonable under
all of the circumstances. In the event that Landlord should fail to complete
such repairs and rebuilding within 200 days after the date upon which
Landlord is notified by Tenant of such damage, Tenant may, at its option,
terminate this lease by delivering written notice of termination to Landlord
as Tenant's exclusive remedy, whereupon all rights and obligations hereunder
shall cease and terminate.
E. Notwithstanding anything herein to the contrary, in the
event the holder of any indebtedness secured by a mortgage or deed of trust
covering the Building 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 by any such holder, whereupon all rights and
obligations hereunder shall cease and terminate.
F. Landlord and Tenant each hereby releases the other from any loss
or damage to property caused by fire or any other perils insured through or
under them by way of subrogation, or otherwise for any loss or damage to
property caused by fire or any other perils insured in policies of insurance
covering such property, even if such loss or damage shall have been caused by
the fault or negligence of the other party or anyone for whom such party may
be responsible; provided, however, that his release shall be applicable and
in force and effect only with respect to loss or damage occurring during such
times in which the releasor's policies contain a clause or endorsement
stating that any such release shall not adversely affect or impair said
policies or prejudice the right of the releasor to recover thereunder and
then only to the extent of the insurance proceeds payable under such
policies. Both Landlord and Tenant agree that they will request their
insurance carriers to include such a clause or endorsement in their policies.
If extra cost shall be charged therefor, each party shall advise the other
thereof and of the amount of the extra cost, and the other party, at its
election, may pay the same, but shall not be obligated to do so.
14. LIABILITY
Landlord shall not be liable to Tenant or Tenant's employees,
agents, patrons or visitors, or to any other person whomsoever, for any
injury to person or damage to property on or about the Premises, resulting
from and/or caused in part or whole by the negligence or misconduct of
Tenant, its agents, servants, employees, invitee or of any other person
entering upon the Premises, or caused by the buildings and improvements
located on the Premises becoming out of repair, or caused by leakage of gas,
oil, water or steam or by electricity emanating from the Premises, and Tenant
hereby covenants and agrees that it will at all times indemnify and hold safe
and harmless the property, the Landlord (including, without limitation, the
trustee and beneficiaries if Landlord is a trust), Landlord's agents and
employees from any loss, liability, claims, suits, costs, expenses,
including, without limitation, attorney's fees and damages, both real and
alleged, arising out of any such damage or injury; except injury to persons
or damage to property the sole cause of which is negligence of Landlord, or
the failure of Landlord to repair any part of the Premises which Landlord is
obligated to repair and maintain hereunder within a reasonable time after the
receipt of written notice from Tenant of needed repairs. Tenant shall, at
Tenant's sole cost and expense, fully insure its property located within the
Premises against fire and other casualty, and shall maintain public liability
insurance with combined limits of at least $1,000,000. The limits or amounts
of said insurance coverage shall not, however, limit the liability of the
Tenant hereunder. Tenant shall cause Landlord, and Landlord's Manager, to
be named as an additional insured under such public liability insurance
policy. In addition, Landlord shall be named as additional insured on the
fire and casualty insurance policy which Tenant is required to maintain with
respect to Tenant's property located in the Premises. If Tenant shall fail
to procure and maintain said insurance, Landlord may, but shall not be
required to, procure and maintain same, and in such event, premiums and costs
thereof shall be reimbursed and paid by Tenant to Landlord on demand by
Landlord. All such policies shall be procured by Tenant from responsible
insurance companies satisfactory to Landlord. Certificates of insurance,
together with receipt evidencing payment of premiums therefor, shall be
delivered to Landlord prior to the commencement date of this lease. Not less
than fifteen (15) days prior to the expiration date of any such policies,
certificates evidencing the renewals thereof (bearing notations evidencing
the payment of renewal premiums) shall be delivered to Landlord. Such
policies shall further provide that not less than thirty (30) days written
notice shall be given to Landlord before such policy may be canceled or
changed to reduce insurance provided thereby.
15. CONDEMNATION
A. If the whole or any substantial part of the Premises should be
taken for any public or quasi-public use under any governmental law,
ordinance or regulation or by right of eminent domain, or by private purchase
in lieu thereof and the taking would prevent or materially interfere with the
use of the Premises for the purpose for which they are being used, this lease
shall terminate and the rent shall be abated during the unexpired portion of
this lease, effective when the physical taking of said Premises shall occur.
B. If part of the Premises shall be taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu thereof, and the
taking does not prevent or materially interfere with the use of the Premises,
and this lease is not terminated as provided in the subparagraph above, this
lease shall not terminate but the rent payable hereunder during the unexpired
portion of this lease shall be reduced to such extent as may be fair and
reasonable under all of the circumstances.
C. In the event of any such taking or private purchase in lieu
thereof, Landlord shall be entitled to receive and retain all compensation
awarded in any condemnation proceedings.
16. HOLDING OVER
Tenant will, at the termination of this lease by lapse of time or
otherwise, yield up immediate possession to Landlord. If Landlord agrees in
writing that Tenant may hold over after the expiration or termination of this
lease, unless the parties hereto otherwise agree in writing on the terms of such
holding over, the hold-over tenancy
shall be subject to termination by Landlord at any time upon not less than
thirty (30) days advance written notice, or by Tenant at any time upon not
less than thirty (30) days advance written notice, and all of the other terms
and provisions of this lease shall be applicable during that period, except
that Tenant shall pay Landlord from time to time upon demand, as rental for
the period of any hold-over, an amount equal to two (2) times rent in effect
on the termination date, computed on a daily basis for each day of the
hold-over period. 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 16 shall not be
construed as Landlord's consent for Tenant to hold over.
17. QUIET ENJOYMENT
Landlord covenants that it now has, or will acquire before
Tenant takes possession of the Premises, 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 are permitted by the terms
of this lease, 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. In the event this lease is a
sublease, then Tenant agrees to take the Premises subject to the provisions
of the prior leases. Landlord represents and warrants that it has full right
and authority to enter into this lease and that Tenant, upon paying the
rental herein set forth and performing its other covenants and agreements
herein set forth, 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.
18. EVENTS OF DEFAULT
The following events shall be deemed to be events of default by
Tenant under this lease:
(a) Tenant shall fail to pay any installment of the rent herein
reserved when due, or any payment with respect to taxes hereunder when due,
or any other payment or reimbursement to Landlord required herein when due,
and such failure shall continue for a period of five (5) days from the date
such payment was due after written notice of such default.
(b) Tenant shall become insolvent, or shall make a transfer in
fraud of creditors, or shall make an assignment for the benefit of creditors.
(c) Tenant shall be adjudged bankrupt or insolvent in proceedings
filed against Tenant thereunder.
(d) A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant.
(e) Tenant shall desert or vacate any substantial portion of the
Premises.
(f) Tenant shall fail to comply with any term, provision or
covenant of this lease (other than the foregoing in this Paragraph 18), and
shall not cure such failure within fifteen (15) days after written notice
thereof to Tenant.
19. REMEDIES
Upon the occurrence of any of such events of default described
in Paragraph 18 hereof, Landlord shall have the option to pursue any one or
more of the following remedies without any notice or demand whatsoever:
(a) Terminate this lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails so to do, Landlord
may, without prejudice to any other remedy which it may have for possession
or arrearage in rent, enter upon and take possession of the Premises and
expel or remove Tenant and any other person who may be occupying such
Premises or any part thereof, by force if necessary, without being liable for
prosecution or any claim of damages therefor; and Tenant agrees to pay
Landlord, on demand, the amount of all loss and damage which Landlord may
suffer by reason of such termination, whether through inability to relet the
Premises on satisfactory terms or otherwise.
(b) Enter upon and take possession of the Premises and expel or
remove Tenant and any other person who may be occupying such Premises or any
part thereof, by force if necessary, without being liable for prosecution or
any claim for damages therefor, and relet the Premises and receive the rent
therefore; and Tenant agrees to pay to the Landlord, on demand, any
deficiency that may arise by reason of such reletting. In the event Landlord
is successful in reletting the Premises at a rental in excess of that agreed
to be paid by Tenant pursuant to the terms of this lease, Landlord and Tenant
each mutually agree that Tenant shall not be entitled, under any
circumstances, to such excess rental, and Tenant does hereby specifically
waive any claim to such excess rental.
(c) Enter upon the Premises, by force if necessary, without being
liable for prosecution or any claim for damages therefor, 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 thus effecting compliance with Tenant's obligations under this lease, and
Tenant further agrees that Landlord shall not be liable for any damages
resulting to the Tenant from such action, whether caused by the negligence of
Landlord or otherwise.
(d) Alter locks and other securing devices at the Premises,
without being liable for prosecution or any claim of damages therefor, and
such alteration of locks and securing devices shall not be deemed
unauthorized or constitute a conversion. Tenant acknowledges that Landlord
may require full payment of all sums then due to Landlord under this lease as
a condition to Tenant's entitlement to a key to new or altered locks that
Landlord may have placed on the leased premises after an Event of Default.
(e) Receive payment from Tenant, in addition to any sum provided to
be paid above, for any and all of the following expenses for which Tenant shall
be considered liable:
1. Broker's fees incurred by Landlord in connection with
reletting the whole or any part of the Premises;
2. The cost of removing and storing Tenant's or other
occupant's property;
3. The cost of repairing, altering, remodeling or
otherwise putting the Premises into condition acceptable to a new tenant or
tenants, plus a reasonable charge to cover overhead; and
4. All reasonable expenses incurred by Landlord in
enforcing Landlord's remedies.
Pursuit of any of the foregoing remedies shall not preclude
pursuit of any of the other remedies herein provided or any other remedies
provided by law, nor shall pursuit of any remedy herein provided constitute a
forfeiture or waiver of any rent due to Landlord hereunder or of any damages
accruing to Landlord by reason of the violation of any of the terms, provisions
and covenants herein contained. No act or thing done by the Landlord or its
agents during the term hereby granted shall be deemed a termination of this
lease or an acceptance of the surrender of the Premises, and no agreement to
terminate this lease or accept a surrender of said Premises shall be valid
unless it is in writing and signed by Landlord. No waiver by Landlord of any
violation or breach of any of the terms, provisions and covenants herein
contained shall be deemed or construed to constitute a waiver of any other
violation or breach of any of the other terms, provisions and covenants herein
contained. Landlord's acceptance of the payment of rental or other payments
hereunder after the occurrence of an event of default shall not be construed as
a waiver of such default, unless Landlord so notifies Tenant in writing.
Forbearance of default shall not be deemed or construed to constitute a waiver
of such default or of Landlord's right to enforce any such remedies with respect
to such default of any subsequent default. If, on account of any breach or
default by Tenant in Tenant's obligations under the terms and conditions of this
lease, it shall become necessary or appropriate for Landlord to employ or
consult with an attorney concerning any of Landlord's rights or remedies
hereunder, Tenant agrees to pay any reasonable attorney's fees so incurred.
20. LANDLORD'S LIEN
Any statutory lien for rent is not hereby waived, the express
contractual lien herein granted being in addition and supplementary thereto.
21. MORTGAGES
Tenant accepts this lease subject and subordinate to any mortgage(s)
and/or deed(s) of trust now or at any time hereafter constituting a lien or
charge upon the Premises or the improvements situated thereon; provided,
however, that if the mortgagee, trustee or holder of any such mortgage or deed
of trust elects to have Tenant's interest in this lease superior to any such
instrument, then by notice to Tenant from such mortgagee, trustee or holder,
this lease shall be deemed superior to such lien, whether this lease was
executed before or after said mortgage or deed of trust. Tenant shall at any
time hereafter on demand execute any instruments, releases or other documents
which may be required by any mortgagee for the purpose of subjecting and
subordinating this lease to the lien of any such mortgage.
22. LANDLORD'S DEFAULT
23. MECHANIC'S LIENS
Tenant shall have 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 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, and each such claim shall affect and each such lien
shall attach to, if at all, only the leasehold interest granted to Tenant by
this instrument. 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 on which any lien is or can
be validly and legally asserted against its leasehold interest in the Premises
or the improvements thereon, and that it will save and hold Landlord harmless
from any and all loss, cost or expenses 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.
24. ASSIGNMENT BY LANDLORD
Landlord shall have the right to assign or transfer, in whole or in part,
every feature of its rights and obligations hereunder and in the Building and
leased Premises. Such assignments or transfers may be made to a corporation,
trust, trust company, individual or group of individuals, and howsoever made
shall be in all things respected and recognized by Tenant.
25. DISCLAIMER
This lease and the obligations of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on the part of the
Tenant to be performed shall not be affected, impaired or executed because
Landlord is unable to fulfill any of its covenants and obligations under this
lease, expressly or impliedly to be performed by Landlord, if Landlord is
prevented or delayed from doing so by reason of strike, labor troubles,
accident, adjustment to insurance, or by any reason or cause whatsoever
reasonably beyond Landlord's control. Reasons beyond Landlord's control shall
include, but not be limited to, laws, governmental preemption in connection with
a National Emergency or by any reason of any rule, order or regulation of any
governmental agency, federal, state, county or municipal authority or any
department or subdivision thereof, or by reason of the conditions of supply and
demand which have been or are affected by war or other emergency.
26. NOTICES
Each provision of this instrument or of any applicable governmental
laws, ordinances, regulations and other requirements with reference to the
sending, mailing or delivery of any notice or the making of any payment by
Landlord to Tenant or with reference to the sending, mailing or delivery 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 hereinbelow set
forth 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 hereinbelow set forth, 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 notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered, whether actually received or not,
three (3) days after being deposited in the United States mail, postage prepaid,
certified or registered mail return receipt requested, addressed to the parties
hereto at the respective addresses set out below, or at such other address as
they have theretofore specified by written notice delivered in accordance
herewith.
Landlord: Tenant:
c/o RW Management Company, Inc. United Stationers Supply Co.
0000 Xxxx Xxxxxxx, Xxxxx 000 0000 X. Xxxx Xxxx
Xxxxxxx, Xxxxx 00000 Xxx Xxxxxxx, XX. 00000
Attn.: President
Copy to: General Counsel
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 such 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 such 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 to this paragraph to the same
effect as if each had received such notice.
27. 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.
B. The terms, provisions and covenants and conditions contained in this
lease shall apply to, inure to the benefit of, and be binding upon the parties
hereto and upon their respective heirs, legal representatives, successors and
permitted assigns, except as otherwise herein expressly provided. Landlord shall
have the right to assign any of its rights and obligations under this lease.
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. Whenever a clause or provision of this lease requires Landlord's
consent or approval, Landlord agrees not to withhold or delay its consent or
approval unreasonably.
D. The captions inserted in this lease are for convenience only and
in no way define, 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.
E. Tenant agrees, if requested in writing by Landlord, to
furnish financial statements, bank references, credit references, or any other
financial data to Landlord as may be reasonably required to establish Tenant's
financial stability and credit-worthiness. Such information will be furnished
with 10 days of request.
F. This lease may not be altered, changed or amended except by
an instrument in writing signed by both parties hereto.
G. 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 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,
equipment therein, in good repair. 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 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 amount payable by Tenant under this Paragraph 27.G.
H. 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 provision
of this lease that is illegal, invalid or unenforceable, there be added as a
part of this lease contract 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.
I. Because the Premises are on the open market and are presently
being shown, this lease shall be treated as an offer with the Premises being
subject to prior lease and such offer subject to withdrawal or non-acceptance by
Landlord or to other use of the Premises without notice, and this lease shall
not be valid or binding unless and until accepted by Landlord in writing and a
fully executed copy delivered to both parties hereto.
J. 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.
K. Tenant agrees, from time to time within ten (10) days after
request of Landlord, to deliver an estoppel certificate to Landlord or
Landlord's designee. Such estoppel certificate shall state that this lease is
in full force and effect, the date to which rent has been paid, the unexpired
term of this lease and such other matters pertaining to this lease as may be
requested by Landlord.
L. See Exhibits "A", "B", "C" and "D" attached hereto and made a
part hereof.
EXECUTED by the parties this day of , 19 _.
LANDLORD: Amberjack Limited Partnership
By: _________________________________________________
Xxxxxx X. Xxxxxx
Title: Manager
ATTEST:
By: _________________________________________________
Xxxxx X. Xxxxxx
Title: V.P. for Manager
Before me, the above signed authority on this day personally appeared Xxxxxx X.
Xxxxxx, of RW Management Company, Inc., a Corporation, known to me to be the
person whose name is subscribed to the foregoing instrument, and acknowledged to
me that he executed the same for the purposes and consideration therein
expressed, and in the capacity stated.
Given under my hand and seal of office on this, the _______ day of
__________________, 1997.
_______________________________________________
Notary Public, State of Texas, County of Xxxxxx
TENANT: United Stationers Supply Co., an Illinois corporation
By: _______________________________________
Title: ____________________________________
ATTEST:
By: _______________________________________
Title: _____________________________________
Before me, the above signed authority on this day personally appeared Xxxxxx
Xxxxxxx, of United Stationers Supply Co., an Illinois corporation, known to me
to be the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, and in the capacity stated.
Given under my hand and seal of office on this, the _______day of ____________,
1997.
____________________________________
Notary Public, State of Illinois
County of Xxxx
EXHIBIT "A"
Legal Description
BUILDING A
All that certain 5.914 acres of land out of a 31.015 acre tract of land
described in a deed dated January 24, 1977 from Longhemp Corp. to I.D.S. Realty
Trust filed in the official public records at County Clerk File No. F-037766 out
of the Xxxx Xxxxxxx Survey, Abstract 269, Xxxxxx County, Texas and being more
particularly described by metes and bounds as follows:
Commencing at a 1-1/2" pinched-top pipe found marking the northwest corner of
the above mentioned 31.015 acre tract, said pipe located in the southwesterly
right-of-way line of the H.& T.C.R.R. (100' wide), thence south 49DEG. 40' 00"
East - 1234.76' along said southwesterly right-of-way line to the POINT OF
BEGINNING of the herein described tract.
THENCE South 49DEG. 40' 00" East - 365.96', continuing with said southwesterly
right-of-way line to a point for corner;
THENCE South 00DEG. 15' 00" West - 801.65' to a point for corner, located in
the north right-of-way line of Long Point Road (60.00' wide);
THENCE North 89DEG. 59' 00" West - 280.00' along said north right-of-way line
to a point for corner;
THENCE North 00DEG. 15' 00" East - 1038.43' to the POINT OF BEGINNING and
containing 5.914 acres of land, more or less.
EXHIBIT "B"
[FLOOR PLAN OF BUILDING]
Leased premises approximately 23,600 square feet of space located at
0000 Xxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx
Special Provisions
Exhibit "C" - Paragraph 28
a. EARLY OCCUPANCY:
In the event Tenant shall occupy the leased premises prior to March 1,
1997, then all of the terms, covenants and conditions of this lease shall be in
full force and effect beginning on the date of occupancy. Tenant's rental for
the partial month of February, 1997 (if any) shall be prorated at the rate of
$220.26 per day; such amount being due and payable upon occupancy by Tenant.
b. OCCUPANCY COSTS:
Tenant shall pay its proportionate share of projected operating expenses
for common area services, providing monitoring services, if any, and
reimbursable operating expenses as the actual expenses exceed the amounts
specified in Paragraphs 4. and 7. and 13. of the Lease Agreement. As used
herein, building(s), Building or Project are synonymous with the total area
combined in the one (1) buildings consisting of approximately 138,800 square
feet. Tenant's proportionate share of the taxes, insurance, and common area
services is 17.0028 %. Tenant agrees to pay Landlord such sums as additional
rental upon demand. At the end of each calendar year, or from time to time
thereafter, as Landlord may elect, Tenant agrees to pay Landlord as additional
rental, upon demand, the amount that the actual Taxes, Insurance and Common Area
Maintenance Expenses exceed Tenant's total estimated payments. At the end of
each calendar year, or from time to time thereafter, as Landlord may elect,
Landlord may raise or lower the estimated amount paid monthly by Tenant, so that
Tenant's payments are equal to the projected Taxes, Insurance and Common Area
Maintenance Expenses for that calendar year. Effective March 1, 1997, Tenant
shall pay monthly Base Rent and estimated payments as follows:
Base Rent as set forth in Paragraph 2A $ 5,968.00
Estimated Common Area Service Payment 640.00
--------
Initial Monthly Payment Total $ 6,608.00
c. ADA:
The leased premises, excluding uses for retail sales and premises open to the
general public, comply fully with (and no notices of violation have been
received in connection with) all environmental, air quality, building, health,
fire, safety, and governmental or regulatory rules, laws, ordinances, statutes,
codes and requirements applicable to the leased premises, including the
Americans with Disabilities Act of 1990. However, in the event that through
amendment, interpretation or through Tenant's use of the leased premises,
modifications to same become necessary to fully comply with the terms and
provisions of the Americans with Disabilities Act of 1990, the parties agree
that it shall be the sole responsibility of the Tenant to comply with any and
all provisions of the Americans with Disabilities Act of 1990, as same may be
amended or interpreted in the future, and Tenant agrees to be fully responsible
for all expenses related to the tenant improvements or the later modifications
of the leased premises and/or the entire entry area of the leased premises
during the term of this Lease Agreement. The Tenant further agrees to
indemnify and hold the Landlord harmless against any claims which may arise out
of Tenant's failure to comply with the Americans with Disabilities Act of 1990.
Such indemnification shall include, but shall not be limited to, all fines, fees
and penalties, and all legal and other expenses (including attorney's fees),
incurred by Landlord and for the costs of collection of the sums due under the
terms of this indemnity.
d. INDEPENDENT COVENANTS:
Landlord shall have no liability by reason of any apparent or latent
defect therein. Tenant hereby waives and relinquishes any right to assert,
either as a claim or a defense, that Landlord is bound to perform or is
liable for the nonperformance of any implied covenant or implied duty of
Landlord not expressly set forth in this Lease. Tenant hereby waives any
implied warranty by Landlord that the Premises are suitable for their
intended commercial purposes and, further acknowledges that the obligations
of Tenant under this Lease (including, without limitation, the obligation of
Tenant to pay rent) are independent of any such implied warranty and are
independent of all other covenants and warranties of Landlord. Tenant agrees
to perform all of its obligations under this Lease (including, without
limitation, the obligation of Tenant to pay rent) irrespective of any breach
or alleged breach by Landlord of any such implied warranty. It is the intent
and agreement of Landlord and Tenant that, so long as Tenant has not been
wrongfully evicted or constructively evicted from the Premises, the doctrine
of independent covenants will apply in all matters relating to this Lease
(including, without limitation, the obligation of Landlord to perform
Landlord's lease covenants and the obligation of Tenant to pay rent and the
other monetary amounts and perform Tenant's other covenants provided under
this Lease).
e. PRE-OCCUPANCY INSPECTION:
Prior to Tenant's occupancy of the Leased Premises, Tenant and
Landlord's representative shall conduct an inspection of the Leased Premises
to document the existing condition of the space not affected by any work
stipulated in the lease documents. Such inspection shall identify the
location and condition of any existing damage and/or above ordinary wear and
tear that exists in the Leased Premises at the time of Tenant's taking
possession of the space. An inspection report will be prepared by the
Landlord's representative and submitted to Tenant for execution and
acknowledgment. Tenant's acceptance of the Leased Premises shall be subject
to the existing condition of the Leased Premises, and Tenant shall not be
responsible for restoring any damage/above ordinary wear and tear that
existed as of Tenant's occupancy of the Leased Premises, per the
pre-occupancy inspection letter agreement.
f. WEAR AND TEAR:
Pursuant to Paragraph 6. of this Lease Agreement, at the termination of
this Lease Agreement, Tenant agrees to surrender the leased premises to
Landlord in the same condition as when occupancy was taken by Tenant,
ordinary wear & tear excluded. Ordinary wear and tear as described above
shall be that condition or conditions which may exist as a result of the use
of the leased premises in the ordinary course of business which does not
physically alter the character of the leased premises, beyond smudges to the
paint, washable blemishes to any wallcoverings, or carpet wear as a result of
normal foot traffic. Damages to the leased premises which exceed ordinary
wear and tear include but shall not be limited to:
1. Doors: holes, stains, chips, missing hardware, and/or
displacement.
2. Overhead Doors: holes, bent panels or tracks, missing or damaged
rollers, inoperable condition, and/or missing hardware.
3. Office Walls: holes, stains, unwashable marks and/or gouges.
4. Warehouse Walls: holes, cracks, displacement, gouges, unwashable
marks, and/or graffiti.
5. Ceiling Tile: holes, chips, and/or missing.
6. Pipe Bollards and Structural Columns: bent, dented, cracked, and/or
displaced.
7. Floors: cracks or gouges caused by Tenant's operation, holes,
equipment mounting plates or bolts and/or any unremoved foreign
material from the floor surface; i.e. spilled epoxy, glues, oils, etc.
8. Carpet: unremovable stains, mildew, chair wear, and/or tears.
9. Electrical: broken light lenses or lights, chipped electrical
outletsor switches, damaged electrical panels, inoperable fixtures,
any unremoved electrical conduits, boxes or wiring added by Tenant.
10. Sprinklers: heads damaged or missing; damaged pipes, valves, and/or
risers.
11. Warehouse Heaters: missing or damaged thermostats, covers bent or
missing, units displaced, vents damaged or missing, gas piping damaged
or missing, and/or unit inoperable.
12. Air Conditioning Systems: thermostats missing and/or inoperable,
disconnected duct work; dirty air diffusers, coils and/or filters;
unit inoperable, improperly serviced and/or not in proper working
condition.
13. Exterior Building: bent or displaced downspouts, damaged or missing
truck bumpers, any cracks or damages to the exterior wall, any broken
or cracked windows, and/or any graffiti.
14. Parking Lot: cracks, gouges, or any damage caused by Tenant's
operation.
15. Any equipment or part of the Premises described in Paragraph 6 of
the Lease Agreement that is not operational and in proper condition as
described therein.
g. ASSIGNMENT AND SUBLETTING CRITERIA:
i. Pursuant to Paragraph 12 of the lease, Landlord shall look at the
following criteria in making a decision as to consenting to any request by
Tenant to sublease or assignment of the leased premises, other than to an
affiliate or subsidiary of Tenant:
(1). Tenant shall, at the time of making such request, not be in
default of any of the terms, covenants or conditions of this lease;
and
(2). The prospective subtenant or assignee's parking shall be no
greater than that amount allocated to Tenant; and
(3). The prospective subtenant or assignee's credit shall be
acceptable to Landlord; and
(4). The prospective subtenant or assignee's use of the leased
premises shall be compatible with the other tenants in the project and
in compliance with the terms of this lease; and
(5) If Landlord is in negotiations with a prospective subtenant
or assignee prior to Tenant's request to sublease or assign the space,
Landlord shall have the right to refuse Tenant's request to sublease
or assignment of the leased premises.
ii. In the event Landlord consents to a sublease or assignment and is
called upon to prepare the necessary documentation, Landlord shall be entitled
to a fee of $300.00 for preparation of said documents. This fee shall be apart
from, and in addition to, any leasing commissions, renovations, or other costs
incidental to the subleasing or assignment of the leased premises.
iii. In the event Tenant subleases or assigns the leased premises, Landlord
shall be entitled to all net rents in excess of Tenant's monthly rent collected
or received by Landlord, less the monthly proration of Tenant's costs for
renovations, construction, or direct costs incidental to the subleasing or
assignment of the leased premises.
h. DEMISING WALL:
One boundary of the Leased Premises is defined by the yellow tape attached
to the floor and wall. Tenant is not allowed to expand beyond that point and
will be monitored by RW Management Company personnel. Should any infraction of
this boundary line be detected, Tenant shall be responsible for a full month's
rental on the adjacent bay(s) or $1,S12.00/bay. Landlord, at Landlord's sole
cost and expense, shall have the option to construct a permanent demising wall
at any time during the term of this lease.
EXHIBIT "D"
HAZARDOUS MATERIAL
1. Tenant shall not cause or permit any Hazardous Material to be
brought upon, manufactured, kept, or used in or about the Premises by Tenant,
its agents, employees, contractors, or invitees, except for such Hazardous
Material as is necessary or useful to Tenant's business and the use of which is
expressly approved by Landlord in writing.
2. Any Hazardous Material permitted on the Premises as provided in
Section 1, and all containers therefor, shall be used, kept, stored, and
disposed of in a manner that complies with all federal, state, and local laws
or regulations applicable to this Hazardous Material.
3. Tenant shall not discharge, leak, or emit, or permit to be
discharged, leaked, or emitted, any material into the Premises, the building
which includes the Premises, the atmosphere, ground, sewer system, or any
body of water, if that material (as is reasonably determined by the Landlord,
or any governmental authority) does or may pollute or contaminate the same,
or may adversely affect (a) the health, welfare, or safety of persons,
whether located on the Premises or elsewhere, or (b) the condition, use, or
enjoyment of the building or any other real or personal property.
4. At the commencement of each Lease Year, Tenant shall disclose to
Landlord the names and approximate amounts of all Hazardous Material that
Tenant intends to store, use, or dispose of on the Premises in the coming
Lease Year. In addition, at the commencement of each Lease Year, beginning
with the second Lease Year, Tenant shall disclose to Landlord the names and
amounts of all Hazardous Materials that were actually used, stored, or
disposed of on the Premises if those material were not previously identified
to the Landlord at the commencement of the previous Lease Year.
5. As used herein, the term "Hazardous Material" means (a) any
"hazardous waste" as defined by the Resource Conservation and Recovery Act of
1976, as amended from time to time, and regulations promulgated thereunder;
(b) any "hazardous substance" as defined by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to
time, and regulations promulgated thereunder; (c) any oil, petroleum
products, and their by-products; (d) any substance that is or become
regulated by any federal, state, or local governmental authority; and (e)
any other ignitable, reactive, corrosive, hazardous, toxic or dangerous
substance or material.
6. Tenant hereby agrees that it shall be fully liable for all costs and
expenses related to the use, manufacture, storage, and disposal of Hazardous
Material kept on the Premises, and the Tenant shall give immediate notice to
the Landlord of any violation or potential violation of the provisions of
Section 2. Tenant shall defend, indemnify, and hold harmless Landlord, and
its agents, and employees from and against all claims, demands, penalties,
fines, liabilities, settlements, damages, costs, expenses (including, without
limitation, attorneys and consultants fees, court costs, and litigation
expenses), or losses (including, without limitation, a decrease in value of
the Premises or the land or building on which the Premises are a part, loss
or restriction of rentable or usable space) of whatever kind or nature, known
or unknown, contingent or otherwise, arising out of or in any way related to
(a) the presence, disposal, release, or threatened release of any such
Hazardous Material that is on, from, or affecting the soil, water,
vegetation, buildings, personal property, persons, animals, or otherwise; (b)
any personal injury (including wrongful death) or property damage (real or
personal) arising out of or related to that Hazardous Material; (c) any
lawsuit brought or threatened, settlement reached, or government order
relating to that Hazardous Material; (d) any violation of any laws applicable
thereto; or (e) any violation of any requirements or provisions of this lease
concerning Hazardous Material. The provisions of this Section 6 shall be
in addition to any other obligations and liabilities Tenant may have to
Landlord at law or equity and shall survive the transactions contemplated
herein and shall survive the termination of this lease.
TENANT'S RESPONSIBILITY REGARDING HAZARDOUS SUBSTANCES
1. Hazardous Substances.
The term "Hazardous Substances", as used in this lease, shall include,
without limitations, flammable, explosives, radioactive materials,
asbestos, polychlorinated biphenyl (PCB), chemicals known to cause cancer
or reproductive toxicity, pollutants, contaminants, hazardous wastes,
toxic substances or related materials, petroleum and petroleum products,
and substances declared to be hazardous or toxic under any law or
regulation now or hereafter enacted or promulgated by any governmental
authority.
2. Tenant's Restrictions.
Tenant shall not cause or permit to occur:
(a) Any violation of any federal, state, or local law, ordinance, or
regulation now or hereafter enacted, related to environmental
conditions on, under, or about the Premises, or arising from
Tenant's use or occupancy of the Premises, including, but not
limited to, soil and ground water conditions; or
(b) The use, generation, release, manufacture, refining, production,
processing, storage, or disposal of any Hazardous Substance on, under
or about the Premises, or the transportation to or from the Premises
of any Hazardous Substance, except as specifically disclosed on
Schedule A to this lease.
3. Environmental Clean-up.
(a) Tenant shall, at Tenant's own expense, comply with all laws
regulating the use, generation, storage, transportation, or
disposal of Hazardous Substances ("Laws").
(b) Tenant shall, at Tenant's own expense, make all submissions
to, provide all information required by, and comply with all
requirements of all governmental authorities (the "Authorities")
under the Laws.
(c) Should any Authority or any third party demand that a clean-up
plan be prepared and that a clean-up be undertaken because of any
deposit, spill, discharge, or other release of Hazardous Substances
that occurs during the term of this lease, at or from the Premises, or
which arises at any time from Tenant's use or occupancy of the
Premises, then Tenant shall, at Tenant's own expense, prepare and
submit the required plans and all related bonds and other financial
assurances; and Tenant shall carry out all such clean-up plans.
(d) Tenant shall promptly provide all information regarding the use,
generation, storage, transportation, or disposal of Hazardous
Substances that is requested by Owner. If Tenant fails to fulfill any
duty imposed under this Paragraph (3) within reasonable time, Owner
may do so; and in such case, Tenant shall cooperate with Owner in
order to prepare all documents Owner deems necessary or appropriate to
determine the applicability of the Laws to the Premises and Tenant's
use thereof, and for compliance therewith, the Tenant shall execute
all documents promptly upon Owner's request. No such action by Owner
and no attempt made by Owner to mitigate damages under any Law shall
constitute a waiver of any of Tenant's obligations under this
Paragraph (3).
(e) Tenant's obligations and liabilities under this Paragraph (3)
shall survive the expiration of this lease.
4. Tenant's Indemnity.
(a) Tenant shall indemnify, defend, and hold harmless the Owner,
manager of the property, and their respective officers, directors,
beneficiaries, shareholders, partners, agents, and employees from all
fines, suits, procedures, claims and actions of every kind, and all
costs associated therewith (including attorneys' and consultants'
fees) arising out of or in any way connected with any deposit, spill,
discharge, or other release of Hazardous Substances that occurs during
the term of this lease, at or from the Premises, or which arises at
any time from Tenant's use or occupancy of the Premises, or from
Tenant's failure to provide all information, make all submissions,
and take all steps required by all Authorities under the laws and
all other environmental laws.
(b) Tenant's obligations and liabilities under this Paragraph (4)
shall survive the expiration of this lease.
