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EXHIBIT 10.10
NET COMMERCIAL LEASE AGREEMENT
STATE OF TEXAS
COUNTY OF DALLAS
THIS LEASE AGREEMENT made and entered into by and between ▇▇▇▇▇▇▇
ELECTRIC, INC., a Texas Corporation hereinafter referred to as "Landlord," and
UP-RIGHT, INC. hereinafter referred to as "Tenant."
WITNESSETH:
Landlord hereby leases to Tenant, and Tenant hereby takes from
Landlord the following described premises (hereinafter referred to as the
"demised premises") situated within the County of Dallas, State of Texas:
See Exhibit "A" attached hereto and made a part hereof.
together with all rights, privileges, easements and appurtenances belonging to
or in any way pertaining to the demised premises and together with the building
and other improvements now situated or to be erected upon the demised premises.
TO HAVE AND TO HOLD the same for a term of Three (3) years beginning
on January 1, 1990,1 upon the following terms, conditions and covenants:
1. RENT: Tenant agrees to pay the Landlord rent for the demised
premises at the rate of Four Thousand Five Hundred Eighty-Three and 33/100
Dollars ($4,583.33) "base rent" per month in advance. One such monthly
installment shall be due and payable on or before the beginning date of this
lease, and a like monthly installment shall be due and payable on or before the
first day of each succeeding calendar month during the term hereof; provided
that, in the event the term hereof shall commence or end during a calendar
month, the rent for any fractional calendar month following the commencement or
preceding the end of the term of this lease shall be pro rated by days. (If
percentage rent is to be payable to Landlord, refer to Exhibit A attached to
this lease. In such case Exhibit A shall be incorporated into and become a
part of this lease when physically attached hereto.)
Tenant has deposited with landlord, upon delivery of this lease, Nine
Thousand One Hundred Sixty-Six and 66/100 Dollars ($9,166.66) to be applied as
follows:
(a) $4,583.33 for rent for the month of January, 1990.
(b) $4,583.33 as a security deposit. Such security deposit shall
be held by Landlord without interest as security for the performance by Tenant
of Tenant's covenants and obligations under this lease. The security deposit
is not an advance payment of rental or the full measure of liquidated damages
in case of default by Tenant. Upon the occurrence of any event of default,
Landlord may, from time to time, without prejudice to any other remedy provided
herein or provided by law, use the security deposit to the extent necessary to
make good any arrears of rent and any other damage, injury, expense or
liability caused to Landlord by such event of default. Following any such
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1 Landlord agrees to use its best efforts to vacate the demised premises by
December 15, 1989. If Landlord vacates the demised premises early, the
commencement date of the lease shall be the sooner of the date Tenant occupies
the demised premises or five days after Landlord gives Tenant written notice it
may occupy the demised premises. Notwithstanding the above, provided that
Tenant [illegible].
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application of the security deposit, Tenant shall pay to Landlord, on demand,
the amount so applied in order to restore the security deposit to its original
amount. If Tenant is not in default, hereunder, any remaining balance of such
deposit shall be returned by Landlord to Tenant upon expiration or termination
of this lease.
2. ACCEPTANCE OF PREMISES:
Tenant acknowledges that it has fully inspected the demised premises
and accepts the demised premises, and any buildings and improvements situated
thereon, as suitable for the purposes for which the same are leased in their
present condition, except Tenant, at Tenant's expense, may convert the office
space outlined in red as shown on Exhibit "B" attached hereto and made a part
hereof into additional warehouse space; and if so, Tenant may remove only the
interior walls, doors, door frames, ceiling, light fixtures, carpet in such
manner that Landlord will be able to reuse such material at the end of this
lease. Tenant shall notify Landlord in writing when such items have been
removed and Landlord shall arrange for the storage of such equipment within 15
days after receipt of such notice. (If this lease provides for a building to be
constructed for Tenant, refer to Exhibit B attached to this lease. In such
case this paragraph 2 shall become inapplicable, and Exhibit B shall be
incorporated into and become a part of this lease when physically attached
hereto.)
3. USE OF PREMISES:
The demised premises shall be used and occupied only for the purpose
of leasing and maintaining scaffolding and construction equipment, and not
otherwise. Tenant shall at its own expense obtain any and all governmental
licenses and permits necessary for such use.
4. COMPLIANCE OF LAW:
Tenant shall comply with all governmental laws, ordinances and
regulations applicable to the use of the demised premises, and shall promptly
comply with all governmental orders and directives for the correction,
prevention and abatement of nuisances in or upon, or connected with the demised
premises, all at Tenant's sole expense. Tenant shall not have on the demised
premises any hazardous materials.
5. REAL ESTATE TAXES:
See Special Provisions on Exhibit "C" attached hereto and made a part
hereof.
6. REPAIRS AND MAINTENANCE:
(a) Tenant shall at its own cost and expense keep, maintain and
take good care of the premises and make all necessary repairs thereto, interior
and exterior, non-structural, ordinary and extraordinary, and shall suffer no
waste or nuisance, provided at the end of the term or other termination of this
lease, Tenant shall deliver the premises with all improvements thereon in good
repair and condition, reasonable wear and tear only excepted. The air
conditioning and heating systems shall be in operable condition.
(b) Tenant shall at its own cost and expense care for the grounds
around the buildings on the premises, including the regular mowing of grass,
care of shrubs and general landscaping, and maintenance of the parking areas,
driveways, alleys and shall maintain the whole of the premises in a clean and
sanitary condition.
(c) Tenant shall enter into maintenance contracts for the heating
and air conditioning system and for lawn and landscaping which shall be subject
to
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Landlord's reasonable approval and shall be furnished to Landlord within 30
days after lease commencement. Renewals shall be timely furnished.
(d) In the event Tenant shall fail to maintain the demised
premises or any paving, landscaping or railroad siding in accordance with this
paragraph 6, Landlord shall have the right (but not the obligation) to cause
all repairs or other maintenance to be made and the reasonable costs therefor
expended by Landlord shall be paid by Tenant on written demand.
7. ALTERATIONS, ADDITIONS AND IMPROVEMENTS:
Tenant shall not create any openings in the roof or exterior walls, or
make any alterations, additions or improvements to the demised premises without
prior written consent of Landlord. Consent for non-structural alterations,
additions or improvements shall not be unreasonably withheld by Landlord.
Tenant shall have the right to erect or install shelves, bins, machinery,
air-conditioning or heating equipment and trade fixtures, provided that Tenant
complies with all applicable governmental laws, ordinances and regulations. At
the expiration or termination of this lease, Tenant shall have the right to
remove such items so installed, provided Tenant is not in default at the time
of such removal and provided further that Tenant shall, at the time of removal
of such items, repair in a good and workmanlike manner any damage caused by
installation or removal thereof.
Tenant shall pay for all costs incurred or arising out of alterations,
additions or improvements in or to the demised premises and shall not permit a
mechanic's or materialman's lien to be asserted against the demised premises.
Upon request by Landlord, Tenant shall deliver to Landlord proof of payment
reasonably satisfactory to Landlord of all costs incurred or arising out of any
such alterations, additions or improvements, and lien waivers.
All alterations, additions or improvements in or to the demised
premises shall become the property of Landlord at the expiration or termination
of this lease, however, Landlord may direct the removal of alterations,
additions or improvements by giving written notice to Tenant prior to the
expiration or termination of this lease. At the direction of Landlord, Tenant
shall promptly remove all alterations, additions and improvements and any other
property placed in the demised premises by Tenant and Tenant shall repair in a
good and workmanlike manner any damage caused by such removal.
8. SIGNS:
Tenant shall not place or affix any signs or other objects upon or to
the roof or exterior walls of the demised premises or paint or otherwise deface
the exterior walls of the demised premises without the prior written consent of
Landlord. Any signs installed by Tenant shall conform with applicable laws and
deed and other restrictions. Tenant shall remove all signs at the termination
of this lease and shall repair any damage and close any holes caused or
revealed by such removal.
9. INSURANCE, FIRE AND CASUALTY DAMAGE:
See Special Provisions on Exhibit "C" attached hereto and made a part
hereof.
(a) Landlord agrees to maintain insurance covering the building of
which the demised premises are a part in an amount not less than 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, Lightning, Extended Coverage, Vandalism
and Malicious Mischief, extended by Special Extended Coverage Endorsement to
insure against all other Risks of Direct Physical Loss, such coverages and
endorsements to be as defined, provided and limited in the standard bureau
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forms prescribed by the insurance regulatory authority for the State in which
the demised premises are situated for use by insurance companies admitted in
such state for the writing of such insurance on risks located within such
state. Subject to the provisions of subparagraphs 9(b) and 9(e) below, such
insurance shall be for the sole benefit of Landlord and under its sole control.
Tenant agrees to any Landlord's cost of maintaining such insurance on said
building. Said payments shall be made to Landlord per Exhibit "C".
(b) If the buildings situated upon the premises should be damaged
or destroyed by any peril covered by the insurance to be provided by Landlord
under subparagraph 9(a) above, Tenant shall give immediate notice thereof to
Landlord if the holder of any deed of trust covering the demised premises does
not require that the insurance proceeds payable on account of such casualty be
applied to reduce the indebtedness secured thereby, 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 or destruction, except that Landlord shall not be required
to rebuild, repair or replace any part of the partitions, fixtures, additions
or other improvements which may have been placed in, on or about the premises
by Tenant and except that Tenant shall pay to Landlord upon demand any
applicable deductible amounts specified under Landlord's insurance. The rent
payable hereunder shall in no event ▇▇▇▇▇ by reason of any damage or
destruction.
(c) If the buildings situated upon the premises should be damaged
or destroyed by a casualty other than a peril covered by the insurance to be
provided by Landlord under subparagraph 9(a) above, or if any other
improvements situated on the demised premises should be in any manner damaged
or destroyed, Tenant shall at its sole cost and expense thereupon proceed with
reasonable diligence to rebuild and repair such buildings and/or improvements
to substantially the condition in which they existed prior to such damage or
destruction, subject to Landlord's approval of the plans and specifications for
such rebuilding and repairing, which approval shall not be unreasonably
withheld. Tenant's obligation hereunder shall not include destruction of the
premises by war, riot, civil disobedience, or flood.
(d) Tenant covenants and agrees to maintain insurance on all
alterations, additions, partitions and improvements erected by, or on behalf
of, Tenant in, on or about the demised premises in an amount not less than 90%
(or such greater percentage as may necessary to comply with the provisions of
any co-insurance clause of the policy) of the "replacement cost" thereof as
such term is defined in the Replacement Cost Endorsement to be attached hereto.
Such insurance shall insure against the perils and be in form, including
stipulated endorsements, as provided in subparagraph 9(b) hereof. Such
insurance shall be for the sole benefit of Tenant and under its sole control.
All such policies shall be procured by Tenant from responsible insurance
companies satisfactory to Landlord. Certified copies of policies of such
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,
certified copies of 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 cancelled or changed to reduce
insurance provided thereby.
(e) Notwithstanding anything herein to the contrary, in the event
the holder of any indebtedness secured by a manager or deed of trust covering
the premises required that the insurance proceeds be applied to such
indebtedness then the 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.
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10. WAIVER OF SUBROGATION:
Each party hereto waives any and every claim which arises or may arise
in its favor against the other party hereto during the term of this lease or
any renewal or extension thereof for any and all loss of, or damage to, any of
its property located within or upon, or constituting a part of, the demised
premises, which loss or damage is covered by valid and collectible fire and
extended coverage insurance policies, to the extent that such loss or damage is
recoverable under such insurance policies. Such mutual waivers shall be in
addition to, and not in limitation or derogation of, any other waiver or
release contained in this lease with respect to any loss of, or damage to,
property of the parties hereto. Inasmuch as such mutual waivers will preclude
the assignment of any aforesaid claim by way of subrogation or otherwise to an
insurance company (or any other person), each party hereby agrees immediately
to give to each insurance company which has issued to its policies of fire and
extended coverage insurance, written notice of the terms of such mutual
waivers, and to cause such insurance policies to be properly endorsed, if
necessary, to prevent the invalidation of such insurance coverages by reason of
such waivers.
Landlord and its authorized agents shall have the right, during normal
business hours, to enter the demised premises (a) to inspect the general
condition and state of repair thereof, (b) to make repairs required or
permitted under this lease, (c) to show the premises to any prospective tenant
or purchaser or insurance agent or inspector or (d) for any other reasonable
purpose.
During the final 150 days of the lease term, Landlord and its
authorized agents shall have the right to erect and maintain on or about the
demised premises customary signs advertising the property for lease or for
sale.
11. [No section 11.]
12. UTILITY SERVICES:
Tenant shall pay the cost of all utility services, including but not
limited to initial connection charges, all charges for gas, water and
electricity used on the demised premises, and for all electric lights, lamps
and tubes.
13. ASSIGNMENT AND SUBLEASING:
See Special Provisions on Exhibit "C" attached hereto and made a part
hereof.
14. INDEMNITY AND PUBLIC LIABILITY INSURANCE:
(a) 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, caused by the
negligence or misconduct of Tenant, its agents, servants or employees, or of
any other person entering upon the premises under express or implied invitation
of Tenant, 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, or due to any cause whatsoever,
whether Tenant is the sole, concurrent, joint, or proximate cause, and Tenant
agrees to indemnify Landlord and hold it harmless from any loss, expenses or
claims including attorney's fees, arising out of any such damage or injury,
except injury in persons or damage to property the sole cause of which is the
negligence of the Landlord.
(b) Tenant shall procure and maintain throughout the term of this
lease a policy or policies of insurance, at its sole cost and expense, insuring
both Landlord and Tenant against all claims, demands, or actions arising out of
or
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in connection with: (i) the premises; (ii) the condition of the premises, the
limits of such policy or policies to be in the amount of not less than $300,000
per person and $1,000,000 per occurrence in respect of injury to persons
(including death), and in the amount of not less than $50,000 per occurrence in
respect to property damage or destruction, including loss of use thereof. All
such policies shall be procured by Tenant from responsible insurance companies
satisfactory to Landlord. Certified copies of such policies, 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, certified copies of 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 cancelled or changed to reduce insurance provided thereby.
(c) If Tenant should fail to comply with the foregoing
requirements relating to insurance, Landlord may obtain such insurance, and
Tenant shall pay to Landlord on demand, as additional rental hereunder, the
premium cost thereof plus interest at the rate of ten percent (10%) per annum
from the date of payment by Landlord until repaid by Tenant.
15. CONDEMNATION:
A. If, during the term of this lease or any execution or renewal
thereof, all or a substantial part of the demised premises should be taken for
any public or quasi-public use under any governmental law, ordinance regulation
or by right of eminent domain, or should be sold to the condemnity authority
under threat of condemnation, this lease shall terminate and the rent shall be
abated during the unexpired portion of this lease, effective from the date of
taking of the demised premises by the condemnity authority.
B. If less than a substantial part of the demised premises is
taken for public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain, or is sold to the condemnity
authority under threat of condemnation, Landlord, at its option, may by written
notice terminate this lease or shall forthwith at its sole expense restore and
reconstruct the buildings and improvements (other than leasehold improvements
made by tenant or any assignee, subtenant or other occupant of the demised
premises) situated on the demised premises in order to make the same reasonably
tenantable and suitable for the uses for which the demised premises are leased
as defined in paragraph 3. The rent payable hereunder during the unexpired
portion of this lease shall be adjusted equitable.
C. Landlord and Tenant shall be entitled to receive and retain
such separate awards and portions of lump sum awards as may be allocated to
their respective interests in any condemnation proceedings. The termination of
this lease shall not affect the rights of the respective parties to such
awards.
16. HOLDING OVER.
Should Tenant, or any of its successors in interest fail to surrender
the demised premises, or any part thereof, on the expiration of the term of
this lease, such holding over shall constitute a tenancy from month to month,
at a monthly rental equal to 125% of the rent paid for the last month of the
term of this lease unless otherwise agreed in writing.
17. DEFAULT BY TENANT:
The following events shall be deemed to be events of default under
this lease;
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A. Failure of Tenant to pay any installment of the rent or other sum
payable to Landlord hereunder on the date that same is due in which event a 10%
late charge on such amount shall also be due.
B. Failure of Tenant to comply with any term, condition or covenant
of this lease, other than the payment of rent or other sum of money, and such
failure shall not be cured within the lesser of the time reasonably necessary to
cure such default or 30 days after written notice thereof to Tenant.
C. Insolvency, the making of a transfer in fraud of creditors, or the
making of an assignment for the benefit of creditors by Tenant or any guarantor
of Tenant's obligations.
D. Filing of a petition under any section or chapter of the National
Bankruptcy Act, as amended, or under any similar law or statute of the United
States or any State thereof by Tenant or any guarantor of Tenant's obligations
or adjudication as a bankrupt or insolvent in proceedings filed against Tenant
or such guarantor.
E. Appointment of a receiver or trustee for all or substantially all
of the assets of Tenant or any guarantor of Tenant's obligation hereunder.
F. Abandonment by Tenant of any substantial portion of the demised
premises or cessation of the use of the demised premises for the purpose
leased.
18. REMEDIES OF LANDLORD.
Upon the occurrence of any of the events of default listed in Section
19, 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 demised premises to Landlord. If Tenant fails to so surrender
such premises, Landlord may, without prejudice to any order remedy which it may
have for possession of the demised premises or arrearages in rent, enter upon
and take possession of the demised 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. Tenant shall pay to 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 demised premises on satisfactory terms or otherwise.
B. Enter upon and take possession of the demised premises, by force
if necessary, without terminating this lease and without being liable for
prosecution or for any claim for damages therefor, and expel or remove Tenant
and any other person who may be occupying such premises or any part thereof.
Landlord may relet the demised premises and receive the rent therefor. Tenant
agrees to pay to Landlord monthly or on demand from time to time any deficiency
that may arise by reason of any such reletting. In determining the amount of
such deficiency, the brokerage commission, attorney's fees, remodeling expenses
and other costs of reletting shall be subtracted from the amount of rent
received under such reletting.
C. Enter upon the demised premises, by force, if necessary, without
terminating this lease and without being liable for any prosecution for any
claim for damages therefor, and do whatever Tenant is obligated to do under the
terms of this lease. Tenant agrees to pay Landlord on demand for expenses
which Landlord may incur in this effecting compliance with Tenant's obligations
under this lease, together with interest thereon at the rate of 10% per annum
from the date expended until paid. Landlord shall not be liable for any
damages resulting to the Tenant from such action, whether caused by negligence
of Landlord or otherwise.
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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, conditions and
covenants herein contained.
19. ATTORNEY'S FEES:
If, on account of any breach or default by Landlord or Tenant of their
respective obligations under this lease, it shall become necessary for the
other to employ an attorney to enforce or defend any of its rights or remedies
hereunder, and should such party prevail, it shall be entitled to any
reasonable attorney's fees incurred in such connection.
20. QUIET ENJOYMENT:
Landlord warrants that it has full right and power to execute and
perform this lease and to grant the estate demised herein and that Tenant, on
payment of rent and performing the covenants herein contained, shall peaceably
and quietly have, hold and enjoy the demised premises during the full term of
this lease and any extension or renewal hereof; provided, however, that Tenant
accepts this lease subject and subordinate to any recorded mortgage, deed of
trust or other lien presently existing upon the demised premises. Landlord is
hereby irrevocably vested with full power and authority to subordinate Tenant's
interest hereunder to any mortgage, deed of trust or other lien hereafter
placed on the demised premises, and Tenant agrees upon demand to execute such
further instruments subordinating this lease as Landlord may request, provided
such further subordination shall be upon the express condition that this lease
shall be recognized by the mortgagee and that the rights of Tenant shall remain
in full force and effect during the term of this lease so long as Tenant shall
continue to perform all of the covenants of this lease.
22. WAIVER OF DEFAULT:
No waiver by the parties hereto of any default or breach of any term,
condition or covenant of this lease shall be deemed to be waiver of any
subsequent default or breach of the same or any other term, condition or
covenant contained herein.
23. REALTORS COMMISSIONS: If a real estate commission is due
hereunder, Landlord shall pay same.
24. CERTIFICATE OF OCCUPANCY:
Tenant may, prior to the commencement of the term of this lease, apply
for a Certificate of Occupancy to be issued by the municipality in which the
demised premises are located, but this lease shall not be contingent upon
issuance thereof. Nothing herein contained shall obligate Landlord to install
any additional electrical wiring, plumbing or plumbing fixtures which are not
presently existing in the demised premises, or which have not been expressly
agreed upon by Landlord in writing.
25. FORCE MAJEURE:
In the event performance by Landlord of any term, condition or
covenant in this lease is delayed or prevented by any Act of God, strike,
lockout, shortage of material or labor restriction by any governmental
authority, civil riot, flood, and any other cause not within the control of
Landlord, the period for performance of such term, condition or covenant shall
be extended for a period equal to the period Landlord is so delayed or
hindered.
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26. EXHIBITS:
All exhibits, attachments, annexed instruments and addenda referred to
herein shall be considered a part hereof for all purposes with the same force
and effect as if copied at full length herein.
27. USE OF LANGUAGE:
Words of any gender used in this lease shall be held and construed to
include any other gender and words in the singular shall be held to include the
plural unless the context otherwise requires.
28. CAPTIONS:
The captions or headings of paragraphs in this lease are inserted for
convenience only, and shall not be considered in construing the provisions
hereof if any question of intent should arise.
29. SUCCESSORS:
The terms, conditions and covenants contained in this lease shall
apply to, insure to the benefit of, and be binding upon the parties hereto and
their respective successors in interest and legal representatives except as
otherwise herein expressly provided. All rights, powers, privileges,
immunities and duties of Landlord under this lease, including, but not limited
to, any notices required or permitted to be delivered by Landlord to Tenant
hereunder, may, at Landlord's option, be executed or performed by Landlord's
agent or attorney.
30. [PROVISION DELETED]
31. SEVERABILITY:
If any provision in this lease should be held to be invalid or
unenforceable, the validity and enforceability of the remaining provisions of
this lease shall not be affected thereby.
32. NOTICES:
Any notice or document required or permitted to be delivered hereunder
may be delivered in person or shall be deemed to be delivered, whether actually
received or not, when deposited in the United States mail, postage prepaid,
registered or certified mail, return receipt requested, addressed to the
parties at the address indicated below, or at such other address as may have
theretofore been specified by written notice delivered in accordance herewith.
LANDLORD: ▇▇▇▇▇▇▇▇ Electric, Inc. TENANT: Up-Right, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Executed the 10th day of November, 1989.
Attest: Landlord: ▇▇▇▇▇▇▇▇ Electric, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
Attest: Tenant: Up-Right, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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By: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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EXHIBIT "A"
BEING a tract of land situated in the ▇▇▇ ▇▇▇▇▇▇▇ Survey, Abstract No. 930 and
being part of Block B/6489 of the Lombardy Business Park, an addition to the
City of Dallas as recorded in Volume 85045, Page ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ and being more particularly described as follows:
COMMENCING at a point situated on the Northerly line of Lombardy Lane (a
variable width R.O.W.) and the West line of Wire Way (a 56 foot R.O.W.);
THENCE along the West line of Wire Way the following:
North 10 degrees 52 minutes 58 seconds East a distance of 62.00 feet
to a point of curvature to the left;
Along said curve having a central angle of 10 degrees 39 minutes 59
seconds, a radius of 307.00 feet, and an arc length of 57.15 feet to a
point;
North 00 degrees 13 minutes 00 seconds East a distance of 113.35 feet
to an iron rod set for corner and being the POINT OF BEGINNING;
THENCE North 89 degrees 47 minutes 00 seconds West departing said Wire Way a
distance of 303.96 feet to an iron rod set for corner;
THENCE North 10 degrees 54 minutes 08 seconds East a distance of 152.65 feet to
an iron rod found for corner;
THENCE South 89 degrees 47 minutes 00 seconds East a distance of 275.66 fee to
an iron rod found for corner situated in the West line of said Wire Way (a 56
foot R.O.W.);
THENCE South 00 degrees 13 minutes 00 seconds West a distance of 150.00 feet to
the POINT OF BEGINNING and continuing 43,472 square feet or 0.998 acres of
land, more or less.
11
EXHIBIT "B"
[SITE PLAN]
Tenant may extend the chain link fence, but not beyond the front of the
building. Before tenant washes any equipment, Tenant shall construct a
concrete slab and a sand trap behind the building on the West side of the
property for washing Tenant's equipment and catching any substances used to
wash the equipment and residue from the equipment.
12
EXHIBIT "C"
Special Provisions.
1. Taxes and Insurance Costs
(a) In addition to the base rent, Tenant shall pay Landlord for real
estate taxes and insurance. Tenant's charges for the calendar year in which
the commencement of this lease occurs is estimated at a monthly charge of
$421.00 for taxes and $95.00 for insurance, payable by Tenant to Landlord on
the date the monthly base rent is due.
(b) For each calendar year during the lease term following the calendar
year in which the commencement of this lease occurs, Tenant shall pay to
Landlord on the date the monthly base rent is due 1/12 of the estimated taxes,
and insurance for the current year which Landlord may have given Tenant for the
current year, or, if none have been estimated by Landlord, then 1/12 of the
actual charges for the immediately preceding calendar year. Upon Tenant's
receipt from Landlord of a statement of the actual charges for such year, or at
Landlord's option, for the preceding 6 months, Tenant shall pay to Landlord the
amount of the excess if any, between Tenant's share of the actual taxes and
insurance over the estimated charges paid by Tenant for such period. If
Tenant's payment for the taxes and insurance for any calendar year during the
lease term for which Tenant has made payment to Landlord is less than the
estimated charges paid by Tenant for such year such excess charges paid by
Tenant shall (i) be credited against the next maturing installments due from
Tenant to Landlord for Tenant's share of such charges, or (ii) if paid for the
last year of the lease term, be refunded by Landlord to Tenant upon lease
termination.
2. Assignment and Subletting
(a) Tenant may not, without the prior written consent of Landlord, assign
this lease, sublet the whole or any part of the demised premises, sell,
encumber, pledge or otherwise transfer all or any part of Tenant's leasehold
estate hereunder, or permit the demised premises to be occupied by anyone other
than Tenant or Tenant's employees and any unauthorized assignment or sublease
shall, at Landlord's option, constitute a non-curable default of Tenant. If
Landlord's withholding of consent is found to be wrongful by any court of
competent jurisdiction, Tenant's sole remedy shall be to have the proposed
assignment or subletting declared valid as if Landlord's consent had been
given.
(b) Any assignment or subletting shall be subject to all the terms and
conditions of this lease, including the provisions of the paragraph relating to
the use of the demised premises. If Landlord shall consent to a sublease or an
assignment of this lease, no further sublease or assignment may be made without
the prior written consent of landlord.
(c) If Landlord shall consent to a sublease or assignment hereunder,
Tenant shall pay Landlord for all attorney's fees and expenses reasonably
incurred in connection with the processing of documents incident to giving such
consent.
(d) Notwithstanding any such assignment or subletting, Tenant shall at all
times remain fully liable for all their obligations under this lease.
(e) As a condition precedent to any subletting or assignment by tenant
hereunder, Tenant agrees to furnish Landlord with a copy of the proposed
assignment or sublease, together with a description of the business to be
conducted at the demised premises by such proposed assignee or subtenant,
current financial statements of such proposed assignee or subtenant, and such
other information as Landlord may request (collectively "transfer documents"),
at least 30 days prior to the date on which it is to be executed. If Landlord
13
consents to such assignment or subletting, Tenant shall furnish Landlord with
an executed copy of such assignment or sublease at the time such instrument is
executed.
(f) If any rents or sums received by Tenant under any sublease are in
excess of the rent and other sums payable by Tenant hereunder (prorated if the
sublease is for less than 100% of the demised premises) or if any additional
consideration is paid to Tenant by any assignee, such excess rents under any
sublease or such additional consideration for an assignment shall be paid by
Tenant to Landlord within 10 days after receipt by Tenant.
(g) Landlord may assign its rights under this Lease. all of Landlord's
personal liability under this Lease accruing after conveyance shall terminate
upon conveyance of the demised premises, provided that the obligations of
Landlord under this Lease are covenants running with the land and the purchaser
of Landlord's interest shall acquire such interest subject to the covenants
herein contained.
3. Financial Statements
[Provision Deleted]
4. Right of First Refusal
(a) Landlord shall not, at any time prior to the expiration of the term of
this lease, or the renewal term thereof (if exercised), sell the demised
premises, or any interest therein, without first giving written notice thereof
to Tenant, which notice is hereinafter referred to as the "Notice of Sale".
(b) The Notice of Sale shall include the exact and complete terms of the
proposed sale and shall have attached thereto a photocopy of bona fide offer
and counteroffer, if any, duly executed by both Landlord and the prospective
purchaser.
(c) For a period of ten (10) business days after receipt by Tenant of the
Notice of Sale, Tenant shall have the right to give written notice to Landlord
of Tenant's exercise of Tenant's right to purchase the demised premises, or the
interest proposed to be sold, on the same terms and conditions as set forth in
the Notice of Sale. In the event that Landlord does not receive written notice
of Tenant's exercise of the right herein granted within said ten (10) day
period, there shall be a conclusive presumption that Tenant has elected not to
exercise Tenant's right hereunder; and Tenant may sell the demised premises, or
the interest proposed to be sold, on substantially the same terms set forth in
the Notice of Sale.
(d) In the event that Tenant declines to exercise its right of first
refusal after receipt of the Notice of Sale, and, thereafter Landlord and the
prospective purchaser modify by more than 5%, (i) the sales price, (ii) the
amount of the down payment, or (iii) interest charged, or in the event that the
sale is not consummated within 160 days of the date of the Notice of Sale, then
Tenant's right of first refusal shall reapply to said transaction as of the
occurrence of any of the aforementioned events.
(e) Tenant's right of first refusal shall expire if the demised premises
is sold pursuant hereto by Landlord.
5. Sale of the Property
If the demised premises is ever sold during the renewal term, Landlord shall
have the right to cancel the lease upon no less than 120 days' written notice
to Tenant.
14
EXHIBIT "D"
RENEWAL OPTION: Provided that at the end of the primary term of this
lease Tenant not be in default of any term, condition or covenant contained in
this lease, Tenant (but not any assignee of subtenant) shall have the right and
option to renew this lease, by written notice delivered to Landlord with a copy
to the Landlord no later than 180 days prior to the expiration of the primary
term, for the additional term of Two ( 2 ) years under the same
terms, conditions, and covenants contained herein, except:
A. Tenant shall have no further renewal options unless expressly
granted by Landlord in writing; and
B. The rental for the renewal term shall be based on the then
prevailing rental rates for properties of equivalent quality, size, utility and
location, with the length of the lease term, and credit standing of the Tenant
herein, to be taken into account.
C. Upon notification from Tenant of the exercise of this renewal
option, Landlord shall within 15 days thereafter notify Tenant in writing of
the proposed rental for the renewal term; Tenant shall within 15 days following
receipt of same notify Landlord in writing of the acceptance or rejection of
the proposed rental provided that the rental rate shall not exceed 107% of the
primary term rental rate nor shall the renewal rate be less than the rental
during the primary term.
------------------------
INITIALED:
LANDLORD
----------------------------
TENANT /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Vice President
Up-Right, Inc.
15
LEASE EXTENSION AGREEMENT
This LEASE EXTENSION AGREEMENT is to be attached to and form a part of
the Net Commercial Lease Agreement dated November 10, 1989, (which together
with any amendments, modifications and extensions thereof is hereinafter called
the "Lease").
Between ▇▇▇▇▇▇▇▇ ELECTRIC, INC. "Landlord"
and
HORIZON HIGH REACH "Tenant"
(formerly Upright, Inc.)
Witnesseth that the Lease is hereby renewed and extended for a further
term of thirty-six (36) months to commence on the 1st day of January, 1995 and
to end of the first day of January, 1998, on condition that Landlord and Tenant
comply with all the provisions of the covenants and agreements contained in the
Lease. All terms of the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have signed this Lease
Extension Agreement this 28th day of February, 1994.
LANDLORD: ▇▇▇▇▇▇▇▇ ELECTRIC, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
TENANT: HORIZON HIGH REACH
(Formerly Up-Right, Inc.)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
LEASE EXTENSION AGREEMENT - Page 1 of 2
16
[Page 2 of Lease Extension Agreement Unavailable.]
17
LEASE MODIFICATION
This LEASE MODIFICATION is to be attached to and form a part of the
Net Commercial Lease Agreement dated November 10, 1989, (which together with
any amendments, modifications and extensions thereof is hereinafter called the
"Lease").
▇▇▇▇▇▇▇▇ ELECTRIC, INC. ("Landlord") agrees that upon execution of the
Lease Extension Agreement by Horizon High Reach (formerly Up-Right, Inc.)
("Tenant"), Landlord will mudjack the interior slab floor and replace the
carpet in the office hall.
IN WITNESS WHEREOF, this 26th day of January, 1994.
LANDLORD: ▇▇▇▇▇▇▇▇ ELECTRIC, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
STATE OF TEXAS (
COUNTY OF DALLAS (
BEFORE ME, the undersigned authority in and for said county and state,
on this day personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, known to me to be the
person whose name is subscribed to the foregoing instrument, and in his
capacity as President for ▇▇▇▇▇▇▇▇ Electric, Inc., acknowledged to me that the
same was the act and deed of said corporation, and that he executed the same
for the purposes and consideration therein expressed, and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL this 26th day of January, 1994.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Notary Public in and for the State
of Texas.
[seal]
My Commission expires: 10/13/95
LEASE MODIFICATION AGREEMENT - Page 1 of 1
18
NOTICE OF OPTION TO RENEW
Up-Right, Inc. hereby exercises its right and option to renew that
certain Net Commercial Lease Agreement ("Lease") dated November 10, 1989
between ▇▇▇▇▇▇▇▇ Electric, Inc., Landlord, and Up-Right, Inc., Tenant, for the
premises located at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇. Pursuant to Exhibit "D" of
such Lease, the term of such renewal option will commence for a period of two
years beginning January 1, 1993.
All terms and conditions contained in such Lease shall remain in full
force and effect.
DATED this 7th day of May, 1992.
TENANT: UP-RIGHT, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
By: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: G.M.
Subscribed and sworn to before
me this 7th day of May, 1992.
My Commission expires
10/14/95.
Attest: [seal]
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
