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EXHIBIT 10.5
GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
COMMERCIAL LEASE AGREEMENT
TABLE OF CONTENTS
Article Page
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ARTICLE ONE: DEFINED TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE TWO: LEASE AND LEASE TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE THREE: RENT AND SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE FOUR: TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE FIVE: INSURANCE AND INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE SIX: USE OF DEMISED PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE SEVEN: PROPERTY CONDITION, MAINTENANCE, REPAIRS
AND ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE EIGHT: DAMAGE OR DESTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE NINE: CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE TEN: ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE ELEVEN: DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE TWELVE: LANDLORD'S CONTRACTUAL LIEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE THIRTEEN: PROTECTION OF LENDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE FOURTEEN: PROFESSIONAL SERVICE FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE FIFTEEN: ENVIRONMENTAL REPRESENTATIONS AND INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE SIXTEEN: MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE SEVENTEEN: ADDITIONAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
An Exhibit or Exhibits may be attached to this Lease which shall be made a part
of this Lease for all purposes [check all boxes which apply]:
EXHIBITS TO LEASE
[x] Exhibit A Floor Plan/Site Plan Exhibit E
[x] Exhibit B Legal Description of Property [ ] Exhibit F
[x] Exhibit C Renewal Options [ ] Exhibit G
[ ] Exhibit D [x] Exhibit H Construction of Improvements
[x] Addendum
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ARTICLE ONE: DEFINED TERMS
As used in this Lease, the following terms set forth in this Article
One shall have the respective meanings set forth hereinbelow:
1.01 DATE OF LEASE: ___________________________________, 1995.
1.02 LANDLORD: CRAFTMADE INTERNATIONAL, INC., a Delaware corporation
Address of Landlord: 0000 000xx Xxxxxx, Xxxxx Xxxxxxx, Xxxxx
00000
Telephone: (000) 000-0000
1.03 TENANT: TSI PRIME, INC.
Address of Tenant: 0000 Xxxxxxxxx Xxxxxx, Xx Xxxxxx,
Xxxxxxxxxx 00000
Telephone: (000) 000-0000
1.04 PREMISES:
A. Street address (including county): 000 X. Xxxxx,
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx
B. Floor or site plan: Being a floor area of
approximately 80,000 square feet and being approximately ___ by
_____________ feet measured to the exterior of outside walls and to
the center of the interior walls, and being more particularly shown in
outline on the floor/site plan attached hereto as Exhibit A. (The
aforementioned street address and the floor or site plan shall
collectively be referred to herein as the "Demised Premises".)
C. Legal description: The legal description of the
property on which the floor/site plan is situated is more particularly
described in Exhibit B attached hereto (the "Property").
1.05 LEASE TERM: 3 years and no months beginning on the
Commencement Date and ending on the 31st day of December, 1998. See Addendum.
1.06 BASE RENT: $720,000 total Base Rent for the Lease Term
payable in monthly installments of $20,000 per month in advance. See Addendum.
1.07 SECURITY DEPOSIT: $20,000
1.08 PERMITTED USE: [See Section 6.01] General warehouse and
distribution center.
1.09 PRINCIPAL BROKER: [If one, so state] None
Address: ____________________________________________________
1.10 COOPERATING BROKER: [If none, so state] None
Address: ____________________________________________________
1.01 HOLDOVER RENT: [See Section 2.04] $22,000 per month in
advance.
1.12 DAILY LATE CHARGE: [See Section 3.03] ________________________
Dollars ($_______________) per day.
1.13 ACCEPTANCE: [See Section 16.13] The number of days for
acceptance of this offer to lease shall be 10 (10) days.
ARTICLE TWO: LEASE AND LEASE TERM
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2.01 LEASE OF THE DEMISED PREMISES FOR LEASE TERM. Landlord
leases the Demised premises to Tenant and Tenant leases the Demised Premises
from Landlord for the Lease Term stated in Section 1.05. As used herein, the
"Commencement Date" shall be the date specified in the Addendum.
2.02 DELAY IN COMMENCEMENT. Landlord shall not be liable to Tenant
if Landlord does not deliver possession of the Demised Premises to Tenant on
the first date specified in Section 1.05 above. Landlord's nondelivery of
possession of the Demised Premises on that date shall not affect this Lease or
the obligations of Tenant under this Lease. However, the Commencement Date
shall be delayed until possession of the Demised Premises is delivered to
Tenant. The Lease Term shall be extended for a period equal to the delay in
delivery of possession of the Demised Premises to Tenant, plus the number of
days necessary for the Lease Term to expire on the last day of a month. If
Landlord does not deliver possession of the Demised Premises to Tenant within
thirty (30) days after the first date specified in Section 1.05 above, Tenant
may elect to cancel this Lease by giving written notice to Landlord within ten
(10) days after the 30-day period ends. If Tenant gives such notice, the Lease
shall be canceled effective as of the date of its execution, and no party
hereto shall have any obligations, one to the other. If Tenant does not give
such notice within the time specified, Tenant shall have no right to cancel the
Lease, and the Lease Term is delayed, Landlord and Tenant shall, upon such
delivery, execute an amendment to this Lease setting forth the Commencement
Date and expiration date of the Lease Term.
2.03 EARLY OCCUPANCY. If Tenant occupies the Demised Premises
prior to the Commencement Date, Tenant's occupancy of the Demised Premises
prior to the Commencement Date, Tenant's occupancy of the Demised Premises
shall be subject to all of the provisions of this Lease, except as provided in
the Addendum. Early occupancy of the Demised Premises shall not advance the
expiration date of the Lease Term.
2.04 HOLDING OVER. Tenant shall vacate the Demised Premises upon
the expiration of the Lease Term or earlier termination of this Lease. Tenant
shall reimburse Landlord for and indemnify Landlord against all damages
incurred by Landlord as a result of any delay by Tenant in vacating the Demised
Premises. If Tenant does not vacate the Demised Premises shall be a "month to
month" tenancy, subject to all the terms of this Lease applicable to a month to
month tenancy, except that the Base Rent per month then in effect shall be the
amount designated in Section 1.12.
ARTICLE THREE: RENT AND SECURITY DEPOSIT
3.01 MANNER OF PAYMENT. All sums payable hereunder by Tenant (the
"Rent") shall be made to the Landlord at the address designated in Section 1.02
or to such other party or address as Landlord may designate. Any and all
payments made to a designated third party for the account of the Landlord shall
be deemed made to Landlord when received by said designated third party. All
sums payable by Tenant hereunder, whether or not expressly denominated as rent,
shall constitute rent for the purposes of Section 502(b)(6) of the Bankruptcy
Code and for all other purposes. The Base Rent is the minimum rent for the
Demised Premises and is subject to the terms and conditions contained in this
Lease together with the Exhibits attached hereto, if any.
3.02 TIME OF PAYMENT. Upon execution hereof, Tenant shall pay the
installment of rent for the first month of the Lease Term. On or before the
first day of the second month of the Lease Term and of each month thereafter,
the installment of rent and other sums due hereunder shall be due and payable,
in advance, without off-set, deduction or prior demand. If the Lease Term
commences or ends on a day other than the first or last day of a calendar
month, the rent for any fractional calendar month following the Commencement
Date or preceding the end of the Lease Term shall be prorated by days.
3.03 LATE CHARGES. Tenant's failure to pay sums due hereunder
promptly may cause Landlord to incur unanticipated costs. the exact amount of
such costs are impractical or extremely difficult to ascertain. Such costs may
include, but are not limited to, processing and accounting charges and late
charges which may be imposed on Landlord by any ground lease, deed of trust or
mortgage encumbering the Demised Premises. Therefore, if any sum due hereunder
is not received when due, Tenant shall pay the Landlord a late charge equal to
the Daily Late Chart for each day after the due date until such delinquent sum
is received. If any check tendered in payment of any sum due from Tenant
hereunder is dishonored for any reason, Tenant shall pay a late charge for each
day after said due date until good funds are received by the Landlord. The
parties agree that such late charge represents a fair and reasonable estimate
of the costs Landlord will incur by reason of such late payment or such
dishonored check.
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3.04 SECURITY DEPOSIT. Upon execution hereof, Tenant shall deposit
with Landlord a cash Security Deposit in the sum stated in Section 1.07.
Landlord shall apply all or part of the Security Deposit to any unpaid rent or
other charges due from Tenant or to cure any other defaults of Tenant. If
Landlord uses any part of the Security Deposit, Tenant shall restore the
Security Deposit to its full amount within ten (10) days after Landlord's
written demand. Tenant's failure to restore the full amount of the Security
Deposit within the time specified shall be a default under this Lease. No
interest shall be paid on the Security Deposit. Landlord shall not be required
to keep the Security Deposit separate from its other accounts and no trust
relationship is created with respect to the Security Deposit. Upon any
termination of this Lease not resulting from Tenant's default, and after Tenant
has vacated the Demised Premises in the manner required by this Lease, Landlord
shall refund the unused portion of the Security Deposit to Tenant.
3.05 GOOD FUNDS PAYMENTS. If, for any reason whatsoever, any two
or more payments by check from Tenant to Landlord for Rent are dishonored and
returned unpaid, thereafter, Landlord may, at Landlord's sole option, upon
written notice to Tenant, require that all future payments of Rent for the
remaining term of the Lease shall be made by cash, cashier's check, or money
order and that the delivery of Tenant's personal or corporate check will no
longer constitute payment of Rent as provided in this Lease. Any acceptance by
Landlord of a payment for Rent by Tenant's personal or corporate check
thereafter shall not be construed as a waiver of Landlord's right to insist
upon payment by good funds as set forth in this Section 3.05.
ARTICLE FOUR: TAXES
4.01 PAYMENT BY LANDLORD. Landlord shall pay the real estate taxes
on the Demised Premises during the Lease Term.
4.02 IMPROVEMENTS BY TENANT. In the event the real estate taxes
levied against the Demised Premises for the real estate tax year in which the
Lease Term commences are increased in the current tax year or subsequent tax
years as a result of any alterations, additions or improvements made by Tenant
or by Landlord at the request of Tenant, Tenant shall pay to Landlord upon
demand the amount of such increase and continue to pay such increase during the
term of this Lease. Landlord shall use reasonable effort to obtain from the
tax assessor or assessors a written statement of the total amount of such
increase.
4.03 PERSONAL PROPERTY TAXES. Tenant shall pay all taxes assessed
against trade fixtures, furnishings, equipment, or any other personal property
belonging to Tenant. Tenant shall use reasonable effort to have its personal
property taxed separately from the Demised Premises, but if any of Tenant's
personal property is taxed with the Demised Premises, Tenant shall pay the
taxes for the personal property within fifteen (15) days after Tenant receives
a written statement for such personal property taxes.
ARTICLE FIVE: INSURANCE AND INDEMNITY
5.01 CASUALTY INSURANCE. During the Lease Term, Landlord shall
maintain policies of insurance covering loss of or damage to the Demised
Premises in such amount or percentage of replacement value as Landlord deems
reasonable in relation to the age, location, type of construction and physical
condition of the Demised Premises and the availability of such insurance at
reasonable rates. Such policies shall provide protection against all perils
included within the classification of fire and extended coverage and any other
perils which Landlord deems necessary, Landlord may obtain insurance coverage
for Tenant's fixtures, equipment or building improvements installed by Tenant
in or on the Demised Premises. Tenant shall, at Tenant's expense, maintain
such primary or additional insurance on its fixtures, equipment and building
improvements as Tenant deems necessary to protect its interest. Tenant shall
not do or permit to be done anything which invalidates any such insurance
policies. Any casualty insurance which may be carried by Landlord or Tenant
shall be for the sole benefit of the party carrying such insurance and under
its sole control.
5.02 INCREASE IN PREMIUMS. Tenant shall not permit any operation
or activity to be conducted or storage or use of any volatile or any other
materials on or about the Demised Premises that would cause suspension or
cancellation of any fire and extended coverage insurance policy carried by
Landlord, or increase the premiums therefor, without the prior written consent
of Landlord. If Tenant's use and occupancy of the Demised Premises causes an
increase in the premiums for any fire and extended coverage insurance policy
carried by Landlord as of the day immediately prior to Tenant's possession of
the Demised Premises under this Lease, Tenant shall pay, as additional rental,
the amount of such increase to Landlord upon demand and presentation of written
evidence of the increase by Landlord.
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5.03 LIABILITY INSURANCE. During the Lease Term, Tenant shall
maintain a policy of comprehensive public liability insurance, at Tenant's
expense, insuring Landlord against liability arising out of the ownership, use,
occupancy, or maintenance of the Demised Premises. The initial amount of such
insurance shall be at least $1,000,00 combined single-limit bodily injury and
property damage, for each occurrence, and shall be subject to periodic
increases based upon such economic factors as Landlord shall determine, in
Landlord's discretion, exercised in good faith. However, the amount of such
insurance shall not limit Tenant's liability nor relieve Tenant of any
obligation hereunder. The policy shall contain cross-liability endorsements,
if applicable, and shall insure Tenant's performance of the indemnity
provisions of Section 5.04. Such policy shall contain a provision which
prohibits cancellation or modification of the policy except upon thirty (30)
days' prior written notice to Landlord. Tenant may discharge its obligations
under this Section by naming Landlord as an additional insured under a policy
of comprehensive liability insurance maintained by Tenant and containing the
coverage and provisions described in this Section. Tenant shall deliver a copy
of such policy or certificate (or a renewal thereof) to Landlord prior to the
Commencement Date and prior to the expiration of any such policy during the
Lease Term. If Tenant fails to maintain such policy, Landlord may elect to
maintain such insurance at Tenant's expense. Tenant shall, at Tenant's
expense, maintain such other liability insurance as Tenant deems necessary to
protect Tenant.
5.04 INDEMNITY. Landlord shall not be liable to Tenant or Tenant's
employees, agents, invitees or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the Demised Premises or
any adjacent area owned by Landlord caused by the negligence or misconduct of
Tenant, its employees, subtenants, licensees or concessionaires or any other
person entering the Demised Premises under express or implied invitation of
Tenant, or arising out of the use of the Demised Premises by Tenant and the
conduct of its business therein, or arising out of any breach or default by
Tenant in the performance of its obligations hereunder; and Tenant hereby
agrees to indemnify and hold Landlord harmless rom any loss, expense or claims
arising out of such damage or injury. Tenant shall not be liable for any
injury or damage caused by the negligence or misconduct of Landlord, or its
employees or agents, and Landlord agrees to indemnify and hold Tenant harmless
from any loss, expense or damage arising out of such damage or injury.
5.05 COMPARATIVE NEGLIGENCE. Tenant hereby unconditionally and
irrevocably agrees to indemnify, defend and hold Landlord and Landlord's
officers, agents, subsidiaries, partners, employees, licensees and counsel
harmless, to the extent of Tenant's comparative negligence, if any, from and
against any and all loss, liability, demand, judgment, suit, claim, deficiency,
interest, fee, charge, cost or expense (including, without limitation,
interest, court costs and penalties, attorney's fees and disbursements and
amounts paid in settlement, or liabilities resulting from any change in
federal, state or local law or regulation or interpretation hereof) of whatever
nature, on a comparative negligence basis, even when caused in part by
Landlord's negligence or the joint or concurring negligence of Landlord and any
other person or entity, which may result or to which Landlord and/or any of
Landlord's officers, agents, directors, employees, partners, licensees and
counsel may sustain, suffer, incur or become subject to in connection with or
arising in any way whatsoever out of the leasing, operation, promotion,
management, maintenance, repair, use or occupation of the Demised Premises, or
any other activity of whatever nature in connection therewith, or arising out
of or by reason of any investigation, litigation or other proceedings brought
or threatened, arising out of or based upon the leasing, operation, promotion,
management, maintenance, repair, use or occupancy of the Demised Premises, or
any other activity on the Demised Premises. This provision shall survive the
termination of this Lease.
5.06 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 such party 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.
ARTICLE SIX: USE OF DEMISED PREMISES
6.01 PERMITTED USE. Tenant may use the Demised Premises only for
the permitted use stated in Section 1.08. The parties hereto acknowledge that
the current use of the Demised Premises or the improvements located on the
Demised Premises, or both, may or may not conform to the city zoning ordinance
with respect to the permitted use, height, setback requirements, minimum
parking
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requirements, coverage of improvements to total area of land and other matters
which may have a significant economic impact upon the intended use of Tenant.
Tenant acknowledges that Tenant has or will independently investigate and
verify to Tenant's satisfaction the extent of any such limitations or
nonconforming uses of the Demised Premises. Tenant further acknowledges that
Tenant is not relying upon any warranties or representations of Landlord or the
Brokers who are participating in the negotiation of this Lease concerning the
permitted use of the Demised Premises or with respect to any nonconforming uses
of the improvements located on the Demised Premises.
6.02 COMPLIANCE WITH LAW. Tenant shall comply with all
governmental law, 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 and other
activities in or upon, or connected with the Demised Premises, all at Tenant's
sole expense, including any expense or cost resulting from the compliance with
improvements for handicapped or disabled persons mandated by governmental
regulations.
6.03 SIGNS. Without the prior written consent of Landlord, Tenant
shall not place or affix any signs or other objects upon or to the Demised
Premises, including but not limited to the roof or exterior walls of the
building or other improvements thereon, or paint or otherwise deface said
exterior walls. 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.
6.04 UTILITY SERVICES. Tenant shall pay the cost of all utility
services, including but not limited to initial connection charges, all charges
for gas, water, sewerage, storm water disposal, communications and electricity
used on the Demised Premises and for all electric lights, lamps and tubes.
6.05 LANDLORD'S ACCESS. 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 Demised
Premises or the Property to any prospective tenant or purchaser, or (d) for any
other reasonable purpose. During the final ninety (90) 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 Demised
Premises for lease or for sale.
6.06 QUIET POSSESSION. If Tenant pays the rent and complies with
all other terms of this Lease, Tenant may occupy and enjoy the Demised Premises
for the full Lease Term, subject to the provisions of this Lease.
6.07 EXEMPTIONS FROM LIABILITY. Landlord shall not be liable for
any damage or injury to the person, business (or any loss of income therefrom),
goods, wares, merchandise or other property of Tenant, Tenant's employees,
invitees, customers or any other person in or about the Demised Premises,
whether such damage or injury is caused by or results from: (a) fire, steam,
electricity, water, gas or rain; (b) the breakage, leakage, obstruction or
other defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning, or lighting fixtures or any other cause; (c) conditions arising
on or about the Demised Premises or upon other portions of any building of
which the Demised Premises is a part, or from other sources or places; or (d)
any act or omission of any other tenant of any building of which the Demised
Premises is a part. Landlord shall not be liable for any such damage or injury
even though the cause of or the means of repairing such damage or injury are
not accessible to Tenant. The provisions of this Section 6.08 shall not,
however, exempt Landlord from liability for Landlord's gross negligence or
willful misconduct.
ARTICLE SEVEN: PROPERTY CONDITION, MAINTENANCE, REPAIRS AND ALTERATIONS
7.01 PROPERTY CONDITION. Landlord represents that on the
Commencement Date, the plumbing, electrical and lighting system, exterior
doors, any fire protection sprinkler system, heating system, air conditioning
equipment, dock levelers and elevators in the Demised Premises are in good
operating condition.
7.02 ACCEPTANCE OF DEMISED PREMISES. Tenant acknowledges that
prior to the Commencement Date a full and complete inspection of the Demised
Premises and adjacent common area shall have been made by Tenant and Tenant
shall have had the opportunity to determine the existence of any defects which
would interfere with Tenant's use of the Demised Premises for their intended
commercial purpose. Tenant specifically acknowledges that as a result of such
inspection and disclosure, Tenant shall take possession of the Demised Premises
and have made its own determination to fully accept same in it as-is condition.
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7.03 OBLIGATION TO REPAIR. Except as otherwise provided herein,
Landlord shall be under no obligation to perform any repair, maintenance or
management service in the Demised Premises or adjacent common areas. Tenant
shall be fully responsible, at its expense, for all repair, maintenance and
management services other than those which are expressly assumed by Landlord.
A. LANDLORD'S OBLIGATION TO REPAIR.
(1) Subject to the provisions of Article Eight
(Damage or Destruction) and Article Nine (Condemnation) and
except for damage caused by any act or omission of Tenant,
Landlord shall keep the foundation, room and the structural
portions of exterior walls of the improvements of the Demised
Premises in good order, condition and repair. Landlord shall
not be obligated to maintain or repair windows, doors, plate
glass or the surfaces of walls. In addition, Landlord shall
not be obligated to make any repairs under this Section until
a reasonable time after receipt of written notice from Tenant
of the need of such repairs. If any repairs are required to
be made by Landlord, Tenant shall, at Tenant's sole cost and
expense, promptly remove Tenant's fixtures, inventory,
equipment and other property, to the extent required to enable
Landlord to make such repairs. Landlord's liability hereunder
shall be limited to the cost of such repairs or corrections.
Tenant waives the benefit of any present or future law which
might give Tenant the right to repair the Demised Premises at
Landlord's expense or to terminate the Lease because of the
condition.
(2) Landlord and Tenant expressly agree that all
repair, maintenance management and other services to be
performed by Landlord or Landlord's agents exclusively consist
of the exercise of professional judgment by such service
providers, and Tenant expressly waives any claims for breach
of warranty arising from the performance of such services.
B. TENANT'S OBLIGATION TO REPAIR. Subject to the
provisions of the last sentence of Section 7.01, the preceding Section
7.03.A, Article Nine(Condemnation), Tenant shall, at all times, keep
all other portions of the Demised Premises in good order, condition
and repair, including but not limited to repairs (including all
necessary replacements) of the windows, plate glass, doors, heating
system, air conditioning equipment, electrical and light system, dock
levelers, elevators, interior plumbing and the interior of the
building in general. In addition, Tenant shall, at Tenant's expense,
repair any damage to any portion of the Property, including the roof,
foundation, or structural portions of exterior walls of the Demised
Premises, caused by Tenant's acts or omissions. If Tenant fails to
maintain and repair the Property as required by this Section, Landlord
may, on ten (10) days' prior written notice, enter the Demised
Premises and perform such maintenance or repair on behalf of Tenant,
except that no notice shall be required in case of emergency, and
Tenant shall reimburse Landlord for all costs incurred in performing
such maintenance or repair immediately upon demand.
7.04 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 the prior written
consent of Landlord. Consent for nonstructural 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, codes, and regulations. At the
expiration or termination of this Lease, Tenant shall, subject to the
restrictions of Section 7.05 below, have the right to remove such items so
installed by it, 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 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 materialmen's lien to be filed 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.
7.05 CONDITION UPON TERMINATION. Upon the termination of the
Lease, Tenant shall surrender the Demised Premises to Landlord, broom clean and
in the same condition as received except for ordinary wear and tear which
Tenant was not otherwise obligated to remedy under any provision of the Lease.
Tenant shall not be obligated to repair any damage which Landlord is required
to repair under Article Eight (Damage or Destruction). In addition, landlord
may require Tenant to remove any alterations, additions or improvements
(whether or not made with Landlord's consent) prior to the termination of the
Lease and to restore the Demised Premises to its prior condition, all at
Tenant's expense. All alterations, additions and improvements which Landlord
has not required Tenant to
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remove shall become Landlord's property and shall be surrendered to Landlord
upon the termination of the Lease. In no event, however, shall Tenant any of
the following materials or equipment without Landlord's prior written consent:
any power wiring or power panels; light or lighting fixtures; wall coverings;
drapes; blinds or other window coverings; carpets or other floor coverings;
heaters, air conditioners or any other heating or air conditioning equipment;
fencing or security gates; or other similar building operating equipment and
decorations.
ARTICLE EIGHT: DAMAGE OR DESTRUCTION
8.01 NOTICE. If the building or other improvements situated on the
Demised Premises should be damaged or destroyed by fire, tornado or other
casualty, Tenant shall immediately give written notice thereof to Landlord.
8.02 PARTIAL DAMAGE. If the building or other improvements
situated on the Demised Premises are damaged by fire, tornado, or other
casualty but not to such an extent that rebuilding or repairs cannot reasonably
be completed within one hundred twenty (120) days from the date Landlord
receives written notification by Tenant of the happening of the damage, this
Lease shall not terminate, but Landlord shall, at its sole cost and risk,
proceed forthwith and use reasonable diligence to rebuild or repair such
building and other improvements on the Demised Premises (other than leasehold
improvements made by Tenant or any assignee, subtenant or other occupant of the
Demised Premises) to substantially the condition in which they existed prior to
such damage; provided, however, if the casualty occurs during the final nine
(9) months of the Lease Term. Landlord shall not be required to rebuild or
repair such damage unless Tenant shall exercise its renewal option (if any is
contained herein) within fifteen (15) days after the date of receipt by
Landlord of the notification of the occurrence of the damage. If Tenant does
not elect to exercise its renewal option or if there is no renewal option
contained herein or previously unexercised at such time, this Lease shall
terminate at the option of landlord and the Rent shall be abated for the
unexpired portion of this Lease, effective from the date of actual receipt by
Landlord of the written notification of the damage. If the building and other
improvements are to be rebuilt or repaired and are untenantable in whole or in
part following such damage, the monthly installments of Rent payable hereunder
during the period in which they are untenantable shall be adjusted equitably.
8.03 SUBSTANTIAL OR TOTAL DESTRUCTION. If the building or other
improvements situated on the Demised Premises are substantially or totally
destroyed by fire, tornado, or other casualty, or so damaged that rebuilding
cannot reasonably be completed within one hundred twenty (120) days from the
date Landlord receives written notification by Tenant of the happening of the
damage, this Lease shall terminate at the option of either Landlord or Tenant
and monthly installments of Rent shall be abated for the unexpired portion of
this Lease, effective from the date of receipt by Landlord or Tenant of such
written notification. If this Lease is not terminated, the building and the
improvements shall be rebuilt or repaired and monthly installments of Rent
abated to the extent provided under Section 8.02.
ARTICLE NINE: CONDEMNATION
If, during the term of this Lease or any extension or renewal thereof,
all or a substantial part of the Demised Premises are taken for any public or
quasi-public use under any governmental law, ordinance or regulation or by
right of eminent domain, or are sold to the condemning authority under threat
of condemnation, this Lease shall terminate and the monthly installments of
Rent shall be abated during the unexpired portion of this Lease, effective from
the date of taking of the Demised Premises by the condemning authority. 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 condemning authority under threat of
condemnation, Landlord, at its option, may be 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 use for which the Demised Premises is leased as defined in
Section 6.01. The monthly installments of Base Rent payable hereunder during
the unexpired portion of this Lease shall be adjusted equitably. Landlord and
Tenant shall each 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.
ARTICLE TEN: ASSIGNMENT AND SUBLETTING
Tenant shall not, without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, assign this Lease or sublet the
Demised Premises or any portion thereof. Any assignment or subletting shall be
expressly subject to all terms and
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provisions of this Lease, including the provisions of Section 6.01 pertaining
to the use of the Demised Premises. In the event of any assignment or
subletting, tenant shall remain fully liable for the full performance of all
Tenant's obligations under this Lease. Tenant shall not assign its rights
hereunder or sublet the Demised Premises without first obtaining a written
agreement from the assignee or sublessee whereby the assignee or sublessee
agrees to assume the obligations of Tenant hereunder and to be bound by the
terms of this Lease. No such assignment or subletting shall constitute a
novation. In the event of the occurrence of an event of default while the
Demised Premises is assigned or sublet, Landlord, in addition to any other
remedies provided herein or by law, may at Landlord's option, collect directory
from such assignee or subtenant all rents becoming due under such assignment or
subletting and apply such rent against any sums due to Landlord hereunder. No
direct collection by Landlord from any such assignee or subtenant shall release
Tenant from the performance of its obligations hereunder.
ARTICLE ELEVEN: DEFAULT AND REMEDIES
11.01 DEFAULT. Each of the following events shall be an event of
default under this Lease:
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 and such failure shall continue for a period of ten (10) days.
B. Failure of Tenant to comply with any term, condition
or covenant of this Lease, other than the payment of Base Rent or
other sum of money, and such failure shall not be cured within thirty
(30) days after written notice thereof to Tenant;
C. Tenant or any guarantor of Tenant's obligations
hereunder shall generally fail to pay its debts as they become due or
shall admit in writing its inability to pay its debts, or shall make a
general assignment for the benefit of creditors;
D. Tenant or any guarantor of Tenant's obligations
hereunder shall commence any case, proceeding or other action seeking
reorganization, arrangement, adjustment, liquidation, dissolution or
composition of it or its debts under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its property;
E. Any case, proceeding or other action against Tenant
or any guarantor of Tenant's obligations hereunder shall be commenced
seeking to have an order for relief entered against it as debtor, or
seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating
to bankruptcy, insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its property,
and Tenant (i) fails to obtain a dismissal of such case, proceeding,
or other action within sixty (60) days of its commencement; or (ii)
converts the case from one chapter of the Federal Bankruptcy Code to
another chapter; or (iii) is the subject of an order of relief which
is not fully stayed within seven (7) business days after the entry
thereof; and
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.
11.02 REMEDIES. Upon the occurrence of any of the events of default
listed in Section 11.01, Landlord shall have the option to pursue any one or
more of the following remedies without any prior 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 the Demised Premises, Landlord may, without
prejudice to any other remedy which it may have for possession of the
Demised Premises or arrearage in Rent, enter upon and take possession
of the Demised Premises and expel or remove Tenant and any other
person who may be occupying the Demised 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.
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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 the Demised 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 professional service
fees, attorneys' fees, remodeling expenses and other costs or
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
prosecution or 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 thus effecting compliance with Tenant's obligations under this
Lease, together with interest thereon at the rate of twelve percent
(12%) per annum from the date expended until paid. Landlord shall not
be liable for any damages resulting to Tenant from such action,
whether caused by negligence of Landlord or otherwise.
D. In addition to the foregoing remedies, Landlord shall
have the right to change or modify the locks on the Demised Premises
in the event Tenant fails to pay the monthly installment of Rent when
due. Landlord shall not be obligated to provide another key to Tenant
or allow Tenant to regain entry to the Demises Premises unless and
until Tenant pays Landlord all Rent which is delinquent. Tenant
agrees that Landlord shall not be liable for any damages resulting to
the Tenant from the lockout. At such time that Landlord changes or
modified the lock, Landlord shall post a "Notice of Change of Locks"
on the front of the Demised Premises. Such Notice shall state the
following:
(1) That Tenant's monthly installment of Rent is
delinquent, and therefore, under authority of Section 11.02D
of Tenant's Lease, the Landlord has exercised its contractual
right to change or modify Tenant's door lock;
(2) That the Notice has been posted on the
Tenant's front door by a representative of Landlord and that
Tenant should make arrangements to pay the delinquent
installment of Rent when Tenant picks up the key; and
(3) That the failure of the Tenant to comply with
the provisions of the Lease and the Notice and/or tampering
with or changing the door lock(s) by Tenant may subject the
Tenant to legal liability.
E. No re-entry or taking possession of the Demised
Premises by Landlord shall be construed as an election to terminate
this Lease, unless a written notice of such intention is given to
Tenant. Notwithstanding any such reletting or re-entry or taking
possession, Landlord may, at any time thereafter, elect to terminate
this Lease for a previous default. Pursuit of any of the foregoing
remedies shall not preclude pursuit of any of the other remedies
provided by law, nor shall pursuit of any remedy herein provided
constitute a forfeiture or waiver of any monthly installment of Rent
due to Landlord hereunder or of any damages accruing to Landlord by
reason of the violation of any of the terms, provision and covenants
herein contained. Forbearance by Landlord to enforce one or more of
the remedies herein provided upon an event of default shall not be
deemed or construed to constitute a waiver of any other violation or
default. The loss or damage that Landlord may suffer by reason of
termination of this Lease or the deficiency from any reletting as
provided for above shall include the expense of repossession and any
repairs or remodeling undertaken by Landlord following possession.
Should Landlord terminate this Lease at any time for any default, in
addition to any other remedy Landlord may have, Landlord may recover
from Tenant all damages Landlord may incur by reason of such default,
including the cost of recovering the Demised Premises and the cost of
the rental then remaining unpaid.
11.03 NOTICE OF DEFAULT. Tenant shall give written notice of any
failure by Landlord to perform any of its obligations under this Lease to
Landlord and to any ground lessor, mortgagee or beneficiary under any deed to
trust encumbering the Demised Premises whose name and address have been
furnished to Tenant in writing. Landlord shall not be in default under this
Lease unless Landlord (or such ground lessor, mortgagee or beneficiary) fails
to cure such nonperformance within thirty (30) days to cure, Landlord shall not
be in default if such cure is commenced within such 30-day period and
thereafter diligently pursued to completion.
11.04 LIMITATION OF LANDLORD'S LIABILITY. As used in this Lease,
the term "Landlord" means only the current owner or owners of the fee title to
the Demised Premises or the leasehold estate under a ground lease of the
Demised Premises at the time in question. Each Landlord is obligated to
perform the obligations of Landlord under this Lease only during the time such
landlord owns such interest or
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title. Any Landlord who transfers its title or interest is relieved of all
liability with respect to the obligations of Landlord under this Lease accruing
on or after the date of transfer. However, each Landlord shall deliver to its
transferee the Security Deposit held by Landlord if such Security Deposit has
not then been applied under the terms of this Lease.
ARTICLE TWELVE: LANDLORD'S CONTRACTUAL LIEN
In addition to the statutory Landlord's lien, Tenant hereby grants to
Landlord a security interest to secure payment of all Rent and other sums of
money becoming due hereunder from Tenant, upon all goods, wares, equipment,
fixtures, furniture and other personal property of Tenant situated in or upon
the Demised Premises, together with the proceeds from the sale or lease
thereof. Such property shall not be removed without the consent of Landlord
until all arrearage in Rent and other sums of money then due to Landlord
hereunder shall first have been paid and discharged. Upon the occurrence of an
event of default, Landlord may, in addition to any other remedies provided
herein or by law, enter upon the Demised Premises and take possession of any
and all goods, wares, equipment, fixtures, furniture and other personal
property of Tenant situated on the Demised Premises without liability for
trespass or conversion, and sell the same at public or private sale, with or
without having such property at the sale, after giving Tenant reasonable
notice of the time and place of any such sale. Unless otherwise required by
law, notice to Tenant of such sale shall be deemed sufficient if given in the
manner prescribed in this Lease at least ten (10) days before the time of the
sale. Any public sale made under this Article shall be deemed to have been
conducted in a commercially reasonable manner if held on the Demised Premises
or where the property is located, after the time, place and method of sale and
a general description of the types of property to be sold have been advertised
in a daily newspaper published in the county where the Demised Premises is
located for five (5) consecutive days before the date of the sale. Landlord or
its assigns may purchase at a public sale and, unless prohibited by law, at a
private sale. The proceeds from any disposition dealt with in this Article,
less any and all expenses connected with the taking of possession, holding and
selling of the property (including reasonable attorneys' fees and legal
expenses), shall be applied as a credit against the indebtedness secured by the
security interest granted herein. Any surplus shall be paid to Tenant or as
otherwise required by law; Tenant shall pay any deficiencies forthwith. Upon
request by landlord, Tenant agrees to execute and deliver to Landlord a
financing statement in form sufficient to perfect the security interest of
Landlord in the aforementioned property and proceeds thereof under the
provisions of the Business and Commerce Code in force in the State of Texas.
The statutory lien for rent is expressly reserved; the security interest herein
granted is in addition and supplementary thereto. Notwithstanding anything to
the contrary, provided Tenant is not in default under any of the terms of this
Lease, Tenant may request Landlord to subordinate its statutory and contractual
landlord's lien to any institutional third party financing of Tenant incurred
for the purpose of securing inventory, fixtures or equipment used in the
Demised Premises. Approval by landlord of Tenant's request for this
subordination will not be unreasonably withheld by Landlord.
ARTICLE THIRTEEN: PROTECTION OF LENDERS
13.01 SUBORDINATION. Landlord shall have the right to subordinate
this Lease to any future ground Lease, deed of trust or mortgage encumbering
the Demised Premises, and advances made on the security thereof and any
renewals, modifications, consolidations, replacements or extensions thereof,
whenever made or recorded. Landlord's right to obtain such a future
subordination is subject to Landlord's providing Tenant with a written
Subordination, Nondisturbance and Attornment Agreement from any such ground
lessor, beneficiary or mortgagee wherein Tenant's right to peaceable possession
of the Demised Premises during the Lease Term shall not be disturbed if Tenant
pays the Rent and performs all of Tenant's obligations under this Lease and is
not otherwise in default. If any ground lessor, beneficiary, or mortgagee
elects to have this Lease superior to the lien of its ground lease, deed of
trust or mortgage and gives written notice thereof to Tenant, this Lease shall
be deemed superior to such ground lease, deed of trust or mortgage whether this
Lease is dated prior or subsequent to the date of said ground lease, deed of
trust or mortgage or the date of recording thereof. Tenant's rights under this
Lease, unless specifically modified at the time this Lease is executed, are
subordinated to any existing ground lease, deed of trust or mortgage
encumbering the Demised Premises.
13.02 ATTORNMENT. If Landlord's interest in the Demised Premises is
transferred voluntarily or involuntarily to any ground lessor, beneficiary
under a deed of trust, mortgagee or purchaser at a foreclosure sale, Tenant
shall attorn to the transferee of or successor to Landlord's interest in the
Demised Premises and recognize such transferee or successor as Landlord under
this Lease. Tenant waives the protection of any statute or rule of law which
gives or purports to give Tenant any right to terminate this Lease or surrender
possession of the Demised Premises upon the transfer of Landlord's interest.
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13.03 SIGNING OF DOCUMENTS. Tenant shall sign and deliver any
instruments or documents necessary or appropriate to evidence any such
attornment or subordination or agreement to do so. If Tenant fails to do so
within ten (10) days after written request, Tenant hereby makes, constitutes
and irrevocably appoints Landlord, or any transferee or successor of Landlord,
the attorney-in-fact of Tenant to execute and deliver any such instrument or
document.
13.04 ESTOPPEL CERTIFICATES.
A. Upon Landlord's written request, Tenant shall
execute, acknowledge and deliver to Landlord a written statement
certifying: (i) that none of the terms or provisions of this Lease
have ben changed (or if they have been changed, stating how they have
been changed); (ii) that this Lease has not been canceled or
terminated; (iii) the last date of payment of the Base Rent and other
charges and the time period covered by such payment; and (iv) that
Landlord is not in default under this Lease (or, if Landlord is
claimed to be in default, stating why). Tenant shall deliver such
statement to Landlord within ten (10) days after Landlord's request.
Any such statement by Tenant may be furnished by Landlord to any
prospective purchaser or lender of the Demised Premises. Such
purchaser or lender may rely conclusively upon such statement as true
and correct.
B. If Tenant does not deliver such statement to Landlord
within such 10-day period, Landlord, and any prospective purchaser or
lender, may conclusively presume and rely upon the following facts:
(i) that the terms and provision of this Lease have not been changed
except as otherwise represented by Landlord; (ii) that this Lease has
not been canceled or terminated except as otherwise represented by
Landlord; (iii) that not more than one monthly installment of Base
Rent or other charges have been paid in advance; and (iv) that
Landlord is not in default under the Lease. In such event, Tenant
shall be estopped from denying the truth of such facts.
13.05 TENANT'S FINANCIAL CONDITION. Within ten (10) days after
written request from Landlord, Tenant shall deliver to Landlord such financial
statements as are reasonably required by Landlord to verify the net worth of
Tenant, or any assignee, subtenant, or guarantor of Tenant. In addition,
Tenant shall deliver to any lender designated by Landlord any financial
statements required by such lender to facilitate the financing or refinancing
of the Demised Premises. Tenant represents and warrants to Landlord that each
such financial statement is a true, complete, and accurate statement as of the
date of such statement. All financial statements shall be confidential and
shall be used only for the purposes set forth herein.
ARTICLE FOURTEEN: PROFESSIONAL SERVICE FEES
ARTICLE FIFTEEN: ENVIRONMENTAL REPRESENTATIONS AND INDEMNITY
15.01 TENANT'S COMPLIANCE WITH ENVIRONMENTAL LAWS. Tenant, at
Tenant's expense, shall comply with all laws, rules, orders, ordinances,
directions, regulations and requirements of federal, state, county and
municipal authorities pertaining to Tenant's use of the Property and with the
recorded covenants, conditions and restrictions, regardless of when they become
effective, including, without limitation, all applicable federal, state and
local laws, regulations or ordinances pertaining to air and water quality,
Hazardous Material (as defined hereinafter), waste disposal, air emissions and
other environmental matters, all zoning and other land use matters, and with
any direction of any public officer or officers, pursuant to law, which shall
impose any duty upon Landlord or Tenant with respect to the use or occupation
of the Property.
15.02 TENANT'S INDEMNIFICATION. Tenant shall not cause or permit
any hazardous material to be brought upon, kept or used in or about the
Property by tenant, its agents, employees, contractors or invitees without the
prior written consent of Landlord. If Tenant breaches the obligations stated
in the preceding Section or sentence, or if the presence of Hazardous Material
on the Property or any other property by Hazardous Material otherwise occurs
for which Tenant is legally liable to Landlord for damage resulting therefrom,
then Tenant shall indemnify, defend and hold Landlord harmless from any and all
claims, judgments, damages, penalties, fines, costs, liabilities or losses
(including, without limitation, diminution in value of the Property, damages
for the loss or restriction on use of rentable or unusable space or of any
amenity or appurtenance of the Property, damages arising from any adverse
impact on marketing of building space or land area, and sums paid in settlement
of claims, attorneys' fees, consultant fees and expert fees) which arise during
or after the Lease Term as a result of such contamination. The indemnification
of Landlord by Tenant includes, without limitation, costs incurred in
connection with any investigation of site conditions or any clean-up, remedial
work, removal or restoration work required by any federal, state or local
government agency or political subdivision because of Hazardous material
present in the soil or ground water on or under
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the Property. Without limiting the foregoing, if the presence of any Hazardous
Material on the Property or any other property caused or permitted by Tenant
results in any contamination of the Property, Tenant shall promptly take all
actions at its sole expense as are necessary to return the Property to the
condition existing prior to the introduction of any such hazardous Material to
the Property, provided that Landlord's approval of such actions shall first be
obtained. The foregoing indemnity shall survive the expiration or earlier
termination of this Lease.
15.03 LANDLORD'S REPRESENTATIONS AND WARRANTIES. Landlord
represents and warrants to Landlord's current actual knowledge that any
hackling, transportation, storage, treatment or usage of Hazardous Material
that has occurred on the Property to date has been in compliance with all
applicable federal, state, and local laws, regulations and ordinances.
Landlord further represents and warrants that no leak, spill, release,
discharge, emission or disposal of Hazardous Material has occurred on the
Property to date and that the soil or groundwater on or under the Property is
free of Hazardous Material as of the date that the term of this Lease commences
unless expressly disclosed by Landlord to Tenant in writing.
15.04 LANDLORD'S INDEMNIFICATION. Landlord hereby indemnifies,
defends and holds Tenant harmless from any claims, judgments, damages,
penalties, fines, costs, liabilities, (including sums paid in settlements of
claims) or loss, including, without limitation, attorneys' fees, consultant
fees, and expert fees, which arise during or after the term of this Lease from
or in connection with the presence or suspected presence of Hazardous Material
in the soil or groundwater on or under the Property, if the Hazardous Material
is released by Landlord or is present solely as a result of the negligence or
willful conduct of Landlord, its officers, employees or agents. Without
limiting the generality of the foregoing, the indemnification provided by this
Article 15.04 shall specifically cover costs incurred in connection with any
investigation of site conditions or any clean-up, remedial work, removal or
restoration work required by any federal, state or local governmental agency or
political subdivision because of the presence or suspected presence of
Hazardous Material in the soil or groundwater on or under the Property, unless
the Hazardous Material is released by Landlord or is present solely as a result
of the negligence or willful conduct of Landlord, its officers, employees, or
agents.
15.05 DEFINITIONS. For purposes of this Article 15, the term
"Hazardous Material" shall mean any pollutant, toxic substance, hazardous
waste, hazardous material, hazardous substance, or oil as defined in or
pursuant to the Resource Conservation and Recovery Act, as amended, the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, the Federal Clean Water Act, as amended, or any other federal, state
or local environment law, regulation, ordinance, rule or bylaw, whether
existing as of the date hereof, previously enforced or subsequently enacted.
15.06 SURVIVAL. The indemnities contained in this Article 15 shall
survive the expiration or earlier termination of this Lease.
ARTICLE SIXTEEN: MISCELLANEOUS
16.01 FORCES 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, or 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.
16.02 INTERPRETATION. The captions of the Articles or Sections of
this Lease are to assist the parties in reading this Lease and are not a part
of the terms or provisions of this Lease. Whenever required by the context of
this Lease, the singular shall include the plural and the plural shall include
the singular. For convenience, each party hereto is referred to in the neuter
gender, but the masculine, feminine and neuter genders shall each include the
other. In any provision relating to the conduct, acts or omissions of Tenant,
the term "Tenant" shall include Tenant's agents, employees, contractors,
invitees, successors or others using the Demised Premises with Tenant's
expressed or implied permission.
16.03 WAIVERS. All waivers must be in writing and signed by the
waiving party. Landlord's failure to enforce any provisions of this Lease or
its acceptance of late installments of Rent shall not be waiver and shall not
estop Landlord from enforcing that provision or any other provision of this
Lease in the future. No statement on a payment check from Tenant or in a
letter accompanying a payment check shall e binding on Landlord. Landlord may,
with or without notice to Tenant, negotiate, cash, or endorse such check
without being bound to the conditions of such statement.
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16.04 SEVERABILITY. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is invalid or
unenforceable shall not cancel or invalidate the remainder of such provision or
this Lease, which shall remain in full force and effect.
16.05 JOINT AND SEVERAL LIABILITY. All parties signing this Lease
as Tenant shall be jointly and severally liable for all obligations of Tenant.
16.06 INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS. This Lease
is the only agreement between the parties pertaining to the lease of the
Demised Premises and no other agreements are effective. All amendments to this
Lease shall be in writing and signed by all parties. Any other attempted
amendment shall be void.
16.07 NOTICES. All notices required or permitted under this Lease
shall be in writing and shall be personally delivered or shall be deemed to be
delivered, whether actually received or not, when deposited in the United
States mail, postage pre-paid, registered or certified mail, return receipt
requested, addressed as stated herein. Notices to Tenant shall be delivered to
the address specified in Section 1.03 above, except that, upon Tenant's taking
possession of the Demised Premises, the Demised Premises shall be Tenant's
address for notice purposes. Notices to any other party hereto shall be
delivered to the address specified in Article One as the address for such
party. Any party hereto may change its notice address upon written notice to
the other parties.
16.08 ATTORNEYS' FEES. If on account of any breach or default by
any party hereto in its obligations to any other party hereto including but not
limited to the Principal Broker), it shall become necessary for the
nondefaulting party to employ an attorney to enforce or defend any of its
rights or remedies hereunder, the defaulting party agrees to pay the
nondefaulting party its reasonable attorneys' fees, whether or not suit is
instituted in connection therewith.
16.09 VENUE. All obligations hereunder, including but not limited
to the payment of fees to the Principal Broker, shall be performable and
payable in the county in which the Property is located.
16.10 GOVERNING LAW. The laws of the State of Texas shall govern
this Lease.
16.11 SURVIVAL. All obligations of any party hereto not fulfilled
at the expiration or the earlier termination of this Lease shall survive such
expiration or earlier termination as continuing obligations of such party.
16.12 BINDING EFFECT. This Lease shall inure to the benefit of and
be binding upon each of the parties hereto and their respective heirs,
representatives, successors and assigns; provided, however, Landlord shall have
no obligation to Tenant's successors or assigns unless the rights or interests
of such successors or assigns are acquired in accordance with the terms of this
Lease.
16.13 EXECUTION AS OFFER. The execution of this Lease by the first
party to do so constitutes an offer to lease the Demised Premises. Unless
within the number of days stated in Section 1.14 above after the date of its
execution by the first party to do so, this Lease is signed by the other party
and a fully executed copy is delivered to the first party, such offer shall be
automatically withdrawn and terminated.
ARTICLE SEVENTEEN: ADDITIONAL PROVISIONS
Additional provisions may be set forth in the blank space below,
and/or an Exhibit or Exhibits may be attached hereto which shall be made a part
of this Lease for all purposes.
See the Addendum attached hereto.
Page 14
15
EFFECTIVE as of the date stated in Section 1.01 above.
LANDLORD:
CRAFTMADE INTERNATIONAL, INC.,
A DELAWARE CORPORATION
By: ___________________________________
Name: _________________________________
Title: ________________________________
Date of Execution by Landlord: ________
TENANT:
TSI PRIME, INC.,
A CALIFORNIA CORPORATION
By: ___________________________________
Name: _________________________________
Title: ________________________________
Date of Execution by Tenant: __________
********************************************************************************
[For voluntary use only by members of the Greater Dallas
Association of REALTORS(R), Inc.]
Page 15
16
GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
EXHIBIT C
RENEWAL OPTIONS
PROPERTY ADDRESS OR DESCRIPTION: 000 X. Xxxxx, Xxxxxxx, Xxxxx
DATE OF LEASE: ____________________, 1995
1. OPTION(S) TO EXTEND TERM
Landlord hereby grants to Tenant two (2) option(s) [the "Option(s)"]
to extend the Lease Term for additional term(s) of one (1) year each [the
"Extension(s)"], on the same terms, conditions and covenants set forth in the
Lease Agreement, except as provided below. Each Option shall be exercised only
by written notice delivered to the Landlord at least one hundred twenty (120)
days before the expiration of the Least Term or the preceding Extension of the
Lease Term. If Tenant fails to deliver Landlord written notice of the exercise
of an Option within the prescribed time period, such Option and any succeeding
Options shall lapse, and there shall be no further right to extend the Lease
Term. Each Option shall be exercisable by Tenant on the express condition that
at the time of the exercise, and at all times prior to the commencement of such
Extension(s), Tenant shall not be in default under any of the provisions of
this Lease. The foregoing Option(s) are personal to Tenant and may not be
exercised by any assignee or subtenant.
2. CALCULATION OF RENT
The Base Rent during the Extension(s) shall be equal to $20,000 per
month.
INITIALS: LANDLORD: INITIALS: TENANT:
__________ __________
__________ __________
17
GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
EXHIBIT H
CONSTRUCTION OF IMPROVEMENTS
PROPERTY ADDRESS OR DESCRIPTION: 000 X. Xxxxx, Xxxxxxx, Xxxxx
DATE OF LEASE: __________________, 1995
1. CONSTRUCTION OF IMPROVEMENTS:
A. Landlord agrees to construct (or complete) a building
and other improvements upon the Demised Premises in accordance with
detailed Plans and Specifications to be prepared forthwith by Landlord
and delivered to Tenant. Upon approval by Tenant, two or more sets of
said Plans and Specifications shall be signed by both parties, with
one signed set retained by Tenant. Changes to said Plans and
Specifications thereafter shall be made only by written addenda signed
by both parties.
B. Upon approval of said Plans and Specifications,
Landlord shall forthwith begin construction and pursue same to
completion with reasonable diligence in a good and workmanlike manner.
2. COMPLETION DATE:
A. It is estimated by Landlord that the building and
other improvements shall be completed by December 31, 1995.
B. Landlord shall notify Tenant in writing when
construction has been completed. Tenant shall thereupon inspect the
building and other improvements, and if same have in fact been
completed in accordance with the Plans and Specifications, the Lease
Term shall begin upon the date of completion with Base Rent due and
payable as provided in Article Three of the Lease.
C. If the building and other improvements have not in
fact been completed in accordance with the Plans and Specifications,
written notification of the items deemed incomplete shall be given by
Tenant to Landlord immediately following inspection. Landlord shall
forthwith proceed to finish the incomplete items, and the lease term
shall begin upon the date that such items are in fact complete.
D. Completion, as used herein, shall mean substantial
completion. Substantial completion shall mean at such time as the
Landlord obtains a Certificate of Occupancy issued by the local
municipal authorities whose jurisdiction includes the Demised
Premises, and is the stage when the construction is sufficiently
complete in accordance with the Plans and Specifications that the
Tenant can occupy or utilize the Demised premises for its intended
use, except for minor "punch list" items remaining to be completed.
3. LETTER OF ACCEPTANCE: Tenant agrees to execute and deliver to
Landlord a Letter of Acceptance, addressed to Landlord and signed by Tenant (or
its authorized representative) acknowledging that construction has been
completed in accordance with the Plans and Specifications and acknowledging the
Commencement Date of the Lease Term.
4. TAKING OF POSSESSION: The taking of possession of the Demised
Premises by Tenant shall be deemed conclusively to be acknowledgment by Tenant
that construction has been completed in accordance with Plans and
Specifications and that the Lease Term has begun as of the date of completion.
INITIALS: LANDLORD: INITIALS: TENANT:
__________ __________
__________ __________
18
5. FAILURE TO COMPLETE: In the event that the building and other
improvements have not been completed in accordance with the Plans and
Specifications by February 1, 1996, or by such date as extended by application
of Section 16.01, Tenant shall have the right and option to terminate this
Lease by giving written notice of Tenant's intention to terminate as of a
certain date not less than fifteen (15) days prior to said certain date. If
the building and other improvements have not been completed by said certain
date, the lease shall, at the option of Tenant, terminate with no further
liability of one party to the other.
INITIALS: LANDLORD: INITIALS: TENANT:
__________ __________
__________ __________
19
FIRST AMENDMENT TO COMMERCIAL LEASE AGREEMENT
This First Amendment to Commercial Lease Agreement (this "Amendment")
is made and entered into as of the 20th day of December, 1995 by and between
Craftmade International, Inc. ("Landlord") and TSI Prime, Inc. ("Tenant").
W I T N E S S E T H :
WHEREAS, Landlord and Tenant have heretofore executed that certain
Commercial Lease Agreement (the "Lease") dated January 1, 1995 concerning
approximately 80,000 square feet in the building located at 000 X. Xxxxx,
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx; and
WHEREAS, Landlord and Tenant now desire to amend the Lease to the
extent and as provided herein;
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. The Lease is hereby amended to provide that if Landlord's
lender ("Lender") has elected to foreclose on the Demised Premises and Lender,
in Lender's sole discretion, determines that Lender is not willing to consent
to the Option, then Lender shall have the right to revoke Tenant's Option to
renew by delivering to Tenant written notice of such election by Lender at
least ninety (90) days before the expiration of the Lease Term, in which event
Tenant's Option shall be revoked and the Lease Term shall expire without the
Extension.
2. The Lease is hereby amended to provide that the liability of
Landlord to Tenant for any default by Landlord under the terms of the Lease
shall be limited to Landlord's interest in the Demised Premises, and Tenant
agrees to look solely to Landlord's interest in the Demised Premises for the
recovery of any judgment against Landlord, it being intended that neither
Landlord nor any of Landlord's officers, directors, shareholders, agents,
affiliates or lenders shall be personally liable for any judgment or
deficiency.
3. Any capitalized terms in this Amendment that are not expressly
defined in this Amendment, but are expressly defined in the Lease, shall have
the same meaning herein as set forth in the Lease.
4. As amended by this Amendment, the Lease remains in full force
and effect.
FIRST AMENDMENT TO COMMERCIAL LEASE AGREEMENT - Page 1
20
Executed and effective as of the date first set forth hereinabove.
CRAFTMADE INTERNATIONAL, INC.,
a Delaware corporation
By: __________________________________
Name: ____________________________
Title: ___________________________
TSI PRIME, INC., a California
corporation
By: __________________________________
Name: ____________________________
Title: ___________________________
FIRST AMENDMENT TO COMMERCIAL LEASE AGREEMENT - Page 2
