18
LEASE AGREEMENT
THIS LEASE AGREEMENT (as hereinafter defined, this "Lease")
made this the 16th day of February, 2000 by and between SIGNTECH
USA, LTD., a Texas limited partnership (as hereinafter defined,
"Landlord"), and XXXXX SIGNTECH, LTD., a Texas limited
partnership (as hereinafter defined, "Tenant").
W I T N E S S E T H:
1. Definitions. When used in this Lease and not otherwise
defined, the following capitalized terms shall have the
respective meanings as follows:
"ADA" shall have the meaning set forth in Paragraph 16
of this Lease.
"Affiliate" shall mean, with respect to any person, any
other person controlling, controlled by, or under common control
with such person.
"Base CPI" shall mean the CPI for the most recent month
before the beginning of the initial term of this Lease, it being
agreed that such CPI was ______.
"Base Rent" shall have the meaning set forth in
Paragraph 5 of this Lease.
"Building" shall mean the building located on the real
property described in Exhibit A and containing the interior
portions of the Premises, it being acknowledged by the parties
that Landlord or others claiming through Landlord may use the
remaining portions of the Building.
"CPI" shall mean the "Consumer Price Index-Seasonally
Adjusted U.S. City Average For All Items For All Urban Consumers,
(1982-84=100)," published monthly in the "Monthly Labor Review"
of the Bureau of Labor Statistics of the United States Department
of Labor. If such CPI is discontinued, the "Consumer Price Index-
Seasonally Adjusted U.S. City Average For All Items For Urban
Wage Earners and Clerical Workers (1982-84=100)," published
monthly in the "Monthly Labor Review" of the Bureau of Labor
Statistics of the United States Department of Labor (the "CPI-
W"), will be used instead of such CPI for making the computation
set forth above. If the CPI-W is discontinued, comparable
statistics on the purchasing power of the consumer dollar
published by the Bureau of Labor Statistics of the United States
Department of Labor will be used for making the computation set
forth above. If the Bureau of Labor Statistics will no longer
maintain statistics on the purchasing power of the consumer
dollar, comparable statistics published by a responsible
financial periodical or recognized authority agreeable to the
parties will be used for making the computation set forth above.
If the base year "(1982-84=100)" or other base year used in
computing the CPI is changed, the figures used in making the
computation above will be changed accordingly, so that all
increases in such price index are taken into account
notwithstanding any such change in the base year.
"Environmental, Health and Safety Laws" shall mean the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, the Resource Conservation and Recovery Act of 1976,
the Clean Air Act, the Federal Water Pollution Control Act, the
Hazardous Materials Transportation Act, the Safe Drinking Water
Act, the Toxic Substances Control Act, the Medical Waste Tracking
Act, the Occupational Safety and Health Act of 1970, as amended,
together with all other laws (including rules, regulations,
codes, injunctions, judgments, orders, decrees, and rulings
thereunder) of federal, state, local, and foreign governments
(and all agencies thereof) concerning pollution or protection of
the environment, public health and safety, or employee health and
safety (specifically including the Occupational Safety and Health
Administration), all as the same now exist or hereafter may be
amended.
"Hazardous Materials" shall mean any waste or other
substance that is listed, defined, designated, or classified as,
or otherwise determined to be, hazardous, radioactive, or toxic
or a pollutant or a contaminant under or pursuant to any of the
Environmental, Health, and Safety Laws, including but not limited
to any admixture or solution thereof, and specifically including
but not limited to waste oil, petroleum and all derivatives
thereof or synthetic substitutes therefor and friable asbestos.
"Landlord" shall mean Signtech USA, Ltd., a Texas
limited partnership that soon will change its name to "Salsa" or
some other appropriate name not including the word "Signtech,"
the owner of the Premises and the landlord under this Lease,
together with its successors and permitted assigns.
"Lease" shall mean this Lease Agreement and all written
amendments hereto that hereafter shall be executed and delivered
by Landlord and Tenant.
"New CPI" shall mean, with respect to determination of
Base Rent for either renewal term, the CPI for the most recent
month before the beginning of such renewal term.
"Premises" shall mean the real property to be leased by
Tenant from Landlord under this Lease, consisting of certain
portions of the real property and improvements located at 0000
Xxxxxxx 00 Xxxx, Xxx Xxxxxxx, Xxxxx and more particularly
described in Exhibit A hereto, including, without limitation, (a)
approximately 90,470 square feet of manufacturing space located
within the Building, (b) 7,792 square feet of office space
located within the Building, and (c) the right to use the
exterior portions of the real property described in Exhibit A
hereto, including a Proportionate Share of the parking spaces.
The portions of the Building to be occupied by Tenant are
described in the drawing of the Building attached hereto as
Exhibit B.
"Proportionate Share" shall mean, with respect to
either Landlord or Tenant, a share based upon the size of that
portion of the Building allocated to such party, it being agreed
that:
(a) the Proportionate Share of Tenant shall be
that fraction of the whole of which (1) the numerator is the
number of square feet located in the Building and leased by
Tenant under this Lease, and (2) the denominator is the total
number of square feet in the Building, and
(b) the share of Landlord shall be the entire
balance of the whole.
"Tenant" shall mean Xxxxx-Signtech, Ltd., a Texas
limited partnership, the lessee of the Premises under this Lease,
and if this Lease shall be validly assigned, or if the Premises
shall be validly sublet, then "Tenant" shall include the Tenant's
assignees or sub-Tenants as to the particular portions of the
Premises covered by such assignment or sub-lease.
2. Leasing of Premises. Landlord, for and in
consideration of the rents, covenants, agreements, and
stipulations hereinafter mentioned, reserved and contained, to be
paid, kept and performed by Tenant, has leased and rented, and by
these presents does lease and rent, unto said Tenant, and said
Tenant hereby agrees to lease and take upon the terms and
conditions which hereinafter appear, the Premises. Landlord
covenants that Tenant, provided it performs all of its
obligations under this Lease, will peaceably and quietly enjoy
the Premises during the Lease term without any disturbance from
Landlord, anyone claiming by, through or under Landlord, or any
other party, except as otherwise specifically provided in this
Lease.
3. Term. Unless renewed by Tenant in its discretion in
the manner hereinafter provided, the term of this Lease shall be
for a period of three (3) years, with such term to begin on the
_____ day of February, 2000 and to end on the ______ day of
February, 2003.
4. Renewal Options. Provided it is not then in default
under the Lease, Tenant may renew the term of this Lease up to
two (2) consecutive times for five (5) additional years per
renewal by written notice of its election to do so given to
Landlord at least one hundred eighty (180) days prior to the
expiration date of the initial term or the expiration date of the
first renewal term, as applicable. With the exception of rent,
the renewal term will be on all of the terms and conditions of
this Lease. The rent for each renewal term shall be increased as
follows:
(a) For the first renewal term, the annual rental
shall be the amount determined by multiplying the Base Rent by a
fraction of which:
(1) the numerator is New CPI; and
(2) the denominator is the Base CPI.
(b) For the second renewal term, the annual rental
shall be the amount determined by multiplying the Base Rent by a
fraction of which:
(1) the numerator is the New CPI; and
(2) the denominator is the Base CPI.
(c) In no event shall the annual rental for any
renewal term be reduced by operation of the formula set forth in
this Paragraph.
5. Rental. For the initial term of this Lease, Tenant
will pay an annual rental of Four Hundred Twelve Thousand Seven
Hundred and 40/100 Dollars ($412,700.40) (the "Base Rent") per
year. The annual rental for each year of the initial term of
this Lease will be due and payable in twelve equal monthly
installments of Thirty Four Thousand Three Hundred Ninety-One and
70/100 Dollars ($34,391.70) in advance on the first day of each
and every calendar month during the initial term of this Lease.
The first payment of such annual rental is to be made on the
_____ day of February, 2000, pro-rated if the term begins on a
day other than the first day of the month. The parties
acknowledge that the Base Rent during the initial term is based
on an agreed rental amount of four dollars and twenty cents
($4.20) per square foot and a gross square footage of the
interior portions of the Premises of 98,262 square feet,
consisting of 90,470 square feet of manufacturing space and 7,792
square feet of office space. If the actual square footage of the
Premises is less than as set forth above, the annual rental (and
monthly payments) shall xxxxx proportionately.
The annual rental for each year of any renewal term of this
Lease will be due and payable in twelve equal monthly
installments in advance on the first day of each and every
calendar month during the renewal term.
6. Utility Bills.
(a) For any utilities that are separately metered,
Tenant will pay all utility bills of all types, including, but
not limited to, water and sewer, natural gas, electricity and
sanitary pick up bills for the Premises, or used by Tenant in
connection therewith. If Tenant does not pay same, Landlord may
pay the same, and such payment will be added to the next due
monthly installment of rental of the Premises.
(b) For any utilities that are not separately metered,
Tenant will pay to Landlord its Proportionate Share of utility
costs no later than the date such utility costs are due and
payable to the utility provider. If Landlord does not then pay
same, Tenant may pay such utility costs, and Tenant's rent will
be abated by such amount so paid by Tenant.
7. Ad Valorem Taxes.
(a) Tenant shall pay as additional rent its
Proportionate Share of any and all ad valorem real estate taxes
assessed and levied against the real property described in
Exhibit A to this Lease and the improvements thereto. Tenant's
proportionate share shall be payable to Landlord no later than
the date such taxes may be paid without penalty or interest.
(b) Tenant shall pay its fair share of any special
assessment imposed upon the Property, it being agreed that
Tenant's fair share shall be based on both (1) Tenant's
Proportionate Share of the Building, and (2) the ratio of the
then remaining term of this Lease to the useful life of the
improvement to which the special assessment pertains. Tenant's
fair share shall be payable to Landlord no later than the date
such taxes may be paid without penalty or interest.
(c) Tenant will pay timely any and all ad valorem
taxes assessed against the personal property of Tenant located on
the Premises, during the entire term thereof.
(d) Tenant shall have the right, at Tenant's sole
expense, to appeal any and all taxes applicable to the Premises
and Landlord agrees that Landlord will cooperate with Tenant
reasonably and sign all documents reasonably required in
connection with any such appeal. Provided that an appeal or
protest of a tax assessment will operate to suspend the
collection of assessed taxes and the enforcement of the lien for
the assessed tax, Tenant may delay payment of any portion of such
taxes which are the subject of an appeal or protest until the
resolution of such appeal or protest, in which event Tenant shall
be solely responsible for the payment of any penalties, interest,
or additional taxes which result from such delay.
Notwithstanding the foregoing, Tenant shall not permit the filing
of a tax lien against the Premises.
8. Insurance.
(a) Landlord will carry "All Risk" Insurance Coverage
on the demised Premises in an amount not less than the full
insurable value. The term "full insurable value" will mean the
actual replacement cost, excluding foundation and excavation
costs, as reasonably determined by Landlord. Such policies will
name Tenant as an additional named insured. Tenant will
reimburse Landlord for its Proportionate Share of the "All Risk"
Insurance Coverage no later than the date the premium on the
coverage is due and payable to the insurance carrier. If
Landlord fails in its obligations to obtain or maintain said
insurance, Tenant may, at its option, either (1) make the
requisite payments for Landlord's insurance and have its rent
abated by said amount, or (2) obtain its own insurance, for which
Landlord will be liable to Tenant for its Proportionate Share of
the costs thereof.
(b) Tenant will carry at Tenant's own expense
insurance coverage on all equipment, fixtures and appliances.
Landlord acknowledges that consistent with the practices of
Tenant's ultimate parent entity, certain perils that are insured
by many businesses are self-insured by Tenant up to the parent
entity's prescribed excess insurance attachment point.
(c) Landlord and Tenant waive all rights to recover
against each other or against any other Tenant or occupant of the
Building, or against the officers, directors, shareholders,
partners, joint venturers, employees, agents, customers,
invitees, or business visitors of each other or of any other
Tenant or occupant of the Building, for any loss or damage
arising from any cause covered by any insurance required to be
carried by each of them pursuant to this Paragraph or any other
insurance actually carried by each of them. Landlord and Tenant
will cause their respective insurers to issue appropriate waiver
of subrogation rights endorsements to all policies of insurance
carried in connection with the Building or the Premises or the
contents of either of them to the extent such waivers are
available.
9. Maintenance and Repairs by Tenant. Landlord warrants
as of the commencement date of this Lease that the Premises are
structurally sound and that all electrical, lighting, utility,
fire safety, HVAC, and all operating systems are in good working
condition and are not in need of repair. Except as set forth in
Paragraph 10, Tenant will, at its own expense, keep and maintain
the interior of the Premises, including all systems pertaining to
electrical, lighting, and HVAC; provided, however, if the HVAC
system serves both Landlord and Tenant, Landlord shall be
responsible for its maintenance and repair, and Tenant shall
reimburse Landlord for its Proportionate Share of the costs of
said repair no later than the date the cost of the maintenance
and repairs is due and payable by Landlord. It is the intent of
the parties that Tenant will only be required to make repairs or
replacements which are not structural in nature.
10. Repairs by Landlord. Landlord agrees to maintain and
keep in good repair the roof, exterior walls, structural supports
(including foundations), exterior doors of any and all buildings
located on the Premises, and all water or sewer pipes located
underground or in the slab, sidewalks, parking lots, driveways
and other vehicular access and maneuvering areas. Landlord will
also be responsible for any repairs or replacements which are
structural in nature, which are extraordinary or capital in
nature, which will increase the value of the Premises subsequent
to the end of the then term, and any other repairs not expressly
delegated to Tenant in this Lease. Landlord will also promptly
clean up and dispose of any Hazardous Materials found on, in or
under any portion of the Premises, remediate the Premises to
comply with any and all environmental laws applicable thereto,
and pay for all clean up and disposal costs at no cost to Tenant,
unless directly caused by Tenant, its employees, agents or
contractors.
11. Destruction of or Damage to the Premises. If the
Premises are totally destroyed by storm, fire, lightning,
earthquake or other casualty, this Lease will terminate as of the
date of such destruction, and rental will be accounted for as
between Landlord and Tenant as of that date. If the Premises are
damaged but not wholly destroyed by any of such casualties,
rental will xxxxx in such proportion as use of the Premises has
been destroyed, and Landlord will restore the Premises to
substantially the same condition as before the damage as speedily
as practicable, whereupon full rental will recommence; however,
if the damage will be so extensive the same cannot be reasonably
repaired and restored within _______ (__) months' time from the
date of the casualty, then either Landlord or Tenant may cancel
this Lease by giving written notice to the other party within
thirty (30) days from the date of such casualty. In such event,
rental will be apportioned and paid up to the date of such
casualty.
12. Modifications and Alterations to the Premises. No
modifications, alterations, or improvements to the Building or
openings cut through the roof are allowed without the prior
written consent of Landlord, which consent will not be
unreasonably withheld or delayed.
13. Removal of Fixtures. Tenant may (if not in default
hereunder) prior to the expiration of this Lease, or any renewal
or extension thereof, remove all personal property, fixtures and
equipment which Tenant has placed in the Premises, provided that
during such removal Tenant will make all reasonable repairs
necessary to return the Premises to its original condition,
reasonable wear and tear excepted.
14. Return of the Premises. Tenant agrees to return the
Premises to Landlord at the expiration or prior termination of
this Lease in same condition and repair, reasonable wear and
tear, damage by storm, fire, lightning, earthquake or other
casualty alone excepted.
15. Condemnation.
(a) If the whole of the Premises, or such portion
thereof as will make the Premises unusable for the purpose herein
leased, shall be condemned by any legally constituted authority
for any public use or purpose or if Landlord shall sell the
Premises under threat of condemnation, then in either such case
the term of this Lease will end at the time when possession
thereof is taken by public authorities, and rental will be
accounted for as between Landlord and Tenant as of that date.
Such termination, however, will be without prejudice to the
rights of Landlord to recover compensation and damage caused by
condemnation from the condemnor or the rights of Tenant to
recover from the condemnor compensation for its costs of
relocation (including for any business disadvantage or increased
rent resulting from such relocation) and for the unamortized
value of leasehold improvements made by Tenant. It is further
understood and agreed that neither Tenant nor Landlord will have
any rights in any award made to the other by any condemning
authority.
(b) If there is a partial taking of the Premises by
condemnation and if it is not so extensive as to render the
remaining portion (after restorations) unsuitable for the
business of Tenant, then this Lease will continue in effect and
Landlord, upon receipt of the award in condemnation, will
expeditiously commence and complete all necessary repairs and
restorations to the Premises so as to constitute the portion of
the Building not taken a complete architectural unit and restore
the Premises as nearly as practicable to its prior condition;
provided, however, that such work does not exceed the scope of
the original construction, and Landlord will not be under any
duty to expend amounts in excess of the award received by
Landlord. Rent, taxes and other charges payable by Tenant will
equitably xxxxx while Landlord's repairs and restorations are in
process. If a partial taking consists only of a street widening
or utility easement which, at Tenant's reasonable judgment, is
determined not to materially affect Tenant's use of the Premises,
this Lease will continue in full force and effect without
abatement of rent, taxes or other charges.
16. Governmental Orders. Tenant agrees, at its own
expense and solely in relation to those portions of the Premises
which Tenant is required to maintain or repair under Paragraph 9,
to promptly comply with all requirements of any legally
constituted public authority made necessary by reason of Tenant's
specific use of said Premises. Notwithstanding the foregoing,
the Tenant will not be liable for: (a) repairs, alterations,
replacements or retrofitting required by the accessibility or
path of travel requirements set forth in Title III of the
Americans With Disabilities Act of 1990, 42 USC 12101, et seq.
and regulations and guidelines promulgated thereunder, as amended
from time to time (collectively referred to as "ADA"); (b)
repairs, alterations or replacements required to comply with
federal, state or local indoor air quality laws, rules or
regulations (separate and apart from any such laws, rules or
regulations that are specific to Tenant's industry); or (c)
repairs, alterations or replacements described in Paragraph 10.
Landlord agrees to promptly comply with any other governmental or
regulatory requirements if not made necessary by reason of
Tenant's occupancy of the Premises or relating to those portions
of the Premises which Landlord is required to maintain or repair
under Paragraph 10.
17. Assignment. Tenant may assign this Lease or sublet all
or part of the Premises to (a) any Affiliate of Tenant, and (b)
any entity that is not an Affiliate of Tenant that succeeds to
the entire business of Tenant through purchase, merger,
consolidation or reorganization. Any other subletting of all or
any portion of the Premises or assignment in whole or in part of
this Lease shall be prohibited without the prior written consent
of Landlord, which shall not be withheld unreasonably.
Subtenants or assignees will become liable directly to Landlord
for all obligations of Tenant hereunder, without relieving
Tenant's liability.
18. Mortgagee's Rights. Tenant's rights will be subject to
any bona fide mortgage or deed to secure debt which is now, or
may hereafter be, placed upon the Premises by Landlord, and
Tenant agrees, at Landlord's cost, to execute and deliver such
documentation as may be reasonably required by any such mortgagee
to effect any subordination. Provided, however, as a condition to
such subordination, Landlord must secure from each mortgagee a
nondisturbance agreement acceptable to Tenant providing that in
the event of a foreclosure the mortgagee will recognize the
validity of this Lease and, provided that Tenant is not in
default, will not disturb Tenant's possession or its rights under
this Lease. Landlord and Tenant specifically approve the form of
Subordination, Nondisturbance and Attornment Agreement attached
hereto as Exhibit C.
19. Use of the Premises. The Tenant may use the Premises
for the manufacturing of plastics or other products,
warehousing, storage, and related office purposes, for engaging
in the flexible signage materials, screen-printing, heat transfer
and related products businesses, or for any other lawful purpose.
The Premises will not be used for any illegal purposes, nor in
any manner to create any nuisance or trespass; nor in any manner
to vitiate the insurance, based on the above purposes for which
the Premises are leased.
20. Signs. Tenant will have the right to erect at Tenant's
sole expense signage at the entrance to and upon the Premises,
including but not limited to a customary trade sign identifying
the business of Tenant. The erection of signage by Tenant will
be subject to and in conformity with all applicable laws, zoning
ordinances and building restrictions or covenants of record. On
or before termination of this Lease, Tenant will remove the
signage thus erected, and will repair any damage or
disfigurement, caused by such removal. All signage proposed by
Tenant shall be subject to Landlord's review and approval, which
approval shall not be unreasonably withheld, conditioned or
delayed.
21. Tenant's Right of First Refusal to Purchase. Landlord
will have the right to sell the real property described in
Exhibit A and all improvements thereto, but such right shall be
subject to the following conditions:
(a) Landlord shall give notice of each proposed sale,
including the purchase price and all other terms and conditions,
to Tenant;
(b) Tenant will have the right to purchase such real
property at the purchase price and on the other terms and
conditions offered by Landlord or offered to Landlord by the
third party (which offer Landlord wishes to accept), by giving
notice to Landlord within twenty (20) business days after
Landlord has notified Tenant of the terms of Landlord's proposed
sale; and
(c) if Tenant does not give notice of the exercise of
its option within such time, Landlord will have the right to sell
such real property upon the terms stated in the offer made or
received by Landlord, but not upon terms more favorable to the
purchaser, unless Landlord again gives notice pursuant to
Subparagraph (a) above, and Tenant does not exercise its option
based upon the new terms. Notwithstanding the foregoing,
Tenant's right of first refusal to purchase such real property
shall not apply to Landlord's sale of such real property as part
of the sale by Landlord of a portfolio of properties that
includes such real property and at least two other properties of
equal or greater value.
22. Entry for Carding, etc. Landlord may card the Premises
"For Rent" ninety (90) days before the termination of this Lease.
Landlord may enter the Premises at reasonable hours during the
term of this Lease to exhibit the same to prospective purchasers
and to make repairs required of Landlord under the terms hereof.
Landlord may card the real property described on Exhibit "A" "For
sale" or any portion of the real property other than the Premises
"For Rent" at any time.
23. Indemnity.
(a) Landlord agrees to indemnify and save harmless
Tenant and its parents, subsidiaries, Affiliates, directors,
officers, employees, agents, servants, attorneys and
representatives from any and all claims, causes of action,
damages, fines, judgments, penalties, costs (including
environmental clean-up costs and response costs), liabilities,
expenses or losses (including without limitation, reasonable
attorneys' fees and expenses of litigation) arising during or
after the Lease term: (1) as a result of any violation by
Landlord or prior owners or occupants of the Premises of any
applicable federal, state or local environmental laws or
regulations, as now or hereinafter in effect, regulating,
relating to or imposing liability or imposing standards of
conduct concerning any Hazardous Materials; or (2) as a result of
the presence, disturbance, discharge, release, removal or cleanup
of Hazardous Materials or as a result of environmental
contamination or other similar conditions which existed prior to
commencement of the Lease term, including the matters referenced
in the Asset Purchase Agreement between Landlord, as Seller, and
Tenant, as Buyer, under which Landlord has undertaken
responsibility for certain corrective environmental measures; or
(3) as a result of any violation of the accessibility or path of
travel requirements imposed by ADA; or (4) as a result of any of
Landlord's representations and warranties being untrue. These
indemnities will survive the expiration, cancellation or
termination of the Lease. Notwithstanding the foregoing,
Landlord's indemnities shall not apply or extend to claims
arising from or caused by Tenant.
(b) Tenant agrees to indemnify and save harmless
Landlord and its parents, subsidiaries, Affiliates, directors,
officers, employees, agents, servants, attorneys and
representatives from any and all claims, causes of action,
damages, fines, judgments, penalties, costs (including
environmental clean-up costs and response costs), liabilities,
expenses or losses (including without limitation, reasonable
attorneys' fees and expenses of litigation) arising during or
after the Lease term: (1) as a result of any violation by Tenant
of any applicable federal, state or local environmental laws or
regulations, as now or hereinafter in effect, regulating,
relating to or imposing liability or imposing standards of
conduct concerning any Hazardous Materials; or (2) as a result of
the presence, disturbance, discharge, release, removal or cleanup
of Hazardous Materials or as a result of environmental
contamination or other similar conditions which existed after
commencement of the Lease term and which was caused by or brought
onto the Premises by Tenant or Tenant's agents, contractors,
employees, licensees and invitees; or (3) as a result of any
violation by Tenant of the accessibility or path of travel
requirements imposed by ADA; or (4) as a result of any of
Tenant's representations and warranties being untrue. These
indemnities will survive the expiration, cancellation or
termination of the Lease; provided, however, that Tenant will not
be liable for the acts of Landlord or of any other tenants of
said property.
24. Default of Tenant.
(a) It shall be a default by Tenant if: (1) the rent
herein required is not paid at the time and place when and where
due and Tenant fails to pay said rent within ten (10) days after
written demand from Landlord; or (2) Tenant fails to comply with
any material term, provision, condition, or covenant of this
Lease, other than the payment of rent, and will not cure such
failure within thirty (30) days after notice to Tenant of such
failure to comply or such additional time period as may
reasonably be necessary to effect a cure of the default provided
that Tenant commences and diligently pursues a cure of the
default; or (3) Tenant causes any lien to be placed against the
Premises and does not cure the same within thirty (30) days after
notice from Landlord to Tenant demanding cure.
(b) Upon any default by Tenant referenced in
Subparagraph (a) above, Landlord may, in addition to, and not in
limitation of any other remedy permitted by law or by this Lease:
(1) terminate this Lease, in which case Tenant
shall (A) immediately surrender the Premises to Landlord, and (B)
indemnify Landlord for all loss and damage that Landlord may
suffer by reason of such termination, whether through inability
to relet the Premises, or through decrease in rent, or otherwise;
or
(2) acting as Tenant's agent, without terminating
this Lease, may terminate Tenant's right of possession, and, at
Landlord's option, enter upon and rent the Premises at the best
price obtainable by reasonable effort, without advertisement and
by private negotiations and for any term Landlord deems proper,
in which case Tenant will be liable to Landlord for the
deficiency, if any, between Tenant's rent hereunder and the price
obtained by Landlord on reletting.
Pursuit of any of the foregoing remedies will not preclude
pursuit of any of the other remedies herein provided or any other
remedies provided by law. In any case, Landlord will use
reasonable efforts to mitigate Tenant's damages. Any notice in
this provision may be given by Landlord or its attorney. No
termination of this Lease prior to the normal ending thereof, by
lapse of time or otherwise, will affect Landlord's right to
collect rent for the period prior to the termination thereof.
25. Default of Landlord. It shall be a default by Landlord
if Landlord fails to comply with any material term, provision,
condition or covenant of this Lease and will not cure such
failure within thirty (30) days after notice to Landlord of such
failure to comply or such additional time period as may
reasonably be necessary to effect a cure of the default provided
that Landlord commence and diligently pursues a cure of the
default. Upon any default by Landlord, Tenant may, at its
option, elect to: (a) terminate this Lease upon thirty (30) days
written notice to Landlord; (b) bring an action to require
specific performance of Landlord's obligations; (c) provide
Landlord with an additional period of time within which to effect
that cure; (d) commence such cure itself, and Tenant may either,
at its option, offset any expenses it incurs in effecting such
cure against the rent and other charges due and payable by Tenant
hereunder, or require that Landlord immediately reimburse Tenant
for its expenses; provided, however, in the event of an
emergency, Tenant may immediately effect a cure of Landlord's
failure should Landlord fail to act immediately to do so, without
the requirement of any notice by Tenant to Landlord; and/or (e)
pursue any other remedies provided herein or provided by law.
26. Warranties of Landlord. Landlord warrants that:
(a) Landlord owns the Premises in fee simple and has
the right to enter into this Lease. The Premises are free from
liens and encumbrances, except for utility easements, unviolated
restrictive covenants which do not materially adversely affect
Tenant's intended use of the Premises, and other title matters to
which the conveyance of the Premises by Landlord to Tenant was
subject, including a mortgage for which the mortgagee, Landlord
and Tenant have executed a subordination, nondisturbance and
attornment agreement. The Premises have legal, direct,
pedestrian and vehicular access to and from and abuts one or more
publicly dedicated roads;
(b) Except for the corrective environmental work
called for by the Asset Purchase Agreement between Landlord, as
Seller, and Tenant, as Buyer, to Landlord's knowledge the
Premises are in compliance with all Environmental, Health and
Safety Laws.
(c) Except for the citations that Landlord has
separately disclosed to Tenant, Landlord has not received a
citation from any regulatory agency for noncompliance with
Environmental, Health and Safety Laws. Landlord alone shall be
responsible for fines, penalties, and all other damages arising
out of any such citation with respect to occurrences or
conditions at the Premises prior to the date hereof and for any
such items in the portions of the Building other than the
Premises or resulting from Landlord's use of such land at any
time subsequent to the date hereof.
27. Holding Over. If Tenant remains in possession of the
Premises after expiration of the term hereof with Landlord's
acquiescence, Tenant shall be a month to month tenant on the
terms that were in effect immediately prior to expiration of the
term of this Lease. If Tenant remains in possession of the
Premises after expiration of the term hereof without Landlord's
acquiescence and after Landlord's written demand for return of
the Premises, Tenant will be a tenant-at-sufferance at 150% of
the rental rate in effect at end of the Lease. In neither case
shall there be deemed to be a renewal of this Lease (other than
to a month-to-month basis, as stated above) by operation of law.
28. Notices. Any notice given pursuant to this Lease will
be in writing and sent by certified mail to:
If to Landlord: Signtech USA, LTD.
0000 Xxxxxxx 00 Xxxx
Xxx Xxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxx
Copy to: Xxxxx X. Xxxxx, P.C.
Law Office, Trinity Plaza
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
If to Tenant: Xxxxx Signtech, Ltd.
c/o Xxxxx, Inc.
Adhesives and Films Division
0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx Xxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxx, III
Division President
Copies to: Xx. Xxxxx X. Xxxxxxx
Vice President
Xxxxx, Inc.
000 Xxxxxxx Xxxx., Xxxxx 000
Xxxx Xxxx, XX 00000
Holland & Knight LLP
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx, Xx.
29. Construction of Lease Terms. Irrespective of which
party was responsible for the preparation and drafting of this
Lease, the terms of this Lease will not be construed more
strictly against such party than against any other party.
30. Waiver of Rights. No failure of Landlord to exercise
any power given Landlord hereunder, or to insist upon strict
compliance by Tenant with its obligations hereunder, and no
custom or practice of the parties at variance with the terms
hereof will constitute a waiver of Landlord's right to demand
exact compliance with the terms hereof.
31. Rights Cumulative. All rights, powers and privileges
conferred hereunder upon the parties hereto will be cumulative
but not restrictive to those given by law.
32. Time of Essence. Time is of the essence of this
Lease.
33. Entire Agreement. This Lease contains the entire
agreement of the parties hereto, and no representations,
inducements, promises or agreements, oral or otherwise, between
the parties, not embodied herein, will be of any force or effect.
34. Severability and Governing Law. If any term, covenant
or condition of this Lease or the application thereof to any
person, entity or circumstance will, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of
such term, covenant, or condition to persons, entities or
circumstances other than those which or to which sued may be held
invalid or unenforceable, will not be affected thereby, and each
term, covenant or condition of this Lease will be valid and
enforceable to the fullest extent permitted by law. This Lease
shall be governed by and construed in accordance with the law of
the state in which the Premises are located.
35. Brokerage. Each of Landlord and Tenant warrants to
the other that no commissions are payable or due to any broker
or finder in connection with this Lease and each of Landlord and
Tenant agrees to indemnify, defend and hold the other harmless
from and against any commissions or fees or claims for
commissions or fees arising under the indemnifying party, which
indemnification will expressly survive the termination of this
Lease.
36. No Recording; Memorandum of Lease. This Lease shall
not be recorded, but a written Memorandum of Lease in the form of
Exhibit D hereto shall be placed of record in the public records
of Bexar County, Texas. Such Memorandum of Lease makes specific
reference to the term of this Lease, including renewals, and to
the right of first refusal granted to Tenant under Paragraph 21
of this Lease.
IN WITNESS WHEREOF, the parties herein have executed this
Lease on the day and year first above written.
"LANDLORD"
SIGNTECH USA, LTD., a Texas
limited partnership
By: XXXXX GROUP, INC.,
General Partner
Witnesses:
_____________________________
By:____________________________
Printed:_______________________
Name:_________________________
Its:____________________________
______________________________
Printed:________________________
"TENANT"
XXXXX SIGNTECH, LTD., a
Texas limited partnership
By: XXXXX ADHESIVES &
FILMS, INC.,
General Partner
Witnesses:
_____________________________
By:___________________________
Printed:_______________________
Name:________________________
Its:___________________________
______________________________
Printed:________________________
ORL1 #534655 v7
EXHIBIT LIST FOR LEASE AGREEMENT
Exhibit A Legal Description of Real Property
Including the Premises
Exhibit B Drawing of Building Identifying
Interior Portions of Premises
Leased by Tenant
Exhibit C Approved Form of Subordination,
Nondisturbance and Attornment Agreement
Exhibit D Form of Memorandum of Lease
EXHIBIT A
(Legal Description of the Real Property Including the Premises)
