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EXHIBIT 10.17
STANDARD INDUSTRIAL LEASE AGREEMENT
157,704 SQUARE FOOT ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
CB MIDWAY INTERNATIONAL, LTD., LESSOR
GADZOOKS, INC., LESSEE
EXECUTION DATE: AUGUST 23, 1996
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TABLE OF CONTENTS
STANDARD INDUSTRIAL LEASE AGREEMENT
BY AND BETWEEN
CB MIDWAY INTERNATIONAL PARTNERS, LTD., AS LESSOR,
AND
GADZOOKS, INC., AS LESSEE
PAGE
----
1. PREMISES AND TERM........................................................................................1
A. Building to be Constructed or Shell Space.......................................................1
(i) Preparation of Design........................................................................1
(ii) Construction.................................................................................2
(iii) Excused Delays...............................................................................3
(iv) Move In Period...............................................................................3
(v) DISCLAIMER OF CONSTRUCTION WARRANTIES........................................................3
(vi) Third-Party Warranties.......................................................................3
(vii) Change Orders................................................................................4
(viii) Substantial Completion.......................................................................4
(ix) Punch List...................................................................................5
(x) Late Completion..............................................................................5
B. Office Finish...................................................................................5
(i) Preparation of Office Plans..................................................................5
(ii) Interior Finish Allowance....................................................................6
(iii) Bid of Interior Finish.......................................................................6
C. Failure to Occupy or Lessee Delay.....................................................................6
2. BASE RENT, SECURITY DEPOSIT AND OPERATING EXPENSES.......................................................7
3. TAXES....................................................................................................9
4. LESSOR'S REPAIRS AND MAINTENANCE........................................................................10
5. LESSEE'S REPAIRS AND MAINTENANCE........................................................................11
6. ALTERATIONS.............................................................................................13
7. SIGNS...................................................................................................13
8. UTILITIES...............................................................................................14
9. INSURANCE...............................................................................................14
10. FIRE AND CASUALTY DAMAGE................................................................................16
11. LIABILITY AND INDEMNIFICATION...........................................................................17
12. USE.....................................................................................................17
13. INSPECTION..............................................................................................18
14. ASSIGNMENT AND SUBLETTING...............................................................................19
15. CONDEMNATION............................................................................................20
16. HOLDING OVER............................................................................................20
17. QUIET ENJOYMENT.........................................................................................21
18. EVENTS OF DEFAULT.......................................................................................21
19. REMEDIES................................................................................................22
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20. MORTGAGES...............................................................................................25
21. MECHANIC'S LIENS........................................................................................25
22. LESSOR'S LIEN...........................................................................................26
23. HAZARDOUS MATERIALS.....................................................................................26
24. MISCELLANEOUS...........................................................................................28
25. NOTICES.................................................................................................31
26. ADDITIONAL PROVISIONS...................................................................................32
27. ATTACHMENTS.............................................................................................33
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EXHIBITS
Exhibit A - Legal Description of Land (boundary description and boundary
sketch)
Exhibit B - Site Plan and Floor Plan
Representative Elevations
Base Building Standard Specifications
Base Building Lessee-Specific Specifications
Rider 1 - Option for Expansion of Premises
Schedule R1 - Option Price Multiplier
Rider 2 - Option for Renewal of Term
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STANDARD INDUSTRIAL LEASE AGREEMENT
157,704 Sq. Ft.
THIS LEASE AGREEMENT ("LEASE") made and entered into by and between CB
MIDWAY INTERNATIONAL PARTNERS, LTD., a Texas limited partnership, hereinafter
referred to as "Lessor", and GADZOOKS, INC., a Texas corporation, hereinafter
referred to as "LESSEE".
W I T N E S S E T H:
1. PREMISES AND TERM. In consideration of the mutual obligations of
Lessor and Lessee set forth herein, Lessor leases to Lessee, and Lessee hereby
takes from Lessor the premises (the "LAND") situated within the County of
▇▇▇▇▇▇, State of Texas, more particularly described on EXHIBIT A attached hereto
and incorporated herein by reference (subject to adjustment as provided in
Section 26.D.) and the improvements contemplated to be constructed thereon
pursuant to this Lease (the "IMPROVEMENTS") (the Land and Improvements being
herein collectively referred to as the "PREMISES") together with all rights,
privileges, easements, appurtenances, and amenities belonging to or in any way
pertaining to the Premises, to have and to hold, subject to the terms, covenants
and conditions in this Lease. The term of this Lease (the "PRIMARY TERM") shall
commence on the commencement date hereinafter set forth and shall end on the
last day of the month that is 120 months after the commencement date (subject to
extension as provided in this Lease). Lessor shall notify Lessee of the
substantial completion of the Improvements, which shall be deemed to occur on
the date determined in accordance with this Paragraph. The term of this Lease
shall commence on the latest of the following three dates (herein referred to as
the "COMMENCEMENT DATE"): (i) the date which is fourteen (14) days after
Lessor's notice to Lessee that the Premises are fixture-ready, permitting Lessee
to install furniture, equipment, fixtures, and other personal property in the
warehouse portion of the Improvements in accordance with Paragraph I A(iv) (the
"MOVE IN Period"); (ii) the date of substantial completion of the Improvements,
determined in accordance with Paragraph 1; and (iii) April 1, 1997. Lessor
hereby waives payment of rent during the Move In Period, or at any time prior to
the commencement date.
A. BUILDING TO BE CONSTRUCTED OR SHELL SPACE.
(i) PREPARATION OF DESIGN. Lessor agrees to furnish,
at Lessor's sole cost and expense, all of the material, labor and equipment
necessary for the construction of the Improvements in accordance with the plans
and/or specifications to be prepared in accordance with the terms and provisions
of this Lease. Lessor agrees to cause detailed plans and specifications (the
"PRELIMINARY PLANS") to be prepared in accordance with EXHIBIT B attached hereto
and incorporated herein by reference for all purposes, and in accordance with
all applicable statutes and building codes, governmental rules, regulations,
orders, covenants, conditions, and restrictions applicable to the Premises (the
"LEGAL REQUIREMENTS") and to submit the same to Lessee, for Lessee's approval,
within ten (10) business days from execution of this Lease. Lessee shall respond
to Lessor's proposed Preliminary Plans within ten (10) business days of receipt.
If Lessee and Lessor are unable to agree upon the Preliminary Plans within
fifteen (15)
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business days following Lessor's submittal of same to Lessee, either party may
terminate this Lease by written notice to the other, in which event Lessee and
Lessor shall split the costs of preparing the Preliminary Plans and neither
party shall have any further rights or obligations hereunder.
Upon Lessee's approval of the Preliminary Plans, Lessor agrees
to cause detailed final plans for construction of the Premises conforming with
the building permit application requirements of the City of Carrollton to be
prepared without material variance from the Preliminary Plans approved by
Lessee. Such detailed final plans shall be delivered to Lessee upon completion
for Lessee's review and approval. If Lessee wishes to dispute that such Final
Plans vary from the Preliminary Plans by reason of a variance in dimensions,
structural elements, or exterior building materials which is not minor, or other
variance from the Preliminary Plans not previously approved by Lessee which will
unreasonably impair Lessee's intended use of the Premises or unreasonably
increase the costs to be incurred by Lessee under this Lease pertaining to the
Improvements, compared to Improvements constructed per the Preliminary Plans
(collectively, the "VARIANCE CRITERIA"), Lessee shall give Lessor written notice
within five (5) business days after receipt of the Final Plans describing in
detail the variance claimed by Lessee. Lessee's failure to give such notice with
such five (5) day period shall be deemed to constitute Lessee's approval of the
Final Plans for all purposes. If the variance stated by Lessee shall not be
minor, in fact, based upon the Variance Criteria, Lessor shall have an option
either to tender modified Final Plans addressing Lessee's stated concerns within
ten (10) days after receipt of Lessee's notice, to dispute Lessee's
determination by commencing a Binding Arbitration proceeding, or to terminate
this Lease without declaring a default, in which event Lessee and Lessor shall
split all costs incurred by Lessor in connection with this Lease (including,
without limitation, all design costs) and neither party shall have any further
rights or obligations hereunder. Lessor agrees to provide Lessee with one copy
of "as-built" drawings of the Premises within thirty (30) days of substantial
completion (as hereinafter defined).
(ii) CONSTRUCTION. If Lessor shall utilize, as its
general contractor for building shell construction, any contractor other than
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ Construction Co., ▇▇▇▇▇▇-▇'▇▇▇▇▇ Construction Co., or ▇▇▇▇▇▇
Construction, Inc., Lessor agrees to obtain Lessee's approval of the general
contractor. Lessee's approval shall not be unreasonably withheld, and shall be
deemed to have been given if Lessee has not responded within three t3) days of
Lessor's written request for approval.
Subject to Excused Delays (hereafter defined) Lessor shall commence
construction of the Premises on or before thirty (30) days after execution of
this Lease, such commencement to be evidenced by movement of site clearing or
excavation equipment to the site. Lessor shall diligently proceed with the
construction of the Improvements and use its best efforts to complete the
construction of the Improvements and deliver possession of the Premises to
Lessee, together with a temporary certificate of occupancy, on or before seven
(7) months after execution of this Lease (as such period may be extended by
reason of Excused Delays). Lessor shall take such steps as are necessary to
obtain a final Certificate of Occupancy for the Improvements within the time
period required by the City of Carrollton.
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(iii) EXCUSED DELAYS. If delay in review or approval
of plans, commencement of construction, or substantial completion is caused or
contributed to by Lessee, or those acting for or under Lessee, or Lessee
requests changes to plans requiring additional design and/or construction time
(compared to the Improvements reflected in plans and specifications attached as
EXHIBIT B to this Lease)("LESSEE DELAYS"), casualties, acts of God (including
ice storms, blizzards, rain and other severe weather conditions substantially
impairing construction activity, but not including the average precipitation
days for the construction period predicted by the prior seven years of National
Weather Service data for the region), material shortages, strikes, lockouts,
governmental embargo restrictions, action or non-action of public utilities,
acts or omissions of local, state or federal governments affecting their work or
other causes of delay beyond the reasonable control of Lessor (all of which
delays, including Lessee Delays, are referred to as "EXCUSED DELAYS") then the
time periods for submittal of design plans, commencement of such construction
and substantial completion (except as provided in Paragraph 1A(x)), as the case
may be, shall be extended for the additional time caused by such delay.
(iv) MOVE IN PERIOD. Lessor shall use its best
efforts to prepare the warehouse portion of the Improvements for fixturing by
Lessee within six (6) months of the execution of this Lease and to secure the
cooperation of Lessor's general contractor to allow such activities. At such
time as the warehouse portion of the Improvements is fixture-ready, Lessee shall
be allowed to install, subject to Legal Requirements, its furniture, equipment
and fixtures and other personal property in the Improvements during completion
of construction provided that Lessee does not thereby interfere with substantial
completion of construction, and provided further that Lessor's general
contractor consents to Lessee's proposed activity. Substantial completion of the
Improvements shall not be deemed to have occurred solely by reason of such
installations.
(v) DISCLAIMER OF CONSTRUCTION WARRANTIES. LESSOR'S
CONSTRUCTION OF THE IMPROVEMENTS TO THE PREMISES SHALL BE MADE WITHOUT WARRANTY
BY LESSOR OF ANY KIND, AND BY ITS EXECUTION OF THIS LEASE, LESSEE HEREBY WAIVES
ALL WARRANTIES BY LESSOR, EXPRESS OR IMPLIED, CONCERNING THE CONSTRUCTION OF
SUCH IMPROVEMENTS, THE QUALITY, SIZE, OR CHARACTER OF SUCH IMPROVEMENTS, THE
SUITABILITY OF SUCH IMPROVEMENTS FOR LESSEE'S INTENDED USE, OR ANY OTHER MATTER
(EXCEPT AS EXPRESSLY PROVIDED IN PARAGRAPH 26). HOWEVER, LESSOR'S DISCLAIMER OF
WARRANTIES SHALL NOT IMPAIR LESSOR'S MAINTENANCE OBLIGATIONS SET FORTH IN
PARAGRAPH 4 OF THIS LEASE.
(vi) THIRD-PARTY WARRANTIES. Following Lessee's
written acknowledgment of completion of the punch list items and delivery of the
Letter of Acceptance referred to below, Lessor agrees to assign to Lessee,
without recourse against or warranty by Lessor, each and every warranty as to
the construction of the Improvements to the Premises received by Lessor from
Lessor's general contractor or from any contractors or materialmen employed by
Lessor in the course of such construction. Items subject to such warranties are
herein referred to collectively as "WARRANTY ITEMS." Lessor's assignment shall
be in form reasonably acceptable to Lessee. Lessor hereby covenants that no such
assigned warranty of
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Lessor's general contractor shall be of shorter duration than one (1) year from
substantial completion of the Improvements, and that the general contractor's
warranties assigned to Lessee shall include a guaranty that the Improvements
have been completed substantially in accordance with the Final Plans (with such
changes thereto as Lessee may have ordered or approved); that only new materials
have been incorporated into the Improvements (except as otherwise authorized by
Lessee); that such Improvements have been constructed in a good and workmanlike
manner; and such other warranties and guaranties as may be customarily extended
by general contractors for commercial warehouse structures operating in the
Dallas-Fort Worth area.
(vii) CHANGE ORDERS. Lessor and Lessee acknowledge
that changes to the Final Plans and to the construction contract entered into
based on the Final Plans ("CONSTRUCTION CONTRACT") may be necessary. If Lessee
shall request changes to the Final Plans and Construction Contract (all of which
requests must be in writing and must include Lessee s architect's detailed
rendering of the necessary changes to the Final Plans and Construction
Contract), then within ten (10) days of Lessor's receipt of such request, Lessor
shall notify Lessee in writing of Lessor's estimated additional construction
costs and construction delays attributable to such changes. Lessor shall have no
obligation to incur any expenses in preparing design modifications or
modifications to the Construction Contract unless and until Lessee shall
authorize the changes in question. Within five (5) days of its receipt of
Lessor's Notice, Lessee shall notify Lessor that Lessor is authorized to make
such changes at Lessee's expense. If Lessee does not authorize Lessor to make
such changes within the five (5) day period, Lessee shall be deemed to have
withdrawn its request to make changes. One-half (1/2) of Lessor's actual
additional costs attributable to such changes shall be paid by Lessee within
fifteen (15) days after written request by Lessor and the remainder of such
excess costs shall be paid by Lessee within fifteen (15) days after Lessor's
notice that the item covered by such change is substantially completed. If such
changes would result in a construction delay, the delay shall be an Excused
Delay, and Lessor shall not be required to give any further notice to Lessee of
such delay.
(viii) SUBSTANTIAL COMPLETION. As used herein, the
term "SUBSTANTIALLY COMPLETED" shall mean (i) that in the opinion of the
architect or space planner that prepared the Final Plans set forth in a
certificate of substantial completion, such improvements have been completed in
accordance with the Final Plans and the Legal Requirements applicable to
temporary certificates of occupancy and the Premises are in good and
satisfactory condition subject only to completion of minor punch list items; and
(ii) the City of Carrollton shall have issued its temporary certificate of
occupancy for such improvements (or other City consent to the Lessee's occupancy
of the Premises). The date the last such event occurs shall be the date on which
substantial completion shall be deemed to occur, subject to a different
determination in accordance with the terms of this Paragraph 1. Upon Lessor's
request, Lessee shall execute and deliver to Lessor a Letter of Acceptance of
delivery of the Premises.
As soon as the Improvements have been substantially completed,
Lessor shall so notify Lessee. If Lessee wishes to dispute that the Improvements
have been completed substantially in accordance with the Final Plans, Lessee
shall notify Lessor within fifteen (15) days after Lessor's notice of
substantial completion, providing the specific grounds for Lessee's
determination. Lessor and Lessee shall attempt to resolve their disagreements as
to substantial completion promptly, but if they are unable to do so within
thirty (30) days after Lessee's notice
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to Lessor, either party shall have the right thereafter to commence Binding
Arbitration to resolve the dispute as to substantial completion and determine
the date of substantial completion as well as the parties' rights and
obligations under this Lease determined by such date, in accordance with and
subject to the terms and conditions of this Lease. The date determined by the
arbitrator through Binding Arbitration, with reference to the terms and
conditions of this Lease relevant to substantial completion? shall be the date
of substantial completion under this Lease for all purposes, and the parties
shall be otherwise bound by the award entered in the Binding Arbitration.
(ix) PUNCH LIST. Within thirty (30) days after
substantial completion, Lessee shall submit to Lessor in writing a punch list of
items needing completion or correction in order to conform substantially with
the Final Plans. Lessor shall complete all such punch list items within forty
five (45) days after receipt of the punch list and in the event of Lessor's
failure to do so, after a minimum of ten (10) days' prior written notice to
Lessor, Lessee may complete such punch list items and apply the costs of such
completion as a credit for rental payments until Lessee has been reimbursed the
full cost thereof.
(x) LATE COMPLETION. In the event that Lessor has not
achieved substantial completion on or before the later of: (a) seven (7) months
after execution hereof, or (b) April 1, 1997 (as either such date may be
extended by Lessee Delays), Lessee shall be entitled to a credit against Base
Rent payable from and after the commencement date in the amount of 1/30 of the
monthly Base Rent installment multiplied by the number of days elapsing between
the later of such dates and substantial completion. In the event that Lessor has
not achieved substantial completion on or before twelve (12) months after the
execution of this Lease (as such date may be extended by Lessee Delays), or has
failed to provide Lessee, at Lessor's cost, with temporary lease space which
reasonably accommodates Lessee's operational needs from and after such date (as
extended by Lessee Delays) (which temporary lease space shall have been approved
by Lessee, such approval not to be unreasonably withheld), Lessee shall have the
right to terminate this Lease if substantial completion is not achieved within
thirty (30) days after Lessee's written notice to Lessor of Lessee's intention
to terminate the Lease. If Lessor's delay in achieving substantial completion is
caused by Lessee Delays, Lessee shall not have the right to terminate this
Lease, notwithstanding any term hereof to the contrary.
B. OFFICE FINISH.
(i) PREPARATION OF OFFICE PLANS. Within five (5)
business days of the date hereof, Lessee shall furnish Lessor with the
programming information relating to office finish contemplated for the Building
(the "INTERIOR FINISH") as requested by Lessor's architect. Based on Lessee's
information, Lessor shall prepare and furnish to Lessee for review and approval
preliminary plans and specifications for the Interior Finish. Lessee shall
review such preliminary plans and notify Lessor of any comments or changes
requested within fifteen (15) days of Lessee's receipt, and if Lessee has not
responded to Lessor within such fifteen (15) day period, Lessee shall be deemed
to have approved the preliminary plans for all purposes. Lessor shall then
prepare final plans and specifications for the Interior Finish in accordance
with the Lessee's comments on the preliminary plans and all Legal Requirements.
The proposed final plans shall conform with the building permit application
requirements of the City of Carrollton. Lessor shall
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furnish Lessee with the proposed final plans for review within fifteen (15) days
of receipt of Lessee's comments on the preliminary plans. Lessee shall review
such proposed final plans and notify Lessor of any comments or changes requested
within fifteen (15) days of Lessee's receipt, which Lessor's architect shall
incorporate into the final plans if Lessee shall request. If Lessee has not
responded to Lessor within such fifteen (15) day period, Lessee shall be deemed
to have approved the final plans for all purposes. The final plans drawn by
Lessor s architect, incorporating Lessee's comments and changes, if any, as
approved or deemed approved by Lessee, are herein referred to as the "FINAL
INTERIOR Plans."
(ii) INTERIOR FINISH ALLOWANCE. Design and
construction of MEP systems and interior finish improvements in accordance with
the Final Interior Plans shall be provided by Lessor in the form of an allowance
of $720,000 net of any construction management fees. One-half (1/2) the excess
costs (over $720,000.00) shall be paid by Lessee on or before the commencement
of the construction of the interior finish improvements, based on Lessor's
design and bid costs for such interior finish improvements, and the remainder of
such excess costs shall be paid by Lessee within fifteen (15) days after
Lessor's notice that the item to which such excess cost relates is substantially
completed. If the total cost of the design and construction of interior finish
improvements is less than the maximum aggregate allowance of $720,000 as set
forth above, all such excess amounts above such total cost shall be applied in
reduction of the Base Rent amortized over the Primary Term of the Lease.
Variances between Lessor's advance estimate and final costs shall be settled by
the parties within thirty (30) days of substantial completion of the
Improvements.
Lessee shall have the right to draw against such allowance for
reimbursement of the fees of Lessee's architect, other design professionals, or
subcontractors. Lessor shall have the right to approve the architect, design
professionals, and subcontractors utilized by Lessee, which approval shall not
be unreasonably withheld and which shall be deemed to have been given if Lessor
has not responded within five (5) days of Lessee's written request for approval.
(iii) BID OF INTERIOR FINISH. Lessor agrees to obtain
competitive bids from a minimum of three (3) general contractors who have been
approved by Lessee in advance of the bidding for construction of the interior
finish improvements in accordance with the Final Interior Plans. Lessee's
approval shall not be unreasonably withheld, and shall be deemed to have been
given if Lessee has not responded within five (5) days of Lessor's written
request for approval.
C. FAILURE TO OCCUPY OR LESSEE DELAY. Lessor and Lessee
further agree that Lessee's obligations, privileges, covenants and agreements
contained in this Lease shall be operative and effective regardless of whether
the Premises are ever occupied by Lessee so long as Lessor has completed the
Improvements in accordance with Paragraph 1. If Lessee fails to occupy the
Premises for any reason after substantial completion of any building or
Improvements constructed in accordance with the Final Plans, or if a Lessee
Delay occurs, preventing Lessor from constructing the improvements contemplated
herein in accordance with the Final Plans therefor, substantial completion shall
be deemed to be the date on which the Improvements would have been completed in
Lessor's reasonable judgment, but for such Lessee Delay.
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2. BASE RENT, SECURITY DEPOSIT AND OPERATING EXPENSES.
A. Lessee agrees to pay to Lessor base rent ("BASE RENT") for
the Premises, in advance, without demand, deduction or set off, except as
expressly provided in Paragraphs 1A and 19G, at the following monthly rate
during the term hereof:
Monthly
Base Rent Base Rent
Months (per square foot) (aggregate)
1-60 $4.27 psf $56,116.34
61-120 $4.94 psf $64,921.48
In the event that the actual square footage of the Premises shall be more or
less than 157,704 square feet, as built, the monthly Base Rent payable shall be
adjusted to equal one twelfth (1/12) the product of the Base Rent per square
foot stipulated above multiplied by such measured square footage determined in
accordance with Paragraph 2C. One such monthly installment shall be paid by
Lessee on the date hereof, to be applied to the first month's Base Rent, and a
like monthly installment, plus the other monthly charges set forth in Paragraph
2D below, shall be due and payable on or before the first day of each calendar
month succeeding the commencement date, except that all payments due hereunder
for any fractional calendar month shall be prorated.
B. At any time within six (6) months of the termination of the
Primary Term (as extended), Lessor shall have the right to require Lessee, upon
not less than thirty (30) days' prior written notice, to deposit with Lessor a
security deposit in the amount of one month's rental obligation, which shall be
held by Lessor, without obligation for interest, as security for the performance
of Lessee's obligations under this Lease, it being expressly understood and
agreed that this deposit is not an advance rental deposit or a measure of
Lessor's damages in case of Lessee's default. Upon each occurrence of an Event
of Default, Lessor may use all or part of the deposit to pay past due rent or
other payments due Lessor under this Lease, and the cost of any other damage,
injury, expense, or liability caused by such event or default without prejudice
to any other remedy provided herein or provided by law. On demand, Lessee shall
pay Lessor the amount that will restore the security deposit to its original
amount. The security deposit shall be deemed the property of Lessor, but any
remaining balance of such deposit shall be returned by Lessor to Lessee when
Lessee's obligations under this Lease have been fulfilled.
C. As soon as practical after the substantial completion of
the Premises, Lessor shall determine the square footage of the Premises and
shall deliver written notice to Lessee of Lessor's determination of such square
footage within ten (10) business days after such calculation is made. Lessor's
calculation of the square footage within the Premises shall be measured from
roofline (i.e., the point in space located at the intersection of the ground and
a vertical plane between such roofline and the ground) to opposite roofline
(determined as aforesaid). Upon receipt of such notice from Lessor, Lessee shall
have fifteen (15) business days within which it can measure the Premises in
order to verify the square footage amount provided by Lessor. If Lessee fails to
inspect the Premises within this fifteen (15) business day period, the Lessor's
determination of the square footage of the Premises will control. If after
Lessee's architect so measures the Premises, and provides his calculation
thereof to Lessor, he is unable to
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reach mutual agreement with Lessor's architect as to the area of the Premises
within thirty (30) days after the date of Lessor's initial notice of Lessor's
calculation, then the two parties' architects shall select a third independent
licensed architect to measure the area of the Premises in accordance with the
terms of this Lease, whose measurements shall be binding on the parties. The
third architect's fees shall be the responsibility of the party whose architect'
s measured area is the farther from such third architect's measurements, or if
the third architect's measured area falls midway between the Lessor's and
Lessee's architects' measured areas, then the parties shall each pay one half
(1/2) of such third architect's fees.
D. Lessee agrees to pay as additional rent "OPERATING
EXPENSES" (herein so-called) for the Premises and the Option Price as set out
herein. Operating Expenses shall include (i) Taxes (hereinafter defined) payable
by Lessor pursuant to ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, (▇▇) the cost of maintaining insurance
covering the buildings situated on the Premises, (iii) the cost of utilities
payable pursuant to Paragraph 8 below, and the cost of any common area charges
payable by Lessor in accordance with ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, (▇▇) the Option Price in
consideration of the Expansion Option granted in RIDER 1, calculated as the
product of $.125 multiplied by the number of square feet within the land area of
the Option Tract described on RIDER 1 hereto (reduced, if at all, by land area
incorporated into Expansion Premises); and (v) any other special charges which
Lessor is entitled to collect under the terms of this Lease.
During each month of the term of this Lease, on the same day
that Base Rent is due hereunder, Lessee shall escrow with Lessor an amount equal
to 1/12 of the estimated amount of such Operating Expenses. Lessee authorizes
Lessor to use the funds deposited with Lessor under this Paragraph 2D to pay
such costs. The initial monthly escrow payments are based upon the estimated
amounts and shall be increased or decreased annually, at a minimum, to reflect
the then current projected cost of all such Operating Expenses, to be set forth
in an annual operating expense budget provided Lessee in each October or
November during the Primary Term. Lessor may revise its estimate if necessary to
reflect changes in Operating Expenses experienced by Lessor, or variances
between actual and projected Operating Expenses, but not more frequently than
every six months. In case of such a revision, Lessee's escrow payments from and
after the revision shall be adjusted to reflect the revised estimate. Lessor
shall total all Operating Expenses annually, and reconcile Lessee's
proportionate share of such expenses against Lessee's escrow payments. If the
Lessee's total escrow payments are less than Lessor's actual Operating Expenses,
Lessee shall pay the difference to Lessor within ten (10) days after demand. If
the total escrow payments of Lessee are more than Lessor's Operating Expenses,
Lessor shall, at Lessee's sole option if no Event of Default has occurred,
refund such excess to Lessee, or, if an Event of Default has occurred or if
Lessee so elects, Lessor shall retain such excess and credit it against Lessee's
future liabilities for Base Rent, Operating Expenses, or other amounts due
hereunder.
Once each year during the term of this Lease, so long as
Lessee shall not commit a material Event of Default, Lessee shall have the right
to review the books and records of the Lessor to verify the accuracy of the
Operating Expenses charged Lessee by Lessor during the preceding calendar year.
Such reviews will be conducted during the normal business hours of Lessor at the
location where Lessor keeps such books and records. These reviews will be
conducted at the sole cost and expense of Lessee unless a review determines that
the amount of Operating Expenses charged Lessee by Lessor is five percent (5%)
or more above the actual
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amount of such Operating Expenses in which case Lessor will pay for the cost and
expense of that review.
The amount of the monthly Base Rent and the initial monthly
Operating Expenses escrow payments are as follows:
Months Months
1-60 61-120
(1) Base Rent as set forth in Paragraph 2A $ 56,116.34 $ 64,921.48
(2) Option Price ......................... $ 0 $ *
-------------
(3) Tax Escrow ........................... $ 9,983.00 $ *
-------------
(4) Insurance Escrow ..................... $ 652.00 $ *
-------------
(5) Other ................................ $ 1,770.00 $ *
-------------
Total Monthly Rental Payment ......... $ 68,521.34 $ *
=============
(The Option Price shall be subject to adjustment as provided in RIDER
1. The items marked "*" shall be determined by Lessor in accordance
with Paragraph 2D.)
3. TAXES
A. Except as expressly provided in ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ agrees
to pay or reimburse Lessor for Lessor's payment of all taxes, assessments and
governmental charges of any kind and nature other than Lessor's income, excess
profits or franchise taxes (collectively referred to herein as "TAXES") that
accrue against the Premises, and/or the Land and/or Improvements. Lessor agrees
to cause the Land to be separately assessed by the ▇▇▇▇▇▇ County Appraisal
District. Excepting any taxes which are levied in lieu of an income tax, if at
any time during the term of this Lease, there shall be levied, assessed or
imposed on Lessor a capital levy or other tax directly on the rents received
therefrom or any assessment, levy or charge measured by or based, in whole or in
part, upon such rents from the Premises and/or the Land and Improvements, then
all such taxes, assessments, levies or charges, or the part thereof so measured
or based, shall be deemed to be included within the term "Taxes" for the
purposes hereof. The Lessor shall have the right to employ a tax consulting
firm, subject to Lessee's prior written approval, which shall not be
unreasonably withheld or delayed, to attempt to assure a fair tax burden on the
building and grounds within the applicable taxing jurisdiction. Lessee agrees to
pay the cost of such consultant. If any Taxes can be paid in installments,
Lessor shall elect to pay such Taxes in installments, provided however, that in
such case Lessee shall pay all interest or penalties due exclusively to the
election of such installment payment plan.
B. Lessee shall be liable for all taxes levied or assessed
against any personal property or fixtures placed in the Premises. If any such
taxes are levied or assessed against Lessor or Lessor's property and (i) Lessor
pays the same or (ii) the assessed value of Lessor's property is increased by
inclusion of such personal property and fixtures and Lessor pays the increased
taxes, then, within fifteen (15) days following written demand by Lessor,
accompanied by supporting invoices, Lessee shall pay to Lessor such taxes.
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4. LESSOR'S REPAIRS AND MAINTENANCE.
A. Lessor at Lessor's cost shall be responsible for
replacement of the roof of the Premises after the roof is no longer functional
(without interim maintenance obligations). Lessor at Lessor's cost shall
maintain the foundation and the structural soundness of the exterior walls of
the Improvements in good repair, reasonable wear and tear, damage caused by
Lessee, and casualty damage excepted, and Lessor shall be liable for the cost of
such maintenance or repair, provided, however, Lessee shall within fifteen (15)
days after written demand reimburse Lessor for any damage to the same caused by
Lessee's act, negligence, fault or omission. Lessor's demand to Lessee shall
include invoices submitted to Lessor for maintenance and repair items in excess
of $2,500 per item and a statement for the balance of such maintenance and/or
repair items. The term "WALLS" as used herein shall not include windows, glass
or plate glass, doors, special storefronts or office entries, provided that to
the limited extent that a failure of the foundation or building structure shall
result in the need for repair of windows, glass or plate glass, or doors,
Lessor, at Lessor's cost, shall be responsible for maintenance and repair of
same. Lessee shall immediately give Lessor written notice of defect or need for
repairs, after which Lessor shall have reasonable opportunity to repair the same
or cure such defect. Lessor's obligation to maintain the aforementioned items
shall be limited solely to the cost of such repairs or maintenance or the curing
of any defect in the same, provided, Lessor shall be responsible for personal
injury and property damage resulting from Lessor's gross negligence.
▇. ▇▇▇▇▇▇ shall perform the paving maintenance, landscape
replacement and maintenance, exterior painting, water and sewage line plumbing
maintenance outside the Improvements, and any other common maintenance items (to
the extent the Premises shall ever be expanded into a multiple-tenant facility)
and Lessee shall be liable for the cost and expense of such repair, replacement,
and maintenance (or Lessee's proportionate share thereof). Lessor reserves the
right to perform any obligations that are otherwise Lessees obligations in
Paragraph 5A, in which event Lessee shall promptly reimburse Lessor for the
entirety of the costs of such performance within fifteen (15) days after
Lessor's demand, accompanied by supporting invoices to the extent that any such
obligation exceeds $2,500.
▇. ▇▇▇▇▇▇ reserves the right to alter or modify the
Improvements and/or areas associated therewith, when such alterations or
modifications are required by any governmental laws, codes, ordinances,
regulations, or any other applicable authorities, including, without limitation,
amendments to the Americans with Disabilities Act of 1990 (the "ADA"), which are
promulgated or amended effective after the commencement date of this Lease, in
which event Lessee shall be liable for such cost, except that Lessor shall be
responsible for all costs of complying with the ADA in the construction of the
Improvements undertaken pursuant to Paragraph 1 of this Lease. If such
modification is a capital modification for the general benefit of the project,
and is required regardless of Lessee's particular use of the Premises, then the
cost shall be an Operating Expense allocated over the lesser of five years or
the useful life of the modification.
D. Lessee agrees to pay the cost of (i) maintenance and/or
landscaping of any property that is a part of the Premises, (ii) maintenance
and/or landscaping of any property that is maintained or landscaped by any
property owner or community owner association to which the
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Premises are subject, (iii) operating and maintenance of any property,
facilities or services, including, but not limited to, the cost of the
monitoring, repair and maintenance of security systems and service, if any,
provided for the use or benefit of Lessee (other than the Improvements, which
shall be maintained as provided in Paragraphs 4 and 5), and (iv) a management
fee of two percent (2%) of the Base Rent and additional rent payable by Lessee
under this Lease.
All such expenses of Lessor for maintaining and operating the
Premises, including, but not limited to, the items set forth in ▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇, ▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇ included as additional rental under the provisions of
Paragraph 2D. Lessor agrees that such costs do not include any (a) capital costs
for replacement of the roof, foundation, building, structure or parking lot
replacement or restoration, or (b) other work occasioned by fire, windstorm or
other casualty to the extent of net insurance proceeds received by Lessor with
respect thereto, or would have been received if Lessor had maintained insurance
Lessor is required to maintain under the terms of this Lease, (c) income and
franchise taxes of Lessor, (d) expenses incurred in leasing to or procuring of
leases, leasing commissions, advertising expenses, expenses for the renovating
of a space for new lessees, (e) interest or principal payments on any mortgage
or other indebtedness of Lessor, (f) depreciation allowance or expense, (g)
costs properly allocable to other property owned by Lessor, or (h) the cost of
the repair of Warranty Items incurred by third parties responsible under
applicable warranties.
E. To the extent that any repair or maintenance obligation
shall arise during the period in which any third-party warranty applicable to a
Warranty Item shall be in effect, the party who would otherwise have
responsibility for repair and/or maintenance of such Warranty Item shall be
responsible for pursuing the warranty claim against the third party responsible
under such warranty. Neither party to this Lease shall be responsible for any
such repair or maintenance until both parties shall mutually agree that the
third party responsible for warranting such Warranty Item is not available for
performance of such warranty obligations.
5. LESSEE'S REPAIRS AND MAINTENANCE.
A. Lessee, at its own cost and expense, shall (i) except for
Lessor's obligations under Paragraph 4A, maintain all parts of the Premises in
good condition, (ii) except for Lessor's obligations under Paragraph 4A,
promptly make all necessary repairs and replacements, including, but not limited
to, windows, glass and plate glass, exterior doors, any special office entry,
interior walls and finish work, interior doors and floor covering, utility
connections, downspouts. gutters, heating and air conditioning systems, light
bulbs and ballasts, dock boards, truck doors, dock bumpers, paving, plumbing
work and fixtures, termite and pest extermination, regular removal of trash and
debris, dedicated sewer lines, and any damage due to vandalism or malicious
mischief, (iii) keep the parking areas, driveways, truck aprons, and grounds
surrounding the Premises in a clean and sanitary condition, (iv) repair all wind
damage to glass except with respect to tornado or hurricane damage, and (v)
maintain any spur track servicing the Premises. Lessee agrees to sign a joint
maintenance agreement with any railroad company servicing the Premises if
requested by the railroad company. Lessor shall have the right to coordinate all
repairs and maintenance of any rail tracks serving or intended to serve the
Premises and, if Lessee uses or causes the use of such rail tracks, Lessee shall
reimburse Lessor
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from time to time, upon demand, for its proportionate share (based on the total
area of the Premises relative to the total area of leased space of rail users in
the building of which the Premises are a part) of the costs of such repairs and
maintenance and any other sums specified in any agreement respecting such tracks
to which Lessor is a party.
B. In the event the Premises shall constitute a portion of a
multiple occupancy building, Lessee and its employees, agents, customers,
invitees and/or licensees shall have the right to use the parking areas, if any,
as may be designated by Lessor in writing, subject to such reasonable rules and
regulations as Lessor may from time to time prescribe and subject to rights of
ingress and egress of other lessees. Lessor shall not be responsible for
enforcing Lessee's parking rights against any third parties. Lessee shall, at
its own cost and expense, keep its employees, agents, customers, invitees,
and/or licensees from parking on any streets running through or contiguous to
the building or project of which the Premises are part or any other areas as
designated by Lessor. Lessee hereby consents to the removal of any vehicle in
violation of the foregoing designated areas of parking as established by Lessor.
C. Lessee, at its own cost and expense, shall enter into a
regularly scheduled preventive maintenance/service contract with a maintenance
contractor approved by Lessor for servicing all hot water, heating and air
conditioning systems and equipment within the Premises. The service contract
must include all services suggested by the equipment manufacturer in its
operations/maintenance manual and must become effective and a copy thereof
delivered to Lessor within thirty (30) days of the date Lessee takes possession
of the Premises.
D. In the event the Premises shall constitute a portion of a
multiple-occupancy building, Lessee agrees that no washing of any type (other
than reasonable restroom or kitchen washing) will take place in the Premises
including the truck apron and parking areas.
E. Any and all security of any kind for Lessee, Lessee's
agents, employees or invitees, the Premises, or any personal property thereon
(including, without limitation, any personal property of any sublessee) shall be
the sole responsibility and obligation of Lessee, -and shall be provided by
Lessee at Lessee's sole cost and expense. Lessee acknowledges and agrees that
Lessor shall have no obligation or liability whatsoever with respect to the
same. Lessee shall indemnify and hold Lessor harmless from and against any and
all loss, cost, damage or other liability arising directly or indirectly from
security measures or the absence thereof with respect to the Premises and the
building or the project of which the Premises are a party. Alarm systems
requested by Lessee and included in the Final Plans shall be installed in the
Premises by Lessor in accordance with such Final Plans and the terms of this
Lease. Subsequently, Lessee may install additional alarm systems in the Premises
provided such installation complies with the provision of Paragraph 6 hereof;
removal of such alarm systems shall be Lessee's sole responsibility and, at
Lessee's sole cost and expense, shall be completed prior to lease termination
and all affected areas of the Premises shall be repaired and/or restored in a
good and workmanlike manner to the condition that existed prior to such
installation. Notwithstanding the foregoing, at Lessee's request, Lessor shall
contract for common security services, to whatever extent Lessee may request,
for the building or the project of which the Premises are a part, provided,
however, Lessee acknowledges and agrees that Lessor shall in no event be
obligated to provide wiring or other hardware or software to facilitate such
services (except as such items are included in the
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Final Plans) and the provision of such services shall not alter or modify Lessee
s indemnification of Lessor or the obligation of Lessee to provide its own
security as set forth herein. The cost of any security services contracted for
by Lessor shall be treated as an Operating Expense pursuant to Paragraph 2D
hereof.
6. ALTERATIONS. Lessee shall not make any alterations, additions,
partitions, or other improvements to the Premises (collectively, an
"ALTERATION") without the prior written consent of Lessor, which consent shall
not be unreasonably withheld or delayed. Lessee shall be obligated to provide
Lessor with a minimum of ten (10) business days' prior written notice requesting
approval of Lessee's contemplated Alteration. Lessor's failure to respond to
Lessee's request within ten (10) business days after Lessee's notice is given
shall be deemed to constitute an approval of the proposed Alterations. When
Lessee requests Lessor's approval of Lessee's contemplated Alteration, Lessor
shall inform Lessee whether such Alteration must be removed at the end of the
term, including any renewals, of this Lease as permitted by this Paragraph 6.
Lessee, at its own cost and expense, may erect shelves, bins, machinery and
trade fixtures as it desires as well as Alterations, which have been
specifically consented to in writing by Lessor, provided that (a) such items do
not alter the basic character of the Premises or the building and/or
improvements of which the Premises are a part, (b) such items do not overload or
damage the same, (c) such items may be removed without injury to the Premises,
and (d) the construction, erection or installation thereof complies with all
applicable governmental laws, codes, ordinances, regulations, or any other
applicable authorities, including, without limitation, the ADA, and with
Lessor's details, specifications and other requirements. Any architectural,
engineering, construction management, permits, inspections, or other cost or fee
required to assure compliance with the conditions set forth in this Paragraph 6
shall be paid by Lessee promptly within fifteen (15) days following Lessor's
written demand, accompanied by supporting invoices. All Alterations erected by
Lessee shall be and remain the property of Lessee during the term of this Lease;
provided, however, at the termination of this Lease, to the extent Lessor shall
have informed Lessee of Lessee's obligation to remove an Alteration at the end
of the Lease term, Lessor shall have the option. exercisable in Lessor's sole
discretion, to require Lessee either (i) upon request to remove, at Lessee-s
sole cost and expense, all or part of each Alteration, at which time Lessee
shall promptly restore the Improvements and Premises to their original
condition, or (ii) to keep in place the same at which time such Alterations
shall become the property of Lessor. All shelves, bins, machinery and trade
fixtures installed by Lessee shall be removed on or before the earlier to occur
of the date of termination of this Lease or vacating the Premises, at which time
Lessee shall restore the Premises to their original condition. All Alterations
and restorations shall be performed in a good and workmanlike manner so as not
to damage or alter the primary structure or structural qualities of the
buildings and other improvements situated on the Premises or of which the
Premises are a part.
7. SIGNS. Any signage Lessee desires for the Premises shall be subject
to Lessor's specifications and/or written approval, which approval shall not be
unreasonably withheld or delayed. Lessee shall repair, paint, and/or replace the
building facia surface to which its signs are attached upon vacation of the
Premises, or the removal or alteration of its signage. Lessee shall not (i) make
any changes to the exterior of the Premises, (ii) install any exterior lights,
decorations, balloons, flags, pennants, banners or painting, or (iii) erect or
install any signs, windows or door lettering, placards, decorations or
advertising media of any type which can be
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viewed from the exterior of the Premises, without Lessor's prior written consent
which consent shall not be unreasonably withheld or delayed. All signs,
decorations, advertising media, blinds, draperies and other window treatment or
bars or other security installations visible from outside the Premises shall
conform at Lessee's expense in all respects to the criteria established by
Lessor and any applicable governmental laws, ordinances, regulations or other
requirements.
8. UTILITIES. Lessor agrees to provide normal water, electricity, and
telephone service connections to the Premises upon the commencement date hereof,
which connections, regardless of location, shall hereafter be maintained by
Lessee. Lessee shall pay for all water, gas, heat, light, power, telephone,
sewer, sprinkler charges and other utilities and services used on or at the
Premises, and any maintenance or inspection charges for utilities. Lessor shall
have the right to cause any of said services to be separately metered to Lessee,
at Lessee's expense. Lessor shall not be liable for any interruption or failure
of utility service on the Premises unless caused by Lessor's gross negligence or
willful misconduct, in which event Base Rent shall be abated for the period
commencing after the expiration of ten (10) business days following the
occurrence of such interruption or failure of utility service, within which ten
(10) business day period Lessor shall be entitled to attempt to restore such
service without rent abatement.
In the event the Premises shall constitute a portion of a
multiple-occupancy building and water is not separately metered to Lessee,
Lessee agrees that it will not use water for uses other than normal domestic
restroom and kitchen usage; and Lessee does further agree to reimburse Lessor
for the entire amount of common water costs as additional rental if, in fact,
Lessee uses water for uses other than normal domestic restroom and kitchen uses
without first obtaining Lessor's written permission. Furthermore, Lessee agrees
in such event to install at its own expense, a submeter to determine Lessee's
usage.
If the Premises shall constitute a portion of a multiple
occupancy building, Lessee agrees it will not use sewer capacity for any use
other than normal domestic restroom and kitchen use. Lessee further agrees to
notify Lessor of any other sewer use ("EXCESS SEWER USE") and also agrees to
reimburse Lessor for the costs and expenses relating to Lessee's excess sewer
use, which shall include, but is expressly herein not limited to, the cost of
acquiring additional sewer capacity to service Lessee's Lease.
9. INSURANCE.
A. Lessor shall maintain insurance covering the buildings
situated on the Premises or of which the Premises are a part, except for those
items the repair and maintenance of which are Lessee's responsibility under
Paragraph 5, in an amount not less than eighty percent (80%) of the "REPLACEMENT
COST" thereof insuring against the perils of fire, lighting, extended coverage,
vandalism, and malicious mischief. In addition, Lessor shall maintain during the
term of this Lease a policy or policies of comprehensive general liability
insurance, including personal injury and property damage, with a limit not in
excess of $1,000,000 per occurrence for personal injuries or deaths of persons
occurring in or about the Premises, the allocable premium costs of which shall
be treated as an Operating Expense pursuant to Paragraph 2D hereof.
B. Lessee, at its own expense. shall maintain during the term
of this Lease a policy or policies of worker's compensation and comprehensive
general liability insurance,
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including personal injury and property damage, with contractual liability
endorsement in the amount of Five Hundred Thousand Dollars ($500,000.00) for
property damage and One Million Dollars ($1,000,000.00) per occurrence for
personal injuries or deaths of persons occurring in or about the Premises.
Lessee, at its own expense, also shall maintain during the term of this Lease,
fire and extended coverage insurance covering (i) the replacement cost of all
alterations, additions, partitions, and improvements installed or placed on the
Premises by Lessee or by Lessor on behalf of Lessee subsequent to the initial
construction of Improvements contemplated by Paragraph 1 of this Lease and (ii)
the replacement cost of all of Lessee's personal property contained within the
Premises and (iii) business interruption of Lessee. Said policies shall (i) name
Lessor as an additional insured and insure Lessor's contingent liability under
this Lease (except for the worker's compensation policy, which instead shall
include waiver of subrogation endorsement in favor of Lessor), (ii) be issued by
an insurance company which is reasonably acceptable to Lessor, (iii) provide
that said insurance shall not be canceled unless thirty (30) days prior written
notice shall have been given to Lessor, and (iv) provide primary coverage to
Lessor when any policy issued to Lessor provides duplicate or similar coverage,
and in such circumstance Lessor's coverage under Lessor's policy shall be deemed
excess over and above the coverage provided by Lessee's policy. Said policy or
policies or certificates thereof shall be delivered to Lessor by Lessee upon
commencement of the term of the Lease and upon each renewal of said insurance.
C. Lessee will not permit the Premises to be used for any
purpose or in any manner that would (i) void the insurance thereon, (ii)
increase the insurance risk or premium, or (iii) cause the disallowance of any
sprinkler credits, including without limitation, use of the Premises for the
receipt, storage or handling of any product, material or merchandise that is
explosive or highly flammable. If any increase in the cost of any insurance on
the Premises or the building of which the Premises are a part is caused by
Lessee's use of the Premises, or because Lessee vacates the Premises, then
Lessee shall promptly pay the amount of such increase to Lessor upon demand.
D. Anything in this Lease to the contrary notwithstanding,
Lessor and Lessee hereby waive and release each other of and from any and all
rights of recovery, claim, action or cause of action, against each other, their
agents, officers and employees, for any loss or damage that may occur to the
Premises, Improvements, or personal property (building contents) within the
building and/or Premises covered or required to be covered by the insurance to
be provided under this Lease, for any reason regardless of cause or origin. Said
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 or
damage to property of the parties hereto. Each party to this Lease agrees
immediately after execution of this Lease to give each insurance company, which
has issued to it policies of fire and extended coverage insurance, written
notice of the terms of the mutual waivers contained in this subparagraph, and if
necessary, to have the insurance policies properly endorsed.
10. FIRE AND CASUALTY DAMAGE.
A. If the Premises or the Improvements should be damaged or
destroyed by fire or other peril, Lessee immediately shall give written notice
to Lessor. If the Improvements
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should be totally destroyed by any peril covered by the insurance to be provided
by Lessor under Paragraph 9A above, or if they should be so damaged thereby
that, in Lessor's estimation, rebuilding or repairs cannot be completed within
one hundred eighty (180) days after the date of such damage, Lessor shall so
notify Lessee within sixty (60) days of the occurrence of such damage, this
Lease shall terminate and the rent shall be abated during the unexpired portion
of this Lease, effective upon the date of occurrence of such damage.
B. If the Improvements should be damaged by any peril covered
by the insurance to be provided by Lessor under Paragraph 9A above, and in
Lessor's estimation, rebuilding or repairs can be substantially completed within
one hundred eighty (180) days after the date of such damage, Lessor shall so
notify Lessee within sixty (60) days of the occurrence of such damage, this
Lease shall not terminate, and Lessor shall restore the Premises to
substantially its previous condition, except that Lessor shall not be required
to rebuild, repair or replace any part of the partitions, fixtures, additions
and other improvements that may have been constructed, erected or installed in,
or about the Premises or for the benefit of, or by or for Lessee subsequent to
the initial construction of the Improvements contemplated by Paragraph I of this
Lease. If such repairs and rebuilding have not been substantially completed
within one hundred eighty (180) days after the date of such damage, Lessee, as
Lessee's exclusive remedy, may terminate this Lease by delivering written notice
of termination to Lessor in which event the rights and obligations hereunder
shall cease and terminate.
C. In order to determine whether and to what extent the
Premises are untenantable in whole or in part following any casualty damage,
Lessor and Lessee shall attempt to agree within fifteen (15) days of the date of
such damage on a licensed architect to make such determination, but if the
parties are unable to agree within such fifteen (15) day period on a single
architect, each shall thereafter appoint a licensed architect and the two
architects shall attempt to reach agreement on tenantability within thirty (30)
days after the date of such damage. If such two architects are unable to reach
an agreement within such period on the tenantability question, they shall
together appoint a third licensed architect whose decision as to tenantability
shall be binding on the parties. The cost of each party's appointed architect
shall be borne by such party and the cost of a third architect shall be divided
equally between the Lessor and Lessee. For purposes of this Paragraph 10C, if
the Premises are determined to be untenantable in whole or in part following
such damage, the rent payable hereunder during the period in which the Premises
are determined to be untenantable shall be reduced according to the square
footage of untenantable area contained in the Premises, as determined in
accordance with the foregoing procedure. As an alternative to the aforementioned
rebuilding, repairs and/or reduction of rent, Lessor may, at its sole option,
use reasonable efforts to provide a reasonably comparable facility for Lessee to
lease at the then prevailing fair market rental for either (i) the remainder of
the term of the Lease, or (ii) the period of time during which the Premises are
untenantable, which facility has been approved by Lessee which approval shall
not be unreasonably withheld or delayed.
D. Notwithstanding anything herein to the contrary, in the
event the holder of any indebtedness secured by a mortgage or deed of trust
covering the Premises requires that the insurance proceeds be applied to such
indebtedness, then Lessor shall have the right to terminate this Lease by
delivering written notice of termination to Lessee within fifteen (15) days
after such
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requirement is made known by any such holder, whereupon all rights and
obligations hereunder shall cease and terminate.
11. LIABILITY AND INDEMNIFICATION. Except for any claims, rights of
recovery and causes of action that Lessee has released and claims covered (or
which would have been covered) by policies of insurance required to be
maintained by Lessee by this Lease, Lessor shall hold Lessee harmless and defend
Lessee against any and all claims or liability for any injury or damage to any
person in, on or about the Premises or any part thereof and/or the building of
which the Premises are a part, when such injury or damage shall be caused by the
act, neglect, fault of, or omission of any duty with respect to the same by
Lessor, its agents, servants and employees. Notwithstanding the foregoing or
anything to the contrary in this Lease, Lessor and Lessee hereby agree that in
no event shall either party be liable for any incidental or consequential
damages whatsoever, including, without limitation, any damages as a result of
any interruption of Lessee's business or any loss of income therefrom. Except
for any claims, rights of recovery and causes of action that Lessor has released
and claims covered (or which would have been covered) by policies of insurance
required to be maintained by Lessor by this Lease, Lessee shall hold Lessor
harmless from and defend Lessor against any and all claims or liability for any
injury or damage (i) to any person or property whatsoever occurring in, on or
about the Premises or any part thereof and/or of the building of which the
Premises are a part, including without limitation elevators, stairways,
passageways or hallways, the use of which Lessee may have in accordance with
this Lease, when such injury or damage shall be caused by the act, neglect,
fault of, or omission of any duty with respect to the same by Lessee, its
agents, servants, employees, or invitees, (ii) arising from the conduct of
management of any work done by the Lessee in or about the Premises, (iii)
arising from transactions of the Lessee, and (iv) all costs, counsel fees,
expenses and liabilities incurred in connection with any such claim or action or
proceeding brought thereon. The provisions of this Paragraph 11 shall survive
the expiration or termination of this Lease with respect to any claims or
liability occurring prior to such expiration or termination.
12. USE. The Premises shall be used only for the purpose of general
office use, receiving storing, shipping and selling (other than retail)
products, materials and merchandise made and/or distributed by Lessee and for
such other lawful purposes as may be incidental thereto. In the event the
Premises shall constitute a portion of a multiple-occupancy building, outside
storage, including without limitation, storage of trucks and other vehicles and
the washing thereof at any time is prohibited without Lessor's prior written
consent. With the exception of permits for construction of the Improvements
contemplated by Paragraph 1 of this Lease and the Certificate of Occupancy for
such Improvements, Lessee shall, at its own cost and expense, obtain any and all
licenses and permits necessary for such use, shall at all times maintain the
Premises in a clean, healthful and safe condition and comply with all
governmental laws, codes, ordinances, regulations or any other applicable
authorities with regard to the use, condition or occupancy of the Premises
including, without limitation, the ADA (except as otherwise provided in
Paragraph 4C). Lessee shall be responsible, at Lessee's sole cost and expense,
for the correction, prevention, and abatement of nuisances in or upon, or
connected with, the Premises. Lessee shall not permit any objectionable or
unpleasant odors, smoke, dust, gas, noise, vibrations, or pest infestations to
emanate from the Premises, nor take any other action that would constitute a
nuisance or would disturb, unreasonably interfere with, or endanger Lessor, any
other lessees of the building or
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project of which the Premises are a part, or any adjacent property owners or
occupants. Lessee's use of the Premises shall at all times comply with the
insurance provisions in Paragraph 9C hereof.
13. INSPECTION. Lessor and Lessor's agents and representatives shall
have the right to enter the Premises at any reasonable time during business
hours, upon prior notice to Lessee except that no such notice shall be required
if Lessor believes that an emergency exists or if Lessor has cause to suspect
that hazardous substances are being stored, used, produced, handled or disposed
of in or on the Premises in violation of the terms of this Lease, or the
Premises are otherwise being used in violation of the use restrictions under
this Lease, to inspect the Premises and to make such repairs as may be required
or permitted pursuant to this Lease. During the period that is six (6) months
prior to the end of the term hereof and at any time Lessee has committed an
Event of Default, Lessor and Lessor's representatives may enter the Premises
during business hours for the purpose of showing the Premises. Lessee shall
neither prevent, prohibit, nor in any way impair such showing of the Premises.
In addition, Lessor shall have the right to erect a suitable sign on or near the
Premises stating the Premises are available no earlier than six (6) months prior
to the expiration of the term of this Lease, except that if an event of default
has occurred, Lessor can erect such sign immediately upon the occurrence of such
event of default. Lessee shall notify Lessor in writing at least thirty (30)
days prior to vacating the Premises at or about expiration of the Lease term and
shall arrange to meet with Lessor for a joint inspection of the Premises prior
to vacating. If Lessee fails to arrange for and complete such inspection within
thirty (30) days after vacating the Premises, then Lessor's inspection of the
Premises shall be deemed correct for the purpose of determining Lessee's
responsibility for repairs and restoration of the Premises.
14. ASSIGNMENT AND SUBLETTING.
A. Lessee shall not have the right to assign, sublet, transfer
or encumber this Lease, or any interest therein, without the prior written
consent of Lessor which consent shall not be unreasonably withheld or delayed,
provided that (i) Lessee has notified Lessor in writing prior to Lessee's offer,
or marketing, of the Premises to third parties; (ii) Lessee has notified Lessor
in writing no later than fourteen (14) days in advance of the proposed
subleasing or assignment, and furnished such financial statements and other
information about the proposed sublessee or assignee as Lessor may reasonably
request; (iii) the proposed sublessee's or assignee's tangible net worth
(excluding good will and all other intangible items) equals or exceeds the
Lessee's tangible net worth; and (iv) the proposed sublessee or assignee
confirms its willingness to assume the obligations of Lessee under this Lease by
written agreement in form and substance satisfactory to Lessor. It is
specifically provided that if Lessor's mortgagee declines to approve any
requested assignment, sublet, transfer or encumbrance of this Lease or any
interest therein, for any reason or for no reason, such action shall cause
Lessor's declination of the requested action to be deemed reasonable. Any
attempted assignment, subletting, transfer or encumbrance by Lessee in violation
of the terms and covenants of this Paragraph shall be void. Notwithstanding the
foregoing, Lessee shall have the right to assign this Lease to any affiliate (as
such term is defined in the Securities Act of 1933) provided that such
assignment is in form satisfactory to Lessor and that such affiliate agrees to
and performs all obligations of Lessee under this Lease. If Lessor fails to
respond to Lessee's request to assign, sublet, transfer or encumber this Lease
or any interest therein which request conforms with the provisions of this
Paragraph 14A within fourteen (14) days after
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Lessor's receipt of such request, Lessee's request will be deemed to have been
approved by Lessor. Any mergers, consolidations, reorganizations, sales of stock
or assets by or of the Lessee shall not be deemed to be an assignment for the
purposes of this Paragraph 14. Any assignee, sublessee or transferee of Lessee's
interest in this Lease (all such assignees, sublessees and transferees being
hereinafter referred to as "TRANSFEREES"), by assuming Lessee's obligations
hereunder, shall assume liability to Lessor for all amounts paid to persons
other than Lessor by such Transferees in contravention of this Paragraph. No
assignment, subletting, or other transfer, whether consented to by Lessor or not
or permitted hereunder shall relieve Lessee of its liability hereunder. If an
Event of Default occurs while the Premises or any part thereof are assigned or
sublet, then Lessor, in addition to any other remedies herein provided, or
provided by law, may collect directly from such Transferee all rents payable to
the Lessee and apply such rent against any sums due Lessor hereunder. No such
collection shall be construed to constitute a novation or a release of Lessee
from the further performance of Lessee's obligations hereunder.
B. If this Lease is assigned to any person or entity pursuant
to the provision of the Bankruptcy Code, 11 U.S.C. 101 et. seq., (the
"BANKRUPTCY CODE"), any and all monies or other consideration payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Lessor, shall be and remain the exclusive property of Lessor and
shall not constitute property of Lessee or of the estate of Lessee within the
meaning of the Bankruptcy Code. Any and all monies or other consideration
constituting Lessor's property under the preceding sentence not paid or
delivered to Lessor shall be held in trust for the benefit of Lessor and be
promptly paid or delivered to Lessor.
C. Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code shall be deemed, without
further act or deed, to have assumed all of the obligations arising under this
Lease on and after the date of such assignment. Any such assignee shall upon
demand execute and deliver to Lessor an instrument confirming such assumption.
D. Upon occurrence of an assignment or sublease, whether
consented or approved by Lessor or mandated by judicial intervention, Lessee
hereby assigns, transfers, and conveys all rents or other sums received by
Lessee under any such assignment or sublease which are in excess of rents and
other sums payable by Lessee under this Lease and agrees to pay such amounts to
Lessor within ten (10) days after receipt.
15. CONDEMNATION. If the whole or any substantial part as determined by
Lessor of the Premises should be taken for any public or quasi-public use under
governmental law, ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof and the taking prevents or materially
interferes with the use of the Premises for the purpose for which they were
leased to Lessee, this Lease shall terminate and the rent shall be abated during
the unexpired portion of this Lease, effective on the date of such taking. If
less than a substantial part, as determined by Lessor, of the Premises is taken
for any public or quasipublic use under any governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof, this Lease shall not terminate, but the rent payable hereunder during
the unexpired portion of this Lease shall be reduced to such extent as may be
fair and reasonable under all of the circumstances. All compensation awarded in
connection with or as a result of any of the foregoing
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proceedings shall be the property of Lessor and Lessee hereby assigns any
interest in any such award to Lessor; provided, however, Lessor shall have no
interest in any award made to Lessee for loss of business or goodwill or for the
taking of Lessee's fixtures and improvements, if a separate award for such items
is made to Lessee, and Lessor shall not accept any awards which deny Lessee the
right to bring an action against any party, other than Lessor, for any losses
which Lessee suffers as a result of such taking or condemnation action.
16. HOLDING OVER. At the termination of this Lease by its expiration or
otherwise, Lessee immediately shall deliver possession to Lessor with all
repairs and maintenance required herein to be performed by Lessee completed. If,
for any reason, Lessee retains possession of the Premises after the expiration
or termination of this Lease, unless the parties hereto otherwise agree in
writing, such possession shall be subject to termination by either Lessor or
Lessee at any time upon not less than ten (10) days advance written notice, and
all of the other terms and provisions of this Lease shall be applicable during
such period, except that Lessee shall pay Lessor from time to time, upon demand,
as rental for the period of such possession, an amount equal to one hundred and
seventy-five percent (175%) of the rent in effect on the termination date,
computed on a daily basis for each day of such period. No holding over by
Lessee, whether with or without consent of Lessor shall operate to extend this
Lease except as otherwise expressly provided. The preceding provisions of this
Paragraph 16 shall not be construed as consent for Lessee to retain possession
of the Premises in the absence of written consent thereto by Lessor.
17. QUIET ENJOYMENT. Lessor covenants that on or before the
commencement date it will have good title to the Premises, free and clear of all
liens and encumbrances, excepting only the lien for current taxes not yet due,
such mortgage or mortgages as are permitted by the terms of this Lease, zoning
ordinances and other building and fire ordinances and governmental regulations
relating to the use of such property, and easements, restrictions and other
conditions of record. Lessor represents that it has the authority to enter into
this Lease and that so long as Lessee pays all amounts due hereunder and
performs all other covenants and agreements herein set forth, Lessee shall
peaceably and quietly have, hold and enjoy the Premises for the term hereof
without hindrance or molestation from Lessor or persons claiming through Lessor
or otherwise, subject to the terms and provisions of this Lease. With respect to
any mortgages permitted by this Lease, Lessor shall cause to be executed and
delivered to Lessee a subordination and non-disturbance agreement which shall be
executed by Lessee provided that Lessee shall agree to attornment provisions and
other commercially reasonable terms, as Lessor's mortgagee may require in
connection with such agreement.
18. EVENTS OF DEFAULT. The following events (herein individually
referred to as "EVENT OF DEFAULT" if any applicable cure period shall expire
without cure of the default in question) each shall be deemed to be defaults by
Lessee under this Lease:
A. Lessee shall fail to pay any installment of Base Rent or
any additional rents herein reserved when due, or any other payment or
reimbursement to Lessor required herein when due, and such failure shall
continue for a period of ten (10) days from the date Lessor gives Lessee written
notice of Lessee's late payment.
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B. The Lessee shall (i) become insolvent; (ii) admit in
writing its inability to pay its debts; (iii) make a general assignment for the
benefit of creditors; (iv) commence any case, proceeding or other action seeking
to have an order for relief entered on its behalf as a debtor or to adjudicate
it as bankrupt or insolvent, 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 of any substantial part of its property; or (v) take any
action to authorize any of the actions set forth above in this Paragraph.
C. Any case, proceeding or other action against the Lessee
shall be commenced seeking (i) to have an order for relief entered against it as
a debtor or to adjudicate it as bankrupt or insolvent; (ii) reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it or its
debts under any law relating to bankruptcy, insolvency, reorganization or relief
of debtors (iii) appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its property, and such
case, proceeding or other action (a) results in the entry of a final
non-appealable order for relief against it which it is not fully stayed within
seven (7) business days after the entry thereof or (b) shall remain undismissed
for a period of seventy-five (75) days.
D. Without a minimum of fifteen (15) days' advance written
notice to Lessor, Lessee shall (i) vacate all or a substantial portion of the
Premises or (ii) fail to continuously operate its business at the Premises for
the permitted use set forth herein, whether or not Lessee is in default of the
rental payments due under this Lease.
E. Lessee shall fail to discharge, by cash payment or through
bonding, any lien placed upon the Premises in violation of Paragraph 21 hereof
within twenty (20) days after any such lien or encumbrance is filed against the
Premises.
F. Lessee shall fail to comply with any term, provision or
covenant of this Lease (other than those listed in this Paragraph 18), and shall
not cure such failure within thirty (30) days after written notice thereof to
Lessee, which cure period shall be extended without the written approval of
Lessor, for a reasonable period, not to exceed an additional forty-five (45)
days beyond the initial thirty (30) day cure period, if Lessee's failure is not
reasonably susceptible of cure within thirty (30) days, and Lessee is diligently
and continuously pursuing such cure to completion.
19. REMEDIES.
A. Upon each occurrence of an Event of Default, Lessor shall
have the option to pursue any one or more of the following remedies without any
notice or demand:
(1) Terminate this Lease; and/or
(2) Enter upon and take possession of the Premises
without terminating this Lease; and/or
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(3) Alter all locks and other security devices at the
Premises with or without terminating this Lease, and pursue,
at Lessor's option, one or more remedies pursuant to this
Lease, Lessee hereby specifically waiving any state or federal
law to the contrary;
and in any such event Lessee immediately shall surrender the Premises to Lessor,
and if Lessee fails so to do, Lessor, without waiving any other remedy it may
have, may enter upon and take possession of the Premises and expel or remove
Lessee and any other person who may be occupying such Premises or any part
thereof, without being liable for prosecution or any claim of damages therefor,
except for any personal injury or property damage caused by Lessor's gross
negligence.
B. If Lessor terminates this Lease, at Lessor's option, Lessee
shall be liable for and shall pay to Lessor, the sum of all rental and other
payments owed to Lessor hereunder accrued to the date of such termination, plus,
as liquidated damages, an amount equal to the present value (using the current
"prime" interest rate of Texas Commerce Bank, N.A., or should such financial
institution no longer exist, a comparable financial institution) of (1) the
total rental and other payments owed hereunder for the remaining portion of the
Lease term, calculated as if such term expired on the date set forth in
Paragraph 1, less (2) the then fair market rental of the Premises for such
period.
C. If Lessor repossesses the Premises without terminating the
Lease, Lessee, at Lessor's option, shall be liable for and shall pay Lessor on
demand all rental and other payments owed to Lessor hereunder, accrued to the
date of such repossession, plus all amounts required to be paid by Lessee to
Lessor until the date of expiration of the term as stated in Paragraph 1,
diminished by all amounts received by Lessor through reletting of the Premises
during such remaining term (but only to the extent of the rent herein reserved).
Actions to collect amounts due by Lessee to Lessor under this subparagraph may
be brought from time to time, on one or more occasions, without the necessity of
Lessor's waiting until expiration of the Lease term.
D. Upon an Event of Default. in addition to any sum provided
to be paid herein, Lessee also shall be liable for and shall pay to Lessor (i)
brokers' fees incurred by Lessor in connection with reletting the whole or any
part of the Premises; (ii) the costs of removing and storing Lessee's or other
occupant's property; (iii) the costs of repairing, altering, remodeling or
otherwise putting the Premises into as good condition as that in which it was
originally delivered to Lessee; (iv) all reasonable expenses incurred by Lessor
in enforcing or defending Lessor's rights and/or remedies. If either party
hereto institutes any action or proceeding to enforce any provision hereof by
reason of any alleged breach of any provision of this Lease, the prevailing
party shall be entitled to receive from the losing party all reasonable
attorneys' fees and all court costs in connection with such proceeding.
E. In the event Lessee fails to make any payment due hereunder
within ten (10) days of the date when payment is due, to help defray the
additional cost to Lessor for processing such late payments, Lessee shall pay to
Lessor on demand a late charge in an amount equal to five percent (5%) of such
installment; and the failure to pay such late charges within ten (10) days after
demand therefor shall be an additional Event of Default hereunder. The provision
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for such late charge shall be in addition to all of Lessor's other rights and
remedies hereunder or at law and shall not be construed as liquidated damages or
as limiting Lessor's remedies in any manner.
F. Exercise by Lessor of any one or more remedies hereunder
granted or otherwise available shall not be deemed to be an acceptance of
surrender of the Premises by Lessor, whether by agreement or by operation of
law, it being understood that such surrender can be effected only by the written
agreement of Lessor and Lessee. Lessee and Lessor further agree that forbearance
by Lessor to enforce its rights pursuant to the Lease at law or in equity, shall
not be a waiver of Lessor's right to enforce one or more of its rights in
connection with any subsequent default.
G. Subject to the terms of Paragraph 20, if Lessor shall
default in any of its obligations under Paragraphs 4, 8, or 9 of this Lease and
such failure shall continue beyond the expiration of any cure period provided
for such default or, in the absence of a stated cure period for such default,
for thirty (30) days after written notice from Lessee specifying the
circumstances of such default (unless such failure is not reasonably capable of
being cured within thirty (30) days and Lessor has not begun to cure such
failure within said thirty (30) day period and to pursue such cure with due
diligence), then Lessee may, at its option, cure the default at Lessor's
expense. Lessee shall have the right to offset its reasonable out-of-pocket
costs incurred in curing any default by Lessor in accordance with the terms of
this Paragraph 1 9G, provided, however, that if Lessor shall have notified
Lessee that Lessor contests Lessee's determination that Lessor has defaulted and
thereafter, Lessee shall have first obtained a declaration of Lessor's default
and an award of such costs through Binding Arbitration proceedings. Lessee shall
be entitled to perform the work or take such actions in accordance with the
applicable terms and conditions of this Lease, if any, as may be reasonably
necessary to cure the Lessor's default. Notwithstanding the foregoing notice and
time periods, in the event of an emergency and a default materially prejudicial
to Lessee, Lessee need only give such notice as is reasonable under the
circumstances. The term "LESSOR" shall mean only the owner, for the time being
of the Premises, and in the event of the transfer by such owner of its interest
in the Premises, such owner shall thereupon be released and discharged from all
covenants and obligations of the Lessor thereafter accruing, but such covenants
and obligations shall be binding during the Lease term upon each new owner for
the duration of such owner's ownership. Notwithstanding any other provision
hereof, Lessor shall not have any personal liability hereunder. In the event of
any breach or default by Lessor in any term or provision of this Lease, Lessee
agrees to look solely to the equity or interest then owned by Lessor in the
Premises or of the building of which the Premises are a part, or casualty
insurance proceeds on account of damage to the Premises not applied to
rebuilding or restoration of the Premises or subject to a lien or security
interest; however, in no event, shall any deficiency judgment or any money
judgment of any kind be sought or obtained against any Lessor. Upon the sale or
other disposition of Lessor's interest in the Premises, Lessor shall not be
relieved of any preexisting obligations created herein, but such liability shall
under no circumstances exceed the value of the Premises at the time of such sale
or other disposition.
H. If Lessor repossesses the Premises pursuant to the
authority herein granted, then Lessor shall have the right to (i) keep in place
and use or (ii) remove and store all of the furniture, fixtures and equipment at
the Premises, including that which is owned by or leased to
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Lessee at all times prior to any foreclosure thereon by Lessor or repossession
thereof by any Lessor thereof or third party having a lien thereon. Lessor also
shall have the right to relinquish possession of all or any portion of such
furniture, fixtures, equipment and other property to any person ("CLAIMANT") who
presents to Lessor a copy of any instrument represented by Claimant to have been
executed by Lessee (or any predecessor of Lessee) granting Claimant the right
under various circumstances to take possession of such furniture, fixtures,
equipment or other property, without the necessity on the part of Lessor to
inquire into the authenticity or legality of said instrument. The rights of
Lessor herein stated shall be in addition to any and all other rights that
Lessor has or may hereafter have at law or in equity; and Lessee stipulates and
agrees that the rights herein granted Lessor are commercially reasonable.
I. Notwithstanding anything in this Lease to the contrary, all
amounts payable by Lessee to or on behalf of Lessor under this Lease, whether or
not expressly denominated as rent, shall constitute rent.
J. This is a contract under which applicable law excuses
Lessor from accepting performance from (or rendering performance to) any person
or entity other than Lessee.
20. MORTGAGES.
A. Lessee accepts this Lease subject and subordinate to any
mortgages and/or deeds of trust now or at any time hereafter constituting a lien
or charge upon the Premises or the Improvements; provided, however, that if the
mortgagee, trustee, or holder of any such mortgage or deed of trust elects to
have Lessee's interest in this Lease superior to any such instrument, then by
notice to Lessee from such mortgagee, trustee or holder, this Lease shall be
deemed superior to such lien, whether this Lease was executed before or after
said mortgage or deed of trust. In the event any mortgage and/or deed of trust
is filed against the Premises, Lessor shall cause such mortgagee, trustee or
holder of any such mortgage or deed of trust to execute a subordination and
non-disturbance agreement which Lessee shall execute, provided that Lessee shall
agree to attornment provisions and other commercially reasonable terms, as
Lessor's mortgagee may require in connection with such agreement. Lessee, at any
time hereafter on demand, shall execute any instruments, releases or other
documents that may be required by any mortgagee for the purpose of subjecting
and subordinating this Lease to the lien of any such mortgage.
B. At any time when the holder of an outstanding mortgage,
deed of trust or other lien covering Lessor s interest in the Premises has given
Lessee written notice of its interest in this Lease, Lessee may not exercise any
remedies for default by Lessor hereunder unless and until the holder of the
indebtedness secured by such mortgage, deed of trust or other lien shall have
received written notice of such default and the same time period afforded Lessor
to cure such default shall thereafter have elapsed without the default having
been cured. Opportunity to cure extended to Lessor's mortgagee may be coincident
with the cure period referred to paragraph 19G for defaults by Lessor.
21. MECHANIC'S LIENS. Lessee has no authority, express or implied, to
create or place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind the interest of Lessor or Lessee in the Premises or to
charge the rentals payable hereunder for any claim in favor of any person
dealing with Lessee, including those who may furnish materials or
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perform labor for any construction or repairs. Lessee covenants and agrees that
it will pay or cause to be paid all sums legally due and payable by it on
account of any labor performed or materials furnished in connection with any
work performed on the Premises and that it will save and hold Lessor harmless
from any and all loss, cost or expense based on or arising out of asserted
claims or liens against the leasehold estate or against the right, title and
interest of the Lessor in the Premises or under the terms of this Lease. Lessee
agrees to give Lessor immediate written notice of the placing of any lien or
encumbrance against the Premises. Lessee shall be entitled to contest any
claims, liens or any other type of encumbrances asserted against the leasehold
estate or the Lessee's and/or Lessor's interest in the Premises or this Lease so
long as Lessee deposits with Lessor on terms agreeable to Lessor an amount equal
to one hundred and fifty percent (150%) of the amount of the asserted claim,
lien or encumbrance.
22. LESSOR'S LIEN.
A. Prior to a monetary Event of Default by Lessee, Lessor
shall not require Lessee to grant any contractual lien or security interest in
Lessee's personal property located at the Premises. At any time subsequent to a
monetary Event of Default by Lessee, Lessor shall have the right to require
Lessee, upon not less than fifteen (15) days' prior written notice, to grant to
Lessor, in addition to any statutory lien for rent in Lessor's favor, a
continuing security interest for all rentals and other sums of money becoming
due hereunder from Lessee, upon all goods, wares, equipment, fixtures,
furniture, inventory, and other personal property of Lessee now or hereafter
situated on the Premises, and such property shall not be removed therefrom
without the consent of Lessor until all arrearages in rent as well as any and
all other sums of money then due to Lessor hereunder shall first have been paid
and discharged. In the event any of the foregoing described property is removed
from the Premises in violation of the covenant in the preceding sentence, the
security interest shall continue in such property and all proceeds and products,
regardless of location. Upon a default hereunder by Lessee in addition to all
other rights and remedies, Lessor shall have all rights and remedies under the
Uniform Commercial Code, including without limitation, the right to sell the
property described in this Paragraph at public or private sale upon five (5)
days notice by Lessor to Lessee. Lessee hereby agrees to execute such other
instruments, necessary or desirable under applicable law to perfect the security
interest created. Lessor and Lessee agree that this Lease and security agreement
shall, after the conditions for creation of a security interest are satisfied,
serve as a financing statement and that a copy, photographic or other
reproduction of this portion of this Lease may be filed of record by Lessor and
have the same force and effect as the original. This security agreement and
financing statement will also cover fixtures located at the Premises subject to
this Lease and legally described in EXHIBIT A and will be filed for record in
the real estate records.
B. Notwithstanding Paragraph A, Lessor agrees that it will
subordinate its security interest and Lessor's lien to the security interest of
Lessee's supplier or institutional financial source for as long as the rental
account of Lessee under this Lease is current, provided that the subordination
must be limited to a specified transaction, identified debt limit, and specified
items of the fixtures. equipment or inventory involved in the transaction.
23. HAZARDOUS MATERIALS. The term "SUBSTANCES", as used in this Lease
shall mean pollutants, contaminants, toxic or hazardous wastes, or any other
substances, the use,
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storage, handling, disposal, transportation or removal of which is regulated,
restricted, prohibited or penalized by any "ENVIRONMENTAL LAW", which term shall
mean any federal, state or local law, ordinance or other statute of a
governmental or quasi-governmental authority relating to pollution or protection
of health or the environment and shall specifically include, but not be limited
to, any "HAZARDOUS SUBSTANCE" as that term is defined under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 and any
amendments or successors in function thereto. Lessee hereby agrees that (i) no
activity will be conducted on the Premises that will produce any Substance,
except for such activities that are part of the ordinary course for Lessee's
business activities (the "PERMITTED ACTIVITIES") provided said Permitted
Activities are conducted in accordance with all Environmental Laws and have been
approved in advance in writing by Lessor (which approval Lessor may grant or
withhold in its sole discretion); Lessee shall be responsible for obtaining any
required permits and paying any fees and providing any testing required by any
governmental agency; (ii) the Premises will not be used in any manner for the
storage of any Substances except for the temporary storage of such materials
that are used in the ordinary course of Lessee's business provided such
Substances are properly stored in a manner and location meeting all
Environmental Laws and approved in advance in writing by Lessor (which approval
Lessor may grant or withhold in its sole discretion); Lessee shall be
responsible for obtaining any required permits and paying any fees and providing
any testing required by any governmental agency; (iii) no portion of the
Premises will be used as a landfill or a dump; (iv) Lessee will not install any
underground or aboveground tank of any type; (v) Lessee will not cause any
surface or subsurface conditions to come into existence at the Premises, or
aggravate surface or subsurface conditions, that constitute, or with the passage
of time, may constitute a public or private nuisance; (vi) Lessee will not
permit any Substances to be brought onto the Premises, except in accordance with
the terms and conditions hereof, and if so brought or found located thereon, the
same shall be immediately removed, and properly disposed, and all required
cleanup procedures shall be diligently undertaken pursuant to all Environmental
Laws; and (vii) except for compliance obligations resulting from any conditions
identified in the Phase I environmental report dated June, 1996, conducted on
the Premises prior to Lessee taking possession of the Premises, or from the
migration of Hazardous Substances onto the Premises from or through adjoining
property, which Lessee or any of Lessee's licensees, invitees, agents,
employees. assigns, subtenants, or independent contractors does not cause or
aggravate, Lessee shall in all regards comply with Environmental Laws,
including, without limitation. meeting any necessary financial responsibility
requirements. Prior to any Substance being brought upon or into the Premises,
whether Lessor's written permission is required or not, Lessee will provide to
Lessor any applicable material safety data sheets regarding said Substance as
well as a written description of the amount of such Substance to be brought upon
or into the Premises and the common and recognized chemical name of such
Substance. Lessee shall bear responsibility for insuring that all record
keeping, reporting and remediation responsibilities of Lessee under
Environmental Laws relative to Lessee's, or Lessee's licensees', invitees',
agents', employees assigns', subtenants', or independent contractors', use of or
activity on the Premises. are met and Lessee assumes all such responsibility and
liability for such legal compliance. Subject to the notification provisions set
forth in Paragraph 13 of this Lease, Lessor or Lessor's representative shall
have the right, but not the obligation. to enter the Premises for, among other
purposes, the purposes of inspecting the storage, use and disposal of any
Substances and to review compliance with all Environmental Laws. Should it be
determined, in the exercise of Lessor's reasonable judgment, that any Substances
are being improperly stored, used, or disposed of, then Lessee shall
-26-
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immediately take such corrective action as required by applicable Environmental
Laws, Lessee will provide Lessor written notification of the release or disposal
of any Substance either within the Premises or outside of Lessee's Premises and
will also provide Lessor written notice of any pending or threatened litigation
concerning the breach or purported breach of any Environmental Laws. If at any
time during or after the term of the Lease, the Premises are found to be
contaminated by Substances or subject to said conditions, arising from or as a
result of Lessee's negligence (whether in whole or in part) or the use at the
Premises of any Substances by Lessee or any of Lessee's licensees, invitees,
agents, employees, assigns, subtenants, or independent contractors or other
activities on the Premises by Lessee or any of Lessee's licensees, invitees
agents, employees, assigns, subtenants, or independent contractors, Lessee shall
diligently institute proper and thorough investigation, risk assessment, and
cleanup procedures in accordance with Environmental Laws at Lessee's sole cost,
and Lessee agrees to indemnify and hold Lessor harmless from all claims,
demands, actions, liabilities, costs, expenses, damages, fines, reimbursement,
restitution, response costs, cleanup costs, and obligations (including
investigative responses and attorney's fees) of any nature resulting therefrom,
except to the extent that Lessee may establish that such contamination of the
Premises migrated onto the Premises from or through adjoining properties, which
Lessee or any of Lessee's licensees, invitees, agents, employees, assigns,
subtenants, or independent contractors did not cause or aggravate. The foregoing
indemnification and the responsibilities of Lessee shall apply to Lessee
regardless of whether they arise from any Permitted Activity or from any
Substances, the use of which Lessor approved, and shall survive the termination
or expiration of this Lease. Lessor shall be under no obligation to expend any
sums or to seek reimbursement to enforce the indemnification obligations of
Lessee hereunder.
Permitted Materials: None.
Lessee acknowledges and agrees that it shall not be unreasonable for
Lessor to withhold its consent to any proposed assignment, subletting, or
transfer of Lessee's interest in this Lease if (i) the anticipated use of the
Premises by the proposed assignee, subtenant, or transferee (collectively, a
"TRANSFEREE") involves the generation, storage, use, treatment, or disposal of
Substances; (ii) the proposed Transferee has been required by any prior lessor,
lender, or governmental authority to make remedial action in connection with
Substances contaminating a property, if the contamination resulted from such
Transferee's actions or use of the property in question; or (iii) the proposed
Transferee is subject to an enforcement order issued by any governmental
authority in connection with the use, disposal, or storage of a Substance.
24. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall be
held the plural, unless the context otherwise requires. The captions inserted in
this Lease are for convenience only and in no way define, limit or otherwise
describe the scope or intent of this Lease, or any provision hereof, or in any
way affect the interpretation of this Lease.
B. The terms, provisions and covenants and conditions
contained in this Lease shall apply to, inure to the benefit of, and be binding
upon the parties hereto and upon their respective heirs, executors, personal
representatives, legal representatives, successors and assigns,
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except as otherwise herein expressly provided. Lessor shall have the right to
transfer and assign, in whole or in part, its rights and obligations in the
building and property that are the subject to this Lease. Each party agrees to
furnish to the other, promptly upon demand, a corporate resolution, proof of due
authorization by partners, or other appropriate documentation evidencing the due
authorization of such party to enter into this Lease.
▇. ▇▇▇▇▇▇ shall not be held responsible for delays in the
performance of its obligations hereunder when caused by material shortages, acts
of God or labor disputes. Lessee shall not be held responsible for delays in the
performance of its building repair obligations set forth in Paragraph 5A of this
Lease when caused by material shortages, acts of God or labor disputes.
D. Lessee agrees, from time to time, within five (5) days
after request of Lessor, to deliver to Lessor, or Lessor's designee, a
Certificate of Occupancy and an estoppel certificate stating that this Lease is
in full force and effect, the date to which rent has been paid, the unexpired
term of this Lease and such other factual matters pertaining to this Lease as
may be requested by Lessor. It is understood and agreed that Lessee's obligation
to furnish such estoppel certificates in a timely fashion is a material
inducement for Lessor's execution of this Lease. Lessor agrees from time to
time, within five (5) days after request of Lessee, to deliver to Lessee, or
Lessee's designee, an estoppel certificate stating that this Lease is in full
force and effect, the date to which rent has been paid, the unexpired term of
this Lease and such other factual matters pertaining to this Lease as may be
requested by Lessee, provided such estoppel certificate is for the benefit of a
subtenant or assignee of Lessee's interest under this Lease approved by Lessor
in accordance with the terms of this Lease. It is understood and agreed that
Lessor's obligation to furnish such estoppel certificates in a timely fashion is
a material inducement for Lessee's execution of this Lease.
E. This Lease constitutes the entire understanding and
agreement of the Lessor and Lessee with respect to the subject matter of this
Lease, and contains all of the covenants and agreements of Lessor and Lessee
with respect thereto. Lessor and Lessee each acknowledge that no
representations, inducements, promises or agreements, oral or written, have been
made by Lessor or Lessee, or anyone acting on behalf of Lessor or Lessee, which
are not contained herein, and any prior agreements, promises, negotiations, or
representations not expressly set forth in this Lease are of no force or effect.
This Lease may not be altered, changed or amended except by an instrument in
writing signed by both parties hereto.
F. All obligations of Lessee hereunder not fully performed as
of the expiration or earlier termination of the term of this Lease shall survive
the expiration or earlier termination of the term hereof, including without
limitation, all payment obligations with respect to Base Rent and Operating
Expenses as of the expiration or earlier termination of the term of this Lease
and all obligations concerning the condition and repair of the Premises. Upon
the expiration or earlier termination of the term hereof, and prior to Lessee
vacating the Premises, Lessee shall restore the Premises to good condition and
repair, reasonable wear and tear excluded, subject to Paragraph 6. Prior to
Lessee vacating the Premises, Lessee shall make all repairs as specified in
Paragraph 5 hereof, including but not limited to any repairs necessary so that
the heating and air conditioning systems are in good working order. Upon
expiration or earlier termination hereof, the Premises
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shall be delivered to Lessor in broom clean condition. If any and all repairs or
restoration required of Lessee hereunder are not completed by the expiration or
earlier termination hereof, Lessor may cause the same to be completed and the
costs shall be paid by Lessee (including a fifteen percent ( 15%) service charge
for arranging for and coordinating such work).
Lessee shall also, prior to vacating the Premises, pay to
Lessor the amount, as estimated by Lessor, of Lessee's obligation hereunder for
all Operating Expenses including, without limitation, taxes, insurance premiums
and common area charges for that portion of the year in which the Lease expires
or terminates that the Lease was in effect. All such amounts shall be used and
held by Lessor for payment of such obligations of Lessee hereunder, with Lessee
being liable for any additional costs therefor upon demand by Lessor, or with
any excess to be returned to Lessee in accordance with Paragraph 2D after all
such obligations have been determined and satisfied as the case may be. Any
security deposit held by Lessor may, at Lessor's option, be credited against the
amount payable by Lessee under this Paragraph or otherwise handled in accordance
with Paragraph 2B hereof.
G. If any clause or provision of this Lease is illegal,
invalid or unenforceable under the present or future laws effective during the
term of this Lease, then and in that event, it is the intention of the parties
hereto that the remainder of this Lease shall not be affected thereby, and it is
also the intention of the parties to this Lease that in lieu of each clause or
provision of this Lease that is illegal, invalid or unenforceable, there be
added, as a part of this Lease, a clause or provision as similar in terms to
such illegal, invalid or unenforceable clause or provision as may be possible
and be legal, valid and enforceable.
H. All references in this Lease to "THE DATE HEREOF" or
similar references shall be deemed to refer to the last date, in point of time,
on which all parties hereto have executed this Lease.
I. Lessee represents and warrants that it has dealt with no
broker, agent or other person in connection with this transaction or that no
broker, agent or other person brought about this transaction, other than ▇▇▇▇▇▇
▇. ▇▇▇▇. Broker, and ▇▇▇▇ ▇. ▇▇▇ TAG Realty (collectively, the "BROKERS"), and
Lessee agrees to indemnify and hold Lessor harmless from and against any claims
by any other broker, agent or other person claiming a commission or other form
of compensation by virtue of having dealt with Lessee with regard to this
leasing transaction. Lessor agrees to compensate the Brokers in accordance with
the terms of separate agreements.
J. If and when included within the term "LESSOR", as used in
this instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address for the receipt of notices
and payments to Lessor. If and when included within the term "LESSEE", as used
in this instrument, there is more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Lessee. All parties
included within the terms "LESSOR" and "LESSEE", respectively shall be bound by
notices given in accordance with the provisions of Paragraph 25 hereof to the
same effect as if each had received such notice.
-29-
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K. Except as expressly provided in Paragraph 26, Lessor and
Lessee expressly agree that there are and shall be no implied warranties of
merchantability, habitability, fitness for a particular purpose or any other
kind arising out of this Lease Agreement and that all express or implied
warranties in connection therewith are expressly disclaimed.
L. This Lease Agreement shall be construed under the laws of
the State of Texas.
M. Time is of the essence; and all due dates, time schedules,
and conditions precedent to exercising a right shall be strictly adhered to
without delay except where otherwise expressly provided.
N. As used herein, the term "BINDING ARBITRATION" shall mean
an arbitration proceeding before a single arbitrator appointed under the
American Arbitration Association rules for construction industry disputes (in
the case of any dispute arising under Paragraph I or Rider I related to
construction practices) or for commercial disputes (in the case of any other
dispute submitted to arbitration hereunder). The Binding Arbitration shall be
conducted under the relevant rules of the American Arbitration Association on an
expedited basis, unless the parties shall mutually agree otherwise, and shall
take place in Dallas, Texas. The arbitrator shall have the discretion to award
attorneys' fees and arbitration costs to either party based on facts in
evidence, but in the absence of such an award, each party shall pay its own
attorneys' fees and arbitration costs shall be paid in equal shares by the
parties.
25. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivering of notice or the making of any payment by
Lessor to Lessee or with reference to the sending, mailing or delivering of any
notice or the making of any payment by Lessee to Lessor shall be deemed to be
complied with when and if the following steps are taken:
A. All Rent and other payments required to be made by Lessee
to Lessor hereunder shall be payable to Lessor at the address for Lessor set
forth below or at such other address as Lessor may specify from time to time by
written notice delivered in accordance herewith. Lessee's obligation to pay rent
and any other amounts to Lessor under the terms of this Lease shall not be
deemed satisfied until such rent and other amounts have been actually received
by Lessor, or otherwise satisfied by offset as provided in Paragraphs 1A and
19G. In addition to Base Rent due hereunder, all sums of money and all payments
due Lessor hereunder shall be deemed to be additional rental owed to Lessor.
B. All payments required to be made by Lessor to Lessee
hereunder shall be payable to Lessee at the address set forth below, or at such
other address within the continental United States as Lessee may specify from
time to time by written notice delivered in accordance herewith.
C. Any written notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered whether actually received or
not when deposited in the United States Mail, postage prepaid, Certified or
Registered Mail, addressed to the parties hereto
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at the respective addresses set out below or at such other address as they have
theretofore specified by written notice delivered in accordance herewith.
26. ADDITIONAL PROVISIONS.
A. See RIDERS 1 AND 2 attached hereto and incorporated herein
by reference for all purposes.
▇. ▇▇▇▇▇▇ will use best efforts to receive property tax
abatements and/or rebates from the City of Carrollton, ▇▇▇▇▇▇ County, and the
school district in which the Premises are located, any and all of which, if
obtained, will be passed to Lessee.
C. Provided Lessee is not in default at the time such
rent installment falls due, the Base Rent obligation for the 13th month, and one
half the Base Rent obligation for the 25th month, following the commencement
date shall be abated.
D. The Land area and configuration shall be subject to
alteration at such time as the Lessee approves the Final Plans for the Premises,
and the boundaries of the Land included within the Premises shall be adjusted to
the tract boundaries determined by the Lessor's architect to comply with zoning
and subdivision ordinances applicable to the Premises at the time such Final
Plans are approved by Lessee. Lessee agrees to execute an amendment of this
Lease coincident with its approval of the Final Plans memorializing the
boundaries of the Land in accordance with the terms of this Lease.
E. Any assessments by a governmental authority for the
widening of International Parkway shall be excluded from Taxes which are subject
to reimbursement by Lessee under this Lease.
▇. ▇▇▇▇▇▇ represents and warrants that as of the date hereof
and as of the commencement date hereof, (a) the Premises have adequate legal
access to abutting public highways, streets, and roads; (b) Lessor does not have
knowledge of any pending or threatened governmental or private proceedings which
would impair or result in the termination of access from the Premises to
abutting public highways, streets, and roads; (c) as of the commencement date,
there will be available adequate water, electrical, sewage, and gas utility
service required for the intended use of the Premises; (d) Lessor has no
knowledge of any pending or deferred special assessment affecting the Premises;
and (e) there are no special taxes or assessments which are proposed, adopted,
or currently a lien against the Premises
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27. ATTACHMENTS.
The following are attached to this Lease and shall constitute
a part hereof:
EXHIBIT A - Land
EXHIBIT B - Site Plan and Floor Plan
Representative Elevations
Base Building Standard Specifications
Base Building Lessee-Specific Specifications
RIDER l - Option for Expansion of Premises
SCHEDULE R1 - Option Price Multiplier
RIDER 2 - Option for Renewal of Term
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EXECUTED BY LESSOR, this 23rd day of August, 1996.
Attest/Witness CB MIDWAY INTERNATIONAL
PARTNERS, LTD., a Texas limited
partnership
By: 13BCO, Inc., a Texas corporation,
general partner
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: Vice President
--------------------------- ---------------------------------
ADDRESS:
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Bank Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
"LESSOR AND SECURED PARTY"
EXECUTED BY LESSEE, this 23rd day of August, 1996.
Attest/Witness GADZOOKS, INC.
a Texas corporation
/s/ T. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------- ---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: T. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Chairman of the Board and Chief
--------------------------- ---------------------------------
ADDRESS:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
"LESSEE AND DEBTOR"
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RIDER 1
TO STANDARD INDUSTRIAL LEASE AGREEMENT
BY AND BETWEEN
CB MIDWAY INTERNATIONAL PARTNERS, LTD., AS LESSOR,
AND
GADZOOKS, INC., AS LESSEE
OPTION FOR EXPANSION OF PREMISES
The Lessor hereby grants to Lessee the right and option to lease
expanded premises on the following terms:
1. For purposes of this Rider, the following definitions shall apply:
A. "EXPANSION IMPROVEMENTS" shall mean the improvements to be
constructed adjacent to the Improvements under the terms of this Rider.
B. "EXPANSION OPTION" shall mean the right and option granted
by Lessor to Lessee under the terms of this Rider.
C. "EXPANSION PREMISES" shall mean the additional land out of
the Option Tract required by applicable governmental authorities as a
building site for the Expansion Improvements, together with the
Expansion Improvements.
D. "EXPANSION RENT" shall mean the additional Base Rent
payable under the terms of this Rider over the Expansion Term for
rental of the Expansion Premises (excluding Base Rent for the original
Premises, which shall be adjusted as provided in Paragraph 5 of this
Rider).
E. "EXPANSION TERM" shall mean the ten (10) year period
commencing upon Substantial Completion of the Expanded Improvements and
continuing through the last day of the calendar month ten (10) years
after the date of such Substantial Completion.
F. "OPTION TRACT" shall mean that portion of the tract of land
described on Exhibit A attached to this Lease containing 349,549 square
feet out of which Lessor shall determine the land area and
configuration to be included within the Expansion Premises.
G. "10-YEAR MORTGAGE CONSTANT" shall mean the mortgage
constant at the time of Lessee's notice of exercise of the Expansion
Option associated with mortgage loans made available by the following
institutional lenders (or the successors of any such lenders) for loans
with loan terms of ten (10) years or more for properties similar to the
Premises, in Lessor's judgment, amortized over periods of no more than
twenty-five (25) years: Metropolitan Life Insurance Company; Prudential
Life Insurance Company; and The Principal Financial Group.
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H. "TOTAL EXPANSION COSTS" shall mean all costs and fees
reasonably or necessarily incurred or actually payable by Lessor, or
otherwise requested or authorized by Lessee, in designing,
constructing, financing, and otherwise providing the Expansion Premises
to Lessee. Total Expansion Costs shall include (without implied
limitation) (i) the agreed land cost for the site of the Expansion
Premises in accordance with Schedule R1 attached to this Rider; (ii)
the cost of designing, engineering, and constructing the shell
Expansion Improvements in accordance with plans and specifications
approved by Lessee and accepted by Lessor; (iii) the cost of designing
and constructing the interior finishes (if any) to the Expansion
Improvements in accordance with plans and specifications approved by
Lessee and accepted by Lessor; (iv) loan fees, interest and other
financing costs payable in connection with items (ii) and (iii); (v)
commission costs of Lessor equal to an aggregate of 6.75% of the
Expansion Rent (4.5% collectively for ▇▇▇▇▇▇ ▇. ▇▇▇▇, Broker, and ▇▇▇▇
▇.▇▇▇/ TAG Realty, plus 2.25% for ▇▇▇▇▇▇▇▇ ▇▇▇▇ Company); and (vi) a
development fee equal to 4% of items (ii) and (iii).
2. The Expansion Option may be exercised at any time during the Primary
Term upon written notice to Lessor. The Lessee's notice shall identify the
square footage proposed by Lessee for the Expansion Improvements.
3. Within thirty (30) days after Lessee's notice of the exercise of the
Expansion Option, or as soon thereafter as is practicable, Lessor shall
calculate the adjusted Base Rent and Expansion Rent to become payable during the
Expansion Term and furnish Lessee with the calculation. If Lessee shall not
approve Lessor's Expansion Rent calculation, Lessee shall so notify Lessor
within ten (10) days of receipt thereof and Lessee's exercise of the Expansion
Option shall be deemed to be revoked and terminated for all purposes. If Lessee
shall approve Lessor's Expansion Rent calculation, Lessee shall so notify Lessor
within ten ( 10) days of receipt thereof and Lessor shall prepare for Lessee's
execution a restated lease agreement incorporating the adjusted Base Rent, the
Expansion Rent, a site plan and preliminary design plans for the Expansion
Premises and Expansion Improvements, the Expansion Term, and other terms set
forth in this Rider, and otherwise based on the terms of the Lease to which
Lessor and Lessee are then subject.
4. The Lease term shall be extended to be co-terminus with the
Expansion Term. The Expansion Rent payable over the initial five (5) years of
the Expansion Term shall be calculated by multiplying (a) the Total Expansion
Costs times (b) the sum of the 10-Year Mortgage Constant plus three hundred
(300) basis points, and dividing the product by (c) .98, and adding to the
resulting quotient $.05 per square foot of building area in the Expansion
Improvements, as determined in accordance with the terms of the Lease. The
Expansion Rent payable over the second five (5) years of the Expansion Term
shall equal the product of the Expansion Rent initially payable, multiplied by
1.15.
5. From and after Substantial Completion of the Expansion Improvements,
the Base Rent for rental of the original Premises (prior to construction of, and
excluding, the Expansion Premises) shall be: (a) prior to expiration of the
original ten (10) year Primary Term, without extension based on the Lessee's
exercise of the Expansion Option, the Base Rent payable in accordance with
Paragraph 2A of the Lease; and (b) during the extended portion of the Primary
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Term subsequent to expiration of the original ten (10) year Primary Term (as
provided in Paragraph 1E of this Rider 1), a sum escalated annually, on each
anniversary of the first day of the month after the month in which Substantial
Completion of the Expansion Improvements occurs, equal to the product of 1.03
multiplied by the Base Rent payable in the immediately preceding twelve (12)
month period. The first escalation of the Base Rent shall occur effective as of
the first day of the month after the later to occur of (a) the expiration of the
original Primary Term of the Lease, and (b) the month in which Substantial
Completion of the Expansion Improvements occurs.
6. Lessee shall have the right to determine the square footage within
the Expansion Improvements, provided that such area shall be no smaller than
80,000 square feet and no larger than 162,000 square feet without the prior
written consent of Lessor. For purposes of calculating the Total Expansion
Costs, the land incorporated into the Expansion Premises shall be the minimum
land area required by zoning and subdivision ordinances then applicable to the
Expansion Premises, shall not be greater than two (2) times the square footage
of the Expansion Improvements, and shall be configured out of the Option Tract
as determined by Lessor in Lessor's sole and absolute discretion
7. The provisions of Paragraph I of the Lease shall govern the
planning, design and construction of the Expansion Improvements and the Lessee's
acceptance thereof. The adjusted Base Rent for the original Premises and the
Expansion Rent shall commence to accrue upon the Substantial Completion of such
Expansion Improvements and shall be payable as provided in Paragraph 2 of the
Lease. At the same time, Operating Expenses payable by Lessee shall be increased
in accordance with the increased building area within the Expansion Premises.
8. Prior to exercise of the Expansion Option, the Lessee shall have the
right to cancel the Expansion Option periodically as of any anniversary date of
the commencement date of the Lease upon a minimum of thirty (30) days advance
written notice. Time is of the essence in connection with such cancellation
notice. So long as the Expansion Option shall continue, the option price
referred to in ▇▇▇▇▇▇▇▇▇ ▇▇ of the Lease shall be payable as a portion of the
Operating Expenses due under the Lease. After cancellation, the Operating
Expenses payable in the last five (5) years of the Primary Term (or the
remainder thereof following the cancellation of the Expansion Option) shall be
reduced by the amount of the option price, as provided in Paragraph 2D of the
Lease.
9. If Lessee exercises its Expansion Option and the land area which
Lessor determines to be required within the Expansion Premises is less than the
aggregate area within the Option Tract, the Expansion Option shall be preserved
with respect to the remainder of the Option Tract and may be exercised by Lessee
from time to time, subject to the terms of this Rider (and the Lease). The
annual Option Price referred to in ▇▇▇▇▇▇▇▇▇ ▇▇ of the Lease shall be reduced to
the product of the square footage of remaining land area within the Option
Tract, after a portion thereof is utilized for the Lessee's initial expansion,
multiplied by $.125. The monthly installment of the Option Price payable by
Lessee shall be reduced accordingly.
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SCHEDULE R1
TO STANDARD INDUSTRIAL LOGO AGREEMENT
BY AND BETWEEN
CB MIDWAY INTERNATIONAL PARTNERS, LTD., AS LESSOR,
AND
GADZOOKS, INC., AS LESSEE
The area and configuration of land used for the Expansion Premises shall not be
greater than two (2) times the square footage of the Expansion Improvements. The
land cost per square foot (p.s.f.) includable in the land cost item of Total
Expansion Costs shall be based on the following schedule:
Option Exercise at
Months Land Cost P.S.F.
------ ----------------
1-12 $2.50
13-24 $2.75
25-36 $3.00
37-48 $3.25
49-60 $3.50
61-72 $3.625
73-84 $3.75
85-96 $3.875
97-108 $4.00
109-120 $4.125
-1-
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RIDER 2
TO STANDARD INDUSTRIAL LEASE AGREEMENT
BY AND BETWEEN
CB MIDWAY INTERNATIONAL PARTNERS, LTD., AS LESSOR,
AND
GADZOOKS, INC., AS LESSEE
Option for Renewal of Term
Lessor hereby grants to Lessee the right and option to extend the term
of this Lease for two (2) consecutive terms (each referred to herein as a
"Renewal Term") of five (5) years each on the following terms:
1. For purposes of this Rider, the following definitions shall apply:
A. "COMPARABLE BUILDINGS" shall mean office/warehouses of a
comparable design, age, size, and construction method to the
Improvements, with amenities and deferred maintenance (if any)
reasonably comparable to that of the Improvements, and with similar
functionality and market appeal, in the same market area.
B. "RENEWAL OPTION" shall mean the right and option to renew
the Lease term in accordance with the terms and conditions of this
Rider 2.
2. The renewal option shall be exercised by Lessee by delivering
written notice of the exercise thereof to Lessor at least six (6) months prior
to the beginning of the Renewal Term provided that at the time such notice shall
be given and at the commencement of the Renewal Term, Lessee shall not be in
default under this Lease, after taking into account all applicable cure periods.
and this Lease shall then be in full force and effect. Time is of the essence in
the exercise of the Renewal Option. Upon delivery of such notice and subject to
the conditions set forth in the preceding sentence. this Lease shall be extended
upon the same terms, covenants and conditions as provided in this Lease, except
as otherwise provided in this Rider 2.
3. The first Renewal Term shall begin on the day following expiration
of the primary ten (10) year term hereof, or the Expansion Term, if later, and
terminate on the last day of the month during which the fifth anniversary of the
commencement of such Renewal Term occurs. The second Renewal Term shall begin on
the day following expiration of the first Renewal Term.
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4. The Base Rent payable for each Renewal Term shall be the prevailing
market rental payable by lessees for space in Comparable Buildings as of the
date of Lessee's exercise of the Renewal Option (the "Market Rent"), as
determined by Lessor. Lessor shall notify Lessee of its determination of the
Market Rent within thirty (30) days after Lessee's exercise of the Renewal
Option. If Lessee accepts such determination, Lessee shall notify Lessor within
fifteen ( 15) days and the parties shall promptly execute an amendment of the
Lease confirming Base Rent for the Renewal Term. If Lessee does not accept such
determination, Lessee shall notify Lessor within fifteen (15) days and Lessee's
exercise of the Renewal Option shall be deemed to be void and of no further
force or effect. The Renewal Option shall terminate effective as of the date of
Lessee's notice of nonacceptance.
5. Lessor shall not be liable or responsible for payment of any
interior finish allowances or other incentive payment set forth in this Lease
upon the commencement of any Renewal Term. Lessee shall be entitled to a maximum
of two (2) Renewal Terms. Lessor shall take account of such factors in its
determination of Market Rent.
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[PICTURE]
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EXHIBIT A
TO STANDARD INDUSTRIAL LEASE AGREEMENT
BY AND BETWEEN
CB MIDWAY INTERNATIONAL PARTNERS, LTD., AS LESSOR,
AND GADZOOKS, INC., AS LESSEE
LEGAL DESCRIPTION OF LAND (BOUNDARY DESCRIPTION AND BOUNDARY SKETCH)
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EXHIBIT A
LEGAL DESCRIPTION
15.828 ACRE TRACT
BEING a tract of land in the D. Andrew Survey, Abstract No. 1455, and the ▇.
▇▇▇▇ Survey, Abstract No. 1200, situated in the City of Carrollton, ▇▇▇▇▇▇
County, Texas and being part of a 46,406 acre tract of land conveyed to CB
Midway/Parkway Investors, Ltd. by the deed recorded in ▇▇▇▇▇▇ County Clerk's
File No. 94-R0025237 of the Real Property Records of ▇▇▇▇▇▇ County, Texas, and
being more particularly described as follows:
COMMENCING at a point in the intersection of the east right-of-way line of ▇▇▇▇▇
▇▇▇▇ (100' right-of-way) with the northerly right-of-way line of A.T. & S.F.
Railroad (150' right-of-way) for the west corner of a tract of land described in
the deed to Bent Tree Bible Fellowship (B.T.B.F.), recorded in ▇▇▇▇▇▇ County
Clerk's File No. ▇▇-▇▇▇▇▇▇▇ of the Real Property Records of ▇▇▇▇▇▇ County, Texas
and the beginning of a curve to the left, having a central angle of 07 degrees
35 minutes 42 seconds, a radius of 5654.70 feet and a chord bearing and distance
of South 45 degrees 42 minutes 31 seconds East, 749.03 feet;
THENCE, Southeasterly along said curve to the left and along the north line of
said A.T. & S.F. Railroad right-of-way, an arc distance of 749.57 feet to the
POINT OF BEGINNING;
THENCE, leaving the northerly right-of-way line of said A.T. & S.F. Railroad and
with the south line of the B.T.B.F. tract, North 61 degrees 46 minutes 54
seconds East, a distance of 1193.69 feet to a point in the southwesterly
right-of-way line of International Parkway (100' right-of-way) for the southeast
corner of said B.T.B.F. tract and a point on a curve to the left, having a
central angle of 20 degrees 01 minutes 24 seconds, a radius of 1843.46 feet and
a chord bearing and distance of South 38 degrees 13 minutes 48 seconds East,
640.97 feet;
THENCE southeasterly with the southwest right-of-way line of said International
Parkway and said curve, an arc distance of 644.24 feet to a point for a corner;
THENCE, South 61 degrees 46 minutes 54 seconds West, departing said southwest
right-of-way line of International Parkway, a distance of 1013.29 feet to a
point on a circular curve to the right having a central angle of 07 degrees 03
minutes 02 seconds, a radius 5654.70 feet, and whose chord bears North 53
degrees 01 minutes 53 seconds West a distance of 695.41 feet, said point being
in the northeastern right-of-way line of said A.T. & S.F. Railroad;
THENCE, Northwesterly, along the northeastern right-of-way line of said A.T. &
S.F. Railroad, a distance of 695.85 feet to the POINT OF BEGINNING AND
CONTAINING 689,482 square feet or 15.828 acres of land more or less.
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[PLAT]
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EXHIBIT B
TO STANDARD INDUSTRIAL LEASE AGREEMENT
BY AND BETWEEN
CB MIDWAY INTERNATIONAL PARTNERS, LTD. AS LESSOR,
AND
GADZOOKS, INC., AS LESSEE
The following materials are attached to this Lease and incorporated herein by
reference for all purposes:
1. Architectural site plan and floor plan prepared by Good ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇ Architects for Gadzooks, Inc. (Sheet nos. A0.01,
A2.01, and A2.02).
2. Building elevation (northeast).
3. Based Building Standard Specifications:
a. Standard Shell Building Specifications/Dallas, Texas
prepared by the ▇▇▇▇▇▇▇▇▇▇▇ Company (July 1996
version), consisting of pages TOC -- 1 to 05200-3.
b. Tenant Construction Guide prepared by ▇▇▇▇▇▇▇▇▇▇▇
Property Services, Inc. (November 13, 1992 version),
consisting of pages 1-41 and attached exhibits.
4. Base Building Lessee-Specific Specifications:
Tenant-Specific Building Specifications prepared by ▇▇▇▇▇▇▇▇▇
Associates, Inc. (8/22/96).
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[PLAT]
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[FLOOR PLAN -- FIRST FLOOR]
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[FLOOR PLAN -- SECOND FLOOR]
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TENANT - SPECIFIC BUILDING SPECIFICATIONS
============================================ ==================================
ITEM GADZOOKS
============================================ ==================================
Bay Size 40' x 44'
-------------------------------------------- ----------------------------------
Dock Seals 16
-------------------------------------------- ----------------------------------
Dock Doors 16 Insulated Doors
-------------------------------------------- ----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
-------------------------------------------- ----------------------------------
Floor Flatness (30,000 sf)* FF35 FL50
-------------------------------------------- ----------------------------------
Fire Protection ESFR
-------------------------------------------- ----------------------------------
Elevator Yes
-------------------------------------------- ----------------------------------
Truck Court All Concrete
-------------------------------------------- ----------------------------------
Warehouse Lighting (160) 400 watt Metal Halide
-------------------------------------------- ----------------------------------
Office Mezzanine 15,000 sf
-------------------------------------------- ----------------------------------
Floor Seal Lipidolith
-------------------------------------------- ----------------------------------
Warehouse HVAC 1 ton 400 sf
-------------------------------------------- ----------------------------------
Roof Deck Insulation R - 10
-------------------------------------------- ----------------------------------
Patio Area Yes
-------------------------------------------- ----------------------------------
Clear Height 24' minimum
-------------------------------------------- ----------------------------------
1 Ramped and Drive-In Door* 12' x 14'
-------------------------------------------- ----------------------------------
Leave Out Wall Panel For Trash Compactor
-------------------------------------------- ----------------------------------
Dock Boards/Leverlers* 16
-------------------------------------------- ----------------------------------
* These items are not considered part of the base building to be provided
by landlord. These items will be bid as part of the base building and
the cost, if Tenant decides to proceed with the item, will be paid by
Tenant.
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