Exhibit 23
LEASE
This Lease Agreement ("Agreement") is made and entered into this ___
day of ___________, 2002 by and between Frost National Bank, Trustee, for Xxxxxx
X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx, collectively referred to in this Agreement
as Lessor, and Xxxxxxxx'x Nursery, Inc., a Texas corporation, referred to in
this Agreement as Lessee.
In consideration of the mutual covenants and agreements set forth in
this Agreement, and other good and valuable consideration, Lessor does hereby
demise and lease to Lessee, and Lessee does hereby lease from Lessor, the
property and any improvement located thereon situated at 0000 Xxxxx Xxxxxx
Xxxxxx in San Antonio, Bexar County, Texas and more particularly described in
EXHIBIT A attached to this Agreement, and are referred to in this Agreement as
"the Premises.
ARTICLE 1. TERM
Term of Lease
A. The term of this Agreement is three (3) years commencing on
July 1, 2002 ("Lease Commencement Date") and ending on June 30, 2005, unless
sooner terminated as provided in this Agreement. In addition, for and in
consideration of the amount of Ten Dollars ($10.00) and other good and valuable
consideration, part of which is in the form of Lessee's execution of this
Agreement, the receipt and sufficiency of which is hereby acknowledged, Lessor
hereby grants to Lessee three (3) options to extend the term of this lease. Each
option is for a term of three (3) years. In order to exercise each renewal
option, Lessee must give Lessor not less than ninety (90) days' prior written
notice that Lessee will renew this Agreement upon the expiration of the then
current term.
Lease Year Defined
B. The term "lease year," as used in this Agreement, means a
period of twelve (12) consecutive full calendar months beginning July 1 of each
year and ending on June 30 of each year.
Holdover
C. If Lessee holds over and continues in possession of the of the
Premises after the expiration of the term of this Agreement, Lessee will be
deemed to be occupying the Premises on the basis of a month-to-month tenancy,
subject to all of the terms and conditions of this Agreement, except that the
rental amount shall be one hundred twenty percent (120%) of the last month's
rent per this lease agreement.
ARTICLE 2. RENT
Minimum Rent
A. Rent. The minimum fixed rent for the initial three year term
of this Agreement is $3,334.00 per month with Lessor abating the rent for the
first three months of the term, which are "free rent" months. The amount of
minimum fixed rent
payable by Lessee to Lessor will be increased to $3,667.40 per month during the
first option period, to $4,034.14 per month during the second option period, and
to $4,437.55 per month during the third option period with no "free months" rent
periods.
Percentage Rent
B. In addition to the minimum fixed rent provided in ARTICLE 2A,
Lessee agrees to pay Lessor, as additional rent for the use and occupancy of the
Premises, the amount by which three percent (3%) of Lessee's Annual Gross Sales
for any lease year during the primary term exceeds $1,000,000.00. This
additional percentage rent will be paid within two months after the end of the
lease year in which Lessee had more than the required $1,000,000.00 of Gross
Sales.
C. In addition to the minimum fixed rent provided in ARTICLE 2A,
Lessee agrees to pay Lessor, as additional rent for the use and occupancy of the
Premises, the amount by which three percent (3%) of Lessee's Annual Gross Sales
for any lease year during the first option period exceeds $1,466,960.00. This
additional percentage rent will be paid within two months after the end of the
lease year in which Lessee had more than the required $1,466,960.00 of Gross
Sales.
D. In addition to the minimum fixed rent provided in ARTICLE 2A,
Lessee agrees to pay Lessor, as additional rent for the use and occupancy of the
Premises, the amount by which three percent (3%) of Lessee's Annual Gross Sales
for any lease year during the second option period exceeds $1,613,656.00. This
additional percentage rent will be paid within two months after the end of the
lease year in which Lessee had more than the required $1,613,656.00 of Gross
Sales.
E. In addition to the minimum fixed rent provided in ARTICLE 2A,
Lessee agrees to pay Lessor, as additional rent for the use and occupancy of the
Premises, the amount by which three percent (3%) of Lessee's Annual Gross Sales
for any lease year during the third option period exceeds $1,775,020.00. This
additional percentage rent will be paid within two months after the end of the
lease year in which Lessee had more than the required $1,775,020.00 of Gross
Sales.
Annual Gross Sales
F. The term Annual Gross Sales means all sales from the Premises
and includes by way of example, but not by way of limitation:
1. All Sales of Lessee and of all licensees,
concessionaires, and sublessees of Lessee, from all
business conducted on or from the Premises by Lessee
and all others, regardless whether such sales are
evidenced by check, credit, charge accounts,
exchange, or otherwise (less sales taxes, shipping
and handling charges, write-offs, and returns);
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2. All sales at the actual selling price for all
merchandise sold or delivered from the Premises and
all charges for all services sold or performed at, or
from the Premises;
Each charge or sale on installment or credit is to be treated as a sale for the
full price in the lease year during which the charge or sale is made,
irrespective of the time when Lessee is to receive payment irrespective of
whether Lessee receives payment at any time. If such a sale is ultimately
charged off as uncollectible, the unpaid portion of the original sale, exclusive
of any carrying charges and related items, will be treated as a reduction of
Annual Gross Sales for the lease year in which the "charge off' takes place;
All of the items listed on EXHIBIT B are specifically excluded from Annual Gross
Sales.
Statement of Annual Gross Sales
G. On or before the date set for the payment of the percentage
rent in ARTICLE 2B, Lessee must furnish Lessor with a true and accurate
statement, signed by an authorized representative of Lessee, showing the Annual
Gross Sales, as defined in ARTICLE 2C for the immediately preceding lease year.
Books and Records of Lessee
H. For the purpose of ascertaining the amount payable as rent,
Lessee agrees to prepare and maintain, for a period of not less than two years
following the end of each lease year, adequate records that will show all sales
of merchandise at the Premises and daily receipts from all sales and other
transactions on or from the Premises by Lessee and any other persons conducting
any business on or from the Premises. At the time of each transaction, Lessee or
any other person conducting the transaction, on or from the Premises will record
all receipts from sales and other transactions, whether for cash or credit, in a
cash register or registers having a cumulative total. Lessee further agrees to
maintain, for at least two years following the end of each lease year, all
sales, use, value added, gross receipts, and occupation tax returns with respect
to the lease year, and all pertinent original sales records. Pertinent original
sales records shall include the following: all cash register tapes serially
numbered sales slips, and originals of all mail orders filled by Lessee from the
Premises or processed by Lessee at the Premises and filled at some locations
other than the Premises.
I. Lessor and authorized representatives of Lessor will have the
right to examine the records described in the preceding paragraph at Lessee's
home office in Fort Worth, Texas during Lessee's regular business hours.
However, notwithstanding the foregoing right to audit, Lessor understands that
Lessee is a publicly traded company and accordingly, Lessor agrees that Lessee
may deny Lessor access to Lessee's books and records until Lessor and all
persons and entities representing or associated with Lessor who will have access
to Lessee's books and records and to Lessor's audit of Lessee's books and
records sign and deliver to Lessee confidentiality agreements concerning
Lessee's books and records in form and substance reasonably acceptable to
Lessee. Lessee may, by
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written notice to Lessor, designate alternate locations for the examination.
However, the alternate location must be within the State of Texas, and the
written notice must be sent pursuant to the provisions of ARTICLE 17A. If, on
examination of the books or records of Lessee, an error is revealed in favor of
Lessor that results in additional percentage rental due Lessor in excess of
$1,000.00, then the reasonable costs of the examination must be paid by Lessee
to Lessor. Otherwise, Lessor will bear the cost of the examination.
Place of Payment
J. Lessee agrees to pay rent as provided in ARTICLE 2A and
ARTICLE 2B and provide a statement of Annual Gross Sales as provided in ARTICLE
2D to Lessor at Frost National Bank, Trust Real Estate, P. O. Xxx 0000, Xxx
Xxxxxxx, Xxxxx 00000-0000, or at such other location or locations as Lessor from
time to time designates by written notice to Lessee.
ARTICLE 3. USE OF PREMISES
Permitted Use
A. Lessee will operate the Premises as a nursery during the term
of this Agreement and may use the Premises for no other purpose without Lessor's
prior written approval, which approval may not be unreasonably withheld,
delayed, denied, or conditioned. Lessee may not use, or permit the use of, the
Premises in any manner that results in waste of the Premises or constitutes a
nuisance. Nor may Lessee use, or permit the use of, the Premises for any illegal
purpose. Lessee, at its expense, will comply, and will cause its officers,
employees, agents, and invitees to comply, with all applicable laws and
ordinances and with all applicable rules and regulations of governmental
agencies concerning the use of the Premises.
Delivery of Possession
B. If Lessor is unable for any reason whatsoever to deliver
possession of the Premises to Lessee on the Lease Commencement Date, Lessor will
not be liable to Lessee for any damage caused thereby, nor will this Agreement
thereby become void or voidable, but in such event Lessee will not be liable for
any rent until such time as Lessor does deliver possession. Lessor hereby waives
the payment of rent covering any period prior to tender of possession to Lessee
hereunder. Moreover, any delay in the delivery of possession of the Premises by
Lessor will operate to extend the Lease Commencement Date, the term of this
Agreement and the lease year for a like period of time equal to the period of
delay from July 1, 2002 to the date of actual delivery of possession of the
Premises to Lessee. Lessee agrees to accept possession of the Premises at such
time as Lessor is able to tender the same if such tender is within 30 days after
the Lease Commencement Date set out in this Agreement. If Lessor is unable for
any reason to deliver possession of the Premises to Lessee within such 30 day
time period, then Lessee or Lessor may at any time thereafter, but prior to
Lessee taking possession, terminate this Agreement without penalty. Within ten
days of the date of the execution of this Agreement by both parties, Lessor will
furnish Lessee with
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a copy of the Certificate of Occupancy issued by the appropriate governmental
agency regarding the improvements on the Premises.
C. In the event that Lessor does not furnish Lessee with a copy
of a certificate of occupancy within ten (10) days of execution of this lease
Lessee Shall have the option to terminate this lease by sending written notice
to Lessor on or before August 1, 2002.
D. It is a further condition of Delivery of Possession that
Lessor deliver possession of and occupancy permits for the leased premises at
0000 Xxxx Xxxxxx and the leased premises at 0000 Xxx Xxxxx Xxxxxx, it being the
intention of the parties that the Lessor will deliver and the Lessee will accept
all or none of the three leased premises on or before August 1, 2002.
ARTICLE 4. NONCOMPETITION
Noncompetition by Lessee
A. During the term of this Agreement, including any extended
term, as long as Lessor is in compliance with all the terms and conditions of
this Agreement, neither Lessee nor any entity controlled by Lessee shall
operate, or participate in the operation of, any business substantially the same
as the business that Lessee is to operate on the Premises, namely, a commercial
plant nursery within three thousand (3,000) feet of the Premises.
Noncompetition by Lessor
B. During the term of this Agreement, including any extended or
renewal term, as long as Lessee is in compliance with all the terms and
conditions of this Agreement, Lessor shall not permit any other property owned
or controlled by Lessor and located within three thousand (3,000) feet of the
Premises to be used for the operation of any business substantially the same as
the business operated by Lessee on the Premises, namely, a commercial plant
nursery operation.
ARTICLE 5. MAINTENANCE AND SURRENDER
By Lessee
A. Lessee shall maintain the Premises and keep them free from
waste or nuisance throughout the lease term and any extensions of that term. At
the termination of this Agreement, Lessee shall surrender and deliver the
Premises to Lessor in as good a state of repair and condition as they were in at
the beginning of this Agreement, reasonable wear and tear and damage by fire,
tornado, or other casualty excepted. Lessee accepts the Premises in as-is
condition and stipulates that said premises are suitable for Lessee's intended
use as a nursery business.
Remedy for Failure to Maintain
B. If Lessee fails to perform its obligation to repair or
maintain as set forth in Article 5A above within thirty days (30) after notice
from Lessor of the need for such repair and maintenance, Lessor may make such
repairs or perform such maintenance,
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or cause such repairs to be made or maintenance to be performed at its own
expense. If the nature of the repair or maintenance is such that it cannot be
completed within the required thirty day (30) period, Lessee will be allowed
such additional time as is reasonably required to complete the work. However,
the repair or maintenance must be completed within the period of time that is
normal and customary for such work in the San Antonio metropolitan area.
Lessee shall reimburse Lessor for the reasonable expense of the repair
or maintenance as follows:
1. Any reasonable costs incurred by Lessor pursuant to
this section shall be payable by Lessee to Lessor as
additional rental on the next monthly rental
installment date, or if there are no further rental
installments under the lease, within thirty (30) days
or at the termination of the lease, whichever comes
first.
ARTICLE 6. TAXES AND ASSESSMENTS
Real Property Taxes and Assessments
A. Lessee shall reimburse Lessor for all real property taxes,
special assessments (but not general assessment) imposed on the Premises during
the term of this Agreement, including any special assessments imposed on or
against the Premises for the construction or improvement of public works. Each
year Lessor shall notify Lessee in writing of the amounts of all the real
property taxes and special assessments for that year and shall provide Lessee
with proof that the same have been paid. Lessee shall then reimburse Lessor for
the said taxes and assessments within twenty (20) days after the receipt of
Lessor's written notice.
ARTICLE 7. UTILITIES AND GARBAGE REMOVAL
Utility Charges
A. Lessee shall pay all utility charges for water, electricity,
heat, gas, and telephone service used in and about the Premises during the term
of the lease, all such charges to be paid by Lessee directly to the utility
company or municipality furnishing the same before the same will become
delinquent.
Garbage Removal
B. Lessee shall pay for the removal of all garbage and rubbish
from the Premises during the term of the lease.
ARTICLE 8. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS
Consent of Lessor
A. Lessee shall not make any alterations, additions, or
improvements to the Premises without the prior written consent of Lessor.
Consent for nonstructural alterations, additions, or improvements shall not be
unreasonably withheld by Lessor.
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Property of Lessor
B. All alterations, additions, or improvements made by Lessee
shall become the property of Lessor at the termination of this Agreement. Lessor
may, however, require that Lessee remove any or all alterations, additions, and
improvements installed or made by Lessee, and any other property placed in the
Premises by Lessee, upon termination of the lease. The cost of such removal will
be paid by Lessor.
ARTICLE 9. TRADE FIXTURES AND SIGNS
Trade Fixtures
A. Lessee shall have the right at all times to erect or install
shelves, bins, machinery, or other trade fixtures in, on, or about the Premises,
provided that Lessee complies with all applicable governmental laws, ordinances,
and regulations regarding such fixtures. Lessee shall have the right to remove
all trade fixtures at the termination of this Agreement, provided Lessee is not
in default under the lease and that the fixtures will be removable without
structural damage to the Premises. Lessee must repair any damage to the Premises
caused by removal of trade fixtures, and all such repairs must be completed
prior to the termination of the lease. Any trade fixtures that have not been
removed by Lessee at the termination of this Agreement will be deemed abandoned
by Lessee and shall automatically become property of Lessor.
B. Lessee has the right to erect signs on any portion of the
Premises including, but not limited to, the exterior walls of the improvements
located on the Premises, subject to applicable statutes, ordinances, and zoning
restrictions. Lessee shall remove all signs at the termination of this Agreement
and shall repair any damage including, but not limited to, closing any holes
caused by such removal.
ARTICLE 10. MECHANIC'S OR MATERIALMAN'S LIEN
Lessee will not permit any mechanic's or materialman's lien or liens to
be placed upon the Premises or upon improvements on the Premises. If a
mechanic's or materialman's lien is filed on the Premises or on improvements on
the Premises, Lessee will promptly pay the lien. If Lessee disputes the amount,
or some other element of the lien, it shall fully protect Lessor while it
resolves the matter and secures the release of the lien. Lessee shall
immediately obtain a bond or irrevocable letter of credit in the full amount of
the lien payable to Lessor and their successors and assigns. In addition, if
Lessor sells the Premises before the lien has been released, Lessee shall pay
the full amount of the lien into escrow at Lessor's title insurance company.
Lessee shall also work with Lessor's title insurance company to take such
additional steps, or follow such additional procedures as may be required by the
title insurance company so that it can issue an owner's title insurance policy,
which is free and clear of the lien being disputed or contested by Lessee, to
the purchaser of the Premises.
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ARTICLE 11. INSURANCE AND INDEMNITY
Property Insurance
A. Lessee shall, at its own expense, during the term of this
Agreement, keep all buildings, structures, improvements, fixtures, equipment,
and merchandise on the Premises insured against loss or damage by fire or theft
with extended coverage to include direct loss by windstorm, hail, explosion,
riot, or riot attending a strike, civil commotion, aircraft, vehicles, and
smoke, in the aggregate amounts of not less than the full fair insurable value
of the Premises and items insured. Lessee will have the right to rely on the
opinion of the insurance agent handling the placement of such insurance coverage
as to what constitutes the full fair insurable value of the Premises and items
insured. The combined deductible for all insurance policies may not be greater
than Twenty-Five Thousand ($25,000.00) Dollars, and Lessee shall bear the full
cost of all deductibles so that Lessor is always fully insured to the standard
set out above. The insurance is to be carried by one or more insurance companies
licensed to do business in Texas and reasonably acceptable to Lessor. Such
policy or policies of insurance shall name both Lessor and Lessee as named
insureds. The policies shall provide that any proceeds for loss or damage to
buildings, structures, or landlord's improvements will be payable solely to
Lessor, which amount Lessor shall use for repair and restoration purposes, and
that any proceeds for loss or damage of fixtures, equipment, or merchandise
belonging to Lessee will be paid solely to Lessee, which amount Lessee shall use
to repair or replace the lost or damaged fixtures, equipment, or merchandise, to
ensure Lessee's continued operation of a nursery on the Premises for the balance
of the then-current term.
Liability Insurance
B. Lessee, at its own expense, shall provide and maintain in
force during the term of this Agreement commercial liability insurance in the
minimum amount of $1,000,000.00 for each individual personal injury and
$2,000,000.00 for all personal injuries in each occurrence. The minimum amount
for property damage shall likewise be $250,000.00 and $500,000.00 respectively.
In addition, at least $20,000.00 must be provided for each injured person's
medical expenses. The liability insurance shall cover Lessor, as well as Lessee,
and it will be carried with one or more insurance companies authorized to
transact business in Texas and reasonably acceptable to Lessor.
Remedy for Failure to Provide Insurance
C. Lessee shall furnish Lessor with certificates showing proof of
all insurance required by this article. If Lessee does not provide such
certificates within thirty (30) days of the beginning of this Agreement, or if
Lessee allows any insurance required under this article to lapse, Lessor may, at
its option, if Lessee has not obtained such insurance coverage within ten (10)
days of the date of Lessee's receipt of written notice from Lessor of such
lapse, take out and pay the premiums on the necessary insurance to comply with
Lessee's obligations under the provisions of this article. Lessor is entitled to
immediate reimbursement from Lessee for all amounts spent by it to procure and
maintain such replacement insurance, with interest at the rate of ten percent
(10%) per annum from the date of payment by Lessor until reimbursement by
Lessee.
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Hold-Harmless Clause
D. Lessee agrees to indemnify and hold Lessor harmless against
any and all claims, demands, damages, costs, and expenses, including reasonable
attorney's fees for the defense of such claims and demands arising from the
conduct or management of Lessee's business on the Premises or from its use of
the Premises, or any breach on the part of Lessee of any conditions of this
Agreement, or from any act or negligence of Lessee, its agents, contractors,
employees, sublessees, concessionaires, or licensees in or about the Premises.
In case of any action or proceeding brought against Lessor by reason of any such
claim, Lessee, upon notice from Lessor, agrees to defend the action or
proceeding by counsel reasonably acceptable to Lessor.
ARTICLE 12. DAMAGE OR DESTRUCTION OF PREMISES
Notice to Lessor
A. If the Premises or any structures or improvements on the
Premises is damaged or destroyed by fire, tornado, or other casualty, Lessee
shall give immediate written notice of the occurrence of such damage or
destruction to Lessor, including a description of the damage and, as far a known
to Lessee, the cause of the damage.
Partial or Complete Destruction
B. If the Premises are damaged by fire, tornado, or other
casualty not the fault of Lessee or any person in or about the Premises with the
express or implied consent of Lessee, but not to such an extent that rebuilding
or repairs cannot reasonably be completed within one hundred and twenty (120)
days from the date of the settlement with the insurance company on the amount of
the loss and at a cost not to exceed Five Hundred Thousand Dollars ($500,000),
this Agreement will not terminate except as provided in subsections A and B of
this section.
C. If the partial or complete destruction of the Premises occurs
prior to the final year of the lease term, Lessee shall proceed immediately to
rebuild or repair the Premises to substantially the condition in which they
existed prior to such damage. Lessor shall hold all the insurance proceeds
received for the loss of damage to buildings, structures, or improvements for
the benefit of Lessee, so that Lessee can use those funds to rebuild or repair
the Premises. The cost of all repairs or rebuilding in excess of the insurance
proceeds will be paid solely by Lessee, but Lessee will not be obligated to
expend more than twenty percent (20%) in excess of the insurance proceeds made
available.
1. If the Premises are untenantable in whole or in part
following such damage, the rent payable during the period in which they are
untenantable will be adjusted equitably to reflect same. If Lessee fails to
complete such rebuilding or repairs within one hundred twenty (120) days from
the date of the occurrence of the damage,
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Lessor may terminate this Agreement by written notification to Lessee. Upon
Lessee's receipt of such notification, all rights and obligations under this
Agreement will cease.
2. If the partial or complete destruction of the
Premises occurs in the final year of a lease term, Lessee will not be required
to use the insurance proceeds to rebuild or repair the Premises.
3. If Lessee elects not to rebuild or repair the
Premises, and the Premises are untenantable in whole or in part following such
damage, Lessee may elect to terminate this Agreement or to continue this
Agreement with the rent for the remainder of the lease period adjusted
equitably.
ARTICLE 13. CONDEMNATION
Total Condemnation
A. If, during the term of this Agreement, Lessor receives notice
that all or any part of the Premises might be taken for any public or
quasi-public use under any governmental law, ordinance, or regulation, or by
right of eminent domain, or Lessor knows that the Premises might be sold to the
condemning authority under threat of condemnation, Lessor shall give Lessee
written notice of such occurrence within thirty (30) days of the date of receipt
of such notice or the date of becoming aware that the Premises may be sold.
B. If, during the term of this Agreement, Lessor receives notice
that all or any part of the Premises might be taken for any public or
quasi-public use under any governmental law, ordinance, or regulation, or by
right of eminent domain, the rent will be abated during the unexpired portion of
this Agreement, effective as of the date of the taking of the Premises by the
condemning authority or effective as of the date of the sale.
Partial Condemnation
C. If less than all, but more than twenty (20%) percent of the
Premises is taken for any public or quasi-public use under any governmental law,
ordinance, or regulation, or by right of eminent domain, or should be sold to
the condemning authority under threat of condemnation, Lessee may terminate the
lease by giving written notice to Lessor within sixty (60) days after possession
of the condemned portion is taken by the entity exercising the power of
condemnation. If the Premises are partially condemned and Lessee elects not to
exercise its option to terminate this Agreement, or if less than twenty (20%)
percent of the Premises are condemned, this Agreement will not terminate, but
Lessee shall, using the condemnation proceeds made available to it by Lessor,
immediately restore and reconstruct the building and other improvements situated
on the Premises to make them reasonably tenantable and suitable for the uses for
which the Premises are leased. Lessee will be under no obligation to incur any
cost of restoration and reconstruction in excess of the funds made available by
Lessor for Lessee's use as set out above.
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Condemnation Award
X. Xxxxxx and Lessee will each be entitled to receive and retain
such portion of a lump sum award as may be allocated to their respective
interests in any condemnation proceedings. The termination of this Agreement
will not affect the rights of the respective parties to such awards.
ARTICLE 14. DEFAULT
Default by Lessee
A. If Lessee allows the rent to be in arrears more than ten (10)
days after the date of receipt of written notice from Lessor of such
delinquency, or remains in default under any other condition of this Agreement
for a period of thirty (30) days after the date of receipt of written notice
from Lessor, Lessor may, without notice to Lessee, terminate this Agreement, or
in the alternative, Lessor may re-enter and take possession of the Premises and
remove all persons and property without being deemed guilty of any manner of
trespass and relet the Premises, or any part of the Premises, for all or any
part of the remainder of the lease term to a party satisfactory to Lessor, and
at such monthly rental as Lessor may with reasonable diligence be able to
secure. If Lessor is unable to relet the Premises after reasonable efforts to do
so, or, if such monthly rental from the new tenant is less than the rental
Lessee was obligated to pay under this Agreement, Lessee shall pay to Lessor the
reasonable expense of reletting plus the amount of any deficiency in the rent.
Default by Lessor
B. If Lessor defaults in the performance of any term, covenant,
or condition required to be performed by it under this Agreement, Lessee may
elect to do the following:
1. Lessee may terminate this Agreement on giving at
least ninety (90) days' written notice to Lessor of such election to terminate.
If Lessee elects this option, this Agreement will be terminated on the date
designated in Lessee's notice, unless Lessor has cured the default within ninety
(90) days of the date of Lessor's receipt of Lessee's notice.
C. All rights and remedies of Lessor and Lessee under this
article will be cumulative, and none will exclude any other right or remedy
provided by law, or by any other provision of this Agreement. All such rights
and remedies may be exercised and enforced concurrently and whenever, and as
often as, occasion for their exercise arises.
Waiver of Breach
D. A waiver by either Lessor or Lessee of a breach of this
Agreement by the other party does not constitute a continuing waiver or a waiver
of any subsequent breach of the lease.
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ARTICLE 15. INSPECTION BY LANDLORD
Lessee shall permit Lessor and Lessor's agents, representatives, and
employees to enter into and on the Premises at all reasonable times for the
purpose of inspection, maintenance, making repairs, or alterations to the
Premises, or any other purpose necessary to protect Lessor's interest in the
Premises or to perform Lessor's duties under this Agreement.
ARTICLE 16. ASSIGNMENT AND SUBLEASE
Assignment of Sublease by Lessee
A. Lessee may not assign this Agreement or any interest under it,
sublet the whole or any part of the Premises, or permit the use or occupancy of
the Premises by any person other than Lessee and Lessee's agents and employees
without the prior written consent of Lessor in each instance. Lessor's consent
to a single assignment, sublease, use, or occupancy does not constitute consent
to any subsequent attempt assignment or sublease, or use of occupancy by another
person.
Lessor may not unreasonably withhold written consent to an assignment
or a sublease by Lessee provided that the assignment or sublease is for purposes
not inconsistent with ARTICLE 3 of this Agreement and that the financial status
of the proposed assignee or sublessee is reasonably satisfactory to Lessor.
Lessee agrees to provide the name and address of the proposed assignee or
sublessee, and such information, including current financial statements, as
Lessor reasonably requests, when requesting consent to an assignment or a
sublease.
Continuing Liability
B. If Lessor consents in writing to an assignment, sublease, or
other transfer of all or any of Lessee's rights under this Agreement, the
assignee or sublessee must assume all of Lessee's obligations under this
Agreement, and Lessee will remain liable for every obligation under this
Agreement.
Acceptance of Rent Does Not Constitute a Waiver
X. Xxxxxx'x acceptance of rent from an assignee or a subleasee of
Lessee does not constitute a waiver of the provision of this Agreement requiring
the prior written consent of Lessor to an assignment or sublease. Nor will the
acceptance of rent release Lessee from the duty to perform all the obligations
and covenants under this Agreement, except to the extent of the assignee's or
sublessee's payment of rent. If Lessee sublets, assigns, encumbers, or otherwise
transfers its rights or interests in this Agreement or in the Premises or the
improvements on the Premises without the written consent of Lessor, Lessor may,
at its option, declare this Agreement terminated.
Assignment by Lessor
X. Xxxxxx may assign or transfer any or all of its interests
under the terms of this Agreement. Lessor covenants and agrees that as long as
Lessee pays the rent and
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other charges as provided in this Agreement and observes and keeps the
covenants, conditions, and terms of this Agreement, Lessee will lawfully and
quietly hold, occupy, and enjoy the Premises during the term of this Agreement
and all timely exercised renewal options without hindrance or molestation by
Lessor or any person claiming by, through, or under Lessor except for such
portion of the Premises, if any, as is taken under the power of eminent domain
or sold under threat of eminent domain.
ARTICLE 17. MISCELLANEOUS
A. Notices and Addresses All notices required under this
Agreement must be given by certified mail or registered mail, addressed to the
proper party at the following addresses:
LESSOR: Frost National Bank
Trust Real Estate
P. O. Xxx 0000
Xxx Xxxxxxx, Xxxxx 00000-0000
With a copy to: Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx
_________________________
_________________________
_________________________
LESSEE: Xxxxxxxx'x Nursery, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000
Either party may change the address to which notices are to be sent by giving
the other party notice of the new address in the manner provided in this
section.
B. Parties Bound This Agreement will be binding upon, and inure
to benefit of, the parties and their respective heirs, executors,
administrators, legal representatives, successors, and assigns when permitted by
this Agreement.
C. Texas Law To Apply This Agreement will be construed under, and
in accordance with, the laws of the State of Texas, and all obligations of the
parties created by this Agreement are performable in Bexar County, Texas.
D. Legal Construction In case any one or more of the provisions
contained in this Agreement is for any reason held by a court of competent
jurisdiction to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability will not affect any other provisions
of this Agreement, and this Agreement will be construed as if the invalid,
illegal, or unenforceable provision had never been included in this Agreement.
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E. Prior Agreement Superseded This Agreement constitutes the sole
and only agreement of the parties regarding the subject matter of this Agreement
and supersedes any prior understanding or written or oral agreements between the
parties respecting the subject matter of this Agreement.
F. Amendment No amendment, modification, or alteration of the
terms of this Agreement will be binding unless it is in writing, dated
subsequent to the date of this Agreement, and duly executed by the parties.
G. Rights and Remedies Cumulative The rights and remedies
provided by this Agreement are cumulative, and the use of any one right or
remedy by either party will not preclude or waive its rights to use any or all
other remedies. These rights and remedies are given in addition to any other
rights the parties may have by law, statute, ordinance, or otherwise.
H. Attorney's Fees and Costs If, as a result of a breach of this
Agreement by either party, the other party employs an attorney or attorneys to
enforce its rights under this Agreement, then the non-prevailing party agrees to
pay the prevailing party's reasonable attorney's fees and costs incurred to
enforce this Agreement.
I. Force Majeure Neither Lessor nor Lessee will be required to
perform any term, condition, or covenant in this Agreement so long as
performance is delayed or prevented by force majeure, which means acts of God,
strikes, lockouts, material or labor restrictions by any governmental authority,
civil riots, floods, and any other cause not reasonably within the control of
Lessor or Lessee and that, by the exercise of due diligence, Lessor or Lessee is
unable, either wholly or in part, to prevent or overcome.
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J. Time of Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement in
duplicate originals as of the day and year first above written.
LESSOR: Frost National Bank, Trustee Witness
_______________________________ ________________________________
By:
_______________________________ ________________________________
Xxxxxx X. Xxxxxxxx
_______________________________ ________________________________
Xxxxxxx X. Xxxxxxxx
LESSEE: Xxxxxxxx'x Nursery, Inc. Witness
_______________________________ ________________________________
By: Xxxxx X. Xxxxxx, President
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ACKNOWLEDGEMENTS
State of Texas
County of Bexar
This instrument was acknowledged before me on the ______ day of
____________, 2002 by__________________________ ,____________________ Frost
National Bank, Trustee, in such capacity on behalf of Frost National Bank.
_______________________________
Notary Public in and for
the State of Texas
State of Texas
County of Bexar
This instrument was acknowledged before me on the ______ day of
____________, 2002 by Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx.
_______________________________
Notary Public in and for
the State of Texas
State of Texas
County of Tarrant
This instrument was acknowledged before me on the _____ day of
____________, 2002 by Xxxxx X. Xxxxxx, President, Xxxxxxxx'x Nursery, Inc., in
such capacity on behalf of Xxxxxxxx'x Nursery, Inc.
_______________________________
Notary Public in and for
the State of Texas
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Exhibit A
0000 Xxxxx Xxxxxx Xxxxxx
XXXXX I: Xxx 0, XXX 0000, Xxx X, XXX 0000
TRACT II: Xxx 0 & Xxxx xx Xxx X, Xxxxx 0, XXX 0000
Xxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxx
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Exhibit B
List of Items Excluded from Gross Sales
Retail Sales and Exclusions
(i) the amounts of all discounts, refunds, credits, allowances and/or
adjustments made to customers;
(ii) the amounts of all sales taxes or other taxes in the nature of sales
taxes, whether or not the same be called sales taxes, imposed by any
governmental authorities, federal, state of local, irrespective of
whether the same be imposed by present or future laws;
(iii) the amounts of all sales to employees of Lessee or any sublessees or
concessionaires of Lessee which are made at any discounts from prices
charged to customers;
(iv) the amounts received for merchandise transferred to any other place of
business of Lessee or any sublessee or concessionaire of Lessee or any
business organization affiliated with Lessee wherever located, and
amounts received for merchandise returned to suppliers for credit;
(v) interest or other carrying charges on lease, credit or time sales;
(vi) the amounts charged to customers for mailing, delivery or other
services where such services are rendered to the customer without
profit;
(vii) unpaid balances of credit sales which are charged off as "bad debts",
provided that if at any time any such unpaid balance shall be so
charged off, but prior to the expiration of this lease, any amount paid
against such charged off "bad debt" shall then be included in Gross
Sales;
(viii) the amounts received from sales of distressed damaged or obsolescent
merchandise sold to other than retail customers, and the amounts
received from sales of used trade fixtures and store operating
equipment.
(ix) the amounts received from concessionaires of Lessee for occupancy, for
services rendered to such concessionaires by Lessee for supplies or
equipment furnished to such concessionaires by Lessee; and
(x) the amounts paid by Lessee to companies providing credit card charges
to Lessee as the fees and other charges therefor.
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