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EXHIBIT 10.16
THE STATE OF TEXAS
COUNTY OF DALLAS
THIS LEASE AGREEMENT is made and entered into on January 1, 1993, by
and between XXXXX X. XXXXX dba WHITE PROPERTY CO. #2, hereinafter referred to as
Lessor, and ACTION TV & APPLIANCE RENTAL, INC., a Texas corporation, hereinafter
referred to as Lessee.
In consideration of the mutual covenants and agreements herein set
forth, and other good and valuable consideration, Lessor does hereby demise and
lease to Lessee, and Lessee does hereby lease from Lessor, the real property
described in Exhibit "A" attached hereto, together with the improvements in the
form of an office and warehouse located thereon, and hereinafter called the
"leased premises".
ARTICLE I. TERM
The term of this lease shall be three (3) years, commencing on January
1, 1993, and ending on December 31, 1995, unless sooner terminated as herein
provided.
Lessee may extend this lease for a further period of three (3) years
prior to the expiration of the lease term, under all the terms and conditions of
this lease.
ARTICLE II. RENT
In consideration of this lease, Lessee promises and agrees to pay
Lessor rent, without deduction, set off, or demand, for said premises at the
rate of Ten Thousand and no/100 Dollars ($10,000) per month. The last such
monthly installment shall be payable by Lessee to Lessor in advance on or before
the commencement date of this lease. The first such monthly installment shall be
due and payable on or before January 1, 1993, and a like monthly installment
shall be due and payable on or before the first day of each succeeding calendar
month during the term hereof. Rent for any fractional month at the beginning or
end of the lease term shall be prorated. If any rental or other payment under
this lease is not paid promptly when due, the same shall bear interest at the
rate of 10% per annum from the due date until paid, but this provision shall not
be construed to relieve Lessee from any default hereunder.
It is expressly agreed that the monthly rental specified above is
based upon a rate of $7.20 per square foot per year for 10,260 sq. ft. of
office space and $2.50 per square foot per year for 18,482 sq. ft. of warehouse
space rented by Lessee.
The rental as set forth herein shall be adjusted upward at the end of
each calendar year during the term and any extensions of this lease, which
adjustment shall apply to the succeeding calendar year period, in accordance
with the formula set forth below. In applying the formula, the following
definitions shall prevail:
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(1) "Bureau" means the Federal Bureau of Labor Statistics or any
successor agency that shall issue the indices or data referred to in
subparagraph "2".
(2) "Price Index" means the national Consumer's Price Index issued from
time to time by the Bureau, or any other measure hereafter employed by the
Bureau, or any other measure hereafter employed by the Bureau in lieu of such
price index that measures the cost of living nationally.
(3) "Average Price Index" for any yearly period is the average of the
Price Indices issued in twelve (12) months prior to the first day of that
particular calendar year period, and such average is the "Average Price Index"
for such calendar year. In making an average there shall be excluded any index
which itself is an average (i.e., there shall be no averaging of averages).
(4) The "issue" of a Price Index means the release to the public of the
Price Index, and the date of issue shall be the date it is so released whether
or not the issued Index is for the current month or period in which the release
occurs or for a prior month or period.
(5) The "Base Index" means the Average Price Index for the calendar
year within this lease agreement is executed.
If the Average Price Index for any calendar year is greater than the
Base Index, then the rental, beginning with the first day of the succeeding
calendar year and continuing for each month during such calendar year, shall be
increased in the same proportion that the increase in the Average Price Index
bears to the Base Index, such increase to be effective only to the extent that
it exceeds a similar increase then effective, established in any prior calendar
year. If an increase shall become effective by application of the rule stated in
the preceding sentence and the Average Price Index for any subsequent calendar
year is greater than the Base Index, then the rental beginning with such
subsequent calendar year shall be appropriately adjusted so as to reflect only
the increase, if any, over that applied by employing the rule set forth in the
preceding sentence.
ARTICLE III. USE OF PREMISES
Lessee will use the leased premises only for office and warehouse
purposes, unless Lessor shall give Lessee prior written consent for a different
use. In connection with its use of and activities in and about the leased
premises and the Building, Lessee, at its expense, will comply, and will cause
its employees, agents, and invites to conduct themselves, with full regard for
the rights, convenience, and welfare of all other tenants in the Building.
Provided Lessee has performed all of the terms, covenants, agreements, and
conditions of this lease, including the payment of rent, to be performed by
Lessee, Lessee shall peaceably and quietly hold and enjoy the premises for the
term hereof, without hindrance from Lessor, subject to the terms and conditions
of this lease.
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ARTICLE IV. MAINTENANCE AND SURRENDER
Lessee acknowledges that its acceptance of possession of the leased
premises constitutes a conclusive admission that it has inspected the leased
premises and has found them in good condition and repair and in all respects in
accordance with the plans and specifications previously approved by Lessee.
Lessee shall furnish the following services at its sole expense:
(a) Heat and air conditioning;
(b) Electric current service for lighting and ordinary business
appliances.
(c) Usual janitorial and maintenance service including the sweeping and
waxing of floors and the cleaning of windows, replacement of light globes or
fluorescent tubes in the standard lighting fixtures. Lessee shall also maintain
and keep the public and common areas of the Building, such as lobbies, stairs,
corridors, and rest rooms in reasonably good order and condition.
Lessee shall throughout the lease term maintain the leased premises and
keep them free from waste or nuisance, and shall deliver up the premises in a
clean and sanitary condition at the termination of this lease in good repair and
condition, reasonable wear and tear and damage by fire, tornado, or other
casualty accepted. In the event Lessee should neglect to reasonably maintain the
leased premises, Lessor shall have the right, but not the obligation, to cause
repairs or corrections to be made, and any reasonable Costs therefor shall be
payable by Lessee or Lessor as additional rental on the next installment date.
ARTICLE V. OBLIGATIONS OF LESSOR AND LESSEE
Lessee shall be liable for all taxes levied or assessed against
personal property, furniture, or fixtures placed by Lessee in the premises. If
any such taxes for which Lessee is liable are levied or assessed against Lessor
or Lessor's property and if Lessor elects to pay the same or if the assessed
value of Lessor's property is increased by inclusion of personal property,
furniture, or fixtures placed by Lessee in the premises, and Lessor elects to
pay the taxes based on such increase, Lessee shall pay to Lessor upon demand
that part of such taxes for which Lessee is primarily liable hereunder.
Lessee shall not make any alterations, additions, or improvements to
the leased premises without the prior written consent of Lessor. Consent for
nonstructural alterations, additions, or improvements shall not be unreasonably
withheld by Lessor. Lessee shall have the right at all times to erect or install
furniture and fixtures provided that Lessee complies with all applicable
governmental laws, ordinances, and regulations. Lessee shall have the right to
remove at the termination of this lease such items so installed, provided Lessee
is not in default; however, Lessee shall, prior to the termination of this
lease, repair any damage caused by such removal.
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All alterations, additions, or improvements made by Lessee shall become
the property of Lessor at the termination of this lease; however, Lessee shall
promptly remove, if Lessor so elects, all alterations, additions, and
improvements, and any other property placed in the premises by Lessee, and
Lessee shall repair any damage caused by such removal.
(a) If the Building or the leased premises should be totally destroyed
by fire, tornado, or other casualty, or if they should be so damaged that
rebuilding or repairs cannot reasonably be completed within thirty (30) working
days from the date of the occurrence of the damage, this lease shall terminate
and rent shall be abated for the unexpired portion of this lease, effective as
of the date of said occurrence.
(b) If the Building or the leased premises should be damaged by fire,
tornado, or other casualty, but not to such an extent that rebuilding or repairs
cannot reasonably be completed within (30) working days from the date of the
occurrence of the damage, this lease shall not terminate, but Lessor shall, if
the casualty has occurred prior to the final three (3) months of the lease term,
at its sole cost and risk proceed forthwith to rebuild or repair the leased
premises to substantially the condition in which they existed prior to such
damage. If the casualty occurs during the final three (3) months of the lease
term, Lessor shall not be required to rebuild or repair such damage. If the
leased premises are to be rebuilt or repaired and are untenantable in whole or
in part following such damage, the rent payable hereunder during the period in
which they are untenantable shall be adjusted equitably. In the event that
Lessor should fail to complete such rebuilding or repairs within thirty (30)
working days from the date of the occurrence of the damage, Lessee may at its
option terminate this lease by written notification at such time to Lessor,
whereon all rights and obligations hereunder shall cease.
If during the term of this lease or any extension or renewal thereof,
all or a portion of the leased premises should be 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, at the option of the Lessor this lease shall terminate and the
rent shall be abated during the unexpired portion of this lease, effective as of
the date of the taking of said premises by the condemning authority. Lessor
shall receive the entire award from any such taking, and Lessee shall have not
claim thereto, or for the value of any unexpired term of this lease.
Lessee and Lessee's agents, employees, and invitees will comply fully
with all requirements of the rules and regulations of the Building and related
facilities which shall be promulgated by Lessor from time to time. Lessor shall
at all times have the right to change such rules and regulations or to
promulgate other rules and regulations in such reasonable manner as may be
deemed advisable for safety, care, or cleanliness of the Building and related
facilities, or premises, and for preservation of good order therein, all of
which rules and regulations, changes, and
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amendments will be forwarded to Lessee in writing and shall be carried out and
observed by Lessee. Lessee shall further be responsible for the compliance with
such rules and regulations by the employees, servants, agents, visitors, and
invitees of Lessee.
Lessor or his agents, and representatives shall have the right to enter
into and upon any and all parts of premises at all reasonable hours to (a)
inspect same or clean or make repairs or alterations or additions as Lessor may
deem necessary (but without any obligation to do so, except as expressly
provided for herein) or (b) show the premises to prospective tenants,
purchasers, or lenders; and Lessee shall not be entitled to any abatement or
reduction of rent by reason thereof, nor shall such be deemed to be an actual or
constructive eviction.
Lessee will not permit any mechanic's lien or liens to be placed upon
the premises or the Building or improvements thereon during the term hereof, and
in case of the filing of any such lien Lessee will promptly pay same. If default
in payment thereof shall continue for twenty (20) days after written notice
thereof from Lessor to Lessee, the Lessor shall have the right and privilege at
Lessor's option of paying the same or any portion thereof without inquiry as to
the validity thereof, and any amounts so paid, including expenses and interest,
shall be so much additional indebtedness hereunder due from Lessee to Lessor and
shall be repaid to Lessor immediately on rendition of xxxx therefor, together
with interest at the highest lawful rate.
ARTICLE VI. INDEMNITY
Lessee agrees to, and does, indemnify and hold Lessor harmless against
any and all claims, demands, damages, costs and expenses, loss and/or liability,
including reasonable attorney's fees for the defense thereof, arising from the
conduct or management breach on the part of Lessee of any conditions of this
lease, or from any act to negligence of Lessee, its agents, contractors,
employees, subtenants, guests, or invitees in or about the leased premises. In
case of any action or proceeding brought against Lessor by reason of such claim,
Lessee, upon notice from Lessor, covenants to defend such action or proceeding
by counsel acceptable to Lessor.
ARTICLE VII. ASSIGNMENT AND SUBLEASE
Lessee may not assign this lease, or any interest therein, or sublet
the leased premises, or any part thereof, or any right or privilege pertinent
thereto, without the prior written consent of Lessor which may be withheld by
Lessor for any reason, in his sole discretion.
Lessor is expressly given the right to assign any or all of its
interest under the terms of this lease.
ARTICLE VIII. DEFAULT
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The following events shall be deemed to be events of default by lessee
under this lease:
(a) Lessee shall fail to pay any installment of the rent hereby
reserved and such failure shall continue for a period of ten (10) days.
(b) Lessee shall fail to comply with any term, provision, or covenant
of this lease, other than the payment of rent, and shall not cure such failure
within twenty (20) days after written notice thereof to Lessee.
(c) Lessee shall make an assignment for the benefit of creditors.
(d) Lessee shall file a petition under any section or chapter of the
National Bankruptcy Act, as amended, or under any similar law or statute of the
United States or any state thereof; or Lessee shall be adjudged bankrupt or
insolvent in proceedings filed against Lessee thereunder and such adjudication
shall not be vacated or set aside or stayed within the time permitted by law.
(e) A receiver or trustee shall be appointed for all or substantially
all of the assets of Lessee and such receivership shall not be terminated or
stayed within the time permitted by law.
(f) Lessee shall desert or vacate any substantial portion of the
premises for a period of five (5) or more days.
Upon the occurrence of any event of default specified in this section
above, Lessor shall have the option to pursue any one or more of the following
remedies without any notice or demand whatsoever:
(a) Terminate this lease in which event Lessee shall immediately
surrender the premises to Lessor, and if Lessee fails to do so, Lessor may,
without prejudice to any other remedy which it may have for possession or
arrearages in rent, enter upon and take possession and expel or remove Lessee
and any other person who may be occupying said premises or any part thereof, by
force if necessary, without being liable for prosecution or any claim for
damages therefor, and if Lessor so elects, relet the premises on such terms as
Lessor shall deem advisable and receive the rent thereof; and Lessee agrees to
pay to Lessor on demand any deficiency that may arise by reason of such
reletting.
(b) Enter upon the premises by force if necessary, without being liable
for prosecution or any claim for damages therefor, and do whatever Lessee is
obligated to do under the terms of this lease; and Lessee agrees to reimburse
Lessor on demand for any expenses which Lessor may incur in thus effecting
compliance with Lessee's obligations under this lease, and Lessee further agrees
that Lessor shall not be liable for any damages resulting to Lessee from such
action.
No reentry or taking possession of the premises by Lessor shall be
construed as an election on its part to terminate this lease, unless a written
notice of such intention be given to Lessee. Notwithstanding any such reletting
or reentry or taking possession, lessor may at any time thereafter elect to
terminate this lease for a previous default. Pursuit of any of the foregoing
remedies shall not preclude pursuit of any of the other
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remedies herein provided or any other remedies provided by law, nor shall
pursuit of any remedy herein provided constitute a forfeiture or waiver of any
rent due to Lessor hereunder or of any damages accruing to Lessor by reason of
the violation of any of the terms, provisions, and covenants herein contained.
Lessors' acceptance of rent following an event of default hereunder shall not be
construed as Lessor's waiver of such event of default. No waiver by Lessor of
any violation or breach of any of the terms, provisions, and covenants herein
contained shall be deemed or construed to constitute a waiver of any other
violation or breach of any of the terms, provisions, and covenants herein
contained. Forbearance by Lessor to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or constitute a waiver of
such default. The loss or damage that Lessor may suffer by reason of termination
of this lease or the deficiency from any reletting as provided for above shall
include the expense of repossession and any repairs or remodeling undertaken by
Lessor following possession. Should Lessor at any time terminate this lease for
any default, in addition to any other remedy Lessor may have, Lessor may recover
from Lessee all damages Lessor may incur by reason of such default, including
such termination of the excess, if any, of the amount of rent and charges
equivalent to rent reserved in this lease for the remainder of the stated term
over the then reasonable rental value of the premises for the remainder of said
term, all of which amounts shall be immediately payable from Lessee to Lessor.
No act or thing done by the Lessor or its agent during the term hereby
granted shall be deemed an acceptance of a surrender of the premises, and no
agreement to accept a surrender of the premises shall be valid unless the same
be made in writing and subscribed by Lessor.
In addition to the statutory Lessor's lien, Lessor shall have, at all
times, a valid security interest to secure payment of all rentals and other sums
of money becoming due hereunder from Lessee, and to secure payment of any
damages or loss which Lessor may suffer by reason of the breach by Lessee of any
covenant, agreement, or condition contained herein, upon all goods, wares,
equipment, fixtures, furniture, improvements, and other personal property of
Lessee presently or which may hereafter be situated on the premises, and all
proceeds therefrom, 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
and all the covenants, agreements, and conditions hereof have been fully
complied with and performed by Lessee. Upon the occurrence of any event of
default by Lessee, Lessor, may, in addition to any other remedies provided
herein, after giving reasonable notice of the intent to take possession and
giving an opportunity for a hearing thereon, enter upon the premises and take
possession of any and all goods, wares, equipment, fixtures, furniture,
improvements, and other personal property of Lessee situated on the premises,
without liability for trespass or conversion, and
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sell the same at public or private sale, with or without having such property at
the sale, after giving Lessee reasonable notice of the time and place of any
sale or of the time after which any private sale is to be made, at which sale
the Lessor or his assigns may purchase unless otherwise prohibited by law.
Unless otherwise provided by law, and without intending to exclude any other
manner of giving Lessee reasonable notice, the requirement of reasonable notice
stall be met if such notice is given at least five (5) days before the time of
sale. The proceeds from any such disposition, less any and all expenses
connected with the taking of possession, holding, and selling of the property
(including reasonable attorney's fees and other expenses), shall be applied as a
credit against the indebtedness secured by the security interest granted in this
section. Any surplus shall be paid to Lessee or as otherwise required by law;
and the Lessee shall pay any deficiencies forthwith. Upon request by Lessor,
Lessee agrees to execute and deliver to Lessor a financing statement in form
sufficient to perfect the security interest of Lessor in the afore mentioned
property and proceeds thereof under the provisions of the Uniform Commercial
Code in force in the State of Texas. The statutory lien for rent is not hereby
waived, the security interest herein granted being in addition and supplementary
thereto.
ARTICLE IX. MISCELLANEOUS
Should Lessee, or any of its successors in interest, hold over the
premises, or any part thereof, after the expiration of the term of this lease,
unless otherwise agreed in writing, such holding over shall constitute and be
construed as tenancy from month to month only, at a rental equal to the rent
payable for the last month of the term of this lease plus fifty percent (50%) of
such amount. The inclusion of the preceding sentence shall not be construed as
Lessor's consent for Lessee to hold over.
Lessee accepts this lease subject to any deeds of trust, security
interests, or mortgages which might now or hereafter constitute a lien upon the
Building or improvements therein or on the lease premises and to zoning
ordinances and governmental regulations relating to the use of the property.
Lessee shall at any time hereafter, on demand 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 deed of trust,
security interest, or mortgage.
All notices provided to be given under this agreement shall be given by
certified mail or registered mail, addressed to the proper party, at the
following address:
LESSOR: LESSEE:
XXXXX X. XXXXX ACTION TV & APPLIANCE RENTAL INC.
000 XXXXX XXXXXX P. O. BOX 850306
XXXXXXXX, XX. 00000 XXXXXXXX, XXXXX 00000-0000
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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 to
include the plural, unless the context otherwise requires.
This agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, legal
representatives, successors, and assigns where permitted by this agreement.
This agreement shall be construed under and in accordance with the laws
of the State of Texas, and all obligations of the parties created hereunder are
performable in Dallas County, Texas.
In case any one or more of the provisions contained in this agreement
shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any
other provision thereof and this agreement shall be construed as if such
invalid, illegal, or unenforceable provision had never been contained herein.
This agreement constitutes the sole and only agreement of the parties
hereto and supersedes any prior understandings or written or oral agreements
between the parties respecting the within subject matter.
No amendment, modification, or alteration of the terms hereof shall be
binding unless the same be in writing, dated subsequent to the date hereof and
duly executed by the parties hereto.
If there be more than one Lessee, the obligations hereunder imposed
upon Lessee shall be joint and several. If there be a guarantor of Lessee's
obligations hereunder, the obligations hereunder imposed upon Lessee shall be
the joint and several obligations of lessee and such guarantor and Lessor need
not first proceed against the Lessee hereunder before proceeding against such
guarantor, nor shall any such guarantor be released from its guaranty for any
reason whatsoever, including without limitation, in case of any amendments
hereto, waivers hereof or failure to give such guarantor any notices hereunder.
The rights and remedies provided in favor of Lessor by this lease
agreement are cumulative and the use of any one right or remedy by Lessor shall
not preclude or waive its right to use any or all other remedies. Said rights
and remedies are given in addition to any other rights the parties may have by
law, statute, ordinance, or otherwise.
No waiver by the parties hereto of any default or breach of any term,
condition, or covenant of this lease shall be deemed to be waiver of any other
breach of the same or any other term, condition, or covenant contained herein.
In the event Lessee breaches any of the terms of this agreement whereby
Lessor employs attorneys to protect or enforce its rights hereunder and
prevails, then Lessee agrees to pay the Lessor reasonable attorneys' fees so
incurred by Lessor.
Neither Lessor nor Lessee shall be required to perform any term,
condition, or covenant in this lease so long as such performance is delayed or
prevented by force majeure, which shall mean acts of God, strikes, lockouts,
material or labor
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restrictions by any governmental authority, civil riot, floods, and any other
cause not reasonably within the control of Lessor/Lessee and which by the
exercise of due diligence Lessor or Lessee is unable, wholly or in part, to
prevent or overcome.
Time is of the essence of this agreement.
IN WITNESS WHEREOF, the undersigned Lessor and Lessee hereto execute
this agreement as of the day and year first above written.
LESSOR:
/s/ Xxxxx X. Xxxxx
-------------------------------------
LESSEE:
ACTION TV & APPLIANCE RENTAL, INC.
BY: /s/ Xxxxx X. Xxxxx
-------------------------------------
PRESIDENT
January 1, 1993
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EXHIBIT "A"
BEING a tract of land in the X. XXXXXX XXXXXX, XXXXXXXX Xx. 000, Xxxxxx
Xxxxxx, Xxxxx, being part of Xxx 0, Xxxxx X, xx Xxxxxx Xx. 0, Xxxxxxx Addition,
an Addition to the City of Mesquite, recorded in Volume 76182, Page 1321, Deed
Records of Dallas County, Texas, and being more particularly described as
follows:
BEGINNING at an iron rod for a corner on the East line of Long Creek Road South
224.46 feet from the Northwest corner of Replat No. 1 Xxxxxxx Addition;
THENCE North 89 degrees 43 minutes East 389.22 feet to an iron rod for a corner
on the West line of a 0.169 acre tract of land conveyed to Square D. Co. and
recorded in volume 77042, Page 0000, Xxxx Xxxxxxx xx Xxxxxx Xxxxxx, Xxxxx;
THENCE South 0 degrees 17 minutes East with the West line of said 0.169 acre
trace 163.50 feet to an iron rod for corner;
THENCE South 89 degrees 43 minutes West 390.03 feet to an iron rod for a corner
on the East line of Long Creek Road;
THENCE North with the East line of Long Creek Road 163.50 feet to the POINT OF
BEGINNING.
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AMENDMENT MODIFICATION AND EXTENSION AGREEMENT
This Amendment to the Lease Agreement is entered into by and between
White Property Co., #2 ("Lessors"), and Action TV & Appliance Rental, Inc.
("Lessee").
W I T N E S S E T H
WHEREAS, Lessor and Lessee entered into that certain Lease Agreement
dated January 01, 1993 (the "Lease Agreement") under the terms of which Lessor
leased to Lessee certain premises being approximately 28,742 square feet of
space situated in the city of Mesquite, county of Dallas, state of Texas, having
a street address of 714 Xxxxxxxxx and more fully described in said Lease
Agreement as the "leased premises", and
WHEREAS, Lessor and Lessee now desire to extend and modify said Lease
Agreement as more fully hereinafter set forth.
NOW THEREFORE, for and in consideration of the premises and the
undertakings obtained herein, the parties agree to amend the Lease Agreement in
the following manner:
1. The primary term of the Lease is extended to December 31,
1997.
2. Lessor agrees that Lessee shall have the right to renew this
Lease for one (1) option period for an additional three (3)
years commencing January 01, 1998 through December 31, 2000.
EXCEPT as hereinabove amended, the provisions of said Lease remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have below executed this
Agreement and Amendment to Lease this 06th day of August, 1996.
LESSOR: White Property Co. #2 LESSEE: Action TV & Appliance Rental
By: /s/ Xxxx Xxxxx By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx Name: Xxxx Xxxxx
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Title: General Partner Title: President
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