1
EXHIBIT 10.17
STATE OF GEORGIA
COUNTY OF XXXXXX
LEASE
THIS Lease, made and entered into this 1st day of October, 1994, by and
between XXXXXXX X. XXXXXXXXX, XXXX XXXXX and XXXXXXX X. XXXXX (herein referred
to as the "Lessor") and T&C LIQUIDATORS, INC., a Texas corporation (herein
referred to as the "Lessee").
ARTICLE I. DEMISE OF PREMISES
Section 1.01 Demise. For and in consideration of the payment of rent
herein reserved and the performance of the covenants and agreements herein on
the part of Lessee to be observed and performed, Lessor does hereby demise and
lease to Lessee that certain tract of land being Lot 5 and the South 20 feet of
Xxx 0, xx XXXXX X, xx XXXXXXX XXXXXXXXXX XXXXXXXX, an Addition to the City of
Irving, Dallas County, Texas, according to the Map or Plat thereof recorded in
Volume 402, Page 1437, of the Map Records of Dallas County, Texas together with
all buildings, structures and other improvements, now or hereafter located
thereon (herein collectively referred to as the "Premises").
ARTICLE II. TERM OF LEASE
Section 2.01 Term of Lease. The term of this Lease shall commence on
the 1st day of October, 1994 and, unless sooner terminated or extended as herein
provided, shall continue thereafter for two (2) years until midnight on the 30th
day of September, 1996.
ARTICLE III. COVENANTS AND WARRANTIES OF LESSOR
Section 3.01 Leasehold Estate of Lessor. Lessor warrants that it has
full right and lawful authority to enter into this Lease; that it is lawfully
seized of a fee simple estate in the Premises, subject to those matters set
forth on Exhibit "A" hereof.
Section 3.02 Quiet Possession. On paying the rent herein reserved and
performing and observing each and every covenant to be observed, kept and
performed by Lessee under this Lease, Lessee shall peaceable hold and enjoy the
Premises during the term of this Lease.
ARTICLE IV. ANNUAL RENT AND ADDITIONAL RENT
Section 4.01 Rent. During the term of this Lease, Lessee agrees to pay
Lessor, as rent hereunder, an annual rent as follows:
-1-
2
MONTHLY
YEAR ANNUAL RENT INSTALLMENT
----------------- ----------- -----------
10/1/94 - 9/30/95 $ 60,000.00 $ 5,000.00
10/1/95 - 9/30/96 $ 63,000.00 $ 5,250.00
The rent shall be paid in equal monthly installments on the first day
of each calendar month during the term of this Lease, at the office of Lessor,
0000-X Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000, or at such other
address as Lessor may from time to time designate in writing to Lessee.
Section 4.02 Additional Rent. Lessee agrees to pay, from time to time
as provided in this Lease (i) all other amounts and sums which Lessee herein
assumes and agrees to pay, (ii) interest at the rate of ten percent (10%) per
annum on such of the foregoing amounts and sums as are payable to Lessor and are
not paid within five (5) days after the due date or if a demand therefor is
required by terms of this Lease, within five (5) days after the date of such
demand, from the due date or the date of such demand, as the case may be, until
payment thereof, and (iii) interest at the rate of ten percent (10%) per annum
on all installments of rent not paid by the due date, from the due date thereof
until paid (each and all of the sums provided in this Section 4.02 are herein
referred to as the "Additional Rent"). If Lessee fails to pay any Additional
Rent, Lessor shall have all the fights, powers and remedies provided for in this
Lease or at law or in equity or otherwise in the event of nonpayment of the
rent.
Section 4.03 Net Lease; Non-Termination. This Lease is a net lease and
the rent and Additional Rent shall be paid without notice, demand, counterclaim,
set-off, deduction or defense and, without abatement, suspension, deferment,
diminution or reduction. Except as otherwise expressly provided in the Lease,
this Lease shall not terminate nor shall Lessee have any right to terminate this
Lease or be entitled to the abatement of any rent hereunder or any reduction
thereof, nor shall the obligations of Lessee under this Lease be otherwise
affected, by reason of (i) any damage to or destruction of all or any portion of
the Premises from whatever cause, (ii) any taking of all or any part of the
Premises by condemnation, requisition or otherwise, (iii) the prohibition,
limitation, or restriction of or interference with Lessee's use of all or any
portion of the Premises, (iv) any title defect or encumbrance or any eviction by
paramount title or otherwise, (v) failure on the part of Lessor to perform or
comply with any term, provision or covenant of this Lease or any other agreement
to which Lessor and Lessee may be parties, (vi) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceeding relating to Lessor, or any action taken with respect to this Lease by
any trustee or receiver of Lessor or by any court in which such proceedings so
long as the rights and interest of Lessee hereunder are not materially altered
by such proceeding, (vii) any claim which Lessee has or might have against
-2-
3
Lessor, or (viii) for any other cause whether similar or dissimilar to the
foregoing. Except as otherwise expressly provided in this Lease, Lessee waives
all rights now or hereafter conferred by statute or otherwise to quit, terminate
or surrender this Lease or the leasehold estate in the Premises or any part
thereof, or to any abatement, suspension, deferment, diminution or reduction of
the rent.
ARTICLE V. TAXES ASSESSMENTS AND CHARGES
Section 5.01 Taxes and Assessments. Subject to the provisions of
Section 14.01 hereof, Lessee agrees to discharge and pay before the same become
delinquent and before any fine, penalty, or interest may be added for
nonpayment, any and all taxes, assessments, license fees, excises, imposts and
charges of every nature and classification (all or any one of which are herein
referred to as a "Tax") that at any time during the term of this Lease and any
extension hereof are levied, assessed, charged or imposed on the Premises, this
Lease, the leasehold estate of Lessee created hereby or any rent reserved or
payable hereunder including any gross receipts or other taxes levied upon,
assessed against or measured by the rent; provided, however, that Lessee shall
not be obligated to pay any income, inheritance or estate tax or any tax
imposed, levied or assessed with respect to or because of the income,
appreciation or other benefits derived by Lessor from or by virtue of this
Lease.
Section 5.02 Charges. Subject to the provisions of Section 14.01
hereof, Lessee agrees that it shall pay when due all charges for all public or
private utility services including, but not limited to water, sewer, gas, light,
heat and air conditioning, telephone, electricity, trash removal, power and
other utility and communications services (all or anyone of which are herein
referred to as a "Charge") that at any time during the term of this Lease are
rendered with respect to the Premises.
Section 5.03 General. Lessee agrees to deliver to Lessor, within thirty
(30) days after the same shall become due, receipts evidencing the payment of
any Tax or Charge required to be paid by Lessee. If any Tax or Charge may be
paid in installments, Lessee shall be obligated to pay only such installments as
they become due. Any Tax for the year in which this Lease commences and
terminates shall be prorated between Lessor and Lessee as of such dates.
ARTICLE VI. CONDITION AND USE OF THE PREMISES
Section 6.01 Condition of the Premises. Lessee acknowledges that (i)
the Premises are in good order and condition and comply in all respects with the
requirements of this Lease, (ii) Lessor has made no representation or warranty
with respect to the condition of the Premises or their fitness or ability to be
used for any particular purpose and (iii) Lessee has made a complete inspection
of the Premises and that all risks with respect to the Premises are to be borne
by Lessee. Lessor leases and Lessee takes the Premises "as-is" with all faults
and defects.
-3-
4
Section 6.02 Use of the Premises. Lessee may use the Premises for any
lawful retail purpose. Lessee shall not use the Premises or any portion thereof
for any other purpose without the prior written consent of Lessor. Lessee agrees
that the use or occupation of the Premises or any part thereof shall not violate
any permit, license or franchise with respect thereto, vitiate or increase the
rate of insurance with respect to the Premises, cause the value or usefulness
thereof to diminish or constitute a public or private nuisance or waste.
ARTICLE VII. COMPLIANCE WITH LAW LIENS AND ENCUMBRANCES
Section 7.01 Compliance with Laws. Subject to the provisions of Section
14.01 hereof, Lessee, at its sole cost and expense, shall comply with and cause
the Premises and any improvements located thereon to comply with (i) all
federal, state, county, municipal and other government statutes, laws, rules,
regulations and ordinances affecting the Premises or any part thereof, or the
use thereof, including those which require the "Repairs", as that term is
defined in Section 8.01 hereof, "Alterations", as that term is defined in
Section 8.02 hereof, or any structural changes in the improvements whether or
not any such statutes, laws, rules, orders, regulations or ordinances which may
hereafter be enacted involve a change of policy on the part of the governmental
body enacting the same, (ii) all rules, orders and regulation of the National
Board of Fire Underwriters or other bodies exercising similar functions and
responsibilities in connection with the prevention of fire or the correction of
hazardous conditions which apply to the Premises and (iii) the requirements of
all policies of public liability, fire and other insurance which at the time may
be in force with respect to the Premises (any one of the items enumerated in
this Section 7.01 is herein referred to as a "Regulation" and all or more than
one of which are herein referred to as the "Regulations").
Section 7.02 Liens and Encumbrances. Subject to the provisions of
Section 14.01 hereof, Lessee shall not create or permit to be created or to
remain, and, shall promptly discharge, at its sole cost and expense, any lien,
encumbrance or charge (each or all of which are herein referred to as "Lien") on
the Premises or any part thereof or on Lessee's leasehold estate hereunder that
arises from the use or occupancy of the Premises by Lessee or by reason of any
labor, service or material furnished or claimed to have been furnished to Lessee
or by reason of any construction, Alteration, Repair or demolition by Lessee of
all or any part the Premises. The existence of any Lien shall not constitute a
violation of this Section 7.02 if payment is not then due upon the contract or
for the material or services for which such Lien has been claimed. Notice is
hereby given that Lessor will not be liable for the cost and expense of any
labor, services or materials furnished or to be furnished with respect to the
Premises at or by the direction of Lessee or anyone holding the Premises or any
part thereof by, through or under Lessee and that no laborer's, mechanic's or
materialman's or other lien for such labor, services or materials shall attach
to or affect the interest of Lessor in and to the Premises or the fee simple
title in the Premises.
-4-
5
ARTICLE VIII. REPAIRS AND ALTERATIONS
Section 8.01 Maintenance and Repair. Lessee, at its sole cost and
expense, shall keep the Premises in good order, condition and repair ordinary
wear and tear excepted and shall promptly make or cause to be made any and all
necessary or appropriate repairs, replacements, or renewals (herein collectively
referred as the "Repairs"). Lessor shall not be required to make any Repairs in,
on or to the Premises during the term of this Lease. Lessee hereby waives any
right to make repairs at the expense of Lessor which may or hereafter be
provided by statute or law.
Section 8.02 Alterations and Additions. Lessee, at its sole cost and
expense, may make additions to, alterations and replacements of and
substitutions for the building and improvements (herein singularly referred to
as an "Alteration" and collectively referred to as the "Alterations"); provided,
however, that any Alteration shall (i) not reduce or diminish the market value
of the Premises; (ii) be performed in a good workmanlike manner and with such
materials and in such manner as is consistent in character and quality with
construction of the building; (iii) conform with all the requirements of this
Lease including, but not limited to, those under Section 7.01 and Article X
hereof and (v) be expeditiously completed free of any Lien and in compliance
with any applicable Regulation. If the aggregate cost of any Alteration shall
exceed Fifty Thousand Dollars ($50,000.00) or if the Alteration substantially
affects the exterior appearance of any part of the building and/or the
improvements located on the Premises, prior to the commencement thereof, Lessee
shall obtain the prior written consent of Lessor.
Section 8.03 Inspection by Lessor. Lessor and its authorized
representatives may enter the Premises or any part thereof at all reasonable
times for the purpose of inspecting the same. Lessor shall not have any duty to
make any such inspection nor shall it incur any liability or obligation for not
making any such inspection.
ARTICLE IX. DAMAGE AND DESTRUCTION
Section 9.01 Notices. If any damage to or destruction of all or any
part of the Premises occurs, Lessee will promptly give written notice thereof to
Lessor generally describing the nature and extent of such damage or destruction.
Section 9.02 Total or Partial. If the Premises are (i) partially
damaged and restoration thereof cannot, in Lessor's sole discretion, be
completed within one hundred and fifty (150) days after the date of such
destruction or (ii) totally destroyed, Lessor, at its sole and exclusive option
by notice to Lessee given on or before sixty (60) days after the date of such
casualty, may terminate this Lease in which event the rent shall xxxxx for the
unexpired portion of the term of this Lease effective as of the date of the
notice of termination. If this Lease is terminated, Lessor and Lessee shall be
released and discharged from any obligations or liabilities under this Lease
except for those which by there express terms survive the expiration or
termination of this Lease.
-5-
6
Section 9.03 Restoration. If Lessor elects to restore the Premises
after a casualty (whether total or partial), Lessor shall, at its sole cost and
expense, proceed with reasonable diligence to restore the Premises to
substantially the same condition as they were prior to such casualty. During
such restoration, if all or a portion of the Premises are untenantable and the
damage or destruction was not caused in whole or in part by any negligent act or
omission of Lessee, its agents, employees, invitees or others for whom the
Lessee is responsible, the rent payable under this Lease during the period in
which the Premises are untenantable shall be adjusted in such a manner as is
fair and reasonable under the circumstances. If Lessor elects to restore the
Premises and thereafter fails to complete the necessary restoration of the
Premises to permit Lessee to reoccupy the Premises on or before one hundred and
fifty (150) days after the date such destruction, Lessee may, at its option and
as its sole right and exclusive remedy, terminate this Lease by notice to Lessor
given on or before thirty (30) days after the date on which the Premises were
required to be restored by Lessor. If this Lease is terminated, Lessor and
Lessee shall be released and discharged from any obligations or liabilities
under this Lease except for those which by there express terms survive the
expiration or termination of this Lease.
Unless otherwise expressly provided in this Lease, there shall be no
abatement or reduction or any rent payable by Lessee under this Lease during the
Restoration or on account of such damage or destruction.
ARTICLE X. INSURANCE.
Section 10.01 Classes of Insurance. Lessee shall keep the Premises
insured against the risks and hazards and with coverage in amounts not less than
those specified as follows:
A. Insurance against loss or damage to the Premises by fire
and other risks customarily included under a standard ISO form of
commercial property insurance with a special form coverage in an amount
equal to the full and actual replacement cost, including the costs of
debris removal, less physical depreciation of the improvements located
on the Premises and with replacement cost endorsements and deductible
provisions which do not exceed One Thousand and No/100 Dollars
($1,000.00);
B. General public liability and property damage insurance
(including, but not limited to, coverage for any construction on or
about the Premises) covering the legal liability of Lessor and Lessee
against claims for any bodily injury or death of persons and for damage
to or destruction of property occurring on, in or about the Premises
and the adjoining streets, sidewalks and passageways and arising out of
the use or occupation of the Premises by Lessee in the minimum amounts
of One Million Dollars ($1,000,000.00) for each occurrence in
connection with any one death or bodily injury, Three Million Dollars
($3,000,000.00) in connection with any single occurrence, and Five
Hundred Thousand Dollars ($500,000.00) in connection with claims for
property damage; and
-6-
7
C. Such other insurance on the Premises in such amounts and
against such other insurable hazards which at the time are commonly
obtained in the case of property similar to the Premises, due regard
being given to the height and type off the improvements and their
construction, composition, location and use.
Section 10.02 Requirements. All insurance required under Section 10.01
hereof shall be written by companies of recognized financial standing i.e., A
Best Rating of at least A and a Financial Size Category of at least XI which are
authorized to do insurance business in the state where the Premises are located;
shall name as the insured parties Lessor and Lessee, as their respective
interest may appear; shall be reasonably satisfactory to Lessor in all respects
and shall specifically provide (i) an effective waiver by the insurer of all
rights of subrogation against any named insured or such insured's interest in
the Premises or any income derived therefrom, (ii) that all insurance proceeds
for losses shall be adjusted by Lessor, (iii) that all insurance proceeds shall
be payable to Lessor for the benefit of Lessor and Lessee, as their respective
interests may appear, (iv) that no cancellation, reduction in amount or material
change in coverage thereof shall be effective until at least ten (10) days after
receipt by Lessor and Lessee of written notice thereof, and (v) that during
construction of improvements on the Premises such policies shall be in
"Builder's Risk" form. Lessee, at its cost and expense, shall permit Lessor to
examine all policies evidencing the insurance required to be maintained by
Lessee under this Lease. Nothing contained in this Lease shall be construed to
require Lessor to prosecute any claim against any insurer or to contest any
settlement proposed by any insurer.
Section 10.03 Certificates. Lessee shall deliver to Lessor promptly
after the execution and delivery of this Lease and on each anniversary of the
date of this Lease, a certificate addressed to Lessor, signed by Lessee and
dated within thirty (30) days prior to the delivery thereof (i) listing the
insurers and policy numbers evidencing all the insurance then required to be
maintained by Lessee hereunder and (ii) certifying that said insurance is in
full force and effect and that such insurance and the policies evidencing the
same comply with the requirements of this Lease. Lessee's failure to effect,
maintain or renew any insurance provided for in this Article X, to pay the
premiums therefor or to deliver to Lessor any of such certificates shall entitle
Lessor, at its option but without obligation, upon ten (10) days notice to
Lessee, to procure such insurance, pay the premiums therefor or obtain such
certificates and any sums expended by Lessor for such purposes shall be
Additional Rent hereunder and shall be repaid by Lessee within ten (10) days
following the date on which such expenditure shall be made by Lessor.
Section 10.04 General. Lessee shall not obtain or carry separate
insurance concurrent in form or contributing in the event of loss in addition to
the insurance required under Section 10.01 hereof unless Lessor is included
therein as a named insured, with loss payable as in this Lease provided. Lessee
shall promptly notify Lessor whenever any such separate insurance is obtained
and shall, if requested, deliver to Lessor the policy, policies or certificates
evidencing the same.
-7-
8
ARTICLE XI. INDEMNIFICATION
Section 11.01 Indemnification. Lessee agrees to defend, indemnify and
save harmless Lessor from and against any and all liability, loss, damage, cost,
expense including all attorney's fees and expenses of Lessee and of Lessor,
causes of action, suits, claims, demands or judgments of any nature whatsoever
(i) arising from any injury to or to the death of any person or damage to any
property occurring on the Premises or on adjoining sidewalks, streets or ways,
(ii) in any manner arising out of or connected with the use, non-use, condition
or occupation of the Premises or any part thereof or of adjoining sidewalks,
streets or ways or (iii) resulting from the violation by Lessee of any term,
condition or covenant of this Lease or of any contract, agreement, restriction
or Regulation affecting the Premises or any part thereof or the ownership,
occupancy or use thereof. The obligations of Lessee under this Section 11.01
shall survive the expiration or earlier termination of this Lease and any
transfer or assignment by Lessor or Lessee of this Lease or any interest
hereunder.
ARTICLE XII. OWNERSHIP OF IMPROVEMENTS
Section 12.01 Title to Improvements. Ownership of and title to the
building, the improvements and all machinery and equipment now or hereafter
constructed, installed or placed by Lessee on the Premises and all Alterations
thereto when constructed, installed or placed on the Premises, shall be and
remain in Lessor. Any improvements constructed by Lessee on the Premises,
whether by obligation created hereunder or otherwise, shall not in any way
constitute a substitute for or a credit against any obligation of Lessee under
this Lease to pay rent or Additional Rent.
Section 12.02 Surrender. On the expiration or earlier termination of
the term of this Lease, Lessee shall peaceable quit and surrender the Premises
to Lessor, any and all machinery and equipment and all Alterations constructed,
installed or placed by Lessee thereon in good order and condition, ordinary wear
and tear excepted. If there is not then a Default under this Lease, Lessee shall
have the right upon the expiration of the term of this Lease to remove from the
Premises all machinery and equipment placed or installed by Lessee thereon. Any
machinery and equipment not removed by Lessee on or before the termination of
this Lease shall become the property of Lessor immediately upon such
termination.
Section 12.03 Removal of Improvements. Lessee, at its sole cost and
expense, shall, upon Lessor's written request therefor, promptly remove all or
any part of the improvements, machinery and equipment from the Premises
subsequent to the expiration or earlier termination of this Lease. Lessee, at
its sole cost and expense, shall repair any damage caused thereby to the
Premises or any improvements, buildings or structures remaining thereon.
ARTICLE XIII. ASSIGNMENT AND SUBLETTING
Section 13.01 Assignment with Consent. Lessee shall have the right to
assign all of its interest in, to and under this Lease for any portion of the
unexpired term hereof at any time to any
-8-
9
person or entity (herein referred to as the "Assignee") provided that (i) the
Assignee is approved and accepted by any franchisor under any franchise
agreement or license pursuant to which the improvements on the Premises are
operated, (ii) the Assignee shall be approved and accepted by Lessor which
approval and acceptance shall be based upon the net worth of the Assignee being
sufficient to insure the timely performance of all terms, conditions,
provisions, agreements and covenants to be observed, performed and complied with
by Lessee under the provisions of this Lease, (iii) Lessee delivering to Lessor
an assumption agreement duly executed by the Assignee, in substance and form
satisfactory to Lessor and its counsel, legally effective to cause the Assignee
to assume all of the terms, conditions, provisions, agreements and covenants to
be observed, performed or complied with by Lessee under this Lease, (iv) the
Assignee shall have paid or caused to be paid all rent and Additional Rent and
other sums required to be paid hereunder to and including the date of such
assumption, and (v) the Assignee completely and totally remedying or curing any
Default existing prior to the date of such assumption so that, at the time of
such assumption, there shall exist no Default or event which, with notice or
lapse of time, or both, would constitute a Default. Any assignee of Lessee's
interest under this Lease, immediate or remote, shall have like power of
assignment on the same conditions and subject to the same restrictions as those
imposed on Lessee under this Section 13.01.
Section 13.02 Subleases. Lessee shall have the right to sublease all or
any portion of the Premises without the consent or approval of Lessor. In no
event shall any sublease relieve the Lessee of any of its obligations under this
Lease, including the payment of the rent.
Section 13.03 Termination of Subleases. If this Lease is terminated by
Lessor prior to the expiration of the term hereof, Lessor agrees that, subject
to the conditions hereinafter set forth, such termination shall not result in a
termination of any bona fide sublease entered into by Lessee pursuant to Section
13.02 hereof of all or any portion of the Premises and that any such sublease
shall continue for the duration of its term and any extension thereof as a
direct lease between Lessor and the sublessee thereunder with the same force and
effect as if Lessor hereunder had originally entered into such sublease as the
lessor thereunder. The application of the provisions of this Section 13.03 shall
be conditioned upon (i) the sublease being submitted to Lessor for recognition
and Lessor failing to object thereto by written notice to the sublessee at its
address shown in the lease within thirty (30) days after the date of the receipt
thereof by Lessor, (ii) the sublessee under the lease agreeing, in the event of
the termination of this Lease, to attorn to Lessor, (iii) the sublease being in
good standing at the time of the termination of this Lease and (iv) that the
sublease be for a use authorized and not prohibited by the provisions of Section
6.02 hereof. On the satisfaction of the foregoing conditions and on request and
at Lessee's expense, Lessor agrees to execute, acknowledge and deliver such
reasonable agreements evidencing and agreeing to the foregoing as said sublessee
may reasonably require.
ARTICLE XIV. RIGHT TO CONTEST.
Section 14.01 Permitted Contests. Lessee, at its expense, may contest
(by appropriate legal
-9-
10
proceedings conducted in good faith and with due diligence) the amount, validity
or application, in whole or in part, of any Tax, Charge, Regulation or Lien
provided that (i) Lessee shall give Lessor prior written notice of such contest,
(ii) Lessee shall first make all contested payments (under protest if it
desires) unless such proceeding shall suspend the collection thereof from Lessor
and from the rent under this Lease or from the Premises, (iii) no part of the
Premises or any interest therein or the rent under this Lease shall be exposed
or subjected thereby to sale, forfeiture, foreclosure or interference, (iv)
Lessor shall not be exposed thereby to any civil or criminal liability for
failure to comply with any Regulation and the Premises shall not be subject to
the imposition of any Lien as a result of such failure and (v) Lessee shall have
furnished any security required in such proceeding or under this Lease or
reasonably requested by Lessor to insure payment of any Tax, Charge, Lien or
compliance with any Regulation. Lessee agrees to pay and save Lessor harmless
from and against any and all losses, judgments, decrees and costs including all
attorney's fees and expenses in connection with such contest, promptly after the
final determination of such contest, pay and discharge the amounts which shall
be levied, assessed, charged or imposed or be determined to be payable therein
together with all penalties, fines, interest, costs and expenses resulting
therefrom and will promptly comply with any Regulation under which compliance is
required. The obligations of Lessee under this Section 14.01 shall survive the
expiration or earlier termination of this Lease and any transfer or assignment
by Lessor or Lessee of this Lease or any interest hereunder.
ARTICLE XV. CONDEMNATION
Section 15.01 Total. If all or any portion 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 by private purchase in lieu thereof
and the taking would prevent the use of the Premises for the purpose for which
they are then being used, this Lease shall terminate and the rent shall be
abated during the unexpired portion of the term of this Lease effective on the
date the condemning authority takes possession of the Premises. Lessor shall
notify Lessee in the event Lessor receives notice of a proposed taking.
Section 15.02 Partial. If a portion of the Premises shall be subject to
a taking and this Lease is not terminated as provided in Section 15.01 hereof,
Lessor, at its sole and exclusive option, may either (i) terminate this Lease by
notice to Lessee effective as of the date which is ninety (90) days after the
date of such notice or (ii) restore and reconstruct the Premises and any other
improvements situated on the Premises to the extent necessary to make the
Premises tenantable. If Lessor elects to restore the Premises, the rent payable
under this Lease for the unexpired portion of the term of this Lease shall be
equitably adjusted to reflect the effects of the taking.
Section 15.03 Award. In any taking of all or a portion of the Premises,
Lessor shall be entitled to receive all of the award made in connection
therewith, including, without limitation, any award for the value of the
unexpired term of this Lease. Lessee shall not be entitled to receive any award
for the loss of its leasehold advantage. If there is an allocation in the award
made to Lessor for moving or business interruption expenses of Lessee, Lessor
shall pay such designated portion
-10-
11
of the award to Lessee on or before fifteen (15) days after its actual receipt
thereof. Notwithstanding anything contained herein to the contrary, Lessor shall
not be obligated to seek recovery of such expense for or on behalf of Lessee.
ARTICLE XVI. DEFAULT
Section 16.01 Events of Default. The occurrence of any of the following
acts, events or conditions (herein referred to as a "Default") regardless of the
pendency of any proceeding which has or might have the effect of preventing
Lessee from complying with the terms, conditions or covenants of this Lease,
shall constitute a default on an event of default under this Lease.
A. Lessee fails to make any payment of rent or Additional Rent
required to be paid by Lessee or to fulfill or perform any other
covenants, agreements or obligations of Lessee hereunder and such
failure continues for ten (10) days after the payment is due or the
performance required.
B. The Premises are abandoned or left unoccupied for a period
of thirty (30) consecutive days and Lessee does not deliver to Lessor
during such period a written certification that Lessee is prevented
from occupying the Premises by circumstances beyond its control and
describing said circumstances and that Lessee intends to reoccupy the
Premises on the termination of such circumstances.
C. The estate or interest of Lessee in the Premises is levied
on or attached in any proceedings and such process in not vacated or
discharged within thirty (30) days after the date of such levy or
attachment.
Section 16.02 Termination. On the occurrence of any Default hereunder,
Lessor shall have the right, at its election and regardless of the availability
to Lessor of any other remedy under this Lease or by law or in equity provided,
to give Lessee then or at any time thereafter while any such Default exists or
continues written notice of the termination of this Lease as of the date
specified in such notice of termination, which date shall be not less than ten
(10) days after the date of the giving of such notice. On such termination date
this Lease and the term and estate herein granted shall, subject to the
provisions of Section 16.05 hereof, expire and terminate by limitation, and all
rights of Lessee under this Lease shall expire and terminate, unless prior to
such termination date, Lessee pays to Lessor all arrears of rent and Additional
Rent payable by Lessee under this Lease together with interest thereon at the
rate of 10% per annum and all cost and expenses, including, without limitation,
attorney's fees and expenses incurred by or on behalf of Lessor by reason of any
Default and fully remedy any other Default then existing to the satisfaction of
Lessor.
Section 16.03 Reentry by Lessor. Whether or not this Lease has been
terminated pursuant to Section 16.02 hereof, if a Default occurs, Lessor may,
for and on behalf of Lessee and as Lessee's legal representative, enter upon and
repossess the Premises or any part thereof by force, summary
-11-
12
proceedings, ejectment or otherwise and may remove Lessee and all other persons
and any and all property therefrom. Lessor shall not be liable to Lessee or to
any person or entity claiming by, through or under Lessee for or by reason of
any such entry, repossession or removal.
Section 16.04 Rights upon Repossession. At any time or from time to
time after the repossession of the Premises or any part thereof pursuant to
Section 16.03 hereof and whether or not this Lease shall have been terminated
pursuant to Section 16.02 hereof, Lessor may at its option (i) repair or alter
the Premises in such manner as Lessor may deem necessary or advisable so as to
put the Premises in good order and make the same rentable and (ii) relet or
operate the Premises or any part thereof for the account of Lessee for such term
or terms which may be greater or less than the period which would otherwise have
constituted the remainder of the term of this Lease on such conditions which may
include concessions or free rent and for such uses as Lessor in its discretion
may determine, and may collect and receive the rents therefor. Lessor shall not
be responsible or liable for any failure to collect any rent due upon any such
reletting. No repossession of the Premises by Lessor shall be construed as an
election to terminate this Lease and the term herein demised unless, in
connection therewith, a written notice of termination evidencing such intention
is given to Lessee as provided in Section 16.02 hereof.
Section 16.05 Liability of Lessee. No termination of this Lease
pursuant to Section 16.02 hereof or by operation of law or otherwise except as
expressly provided herein and no repossession of the Premises or any part
thereof pursuant to Section 16.03 hereof or otherwise, shall relieve Lessee of
its liabilities and obligations hereunder, all of which shall survive such
termination or repossession.
Section 16.06 Right of Lessor to Perform for Lessee. Notwithstanding
any other provision of this Lease to the contrary, upon the occurrence of any
Default, Lessor, at its exclusive option on behalf of Lessee, may take whatever
steps it deems reasonably necessary to cure any Default and to charge Lessee for
the cost and expenses attributable thereto. Lessee shall pay all costs and
expenses immediately upon receipt of a statement thereof from Lessor. Any
amounts not so paid shall be deemed Additional Rent hereunder.
Section 16.07 General. Each right, power and remedy of Lessor provided
in this Lease or now or hereafter existing at law or in equity or by statute or
otherwise shall be cumulative and concurrent and shall be in addition to each
and every other right, power or remedy provided in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise. In addition
to any other remedy provided in this Lease, Lessor shall be entitled, to the
extent permitted by applicable law, to injunctive relief in the event of the
violation or attempted or threatened violation of any term, condition or
covenant of this Lease or to a decree compelling performance thereof. The
exercise by Lessor of any one or more of the rights, powers or remedies provided
in this Lease or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by Lessor of any
such right, power or remedy. Lessor shall have no obligations to mitigate any
damages it may incur by reason of default of Lessee.
-12-
13
ARTICLE XVII. LIABILITY OF LESSOR
Section 17.01 Limitation on Liability. Notwithstanding anything
contained in this Lease or otherwise at law to the contrary, Lessee agrees that
Lessor and its partners, shall have no personal liability under this Lease and
that, in any action brought to enforce the covenants, agreements and warranties
of Lessor under this Lease, Lessee shall in no event be entitled to seek and
shall not seek any damages against Lessor or any of its partners for the breach
or default of any covenant, warranty or agreement under this Lease and any
judgment or decree against Lessor or any of its partners shall be enforceable
against Lessor and any of its partners only to the extent of its interest in the
Premises. Any judgment or decree shall not be subject to enforcement and
execution against any other asset of Lessor or any of its partners. In the event
of the sale or other transfer of the Premises, all obligations of Lessor
hereunder shall be transferred to the new owner of the Premises as of the date
of the sale of the Premises and Lessor shall have no obligations or liability,
as landlord, from and after the date of the sale or transfer of the Premises.
ARTICLE XVIII. MISCELLANEOUS
Section 18.01 Waiver. The failure of Lessor to insist on the strict
performance by Lessee of any term, condition or covenant on Lessee's part to be
performed pursuant to the terms of this Lease or to exercise any option, right,
power or remedy of Lessor contained in this Lease shall not be deemed nor
construed as a waiver of such performance or relinquishment of such right now or
subsequent hereto. The receipt by Lessor of any rent or Additional Rent required
to be paid by Lessee hereunder with knowledge of any Default by Lessee shall not
be deemed a waiver of such Default. No waiver by Lessor of any provision of this
Lease shall be deemed to have been made unless expressed in writing and signed
by Lessor.
Lessee hereby waives and surrenders any right or privilege under any
present or future constitution, statute or law to redeem the Premises or to
continue this Lease for the term herein demised after the termination of this
Lease and the benefits of any present or future constitution, statute or rule of
law which exempts property from liability for debt or for distress for rent.
Section 18.02 Estoppel Certificates. Lessee shall execute, acknowledge
and deliver to Lessor and to any mortgagee of Lessor upon request, a written
statement certifying (i) that this Lease is unmodified and in full force and
effect or if there have been modifications, that the Lease is in full force and
effect as modified, and stating the modifications, (ii) the dates to which rent
and Additional Rent payable by Lessee hereunder have been paid and (iii) that no
notice has been received by Lessee of any Default which has not been cured,
except as to any Default specified in said certificate.
Lessor shall execute, acknowledge and deliver to Lessee a written
certificate certifying (i) that this Lease is unmodified and in full force and
effect or if there have been modifications, that this Lease is in full force and
effect as modified, and stating the modifications, (ii) the dates to which rent
and Additional Rent payable by Lessee hereunder have been paid and (iii) whether
or not, to the
-13-
14
knowledge of Lessor, there is then existing any Default under this Lease and if
so, specifying the same.
Section 18.03 No Merger of Title. There shall be no merger of the
leasehold estate created by this Lease with the leasehold estate of Lessor and
or the fee estate in the Premises by reason of the fact that the same person may
own or hold both the leasehold estate created by this Lease or any interest
therein, the leasehold estate or the fee estate in the Premises by reason of the
fact that the same person may own or hold both the leasehold estate created by
this Lease or any interest therein, the leasehold estate or the fee estate in
the Premises or any interest therein; and no such merger shall occur unless and
until all persons or entities having any interest in the leasehold estate
created by this Lease or the fee estate in the Premises shall join in a written
instrument effecting such merger and shall duly record the same.
Section 18.04 Transfer by Lessor. If Lessor shall transfer or assign or
otherwise dispose of its interest under this Lease, it shall thereupon be
released and discharged from any and all liabilities and obligations under this
Lease except those accruing prior to such transfer, assignment or other
disposition and such liabilities and obligations shall thereafter be binding
upon the assignee of Lessor's interest under this Lease.
Section 18.05 Separability. Each and every covenant and agreement
contained in this Lease shall be for any and all purposes hereof construed as
separate and independent and the breach of any covenant by Lessor shall not
discharge or relieve Lessee from its obligation to perform each and every
covenant and agreement to be performed by Lessee under this Lease. All rights,
powers and remedies provided herein may be exercised only to the extent that the
exercise thereof does not violate applicable law and shall be limited to the
extent necessary to render this Lease valid and enforceable. If any term,
provision or covenant of this Lease or the application thereof to any person or
circumstances shall be held to be invalid, illegal or unenforceable, the
validity of the remainder of this Lease or the application so such term,
provision or covenant to persons or circumstances other than those to which it
is held invalid or unenforceable shall not be affected hereby.
Section 18.06 Notices Demands and Other Instruments. All notices,
demands, requests, consents, approvals and other instruments required or
permitted to be given pursuant to the terms of this Lease shall be in writing
and shall be deemed to have been properly given if sent by first class
registered or certified United States mail, return receipt requested, addressed
to each party hereto at the following address:
Lessor: c/o K&G Associates, Inc.
0000-X Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
-00-
00
Xxxxxx: T&C Liquidators, Inc.
0000 X. Xxxx X. Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
or at such other address in the United States as Lessor or Lessee may from time
to time designate in writing delivered to the other party.
Section 18.07 Successors and Assigns. Each and every covenant, term,
condition and obligation contained in this Lease shall apply to and be binding
upon and inure to the benefit or detriment or the respective legal
representatives, successors and permitted assigns of Lessor and Lessee. Whenever
reference to the parties hereto is made in this Lease, such reference shall be
deemed to include the legal representatives, successors and assigns of said
party the same as if in each case expressed. The term "person" when used in this
Lease shall mean any individual, corporation, limited liability company,
partnership, firm, trust, joint venture, business association, syndicate,
government or governmental organization or any other entity.
Section 18.08 Headings. The headings to the various sections of this
Lease have been inserted for purposes of reference only and shall not limit or
define the express terms and provisions of this Lease.
Section 18.09 Counterparts. This Lease may be executed in any number of
counterparts, each of which is an original, but all of which shall constitute
one instrument.
Section 18.10 Applicable Law. This Lease shall be construed under and
enforced in accordance with the law of the State of Georgia.
Section 18.11 Exhibits. Exhibit A attached hereto is by this reference
incorporated herein and made a part hereof.
Section 18.12 Entire Agreement; Amendments. This Lease sets forth the
entire understanding and agreement of Lessor and Lessee with respect to the
Premises. All courses of dealing, usage of trade and all prior representations,
promises, understandings and agreements, whether oral or written, are superseded
by and merged into this Lease. No modification or amendment of this Lease shall
be binding on Lessee and/or Lessor unless in writing and signed by both parties
hereto.
Section 18.13 All Genders and Numbers Included. Whenever the singular
or plural number, or masculine, feminine, or neuter gender is used in this
Lease, it shall equally apply to, extend to, and include the other.
Section 18.14 Time is of Essence. All time limits stated in this Lease
are of the essence.
Section 18.15 Memorandum of Lease. Lessor and Lessee hereby agree that
this Lease shall
-15-
16
not be recorded in the public records of Dallas, County, Texas. Lessor and
Lessee may, contemporaneously with the execution of this Lease, execute a
memorandum of this Lease, in recordable form satisfactory to Lessor and Lessee,
wherein a legal description of the Premises, the term of this Lease and certain
other terms and provisions hereof, excepting, however, the provisions hereof
relating to the amount of the rent payable hereunder, shall be set forth. The
memorandum of this Lease shall be filed for record with the Clerk of the
Superior Court of Dallas County, Texas. Any and all recording cost and stamps,
if any, required in connection with the recording of the memorandum of this
Lease shall be at sole cost and expense of Lessee.
IN WITNESS WHEREOF, Lessor and Lessee have caused these presents to be
duly executed and their seals to be affixed hereunto as of the day and year
first above written.
Signed, sealed and delivered "LESSOR"
delivered in the presence of:
/s/ X. XXXXX /s/ XXXXXXX X. XXXXXXXXX (SEAL)
--------------------------------- -------------------------------
Witness XXXXXXX X. XXXXXXXXX
/s/ XXXXX XXXXXX
---------------------------------
Notary Public
[NOTARY SEAL]
-16-
17
Signed, sealed and delivered
delivered in the presence of:
/s/ X. XXXXX /s/ XXXX XXXXX (SEAL)
--------------------------------- -------------------------------
Witness XXXX XXXXX
/s/ XXXXX XXXXXX
---------------------------------
Notary Public
[NOTARY SEAL]
Signed, sealed and delivered
delivered in the presence of:
/s/ X. XXXXX /s/ XXXXXXX X. XXXXX (SEAL)
--------------------------------- -------------------------------
Witness XXXXXXX X. XXXXX
/s/ XXXXX XXXXXX
---------------------------------
Notary Public
[NOTARY SEAL]
Signed, sealed and delivered "LESSEE"
delivered in the presence of:
/s/ X. XXXXX T&C LIQUIDATORS, INC.,
--------------------------------- a Georgia corporation
Witness
/s/ XXXXX XXXXXX By: /s/ XXXXXXX X. XXXXXXXXX
--------------------------------- ----------------------------
Notary Public Its:
---------------------------
[NOTARY SEAL] [CORPORATE SEAL]
-17-
18
EXHIBIT "A"
TITLE ENCUMBRANCES
1. Visible easements on the property.
2. An easement for utilities, 6 feet in width as shown by the plat
recorded in Volume 000, Xxxx 0000, Xxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx.
Affects: North and West sides of Lot 4.
3. An easement for utilities, 6 feet in width as shown by the plat
recorded in Volume 402, Page 1437, Map Records, Dallas County, Texas.
Affects: Southwest side of Lot 5.
4. Part of Xxxxxx Xxxxx Control District Section I as set out in
instrument filed 8/31/89, recorded in Volume 89170, Page 1576, Real
Property Records, Dallas County, Texas.
5. Building Line 25 feet from Royalty Row and along Southwest side as
shown by plat recorded in Volume 402, Page 1437, Map Records of Dallas
County, Texas.
6. Subject to the Order Adopting Airport Zoning Regulations of the
Dallas-Fort Worth Regional Airport, Ordinance No. 71-100, imposed by
the Joint Airport Zoning Board of the Dallas-Fort Worth Regional
Airport, filed September 2, 1982, recorded in Volume 82173, Page 0178,
Real Property Records of Dallas County, Texas, and in Volume 7349, Page
1106, Real Property Records, Tarrant County, Texas.
7. All other matters in the public records.
-18-
