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EXHIBIT 10.35
COMMERCIAL LEASE AGREEMENT
THIS LEASE AGREEMENT (this "lease" or "Lease"), made and entered into
by and between ________________ ("Landlord"), and MISSION PARTY ICE, INC., a
Texas corporation ("Tenant");
W I T N E S S E T H:
1. Premises, and Term and Condition of Premises.
A. In consideration of the obligation of Tenant to pay
rent as herein provided, and in consideration of the other terms, provisions
and covenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby accepts and leases from Landlord, for the term stated herein, certain
premises, more particularly described on Exhibit "A" attached hereto and
incorporated herein by reference, together with all rights, privileges,
easements and appurtenances belonging to or in any way pertaining to the
premises, including rights to common areas, and together with the buildings and
other improvements situated upon said premises (said real property, buildings
and improvements hereinafter referred to as the "premises", "Premises" and/or
"Leased Premises").
B. TO HAVE AND TO HOLD the same for a term commencing
immediately following the acquisition by Landlord of those certain properties
pursuant to the Contract for Purchase and Sale of Real Estate, dated February
15, 1995, by and among J. Xxxxxxx Xxxx, Xxxx X. Xxxx, X. X. Xxxx, Inc., Mission
Ice Services of Laredo, Inc. and Mission Party Ice, Inc., which rights to
purchase the property subject thereto was subsequently assigned to Landlord
(the "Commencement Date"). The term of this Lease shall begin on the
Commencement Date and continue until the tenth anniversary thereof (the
"Initial Term"), subject to the right of Tenant to extend the term of the Lease
as hereinafter provided (the "Termination Date"). The Tenant shall have the
right to extend the term of the Lease for an additional five (5) year period
immediately following the expiration of the Initial Term (the "Option");
provided that Tenant provides Landlord with notice of its intent to exercise
the Option at least one hundred eighty (180) days prior to the expiration of
the Initial Term. The Initial Term and any extension thereof is hereinafter
referred to as the "Term."
C. Tenant acknowledges that it has inspected and accepts
the premises, specifically the buildings and improvements comprising the same
in their present conditions as suitable for the purpose for which the premises
are leased. By executing this Lease, Tenant shall be deemed to have
conclusively agreed and acknowledged that said building and other improvements
are in good and satisfactory condition as of the date of execution hereof by
Tenant. Tenant further acknowledges that no representations as to the repair of
the premises, nor promises to alter, remodel or improve the premises have been
made by Landlord. After the Commencement Date Tenant shall, upon request of
Landlord, execute and deliver to Landlord a letter of acceptance of delivery of
the premises. TENANT HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE PREMISES
SHALL BE DELIVERED BY LANDLORD IN 'AS IS' CONDITION WITH NO WARRANTIES, EITHER
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF
SUITABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF SUCH
WARRANTIES BEING EXPRESSLY HEREBY WAIVED BY TENANT.
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2. Rent.
A. Tenant agrees to pay to Landlord rent (the "Rent")
for the premises in advance, without demand, deduction, offset or set off as
follows (the rental payment for any fractional calendar month during the lease
period being prorated):
(1) From the Commencement Date, and continuing
throughout the Term, the Rent shall accrue at the rate of, and be payable in
regularly and monthly in payments of, $29,600 per month, subject to the
adjustments as hereinafter described. The first payment of rent shall be due on
the Commencement Date. Thereafter, payments shall be due on the first (1st) day
of each calendar month, commencing on the first (1st) day of the month
succeeding the month in which the Commencement Date occurs, until the
Termination Date. On the fifth anniversary of the Commencement Date, and again
at the end of the Initial Term if the Tenant exercises the Option, the Rent
shall be increased by an amount equal to the Rent in effect on the Commencement
Date multiplied by the Inflation Adjustment. The "Inflation Adjustment" for
such date shall be equal to the fraction the numerator of which is the revised
Bureau of Labor Statistics (the "Bureau") Consumer Price Index for all Items
and Major Group Figures for All Urban Consumers, U.S. City Average (1982-
84=100)(the "Index") most recently published on the date in question and the
denominator of which is the Index most recently published as of the
Commencement Date. If the Index should ever cease to published by the Bureau
during the Term, "Inflation Adjustment" shall be computed by using an economic
index mutually agreed upon by the Landlord and Tenant of generally recognized
standing that reflects the increase or decrease in the purchasing power of the
dollar.
B. A late charge of five percent (5%) of any rental
amount which is not received within ten (10) days after it is due shall be due
and payable by Tenant to Landlord in addition to such rental amount.
3. Use. The premises are to be used for purposes relating
directly to the business of Tenant, and for no other purpose without the
written consent of the Landlord. Tenant shall (i) at its own cost and expense
obtain any and all licenses and permits necessary for any such permitted use,
and (ii) comply, at Tenant's sole cost and expense, with all governmental laws,
ordinances, regulations and restrictive covenants of record affecting the
premises applicable to the use of the premises, and shall promptly comply with
all governmental orders and directives for the correction, prevention and
abatement of nuisances in or upon, or connected with, the premises. Tenant
shall not permit any objectionable or unpleasant odors, smoke, dust, gas, noise
or vibrations to emanate from the premises, nor take any other action which
would constitute a nuisance. Tenant will not permit the premises to be used for
any purpose or in any manner (including without limitation any method of
storage) which would render the insurance thereon void or the insurance risk
more hazardous. Notwithstanding the foregoing, Tenant may use the Premises to
provide parking for events at the Alamodome, provided that Tenant shall pay to
Landlord, in addition to the Rent described in paragraph 2 above, the first
$200 of revenue from each day on which the Premises are used for such Alamodome
event parking.
4. Taxes.
A. Tenant agrees to pay to Landlord, as additional rent,
all taxes, assessments and governmental charges of any kind and nature
whatsoever (hereinafter collectively referred to as "taxes") lawfully levied or
assessed against the premises during the term of this lease. Taxes shall
include all taxes and assessments (special or otherwise) levied or assessed
directly or indirectly against the Premises (land, buildings and improvements),
imposed by federal, sate, or local governmental authority or any other taxing
authority having jurisdiction over the Premises. Franchise, capital stock,
income, estate or inheritance taxes personal in nature to Landlord are not
deemed to be
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taxes. If in any year during the Term the Landlord has received the annual
property tax bills referred to in this Paragraph relating to the premises prior
to December 1 of such year, the Tenant shall pay to Landlord the amount of such
tax xxxx on or before December 1 of such year, provided that Landlord has
delivered such tax xxxx to Tenant at least 15 days prior to October 1 of such
year. If the annual property tax bills referred to in this Paragraph relating
to the premises for a year during the Term have not been received by Landlord
on or before December 1, Landlord shall estimate the annual taxes referred to
in this Paragraph for such year and deliver such estimate, in writing, to the
Tenant. Tenant shall pay such estimated tax, on or before the later of (i)
December 1 of such year and (ii) the tenth (10th) day following receipt by
Tenant of such estimate of annual taxes due. After Landlord has received the
annual property tax bills relating to the premises, Landlord shall furnish
Tenant with a copy of such actual xxxx(s) for property taxes on the premises
and there shall be an adjustment between Landlord and Tenant, to the end that
Landlord shall receive any payment of the entire amount of taxes due for such
period within fifteen (15) days after such statement is delivered to Tenant or
Tenant shall receive a refund for any overpayment within fifteen (15) days
after such statement is delivered to Landlord.
B. Any payment to be made pursuant to this Paragraph 4
with respect to the real estate tax year in which this lease commences or
terminates shall be prorated.
C. Additionally, Tenant shall be liable for all taxes
levied against leasehold improvements, merchandise, inventory, equipment,
furnishings, personal property, trade fixtures and all other taxable property
located in the premises. When reasonably possible, Tenant shall cause said
trade fixtures, furnishings, equipment and all other personal property to be
assessed and billed separately from the real property of Landlord. If any such
taxes for which Tenant is liable are levied against Landlord or Landlord's
property, or if the assessed value of Landlord's property is increased by
inclusion of personal property and trade fixtures placed by Tenant in the
premises, Tenant shall also pay the taxes so levied against Landlord or
associated with such increase in accordance with Paragraph 4A above. Tenant
shall pay when due any and all taxes related to Tenant's use and operation of
its business on the premises.
D. Nothing contained in this paragraph 4 shall be construed as
precluding either party from the right, individually or jointly, to contest the
amount or legality of any taxes or local improvement assessments levied upon
the premises, or the right to make application for reduction thereof or
reduction of assessment upon which the same may be based. In the event of such
contest or application and the payment with respect to such taxes is not
required to be paid to preserve such right to contest the amount or legality of
such taxes or assessments, the time within which Tenant shall be required to
pay the same shall be extended until final determination of the proper amount
due and within 10 days after such final determination Tenant shall pay the
amount so determined, including all interest, penalties, costs and charges
thereto (less any amounts previously paid to Landlord to be held in reserve as
hereinafter provided); provided, however, in the event that Tenant elects to
contest the amount or legality of any taxes or assessments and a final
determination has not been made by December 1 of such tax year, Tenant shall
pay to the Landlord the amount of such taxes or assessments then being
contested and Landlord shall hold such amounts in reserve until final
determination has been made. Thereupon, Landlord shall pay to the proper amount
of taxes and assessments based upon the final determination and return any
excess amount, without interest, to the Tenant. Nothing in this paragraph D
shall relieve the Tenant of its obligations with respect to the portion of
taxes or assessments not being contested.
5. Tenant's Repairs.
A. Tenant shall at its own cost and expense keep and
maintain the entire
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premises in good condition, reasonable wear and tear excepted, promptly making
all reasonable necessary repairs and replacements, whether same are of a
capital nature or otherwise. Tenant shall be responsible for maintaining and
making the necessary repairs and replacements to all parts of the premises, to
include, but shall not be limited to, the roof, foundation, exterior structural
walls, windows, glass and plate glass, doors, interior walls (structural,
loadbearing or otherwise) and finish work, floor and floor covering,
downspouts, gutters, heating and air conditioning systems, paving, plumbing
work and fixtures. Tenant shall also be responsible for termite and pest
extermination, regular removal of trash and debris, regular mowing of any
grass, trimming, weed removal and general landscape maintenance, and keeping
the parking areas, driveways, alleys and the whole of the premises in a clean
and sanitary condition (maintenance of the parking areas and driveways shall
include, but not be limited to, repairing any and all potholes located thereon
and repaving and restriping any such areas as necessary). Except as provided in
Paragraph 12 below, Tenant shall not be obligated to repair any damage caused
by fire or other casualty covered by the insurance to be maintained by Tenant
pursuant to subparagraph 11(A) below, except that Tenant shall be obligated to
repair all wind and/or other damage to glass.
B. Tenant shall not damage any load bearing walls of the
premises or disturb the integrity and support provided by any such wall, and
shall, at Tenant's sole cost and expense, promptly repair any damage or injury
to any such wall caused by Tenant or its employees, contractors, agents or
invitees.
C. In connection with Tenant's obligations under
subparagraph 5(A), Tenant shall establish, at its own cost and expense, a
preventative maintenance/service program with a maintenance contractor for
servicing all hot water, heating and air conditioning systems within the
premises. (With respect to the heating and air conditioning systems, such
program shall provide for the regular replacement or cleaning of all filters
incorporated into such system or associated therewith.)
6. Alterations and Equipment.
A. Tenant shall not make any material alterations,
additions or improvements to the premises (including but not limited to roof
and wall penetrations), without the prior written consent of Landlord which
consent may be not be unreasonably withheld by Landlord.
B. Landlord acknowledges and agrees that the equipment
on the premises is not the property of the Landlord, except for any lien rights
the Landlord may have.
7. Signs. Tenant may maintain and continue to use its signs
installed upon the premises in the same places(s) that such signs are located
upon the premises on the date this Lease is executed by Tenant subject,
however, to any applicable governmental laws, ordinances, regulations and other
requirements. Tenant shall remove all such signs by the termination of this
lease. Such removals shall be made in such manner as to avoid injury or
defacement of the building and other improvements.
8. Inspection. Landlord and Landlord's agents and representatives
shall have the right to enter and inspect the premises at any reasonable time
during business hours, for the purpose of (i) showing the premises to any
prospective or future tenant and any such prospective or future tenant's
employees, agents, contractors and subcontractors, then-present mortgagee(s)
and/or prospective purchasers or mortgagee(s), or (ii) ascertaining the
condition of the premises or in order to make such repairs as may be permitted
to be made by Landlord under the terms of this lease; provided, however, that
Landlord shall have the right, but not the obligation, to enter the premises,
without notice to
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Tenant, at any time during the existence of an emergency and take whatever
action Landlord deems necessary, in its sole discretion, to cure and/or remedy
such emergency condition or the effects thereof.
9. Utilities. Tenant hereby acknowledges and agrees that current
utility connections serving the premises are sufficient and satisfactory for
Tenant's intended use of the premises. Tenant shall pay for all water, gas,
heat, light, power, telephone, sewer, sprinkler charges and other utilities and
services used on or from the premises, together with any taxes, penalties,
surcharges or the like pertaining thereto and any maintenance charges for
utilities. During the Term, all accounts relating to utilities used on or from
the premises shall be maintained in the name of Tenant. Landlord shall in no
event be liable for any interruption or failure of utility services on the
premises, except as may be caused by the Landlord's wilfull acts or omissions
or negligence.
10. Assignment and Subletting. Tenant shall not have the right to
assign this lease, absolutely, collaterally, voluntarily, involuntarily, by
operation of law or otherwise, or to sublet the whole or any part of the
premises without the prior written consent of Landlord. Any assignment of this
lease, whether absolutely, collaterally, voluntarily, by operation of law or
otherwise, sublease or other encumbrance of this lease not made in accordance
with this paragraph shall be null and void and of no force and effect.
Notwithstanding the foregoing, Landlord hereby consents to any proposed
assignment of this Lease in connection with the sale of all or substantially
all of the assets of Tenant. Tenant agrees that it shall not transfer all or
substantially all of its assets without the assignment of this Lease to the
transferee. The assignment of this Lease, regardless of whether or not Landlord
has consented to such assignment, will not release Tenant of its obligations,
duties and responsibilities hereunder.
11. Insurance and Liability.
A. Fire and Casualty Insurance. Tenant agrees to
maintain at all times from and after the Commencement Date through the
expiration of the term hereof standard fire and extended coverage insurance
covering the improvements on the premises in an amount not less than the full
"replacement cost" thereof as such term is defined in the Replacement Cost
Endorsement to be attached thereto, insuring against the perils covered by fire
and extended coverage insurance policies, and against vandalism, malicious
mischief, flood and special extended perils (i.e., "all risks" as such term is
used in the insurance industry), such coverages and endorsements to be as
defined, provided and limited in the standard bureau forms prescribed by the
insurance regulatory authority for the State of Texas for use by insurance
companies admitted in such state for the writing of such insurance on risks
located within such state. Subject to the provisions of paragraph 12 below,
such insurance shall be for the sole benefit of Landlord and under Landlord's
sole control. Copies of such policies, or certificates of insurance, together
with receipts evidencing payment of premiums therefor, shall be delivered to
Landlord prior to the Commencement Date. If Tenant fails to deliver such
policies or certificates on or before the Commencement Date, Landlord shall
have no duty to deliver possession of the Premises to Tenant until such
policies or certificates are provided, but such failure by Tenant shall not
delay the Commencement Date or have any effect on Tenant's other obligations
hereunder, including, without limitation, the obligation to pay Rent. Not less
than fifteen (15) days prior to the expiration date of any such policies,
copies of the renewals thereof (bearing notations evidencing the payment of
renewal premiums) shall be delivered to Landlord. Such policies shall further
provide that not less than thirty (30) days written notice shall be given to
Landlord before such policy may be canceled or changed to reduce insurance
provided thereby. If Tenant fails to obtain or maintain such policy of
insurance, then in addition to any other remedy Landlord may have for such
default, Landlord may obtain the required insurance and Tenant shall reimburse
Landlord, on demand, for the cost associated therewith, together with interest
on the amount paid by Landlord at the rate of ten
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percent (10%) per annum from the date of such payment by Landlord until payment
by Tenant. Any payment to be made pursuant to this subparagraph A with respect
to the calendar year in which this lease terminates shall be prorated. Such
policy or policies shall be procured by Tenant from reputable insurance
companies satisfactory to Landlord.
B. Liability and Liability Insurance. Landlord shall not
be liable to Tenant or Tenant's employees, agents, patrons, invitees, business
invitees, guests or visitors, or to any other person whomsoever, for any injury
to person or damage to property on or about the premises, resulting from and/or
caused in part or whole by the negligence or misconduct of Tenant, its agents,
servants, invitees, business invitees, guests or employees, or of any other
person entering upon the premises, or caused by the buildings and improvements
located on the premises becoming out of repair, or caused by leakage of gas,
oil, water or steam or by electricity emanating from the premises, or due to
any cause whatsoever (except Landlord's negligence or willful misconduct), and
TENANT HEREBY COVENANTS AND AGREES THAT IT WILL AT ALL TIMES INDEMNIFY AND HOLD
SAFE AND HARMLESS THE PROPERTY, LANDLORD (INCLUDING ANY INDIVIDUALS OR ENTITIES
WHICH CONSTITUTE LANDLORD), LANDLORD'S AGENTS AND EMPLOYEES FROM ANY LOSS,
LIABILITY, CLAIMS, SUITS, COSTS, EXPENSES, INCLUDING WITHOUT LIMITATION
ATTORNEY'S FEES AND DAMAGES, BOTH REAL AND ALLEGED, ARISING OUT OF ANY SUCH
DAMAGE OR INJURY; EXCEPT INJURY TO PERSONS OR DAMAGE TO PROPERTY TO THE EXTENT
SAME IS CAUSED BY LANDLORD'S NEGLIGENT ACTIONS OR WILLFUL MISCONDUCT. Tenant
shall procure and maintain from the Commencement Date through the expiration of
the term of this lease a policy or policies of insurance, at its sole cost and
expense, insuring both Landlord and Tenant against all claims, demands or
actions arising out of or in connection with; (i) the premises; (ii) the
condition of the premises; (iii) Tenant's operations in and maintenance and use
of the premises; and (iv) Tenant's liability assumed under this lease, the
combined single limits of such policy or policies to be in the amount of not
less than $2,000,000 per occurrence. Copies of all policies or certificates of
insurance, together with receipts evidencing payment of premiums therefor,
shall be delivered to Landlord prior to the Commencement Date. If Tenant fails
to deliver such policies or certificates on or before the Commencement Date,
Landlord shall have no duty to deliver possession of the Premises to Tenant
until such policies or certificates are provided, but such failure by Tenant
shall not delay the Commencement Date or have any effect on Tenant's other
obligations hereunder, including, without limitation, the obligation to pay
Rent. Not less than fifteen (15) days prior to the expiration date of any
described policies, copies of the renewals thereof or certificates of insurance
(bearing notations evidencing the payment of renewal premiums) shall be
delivered to Landlord. Such policies shall further provide that not less than
thirty (30) days written notice shall be given to Landlord before such policy
may be canceled or changed to reduce insurance provided thereby.
C. Waiver of Subrogation. In the event the Premises or
its contents are damaged or destroyed by fire or other casualty for which
insurance is maintained, or an employee sustains an injury covered by any
Worker's Compensation insurance maintained by Tenant (or such damage or injury
is of a type for which insurance was required to be maintained under the terms
of this Lease), the rights, if any of Tenant against Landlord with respect to
such damage, destruction or injury are waived with respect to both, and to the
extent of both, losses covered by insurance (or which should have been covered
under the terms of the insurance required to be maintained by Tenant under the
terms of this Lease) and losses not covered due to deductibles, coinsurance
penalties, insurance carrier insolvency, disputes with the insurance carrier
regarding coverage or under-insurance. All policies of fire and/or extended
coverage, other insurance covering the Premises or its contents required
hereunder to be maintained by Tenant shall contain a clause or endorsement
providing in substance that the insurance shall not be prejudiced if the
insured has waived right of recovery from any person or persons prior to the
date and time of loss or damage, if any. The failure of Tenant to obtain such
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endorsement, however, shall not negate or otherwise adversely affect the waiver
herein set forth, which waiver in all instances shall be binding upon Tenant
and Tenant's respective insurers.
D. Insurance required hereunder shall be in companies
holding "general policyholders rating" of at least "A Minus", or such other
rating as may be required by a lender having a lien on the Premises, as set
forth in the in the most current issue of "Best's Insurance Guide".
E. Tenant, as a material part of the consideration to
Landlord, hereby assumes all risk of damage to property or injury to persons,
in, upon or about the Premises arising from any cause other than Landlord's
negligence or willful misconduct and Tenant hereby waives all claims in respect
thereof against Landlord.
12. Fire and Casualty Damage.
A. Tenant shall give immediate written notice to
Landlord of any damage caused to the Premises by fire or other casualty.
B. In the event the Premises shall be damaged or
destroyed by fire or other casualty, Landlord at its option may either
terminate this Lease or elect to rebuild and repair the Premises. Landlord
shall give written notice to Tenant of its election within thirty (30) days
after the date it receives notice of such casualty and if Landlord elects to
rebuild and repair shall proceed to do so with reasonable diligence; provided,
however, that if Landlord has not completed the repair of the Premises on or
before the date which is one hundred eighty (180) days from and after the date
Landlord learns of the casualty, Tenant shall be entitled to terminate this
Lease at any time thereafter but prior to the date such repair and restoration
is completed.
C. Landlord's obligation to rebuild and repair under
this paragraph 12 shall in any event be limited to restoring the Premises to
substantially the condition in which the same existed prior to such casualty,
exclusive of any alterations, additions, improvements, fixtures and equipment
installed by Tenant unless the same are covered by insurance proceeds. Tenant
agrees that promptly after completion of Landlord's repairs, Tenant will
proceed with reasonable diligence and at Tenant's sole cost and expense to
restore, repair, and replace all alterations, additions, improvements,
fixtures, signs and equipment installed by Tenant to the extent the same have
not been covered by insurance proceeds.
D. Tenant agrees that during any period of
reconstruction or repair of the Premises, it will continue to operate its
business within the Premises to the extent that same is practical. During the
period from the occurrence of any casualty until Landlord's repairs are
completed, the rent shall be reduced to such extent as may be fair and
reasonable under the circumstances, however, there shall be no abatement of
rent in the event such casualty was caused by any act or omission of Tenant,
its employees, contractors, agents, invitees, business invitees, guests or any
of the aforesaid parties' negligence.
E. Landlord and Tenant waive the provisions of any
statutes which relate to termination of leases when leased property is
destroyed and agree that such event shall be governed by the terms of this
Lease.
13. Condemnation.
A. If the whole or any substantial part of the premises
should be taken for any public or quasi-public use under governmental law,
ordinance or regulation, or by private purchase
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in lieu thereof and the taking would prevent or materially interfere with the
use of the premises for the purpose for which they are being used, this lease
shall terminate and the rent shall be abated during the unexpired portion of
this lease, effective as of the date the physical taking of said premises shall
occur.
B. If part of the premises shall be 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 this lease
is not terminated as provided in the subparagraph above, this lease shall not
terminate, but the rent payable hereunder during the unexpired portion of this
lease shall be reduced to such extent as may be fair and reasonable under all
of the circumstances.
C. All compensation awarded for any taking, or resulting
from any action or proceedings in lieu thereof, whether for the whole or a
portion of the premises, shall be the sole property of Landlord without any
participation by Tenant, and Tenant hereby expressly waives all claims for
compensation and hereby assigns to Landlord all rights with respect thereto;
provided, however, that Tenant may claim and recover directly from the
condemning authority (if permitted by law), such compensation as may be
separately awarded or recovered by Tenant in Tenant's own right for moving
expenses, the expense of removing Tenant's merchandise, furniture, fixtures and
equipment or the loss of Tenant's business goodwill, provided, further, that no
such claim shall diminish or otherwise adversely affect Landlord's award. In no
event shall Tenant be entitled to receive any compensation for the lost value
of its leasehold estate.
14. Surrender of Premises and Holding Over. Tenant will, at the
termination of this lease by lapse of time or otherwise, yield up immediate
possession of the Premises to Landlord; provided, however, that upon such
tender of possession of the Premises to Landlord by Tenant, the Premises and
the systems used therein, including without limitation, the HVAC system, shall
be in at least the same condition in which the Premises and such systems were
in on the date hereof, normal wear and tear excepted. So long as Tenant is not
in default under the terms of the Lease, Tenant shall, at the expiration of the
Term, remove all equipment (other than equipment that is part of the
mechanical, electrical or plumbing systems servicing the Premises) and other
personal property from the Premises, such removals to be made at Tenant's
expense and in such manner as to avoid injury or defacement of the building and
other improvements, it being acknowledged by the Landlord that such equipment
and personal property is the property of Tenant, subject to any lien rights the
Landlord may possess. In the event that Tenant is in default at the expiration
of the Terms, such equipment and personal property shall be removed by Tenant
at the discretion of the Landlord., it being acknowledged by the Landlord that
such equipment is the property of Tenant, subject to any statutory landlord
liens. Notwithstanding anything contained herein to the contrary, if Tenant
holds over, any such holding over shall be deemed to be a tenancy at sufferance
and the rent during any such period of time shall be three (3) times the rent
in effect on the termination date, computed on a daily basis for each day of
the hold over period. The preceding provisions of this paragraph 14 shall not
be construed as Landlord's consent for Tenant to hold over.
15. Quiet Enjoyment. Landlord agrees that upon Tenant's paying the
rent and performing and observing the agreements and conditions contained
herein on its part to be performed and observed, Tenant shall and may peaceably
and quietly have, hold and enjoy the premises and all rights of Tenant
hereunder during the term of this lease without any manner of hindrance or
molestation, subject, nevertheless, to the terms and conditions of this lease,
any mortgage affecting the premises, zoning ordinances and other building and
fire ordinances and governmental regulations relating to the use of the
premises, and easements, restrictions and other conditions of record. Landlord
represents and warrants that it has full right and authority to enter into this
lease.
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16. Events of Default. The following events shall be deemed to be
events of default by Tenant under this lease:
(a) Tenant shall fail to pay any installment of the rent
herein reserved when due, or any payment with respect to taxes hereunder when
due, or any other payment or reimbursement to Landlord required herein when due
and such failure shall continue for a period of 5 days following written notice
from Landlord to Tenant, provided Tenant shall not be entitled to more than 2
such notices and right to cure within 12 consecutive months and no more than 5
such notices and right to cure during the Term.
(b) Tenant shall become insolvent, or shall make a
transfer in fraud of creditors, or shall make an assignment for the benefit of
creditors, or shall permit the premises or the leasehold estate created hereby
to be taken on execution or other process of law in any action against Tenant..
(c) Tenant shall file a petition, or a petition is filed
against Tenant, under any section or chapter of the United States Bankruptcy
Code (Title 11 of the United States Code), as amended, or under any similar law
or statute of the United States or any State thereof; or Tenant shall be
adjudged a bankrupt or insolvent in proceedings filed against Tenant
thereunder.
(d) A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant.
(e) Tenant shall fail to take occupancy of the premises
or shall abandon, desert or vacate the premises or any substantial portion of
the premises for more than 30 consecutive days..
(f) Tenant shall fail to comply with any term, provision
or covenant of this lease (other than the foregoing in this Paragraph 16), and
shall not cure such failure within twenty (20) days after written notice
thereof to Tenant or such longer period as may be reasonably necessary provided
Tenant commences such cure within the 20 day period and thereafter diligently
pursues the same to completion.
17. Remedies. Upon the occurrence of any of such events of default
described in Paragraph 16 hereof, subject to applicable notice and cure
periods, Landlord shall have the option to pursue any one or more of the
remedies available to Landlord at law or in equity in connection with such
event of default, without any notice or demand to Tenant whatsoever, including,
without limitation, the right to enter upon and take possession of the
premises, without terminating this Lease, by picking and/or altering the locks
if necessary, and expel or remove Tenant and any other person who may be
occupying such premises or any part thereof, by force if necessary, without
being liable for prosecution or any claim for damages therefor, and relet the
premises and receive the rent therefor on Tenant's account, which rent Landlord
shall first apply to any and all expenses it incurred in so reletting the
premises and then to the satisfaction of Tenant's obligations hereunder; and
Tenant agrees to pay to the Landlord on demand any deficiency between the
rental received from reletting (after first covering Landlord's expenses of
reletting) and the rental reserved hereunder.
In the event Tenant fails to pay any installment of rent hereunder
within then (10) days of the date when such installment is due and as due, to
help defray the additional cost to Landlord for processing such late payments
Tenant shall pay to Landlord on written demand a late charge in an amount equal
to five percent (5%) of such installment; and the failure to pay such amount
within five (5) days after written demand therefor shall be an event of default
hereunder. The provision for such late charge shall be in addition to all of
Landlord's other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Landlord's remedies in any
manner.
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All rights and remedies of Landlord and Tenant herein existing at law
or in equity are cumulative and the exercise of one or more rights or remedies
shall not be taken to exclude or waive the right to the exercise of any other.
No act or thing done by the Landlord or its agents during the term hereby
granted shall be deemed a termination of this lease or an acceptance of the
surrender of the premises, and no agreement to terminate this lease or accept a
surrender of said premises shall be valid unless such agreement is in writing
and signed by Landlord. No waiver by Landlord or Tenant 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.
18. Mortgages. Tenant accepts this lease subject and subordinate
to any mortgage(s) and/or deed(s) of trust now or at any time hereafter
constituting a lien or charge upon the premises or the improvements situated
thereon, provided, however, that if the mortgagee, trustee, or holder of any
such mortgage or deed of trust elects to have Tenant's interest in this lease
superior to any such instrument, then by notice to Tenant from such mortgagee,
trustee or holder, this lease shall be deemed superior to such lien, whether
this lease was executed before or after said mortgage or deed of trust, and
provided further that Landlord shall agree to use reasonable good faith efforts
to obtain an agreement from such holder of the mortgage or deed of trust that,
so long as Tenant is not in default under this lease, that Tenant's possession
of the premises will not be disturbed. Tenant shall at any time hereafter on
demand execute any instruments, releases or other documents which may be
reasonably required by any mortgagee for the purpose of subjecting and
subordinating this lease to the lien of any such mortgage. If the interests of
the Landlord under this lease shall be transferred by reason of foreclosure or
other proceedings for enforcement of any mortgage or deed of trust on the
premises, Tenant shall be bound to the transferee (sometimes called the
"Purchaser") at the option of the Purchaser, under the terms, covenants, and
conditions of this lease for the balance of the term remaining, including any
extensions and renewals, with the same force and effect as if the Purchaser
were Landlord under this lease, and if requested by the Purchaser, Tenant
agrees to attorn to the Purchaser, including the mortgagee under any such
mortgage if it be the Purchaser, as its Landlord.
19. Mechanic's Liens. Tenant shall have no authority, express or
implied, to create or place any lien or encumbrance of any kind or nature
whatsoever upon, or in any manner to bind, the interest of Landlord in the
premises. Tenant covenants and agrees that it will save and hold Landlord
harmless from any and all loss, cost or expense based on or arising out of
asserted claims or liens against the leasehold estate or against the right,
title and interest of the Landlord in the premises or under the terms of this
lease.
20. Notices.
(a) All rent and other payments required to be made by
Tenant to Landlord hereunder shall be payable to Landlord at the address
hereinbelow set forth or at such other address as Landlord may specify from
time to time by written notice delivered in accordance herewith.
Notwithstanding anything contained herein to the contrary, Tenant's obligation
to pay rent and any other amounts to Landlord under the terms of this lease
shall not be deemed satisfied until such rent and other amounts have been
actually received by Landlord.
(b) All payments required to be made by Landlord to
Tenant hereunder shall be payable to Tenant at the address hereinbelow set
forth, or at such other address within the continental United States as Tenant
may specify from time to time by written notice delivered in accordance
herewith. Amounts owing to Tenant under the terms of this lease shall not be
deemed satisfied until actually received by Tenant.
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(c) Any notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered (whether actually received
or not) two (2) days after the date the same is deposited in the United States
Mail, postage prepaid, Certified or Registered Mail, return receipt requested,
addressed to the parties hereto at the respective addresses set out below, or
at such other address as they have theretofore specified by written notice
delivered in accordance herewith:
LANDLORD: TENANT:
____________ Mission Party Ice, Inc.
000 Xxx Xxxx X.X. Xxx 00000
Xxx Xxxxxxx, Xxxxx 00000 Xxx Xxxxxxx, Xxxxx 00000
Attn: X. X. Xxxxx III Attention: President
All parties included within the terms "Landlord" and "Tenant", respectively,
shall be bound by notices given in accordance with the provisions of this
paragraph to the same effect as if each had received such notice.
21. Miscellaneous.
A. Words of any gender used in this lease shall be held
and construed to include any other gender, and words in the singular number
shall be held to include the plural, unless the context otherwise requires.
B. The terms, provisions and covenants and conditions
contained in this lease shall apply to, inure to the benefit of, and be binding
upon, the parties hereto and upon their respective heirs, legal
representatives, successors and permitted assigns, except as otherwise herein
expressly provided. Landlord shall have the right to assign any of its rights
and obligations under this lease in connection with a sale of the premises to a
third party, and, upon execution of an assumption of Landlord's obligations
hereunder by such transferee, Landlord shall be relieved of any further
obligations under this Lease, and the term "Landlord" shall thenceforth mean
such transferee.
C. Each party agrees to furnish to the other, promptly
upon demand, a corporate resolution, proof of due authorization by partners, or
other appropriate documentation evidencing the due authorization of such party
to enter into this lease.
D. The captions inserted in this lease are for
convenience only and in no way define, limit or otherwise describe the scope or
intent of this lease, or any provision hereof, or in any way affect the
interpretation of this lease.
E. Landlord shall not be required to perform any
covenant or obligation in this lease, or be liable in damages to Tenant, so
long as the performance or the nonperformance of the covenant or obligation is
delayed, caused or prevented by an "Act of God," "force majeure," or Tenant. An
"Act of God" or "force majeure" is defined for the purpose of this lease as
strikes, lock-outs, sit-downs, material or labor restrictions by any
governmental authority, unusual shortages of material, unusual transportation
delays, riots, floods, wash-outs, explosions, earthquakes, fire storms, weather
(including wet grounds or inclement weather which prevents construction), acts
of the public enemy, wars, insurrections and any other cause not reasonably
within the control of Landlord and which by the exercise of due diligence
Landlord is unable, wholly or in part, to prevent or overcome.
F. This lease may not be altered, changed or amended
except by an instrument in writing signed by both parties hereto.
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G. All obligations of Tenant hereunder not fully
performed as of the expiration or earlier termination of the term of this lease
shall survive the expiration or earlier termination of the term hereof,
including without limitation all payment obligations with respect to taxes and
insurance and all obligations concerning the condition of the premises. Upon
the expiration or earlier termination of the term hereof, and prior to Tenant
vacating the premises, Tenant shall pay to Landlord any amount reasonably
estimated by Landlord as necessary to put the premises, including without
limitation all heating and air conditioning systems and equipment therein, in
good condition and repair, normal wear and tear excepted. Tenant shall also,
prior to vacating the premises, pay to Landlord the pro rated amount, as
estimated by Landlord, of Tenant's obligation hereunder for real estate taxes
and insurance premiums for the year in which the lease expires or terminates.
All such amounts shall be used and held by Landlord for payment of such
obligations of Tenant hereunder, with Tenant being liable for any additional
costs therefor upon demand by Landlord, or with any excess to be returned to
Tenant after all such obligations have been determined and satisfied as the
case may be.
H. If any clause or provision of this lease is illegal,
invalid or unenforceable under present or future laws effective during the term
of this lease, then and in that event, it is the intention of the parties
hereto that the remainder of this lease shall not be affected thereby, and it
is also the intention of the parties to this lease that in lieu of each clause
or provision of this lease that is illegal, invalid or unenforceable, there be
added as a part of this lease contract a clause or provision as similar in
terms to such illegal, invalid or unenforceable clause or provision as may be
possible and be legal, valid and enforceable.
I. This lease shall not be valid or binding unless and
until it is fully and duly executed by Landlord and Tenant and shall not be
effective until the Commencement Date.
J. All references in this lease to "the date hereof" or
similar references shall be deemed to refer to the date of execution set forth
below.
K. If Landlord shall be in default under this lease and
as a consequence, Tenant shall recover a money judgment against Landlord, such
judgment shall be satisfied only out of the right, title, and interest of
Landlord in the premises, as the same may then be encumbered, and neither
Landlord nor any person or entity comprising Landlord shall be liable for any
deficiency. In no event shall Tenant have the right to levy execution against
any property of Landlord nor any person or entity comprising Landlord other
than its interest in the premises as herein expressly provided.
L. The time of the performance of all the covenants,
conditions and agreements of this lease is of the essence.
M. It is expressly agreed by Tenant, as a material
consideration for the execution of this lease, that this lease, with its
specific references to written extrinsic documents, if any, is the entire
agreement of the parties; that there are, and were, no verbal representations,
warranties, understandings, stipulations, agreements or promises pertaining to
this lease or to the expressly mentioned written extrinsic documents, if any,
not incorporated in writing in this lease.
N. Tenant shall not have the right to withhold or to
offset rent or terminate this lease except as expressly provided herein. Tenant
waives and releases any and all statutory liens and offset rights.
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O. Neither Landlord nor Tenant has contacted any real
estate broker, finder or similar person in connection with this lease. With
respect to this lease and the payment of brokers' commissions, Landlord agrees
to indemnify and hold harmless Tenant from and against any liability or claim,
whether meritorious or not, arising with respect to any broker whose claim
arises by, through, or on behalf of Landlord. With respect to this lease and
the payment of brokers' commissions, Tenant agrees to indemnify and hold
harmless Landlord from and against any liability or claim, whether meritorious
or not, arising with respect to any broker, whose claim arises by, through or
on behalf of Tenant.
22. Hazardous Substances.
A. As used herein, "Hazardous Substances" means any
substance that has toxic, corrosive, flammable or reactive properties and that
is regulated by the State of Texas or the United States Government. Hazardous
Substances include, but are not limited to, asbestos, polychlorobiphenyls
("PCBs"), flammable explosives, radioactive materials, chemical carcinogens,
pollutants, effluent, contaminants, emissions and petroleum.
B. Tenant hereby agrees, warrants and represents that
Tenant, its agents, employees or contractors have not prior to the date hereof,
and will not during the term hereof, knowingly store, place or discard
Hazardous Substances in the premises, other than cleaning supplies or other
materials customarily used by Tenant in the course of its operations which may
constitute Hazardous Substances which will at all times be stored and discarded
in compliance with any applicable laws. Notwithstanding the immediately
preceding sentence, in the event Tenant, its agents, employees or contractors
bring upon, store on or in, use on or in, or install in, the premises any
materials that are then known to be, or are later classified as, Hazardous
Substances, then Tenant shall, upon written demand from Landlord, promptly
proceed to remove such Hazardous Substances, at Tenant's sole cost and expense,
in accordance with all applicable governmental regulations. Tenant hereby
agrees to indemnify and hold Landlord harmless from and against and to
reimburse Landlord with respect to any and all claims, demands, causes of
action, loss, damage, liabilities, cost and expenses (including attorneys' fees
and court costs) of any and every character, known or unknown, fixed or
contingent, asserted against or incurred by Landlord at any time and from time
to time by reason of, or arising out of, the presence of any Hazardous
Substances within the premises or in, on or under the building, or the
premises, the presence of which was caused by an act or omission of Tenant.
Tenant's agreement to so indemnify and hold harmless Landlord and Tenant's
other obligations under this paragraph shall survive the termination of this
Lease.
C. Landlord hereby agrees, warrants and represents that
Landlord, its agents, employees or contractors have not prior to the date
hereof, and will not during the term hereof, knowingly store, place or discard
Hazardous Substances in the premises, other than cleaning supplies or other
materials customarily used by Landlord in the course of its operations which
may constitute Hazardous Substances which will at all times be stored and
discarded in compliance with any applicable laws. Notwithstanding the
immediately preceding sentence, in the event Landlord, its agents, employees or
contractors bring upon, store on or in, use on or in, or install in, the
premises any materials that are then known to be, or are later classified as,
Hazardous Substances, then Landlord shall, upon written demand from Tenant,
promptly proceed to remove such Hazardous Substances, at Landlord's sole cost
and expense, in accordance with all applicable governmental regulations.
Landlord hereby agrees to indemnify and hold Tenant harmless from and against
and to reimburse Tenant with respect to any and all claims, demands, causes of
action, loss, damage, liabilities, cost and expenses (including attorneys' fees
and court costs) of any and every character, known or unknown, fixed or
contingent, asserted against or incurred by Tenant at any time and from time to
time by reason of, or arising out of, the presence of any Hazardous Substances
within the premises or in, on or under
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the building, or the premises, the presence of which was caused by an act or
omission of Landlord. Landlord's agreement to so indemnify and hold harmless
Tenant and Landlord's other obligations under this paragraph shall survive the
termination of this Lease.
23. Governing Law. The interpretation and construction of this Lease,
and all disputes, controversies or claims arising out of or relating to this
Lease, or the breach, termination or invalidity thereof, shall be governed by
the laws of the State of Texas applicable to contracts made and to be performed
entirely within the State of Texas, without regard to the principles of the
conflicts of laws.
24. Enforcement; Venue. In the event either party shall seek
enforcement of any covenant, warranty or other term or provision of this Lease
or seek to recover damages for the breach thereof, the party which prevails in
such proceedings shall be entitled to recover reasonable attorneys' fees and
expenses actually incurred by it in connection therewith. The parties hereto
agree that this Lease is performable in Bexar County, Texas and that the sole
and exclusive venue for any proceeding involving any claim arising under or
relating to this Lease shall be in Bexar County, Texas.
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EXECUTED to be effective as of this ______ day of ____________, 199_ .
"LANDLORD" "TENANT"
MISSION PARTY ICE, INC.
a Texas corporation
By:
--------------------------- -----------------------------
Name:
---------------------------
Title:
--------------------------
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EXHIBIT "A"
PROPERTY DESCRIPTION
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