1
Exhibit 10.29
LEASE AGREEMENT
THE STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS
COUNTY OF XXXXXX )
THIS LEASE AGREEMENT, made and entered into effective this 17 day of
March, 1997, (the "Effective Date") by and between XXXXX X. XXXXXXX,
hereinafter called "Landlord", and NES ACQUISITION CORP., hereinafter called
"Tenant".
W I T N E S S E T H
In consideration of the rent hereinafter stipulated and agreed to be paid
by Tenant to Landlord, and of the terms, covenants, and conditions herein
contained and on the part of the Tenant to be kept, observed and performed, the
Landlord has LEASED, LET and DEMISED, and does by these presents LEASE, LET and
DEMISE unto the Tenant the following described property for the period of time,
subject to and upon the terms, covenants and conditions hereinbelow set forth,
to-wit:
1. DESCRIPTION OF LEASED PREMISES. The leased premises (the "Leased
Premises"), known as 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000 are described as
follows:
See Exhibit "A" attached hereto and made a part hereof for all purposes.
In addition to the Leased Premises, Landlord hereby leases and grants to
Tenant (a) all rights, easements and appurtenances, if any, belonging or
appertaining to the Leased Premises by reference, and (b) all rights, title and
interest of Landlord in and to any and all roads, streets, alleys and ways, if
any, bounding the Leased Premises. The parking areas, driveways, exits and
entrances of the Leased Premises may not be modified, reduced and or relocated
without the consent of Tenant.
- 1 -
2
2. TERM OF LEASE. The initial term of this Lease is five (5) years (the
"Terms"), beginning on Effective Date unless sooner terminated or extended
under the terms hereof.
3. EXTENSIONS. Tenant shall have the option of extending the Term for
four (4) additional periods of five (5) years each (individually, an
"Extension" and collectively, the "Extensions"), commencing at midnight on the
date on which the Term or any Extension expires. Tenant shall give Landlord
written notice exercising the applicable Extension not later than the date
which is 90 days prior to the expiration of the Term or the Extension, as the
case may be.
The Rent for each Extension, subject to any adjustment pursuant to
subparagraph (a) above, is as follows:
LEASE YEAR MONTHLY RENT
---------- ------------
06-10 $4,180.00
11-15 $4,598.00
16-20 $5,057.00
21-25 $5,563.00
(10% increase over each prior 5 year rate).
4. RENT. During the Term, Tenant covenants and agrees to pay to Landlord
monthly rent in the amount of $3,800.00 ("Monthly Rent"). All such rental
payments shall be payable in lawful money of the United States of America,
monthly in advance, on or before the first day of each month. If the Effective
Date of this Lease is other than on the first of a calendar month, the rental
for the portion of the initial calendar month in which this Lease is in effect
shall be prorated based upon 30 days in a calendar month. In the event the
final month of this Lease is other than a full calendar month, the final
month's rent shall likewise by prorated. Should Tenant fail to pay such
- 2 -
3
Monthly Rent, charges or other sums due hereunder within ten (10) days of the
due date thereof provided in this Lease, Tenant further agrees to pay to
Landlord as a late charge to compensate Landlord for the added administrative
expense caused by such late payment a one time sum equal to 5% of any
outstanding balance of Monthly Rent (or other amounts) required to be paid
under this Lease. Tenant shall also pay to Landlord as additional rental under
this Lease any excise, sales, privilege or gross receipts tax levied, if any,
on rents or charges paid hereunder.
5. USE OF LEASED PREMISES. Tenant may use the Leased Premises only in a
lawful manner for: (i) the operation of an equipment rental and sales
business, or (ii) any other lawful use, provided Tenant receives the consent of
Landlord which consent shall not be unreasonably withheld, conditioned, or
delayed.
6. REAL ESTATE AND OTHER TAXES. Landlord shall pay before they become
delinquent real estate taxes imposed during the Term and any Extensions upon or
against the Leased Premises ("Real Estate Taxes"). Landlord shall be solely
responsible for payment of any and all penalties imposed for any late payment.
Tenant shall, within thirty (30) days upon receipt from Landlord of a copy of
the paid tax xxxx and an invoice, reimburse Landlord for payment of the Real
Estate Taxes.
Real Estate Taxes for the year in which the Term shall begin and the year
in which the Lease shall terminate shall be prorated so that Tenant shall pay
only those portions thereof which corresponds with the portion of said years as
are within the Term or the current Extension. Nothing herein contained shall
require Tenant to pay monthly corporation, franchise, income, estate, gift or
inheritance taxes imposed on Monthly Rent which may be levied or assessed
against landlord, fee owner, or their successor in title.
- 3 -
4
7. PROPERTY INSURANCE. Tenant shall carry its own insurance on any of its
property that may be located on the demised premises, and it is further agreed
that LANDLORD SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DAMAGE WHATSOEVER
CAUSED TO ANY PROPERTY OF TENANT LOCATED ON THE DEMISED PREMISES except to the
extent such damage is covered by insurance or caused by the negligence or
willful act of Landlord or Landlord's agent, invitee, or licensee. Tenant
shall pay for and maintain in effect fire and extended coverage on all
improvements on the Leased Premises in the sum as required by Landlord but not
exceeding replacement cost of the improvements and liability insurance as
approved by Landlord in the amount of at least $1,000,000.00 per person,
$3,000,000.00 per incident, and $3,000,000.00 property damage with Landlord and
Tenant shown as insured parties. Each party hereby waives any rights against
the other for damages to property to the extent such loss is covered by
insurance and agrees that insurance policies of the parties shall contain a
waiver of subrogation rights as to the other party.
8. CONDITION OF PREMISES: REPAIRS. The Leased Premises are leased to the
Tenant in the CONDITION AS IS. Taking possession of the Leased Premises by
Tenant shall be conclusive evidence as against Tenant that the Leased Premises
are in satisfactory condition when possession was so taken. Except as stated
herein, no promises of Landlord to alter, remodel, improve, repair, decorate or
clean the Leased Premises or any part thereof have been made, and no
representation respecting the condition of the Leased Premises, has been made
to Tenant by or on behalf of Landlord. Except for any damage resulting from
the negligence or willful acts of Landlord or Landlord's agents, Tenant shall
at its own expense keep the improvements located on the Leased Premises in good
operating condition, including replacement if necessary, and tenantable
condition
- 4 -
5
together with the air conditioning and heating system and shall promptly and
adequately repair all damage to such Leased Premises, including but not limited
to, replacing or repairing all damaged or broken glass, fixtures and
appurtenances.
Landlord, its officers, agents and representatives all have the right to
enter all parts of the Leased Premises during regular business hours and upon
forty-eight (48) hours notice to Tenant to inspect the Leased Premises and
Tenant shall not be entitled to any abatement or reduction of rent by reason
thereof as long as such inspection is done in a manner as to not interfere with
Tenant's business operations.
Tenant shall be responsible for installation, maintenance and repair of
any security system desired for the Leased Premises as well as for the
electrical and plumbing systems within the Leased Premises and for the air
conditioning and heating system. Tenant, at its sole expense, shall promptly
replace and maintain any lighting located on the Leased Premises. Tenant shall
maintain in good operating condition any water fixtures and plumbing within the
Leased Premises and shall be solely responsible for any additional cost
incurred due to any leaks from fixtures within the Leased Premises.
9. INSPECTION OF THE PREMISES. Tenant hereby agrees and represents that
Tenant has inspected the Leased Premises and accepts the Leased Premises in the
condition now existing, AS IS.
10. UTILITIES. Tenant shall make Tenant's own contracts and shall pay for
all utilities used or consumed by Tenant in, on or about the Leased Premises
including water service and sanitary sewer service provided to the Leased
Premises. Tenant shall be solely responsible for any telephone service and any
other service or utility desired by Tenant. Landlord shall not be
- 5 -
6
responsible for any damages or losses incurred by Tenant for the failure of
Landlord to furnish any service or utility to the Tenant as long as Landlord
does not maliciously or in bad faith cause such interruption of services.
Furthermore, at the termination of this Lease, Tenant shall be responsible for
the closing out of Tenant's accounts with the various utilities companies for
the services supplied to the Leased Premises, and shall be solely responsible
for the payment of said accounts. Upon vacating the premises, Tenant shall
leave the electrical, water and sewer services in place and intact. Any
improvements and additions to the electrical or plumbing services to the Leased
Premises made during the Lease, whether by Tenant or anyone else, shall become
part of the Leased Premises and remain with the Leased Premises upon Tenant
vacating the premises.
11. COMPLIANCE WITH ORDINANCES, ETC. Tenant agrees that Tenant will
promptly execute and fulfill all ordinances, regulations, and laws of the
United States, the State of Texas, County, City and other governmental
agencies, boards or departments applicable to Tenant's use of the Leased
Premises and all ordinances or orders imposed by the Board of Health,
Sanitation and Police or Fire Departments for the correction, prevention, and
abatement of nuisances in or upon or connected with the activities conducted by
the Tenant in or upon the Leased Premises during the term of this Lease and at
all times while Tenant is in possession of the Leased Premises.
12. ASSIGNMENT, SUB-LETTING PROHIBITED. Tenant shall have the
unrestricted right to assign, sublet, license, or transfer any or all of its
rights and privileges under this Lease, provided that no such transfer shall
operate to relieve Tenant of Tenant's obligations under the Lease.
13. DAMAGE BY FIRE OR OTHER CASUALTY. If the Leased Premises shall be
damaged by fire or other casualty resulting from any fault, negligence, or
willful act of Tenant, its
- 6 -
7
agents, employees or invitees, such damage shall be repaired by and at the
expense of Tenant under the direction and supervision of Landlord and rent
shall continue without abatement.
If in the last year of a Term or any Extension, if applicable,
improvements on the Leased Premises should be so badly damaged by fire or other
casualty as to make the Leased Premises untenantable, then, Landlord or Tenant
shall have the option to terminate this Lease by written notice delivered to
the other party within thirty (30) days following the event of such damage or
destruction, in which event neither party hereto shall thereafter have any
further future obligations hereunder. In any other event, unless mutually
agreed to the contrary, this Lease shall continue in force and effect, in which
event Landlord shall promptly and diligently repair and restore the damaged or
destroyed portions of the Leased Premises to substantially the same condition
existing prior to such damage or destruction. Should Landlord fail to
substantially complete repair or rebuilding of such improvements within 180
days of such damage, Tenant shall have the right to terminate this Lease by
notice to Landlord within 30 days after such 180 days period. For the period
beginning on the date that the Leased Premises were rendered untenantable to
the date of restoration of the Leased Premises to substantially the same
condition existing prior to such damage, the Monthly Rent payable hereunder
shall be proportionately abated.
14. ATTORNEY'S FEES. In the event Tenant shall make default in the
payment of Monthly Rent or other sum of money as the same shall become due and
payable to Landlord hereunder, and shall remain in default for a period of ten
days after the applicable cure period, and such rent or other sum of money is
placed in the hands of an attorney for collection or is collected through suit,
bankruptcy or other judicial proceeding, then Tenant agrees to pay to Landlord
all reasonable attorney's fees and costs incurred by Landlord due to such
non-payment.
- 7 -
8
15. DEFAULT, TERMINATION, ETC. It is further covenanted and agreed by the
parties hereto that: (i) if said Tenant shall fail to use said premises only
in a lawful manner as stated herein; or (ii) if said Tenant shall fail to pay
the rental herein stipulated as same becomes due; or (iii) if Tenant shall
neglect or fail to perform and observe any of the covenants and agreements
contained in this Agreement which are on Tenant's part to be performed, then on
the happening of any one or more of these events, the Landlord, or those
claiming under Landlord, may (i) for monetary defaults, upon ten (10) days
written notice to Tenant and the noncuring of such default by the end of such
ten (10) days, and (ii) for non-monetary defaults, upon thirty (30) days
written notice to Tenant and the noncuring of such default by the end of such
thirty (30) days, immediately or at any time thereafter, and without further
notice or demand, and with or without legal action or suit, terminate Tenant's
rights to possession under this Lease, and enter upon and into the premises
herein demised, or any part thereof, and repossess the same, and expel said
Tenant or those claiming under Tenant, and remove Tenant's effects if
necessary, without being deemed guilty of any manner of trespass, all and any
claim of damages for and by reason hereby expressly waived and without
prejudice to any remedies which might be otherwise used for the collection of
arrearages for rent or repossession of said premises. Upon termination of
Tenant's right to possession of the Leased Premises, Tenant shall have ten (10)
days to vacate the Leased Premises, leaving the Leased Premises in broom-clean
condition and in as good a condition as at the initiation of this Lease.
Landlord is authorized to remove any personal property of Tenant remaining on
the Leased Premises upon termination of Tenant's right to possession of the
Leased Premises and to place same in the name of Tenant in any storage facility
in the county in which the Leased Premises are located, or to otherwise dispose
of such goods as abandoned property without any liability to Tenant. If the
Tenant shall abandon or
- 8 -
9
vacate said premises, or be evicted therefrom on account of any default herein,
Landlord shall be at liberty, if Landlord sees fit and thinks it advisable, to
re-let same, and if sufficient rental shall not be realized on such re-letting
to satisfy the rent herein reserved, the Tenant agrees to satisfy any
deficiency that may arise therefrom, for all of which the hereinafter described
liens are expressly reserved. Landlord shall also have the option of
terminating this Lease upon the default of Tenant and should such premises not
be returned to Landlord in as good as condition as upon the date rentals began
to accrue under this Lease, Tenant shall be responsible for all such repair and
restoration costs in addition to all accrued and unpaid rentals upon such
termination. Notwithstanding any provision to the contrary, Tenant's
obligation to return in "as a good a condition" shall take into account
ordinary wear with further consideration of Tenant's maintenance obligation
hereunder. Furthermore, as an additional cumulative remedy, in the event
notice of default has been given to Tenant by Landlord and such Default has not
been cured, Landlord shall be entitled and is hereby authorized, without any
further notice to Tenant whatsoever, to enter the Leased Premises and to
change, alter and/or modify the door locks and gate locks on the Leased
Premises and to exclude Tenant from such Leased Premises until Tenant cures
such default. Exercise by Landlord of any of the remedies granted under this
section or otherwise available shall not be deemed to be an acceptance of
surrender of the Leased Premises by Tenant, whether by agreement or by
operation of law, it being understood that such surrender can be effected only
by the written agreement of Landlord. Notwithstanding the foregoing, under no
circumstances shall Landlord have the right to accelerate rent.
16. LIENS. Except for any mortgage, deed of trust or similar instrument
executed by Landlord, Landlord and Tenant covenant each with the other not to
permit any judgment, attachment
- 9 -
10
and/or lien (an "Encumbrance") to be filed against the Leased Premises. Should
any judgment, attachment and/or lien of any nature be filed against the Leased
Premises, the party from whose fault or alleged debt such lien arises shall
within thirty (30) days cause such Encumbrance to be removed by substitution of
collateral or otherwise.
17. SUBROGATION OF LANDLORD'S LIEN. In the event Tenant, its subtenants
or assigns acquire and/or leases personal property to be installed, rented
from, and used upon the Leased Premises subject to a conditional sales
contract, chattel mortgage or other security agreement or lease, (the "Superior
Lien"), Landlord hereby subrogates to the Superior Lien any claim arising by
way of any landlord's lien (whether created by statute, contract or otherwise)
with respect to such personal property and agrees to execute and deliver to any
such secured creditor and/or lessor a subrogation of any lien Landlord may have
upon such personal property. Such subrogation will be on a form provided by
Tenant authorizing the secured creditor and/or lessor to enter upon the Leased
Premises, in accordance with the terms of this Lease, and remove such personal
property in the event of default under the terms of the conditional sales
contract, chattel mortgage, security agreement and/or lease. This Section
shall not be interpreted as creating a lien in favor of Landlord. Provided
however, such subrogation shall not be effective as to any rentals or storage
costs occurring thirty (30) days after the holder of the Superior Lien is given
notice of termination of the Tenant's right to possession of the Leased
Premises.
18. CONDEMNATION. If while this Lease is in effect there shall be taken
by exercise of the power of eminent domain any part of the Leased Premises, all
sums awarded or agreed upon between Landlord and the condemning authority for
the taking of the Leased Premises, whether as damages or as compensation, shall
be the property of Landlord. Should Landlord receive
- 10 -
11
condemnation funds for the taking of improvements or personal property which
are paid for by Tenant, Landlord shall pay such funds to Tenant to the extent
of the net book value of such depreciable improvements. Tenant shall be
entitled to terminate this Lease if such portion taken by condemnation renders
the Leased Premises unsuitable for the purposes utilized by Tenant prior to
such condemnation. If this Lease is terminated due to condemnation, rental
shall be payable up to the date that possession is taken by the condemning
authority, and Landlord will refund to Tenant any prepaid unaccrued rent less
any sum then owing by Tenant to Landlord. Landlord shall have the option to
continue this lease after any partial condemnation only in the event the
remaining Leased Premises are suitable for the purposes utilized by the Tenant
prior to such condemnation with reasonable adjustment to the rental rate.
19. NON-WAIVER. Neither acceptance of rent or any other amount due
hereunder by Landlord nor failure to complain of any action, non-action or
default of Tenant, whether singular or repetitive, shall constitute a waiver of
any of Landlord's rights hereunder. Waiver by Landlord of any right for any
default by Tenant shall not constitute a waiver of any right for either a
subsequent default of the same obligation or any other default. No act or
thing done by Landlord or its agents or representatives shall be deemed to be
an acceptance of surrender of the Leased Premises and no agreements to accept a
surrender of the Leased Premises shall be valid unless it is in writing and
signed by a duly authorized officer or agent of Landlord.
20. HOLDING OVER. If Tenant should remain in possession of the Leased
Premises after the expiration or termination of this Lease, without the
execution by Landlord and Tenant of a new lease, then Tenant shall be deemed to
be occupying the Leased Premises as a tenant-at-
- 11 -
12
sufferance subject to all the covenants and obligations of this Lease, provided
however, the monthly rent shall be one and one-half the rental rate in effect
on termination of the Lease.
21. NOTICES. Any and all notice which must or which may be given by the
Landlord to the Tenant or by the Tenant to the Landlord under any of the
provisions of this Agreement must be in writing and may be served by United
States Certified or Registered Mail, with Return Receipt Requested, or by
delivery in person, unless otherwise required under any provision hereof.
Notices mailed to the Landlord shall be addressed to Landlord at the address
stated below the signature of Landlord hereinbelow, or to such other address as
Landlord may at any time, or from time to time, hereafter designate by written
notice thereof to the Tenant, and notices mailed to Tenant shall be addressed
to Tenant at the address stated below the signature of Tenant hereinbelow, or
at such address as Tenant may, at any time, or from time to time, hereafter
designate by written notice thereof to the Landlord.
22. BINDING ON HEIRS, ETC. The agreements, conditions, covenants, and
terms herein contained, shall in every case, apply to, be binding upon and
inure to the benefit of the respective parties hereto, their heirs, executors,
administrators, successors and assigns, with the same force and effect as is
specifically mentioned in each instance where a party hereto is named.
23. ASSIGNMENT BY LANDLORD. Landlord shall have the right to transfer and
assign, in whole or in part, all its rights and obligation hereunder and in the
Center and property referred to in this Lease, and in such event and upon its
transferee's assuming Landlord's obligations hereunder, no further liability or
obligation shall thereafter accrue against the present Landlord under this
Lease.
- 12 -
13
24. LAW GOVERNING AND VENUE. This Lease shall be governed by and
construed in accordance with the laws of the State of Texas and venue for all
purposes shall be in Xxxxxx County, Texas.
25. DEPOSIT. Tenant shall deposit with Landlord the sum equal to one
month's rental upon execution of this Lease as security for all of Tenant's
obligations under this Lease. Tenant shall not have the right to use this sum
as payment of the last month's rent. No interest shall accrue on this deposit.
26. INDEMNIFICATION.
(a) Except to the extent covered by insurance, Landlord hereby indemnifies
and holds Tenant, Tenant's nominees, officers, directors, agents, employees,
successors and assigns harmless from and against any and all claims, demands,
liabilities, and expenses, including attorneys' fees and litigation expenses,
arising from (i) the negligence or willful acts of Landlord or its agents,
employees, or contractors occurring on the Leased Premises, or (ii) the
presence of Hazardous Substances (hereafter defined) or materials on the Leased
Premises prior to effective Date, except to the extent caused by Tenant's
negligence or willful misconduct. In the event any action or proceeding shall
be brought against Tenant by reason of any such claims, Landlord shall defend
the same at Landlord's expense by counsel selected by Tenant.
(b) Tenant hereby indemnifies and holds Landlord, Landlord's nominees,
officers, directors, agents, employees, successors and assigns harmless from
and against any and all claims, demands, liabilities, and expenses, including
attorneys' fees and litigation expenses, arising from (i) the negligence or
willful acts of Tenant or its agents, employees, invitees, or contractors
occurring on the Leased Premises after Effective Date, or (ii) the presence of
Hazardous Substances or
- 13 -
14
Materials on the Leased Premises after Effective Date, except to the extent
caused by Landlord's negligence or willful misconduct. In the event any action
or proceeding shall be brought against Landlord by reason of any such claims,
Tenant shall defend the same at Tenant's expense by counsel selected by
Landlord.
27. NON-DISTURBANCE AND ATTORNMENT: MEMORANDUM OF LEASE. Landlord, within
thirty (30) days after the Effective Date, will obtain from every senior
landlord, mortgagee and holder of a deed of trust upon the Leased Premises,
(collectively "Senior Interest Holders") an agreement in recordable form
acceptable to Tenant wherein the Senior Interest Holders agree not to disturb
Tenant's possession of the Leased Premises or deprive Tenant of any rights or
increase any of its obligations under this Lease, provided Tenant is not in
default of its obligations under this Lease, otherwise Tenant may terminate
this Lease. Landlord agrees, upon request of Tenant, to execute and deliver to
Tenant a memorandum of this Lease in recordable form acceptable to Tenant.
28. LANDLORD'S TITLE AND QUIET ENJOYMENT. Landlord represents and
warrants that Landlord is seized in fee simple title to the Property, free,
clear and unencumbered except as otherwise disclosed herein. Landlord
covenants that so long as Tenant fulfills the conditions and covenants required
of it to be performed. Tenant will have peaceful and quiet possession thereof.
Landlord further represents and warrants that it has good right, full power
and lawful authority to enter into the Lease for the Term and any Extensions.
29. REPRESENTATIONS AND WARRANTIES OF LANDLORD.
(a) Hazardous Substances. Except in accordance with applicable
governmental regulations and in accordance with ordinary business practice, the
Property does not presently
- 14 -
15
contain and is free from all hazardous substances and/or wastes, toxic and
nontoxic pollutants and contaminants including, but not limited to, petroleum
products and asbestos (collectively, "Hazardous Substances"). Landlord has not
received any notification from any federal, state, county or city agency or
authority relating to Hazardous Substances, in or near the Property. Neither
party shall cause or permit any Hazardous Substances to be brought upon, kept
or used in or about the Property by such party, its agents, employees,
contractors, invitees, tenants, subtenants or licensees without the prior
written consent of the other party. Neither party shall unreasonably withhold
its consent thereto as long as such party demonstrates to the other party's
reasonable satisfaction that each such Hazardous Substance is necessary or
useful to its business or to the business of its agents, employees,
contractors, invitees, tenants, subtenants or licensees, and will be used, kept
and stored in a manner that complies with all applicable governmental laws and
regulations. If consented to, the requesting party shall promptly deliver to
the other party true and complete copies of all notices received by such party
from any governmental authority with respect to the generation, storage or
disposal of such Hazardous Substances.
(b) Litigation. There are no claims, causes of action or other litigation
or proceedings pending or, to the best of landlord's knowledge, threatened in
respect to the ownership, operation or environmental condition of the Property
or any party hereof, except for claims which are fully insured and as to which
the insurer has accepted defense without reservation.
(c) Violation. There are no violations of any health, safety, pollution,
zoning or other laws, ordinances, rules or regulations including, without
imitation, the ADA with respect to any portion of the Property which have not
been heretofore entirely corrected.
- 15 -
16
(d) Zoning. The Property is currently zoned (if applicable) to allow the
use of the Leased premises for Tenant's Use.
(e) Authority. Landlord has full capacity, right, power and authority to
executed, deliver and perform this Lease and all documents to be executed by
Landlord pursuant hereto, and all required action and approvals therefor have
been duly taken and obtained. The individual signing this Lease and all other
documents executed pursuant hereto on behalf of Landlord is duly authorized.
This Lease and all documents to be executed pursuant hereto by Landlord are
binding upon and enforceable against Landlord in accordance with their
respective terms, and the transaction contemplated hereby will not result in a
breach of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement, or other agreement to which Landlord or the Leased
premises is subject or by which Landlord or the Leased Premises is bound.
(f) Notwithstanding any provision to the contrary, Landlord shall be
responsible for the structural integrity of the present building(s) on the
Leased Premises as long as any failure of such structural integrity is not due
to a failure to properly maintain. Such items of structural integrity shall
include the exterior walls, concrete foundation, and roof, provided however,
Landlord shall not be responsible for normal maintenance of such items.
30. ESTOPPEL CERTIFICATE. Tenant and landlord agree at any time and from
time to time, upon not less than twenty (20) business days' prior written
request from the other party, to execute, acknowledge and deliver to the
requesting party a statement in writing, in form and content reasonably
acceptable to the requesting party, an estoppel certificate. In the event
either party fails to execute and deliver any such instrument within the
foregoing time period, the delinquent party
- 16 -
17
shall be deemed to have acknowledged and agreed with and to the matters set
forth in such certificate.
31. MISCELLANEOUS.
(a) If either party is delayed or prevents from performing any of its
obligations under this Lease by reason of strike, lockouts, labor troubles,
failure of power, riots, insurrection, war, acts of God or any other cause
beyond such party's control, the period of such event or such prevention shall
be deemed added to the time period herein provided for the performance of any
such obligation by the applicable party.
(b) This Lease contains the entire agreement between the parties. No
modification, alteration or amendment of the Lease shall be binding unless in
writing and executed by the parties.
(c) The representations, warranties and indemnities contained in this
Lease shall survive the termination or expiration of this Lease.
(d) Each party hereto has reviewed and revised (or requested revisions of)
this Lease, and therefore any usual rules of construction requiring that
ambiguities are to be resolved against a particular party shall not be
applicable in the construction and interpretation of this Lease or any Exhibit
hereto.
- 17 -
18
(e) Time is of the essence of this Lease and each provision, provided,
however, if the final (but not any interim) date of any period set forth herein
falls on a Saturday, Sunday or legal holiday under the laws of the United
States of America, the final date of such period shall be extended to the next
business day.
EXECUTED AS EFFECTIVE in duplicate originals effective the date first
above written.
LANDLORD: TENANT:
/s/ Xxxxx X. Xxxxxxx By:/s/ Xxxxxx X. X'Xxxxxx
---------------------------- -----------------------------------------------
XXXXX X. XXXXXXX Person: XXXXXX X. X'XXXXXX
00000 Xxxxxxxx Xxxxxx Xxxxxx Title: chief Financial Equipment Services, Inc.
Xxxxxx, Xxxxx 00000 Address: c/o National Equipment Services, Inc.
(000) 000-0000 0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
- 00 -
00
(XXXXXXXXXXXXXX)
XXX XXXXX XX XXXXX {
{
COUNTY OF XXXXXX {
The foregoing instrument was acknowledged before me on this 17th day of
March, 1997, by XXXXX X. XXXXXXX.
/s/ Xxxxxx XxXxxxxx
-------------------------------------
Notary Public in and for
The State of Texas
THE STATE OF TEXAS {
{
COUNTY OF XXXXXX {
The foregoing instrument was acknowledged before me on this 17th day of
March, 1997, by XXXXXX X. X'XXXXXX, Chief Financial Officer of NES ACQUISITION
CORP., a Delaware Corporation, on behalf of said corporation.
/s/ Xxxxxx XxXxxxxx
-------------------------------------
Notary Public in and for
The State of Texas
- 19 -
20
EXHIBIT "A"
TRACT:
A TRACT OR PARCEL OF LAND CONTAINING 0.45914 ACRE OUT OF GREAT LOT 3 OF
THE "XXXXXX" SUBDIVISION OUT OF THE XXXX XXXXX XXXXX SURVEY, ABSTRACT 484
XXXXXX COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF, RECORDED IN VOL. 1
PAGE 81 OF THE XXXXXX COUNTY MAP RECORDS, SAID 0.45914 ACRE TRACT BEING MORE
PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS, TO WIT:
BEGINNING AT A 1/2 inch iron rod marking the intersection of the East
line of Great Lot 3 and the West line of Great Lot 4 with the North
right-of-way line of State FM Hwy. #1960 Business (100.00 ft. right-of-way);
THENCE South 89 deg. 47 min. 00 sec. West with the North right-of-way line
of said FM Hwy. #1960 Business, a distance of 72.44 ft. to a 1/2 inch iron rod
at the Southwest corner and being in the mid point in the South line of said
Great Lot 3;
THENCE North 00 deg. 03 min. 20 sec. West with the mid line of said Great
Lot 3, a distance of 276.09 ft. to a 1/2 inch iron rod at the Northwest
corner;
THENCE North 89 deg. 47 min. 00 sec. East a distance of 72.44 ft. to a
1/2 include iron rod at the Northeast corner, being in the division line
between Great Lots 3 and 4;
THENCE South 00 deg. 03 min. 20 sec. East with the division line between
said Great Lots 3 and 4, a total distance of 276.09 ft. to the PLACE OF
BEGINNING and containing 0.45914 acre.
TRACT 2:
A TRACT OR PARCEL OF LAND CONTAINING 0.49593 ACRE, BEING THE SOUTHERLY
PORTION OF A CERTAIN 1.80645 ACRE TRACT OUT OF THE SOUTH PORTION OF GREAT XXX 0
XX XXXXXX XXXXXXXXXXX (XXXXXXXXX XXXXXX XXXXXX XXXXXX SUED.) OUT OF THE XXXX
XXXXX XXXXX SURVEY XXXXXX COUNTY, TEXAS, MAP OR FLAT THEREOF RECORDED IN VOLUME
1 PAGE 81 OF THE XXXXXX COUNTY MAP RECORDS, SAID 0.49893 ACRE TRACT BEING OUT
OF 2 TRACTS RECORDED IN VOLUME 2020 PAGE 357 OF THE XXXXXX COUNTY DEED RECORDS
AND VOLUME 666 PAGE 228 XXXXXX COUNTY DEED RECORDS, SAID 0.49893 ACRE TRACT
BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS, TO-WIT:
Commencing at a point in the North right-of-way line of State F.M. Highway
No. 1960 (Business-100 feet in width) with the intersection of the Easterly
line of Great Xxx 0 xxxxx xxxxx
- 00 -
00
the Southeast corner of a Texaco, Inc. fee tract in said Great Lot 6 whence a 4
inch T.T. concrete monument with brass disk marked E-2 (214) bears North 0 deg.
03 min. 51 sec. West, a distance of 5.52 feet;
Thence South 89 deg. 47 min. 00 sec. West, with the North right-of-way
line of said Highway, a distance of 289.76 feet to a 1/2 inch iron rod at the
Southeast corner of said 1.80645 acre tract and the PLACE OF BEGINNING of the
herein described 0.48983 acre tract which marks the intersection of the East
line of said Great Lot 4 and the West line of Great Lot 5 with the North
right-of-way line of said State F.M. Highway No. 1960;
THENCE continuing South 89 deg. 47 min. 00 set. West, with the North
right-of-way line of said Highway, passing the Southwest corner of said tract
described in Volume 2020 Page 357 of the Xxxxxx County Deed Records, in all a
distance of 144.89 feet to a 1/2 inch iron rod at the Southwest corner of the
herein described tract;
THENCE North 00 deg. 03 min. 20 sec. West, with the division line between
Great Lots 3 & 4 and with the West line of said tract recorded in Volume 6666
Page 228 of the Xxxxxx County Deed Records and with the East line of said
Texaco, Inc. Fee Tract, a distance of 150.00 feet to a 1/2 inch iron rod at
the Northwest corner;
THENCE North 89 deg. 47 min. 00 sec. East, parallel to the North line of
said Highway and crossing over said Great Lot 4, a distance of 144.87 feet to a
1/2 inch iron rod at the Northeast corner, being in the division line between
Great Lots 4 & 5;
THENCE South 0 deg. 03 min. 51 sec. East, with said division line and
with the West right-of-way line of a Texaco, Inc. Fee Tract passing a T.T.
concrete monument marked lip. E-2 (106), (brass plate broken off) at 143.70
feet, in all a distance of 150.00 feet to the PLACE OF BEGINNING and containing
0.45914 acre.
- 00 -
00
XXXXX XX XXXXX ) ###-##-####
)
COUNTY OF XXXXXX )
METES AND BOUNDS
TRACT 3 - 6,866 SQUARE FEET
All that certain tract of land being Tract 3 of 6,866 square feet being a part
of the Xxxx Xxxxx Xxxxx Survey, Abstract No. 484, Xxxxxx County, Texas and
being a portion of Great Lot 4 of the "Xxxxxx" Subdivision of the Xxxx Xxxxx
Xxxxx Survey, Xxxxxx County, Texas, according to the Map thereof, recorded in
Volume 1, Page 81 of the Xxxxxx County Map Records and also being a portion of
a tract of land called 1.80645 acres described in Deed from Xxxxxx X. Xxxxxx,
et al., to Xxxxxx Xxxxx, rerecorded under Xxxxxx County Clerk's File No.
F-406184. Said tracts being more fully described as follows:
COMMENCING at an iron pin found for the Southeast corner of said 1.80645 acre
tract at the Southeast corner of Tract 2 of 21,720 square feet being on the
North right-of-way line of State F. M Highway No. 1960 (100 feet wide), said
pin being N 89* 35' 43" E a distance of 809.94 feet from the intersection of
the North right-of-way line of State F.M. Highway No. 1960 (100 feet wide) with
the East right-of-way line of Xxxxxx Road.
THENCE N 00* 03' 51" W a distance of 150.00 feet to an iron pin found for the
POINT OF BEGINNING of this tract being the Southeast corner of this tract and
the Northeast corner of said Tract 2.
THENCE S 89* 30' 16" W a distance of 144.94 feet to an iron pin found for the
Southwest corner of this tract at the Northwest corner of said Tract 2.
THENCE N 00* 04' 58" W a distance of 47.37 feet to an iron pin found for the
Northwest corner of this tract at the Southwest corner of a tract of land
called 1.14793 acres described in Deed from Xxxx Xxxxxxx, et al., to S&F
Investments, recorded under Xxxxxx County Clerk's File No. J-465123.
THENCE N 89* 30' 16" E a distance of 144.96 feet along the South line of said
1.14793 acre tract to an iron pin found for the Northeast corner of this tract
at the Southeast corner of said 1.14793 acre tract.
THENCE S 00* 03' 51" E a distance of 47.37 feet back to the Place of Beginning
containing 6,866 square feet of land.
I hereby certify that this survey conforms
to the current Texas Society of
Professional Surveyors Standards and
Specifications for a Category 1A.
Condition II Survey
------------------------------------------
Xxxxx Xxxxx
Registered Public Surveyor, No. 4189
May 8, 1989
- 22 -
