EXHIBIT 10.29
LEASE AGREEMENT
1. PARTIES. THIS LEASE AGREEMENT (this "Lease"), dated as of October 30,
1997, is between XXXXX X. XXXXXXX, a resident of Xxxxxx County, Texas
("Landlord"), and NORTH AMERICAN TECHNOLOGIES GROUP, INC., a Delaware
corporation ("Tenant").
2. PREMISES. For and in consideration of the covenants, agreements and
stipulations herein contained, Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, upon the terms and conditions hereinafter set out,
the building having an address of 0000 Xxxxx Xxxxxx, (the "Building"), together
with the land upon which the Building is located, more particularly described on
Exhibit "A" attached hereto (the "Land"), in Houston, Xxxxxx Xxxxxx, Xxxxx,
00000. The Land, the Building, together with landscaping, driveways, sidewalks,
service areas, all other improvements, and parking are hereafter collectively
called the "Premises." In the event that the Landlord acquires the real
property immediately adjacent to and South of the Land, more particularly
described on Exhibit A hereto, and any improvements thereon (the "Adjacent
Premises"), then immediately upon such date of purchase the Adjacent Premises
shall become a part of the Premises and subject to the provisions of this Lease.
3. TERM. Subject to the other provisions hereof, the term of this Lease
shall commence on October 31, 1997, and end on January 31, 2001; provided,
however, that after December 31, 1999, in the event Landlord receives a bona
fide offer to sell the Premises which offer the Landlord desires to accept, then
Landlord may terminate this Lease on 60 days' prior written notice to Tenant
(such special right of termination to be in addition to any other termination
right granted under this Lease). The term of this Lease is herein called the
"Term."
4. RENT. Tenant shall pay to Landlord, during the Term hereof, without
prior notice or demand, as rent for the Premises, in monthly payments, in
advance, on the first (1st) day of each month, the amount of $2,900 per month.
Upon Landlord's purchase of the Adjacent Premises, the rent due hereunder shall
be increased to $3,100 per month. Rent for any period during the Term hereof
which is less than one month shall be a pro rata portion of the monthly
installment. Rent shall be payable without deduction or offset to Landlord at
Landlord's address stated herein or to such other persons or at such other
places as Landlord may designate in writing.
5. USE.
5.1 Use. The Premises shall be used and occupied by Tenant for the
operation of a fabrication and distribution business or similar use, and for no
other purpose without the prior written consent of Landlord.
5.2 Compliance with Law. Tenant shall, at Tenant's expense, comply with
all applicable statutes, ordinances, rules, regulations, orders, covenants and
restrictions of record, and requirements in effect during the Term hereof, with
respect to the Premises
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or regulating the use by Tenant of the Premises. Tenant shall not use or permit
the use of the Premises in any manner that will tend to create a nuisance.
5.3 Condition of Premises. Except as otherwise provided herein, Tenant
hereby accepts the Premises in their AS-IS, WHERE-IS condition, WITH ALL FAULTS
as of the Lease commencement date or the date Tenant takes possession of the
Premises, whichever is earlier, subject to all applicable zoning, municipal,
county and state laws, ordinances and regulations governing and regulating the
use of the Premises, and any covenants or restrictions of record, and accepts
this Lease subject thereto and to all matters disclosed thereby. TENANT
ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE PROVIDED IN THIS LEASE, LANDLORD HAS NOT
MADE ANY REPRESENTATION OR WARRANTY REGARDING THE PREMISES OR AS TO THE PRESENT
OR FUTURE SUITABILITY OF THE PREMISES FOR THE CONDUCT OF TENANT'S BUSINESS.
LANDLORD DISCLAIMS, AND TENANT WAIVES, ANY AND ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTY OF SUITABILITY, HABITABILITY, MERCHANTABILITY,
MARKETABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. MAINTENANCE AND REPAIRS.
6.1 Landlord's Responsibility. Landlord agrees to maintain the
foundation, roof, and structural elements of the improvements on the Premises,
including the performance of all repairs to maintain the Premises in
substantially the same condition as at the beginning of the Term of this Lease,
excepting only reasonable wear and tear arising from proper use thereof. Any
damage by acts or omissions of Tenant or its agents, customers, subtenants or
invitees shall be paid for by Tenant.
6.2 Tenant's Responsibility. Tenant agrees to maintain, at its own cost
and expense, the non-structural elements of the Premises in a reasonable
condition and in no event less than the condition as at the beginning of the
Term of this Lease, excepting only reasonable wear and tear arising from proper
use thereof, and will make all necessary repairs and maintenance to keep the
non-structural elements of the Premises in good order and condition. Tenant
will maintain, repair and replace, when necessary, the air conditioning,
heating, plumbing, gas and electrical appurtenances and fixtures in the
Premises. All outside window breakage, including plate glass, will be repaired
by Tenant and Tenant's expense. Tenant shall, upon the expiration or sooner
termination of this Lease, surrender the Premises to the Landlord in good
condition, ordinary wear and tear and damage from causes beyond the reasonable
control of Tenant excepted, with all repairs referred to in this Section to have
been made at or before the time of such surrender. Any injury or damage to the
Premises caused by or resulting from the act, omission or neglect of Tenant or
Tenant's employees, servants, agents, invitees, assignees, or subtenants shall
be repaired or replaced by Tenant, or at Landlord's option by Landlord, at the
expense of Tenant. If Tenant fails to maintain the Premises or fails to repair
or replace any damage to the Premises resulting from the negligence or
intentional act of Tenant, its employees, servants, agents, invitees, assignees
or subtenants, Landlord may, but shall not be obligated to cause such
maintenance, repair or replacement to be done, as Landlord deems necessary,
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and Tenant shall immediately pay to Landlord all costs related thereto. Tenant
shall keep the Premises and the Building free from any liens arising from any
work performed, materials furnished or obligations incurred by or at the request
of Tenant. All persons contracting with Tenant for furnishing or rendering labor
or materials in connection with the Premises must look only to Tenant for
payment. If any lien is filed against Tenant's leasehold interest of the
Premises as a result of action taken by Tenant, Tenant shall discharge or bond
around same following written demand from Landlord. If Tenant fails to discharge
such lien in a timely manner, then in addition to any other right or remedy of
Landlord, Landlord may, at its election, and not earlier than 30 days following
the written notice referred to in the preceding sentence, discharge the lien by
either paying the amount claimed to be due or by depositing any necessary sums
of money with any court or title company or by bonding around such lien. Tenant
shall pay the Landlord, upon demand, any amount paid by Landlord for the
discharge or satisfaction of any lien and all reasonable expenses incurred by
Landlord in connection with such lien.
7. ALTERATIONS AND ADDITIONS. Tenant shall not, without Landlord's prior
written consent, which consent shall not be unreasonably withheld, make any
alterations, improvements, additions or installations in, on or about the
Premises, except for non-structural alterations not to exceed $30,000.00. In any
event, whether or not in excess of $30,000.00, Tenant shall make no structural
change or alteration to the exterior of the Premises without Landlord's prior
written consent, which consent shall no be unreasonably withheld. Landlord may
require that Tenant remove any or all of said alterations, improvements,
additions or installations at the expiration of the Term and restore the
Premises to their prior condition. Should Tenant make any such alterations,
improvements, additions or installations without the prior written consent of
Landlord, Landlord may require that Tenant remove any or all of the same. All
alterations, improvements, additions and installations (whether or not such
installations constitute trade fixtures) shall become the property of Landlord
and remain upon and be surrendered with the Premises at the expiration of the
Term (unless Landlord requires their removal as set forth above.)
8. INSURANCE.
8.1 Liability Insurance. Tenant shall, at Tenant's expense, obtain and
keep in full force during the Term of this Lease, a policy of comprehensive
public liability insurance insuring Landlord and Tenant against any liability
arising out of the ownership, use, occupancy or maintenance of the Premises and
all areas appurtenant thereto. Tenant shall cause Landlord to be named as an
additional insured under such insurance policy. Such insurance shall be in an
amount of not less than $500,000.00 combined single limit, issued by a company
or companies reasonably approved by Landlord. Tenant shall deliver to Landlord
copies of such insurance or certificates evidencing the existence and amounts of
such insurance. No such policy shall be cancelable or subject to reduction of
coverage or other modification except after thirty (30) days prior written
notice to Landlord. Tenant shall, at least thirty (30) days prior to the
expiration of such policies, furnish Landlord with renewals or "binders"
thereof. If Tenant fails to procure and maintain said insurance, Landlord may,
but shall not be required to, procure and maintain same at the expense of
Tenant, and Tenant shall pay the cost for same to Landlord upon demand.
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8.2 Casualty Insurance. Landlord shall maintain in full force and effect
during, the Term of this Lease, or any portion thereof, fire and extended
coverage casualty insurance on the Premises, in the amount not less than the
amount currently maintained on the date of this Agreement with respect to the
Premises, against all perils, included within the classification of fire,
extended coverage, vandalism, malicious mischief, flood and special extended
perils. Tenant shall pay the cost of such insurance, so long as any increase in
the cost thereof for any given year is not unreasonable, and in no event greater
than five percent (5%) for any such year. Said insurance shall provide for
payment of loss thereunder to Landlord and name Tenant as an additional insured.
If the Landlord shall fail to procure and maintain said insurance, Tenant may,
but shall not be required to, procure and maintain the same, at the expense of
Tenant. If such insurance coverage has a deductible clause, the deductible
amount shall not exceed the amount of the current deductible per occurrence, and
Tenant shall be liable for such deductible amount. Such policy may also
include, at the option of the Landlord, insurance regarding the fixtures,
equipment, personal property and Tenant improvements.
8.3 Waiver of Subrogation. Whenever (a) any loss, cost, damage or expense
resulting from fire, explosion or any other casualty or occurrence is incurred
by either of the parties to this Lease in connection with the Premises, and (b)
such party is then covered in whole or in part by insurance with respect to such
loss, cost, damage or expense, then the party so insured hereby releases the
other party from any liability it may have on account of such loss, cost, damage
or expense to the extent of such insurance coverage in place or required to be
in place, and waives any right of subrogation which might otherwise exist in or
accrue to any person on account thereof to the extent of such insurance
coverage; provided, however, that such release of liability shall not be
operative in any case where the effect thereof is to invalidate such insurance
coverage or increase the cost thereof; provided further, that in the case of
increased cost, the other party shall have the right, within thirty (30) days
following written notice, to pay such increased cost, thereupon keeping such
release and waiver in full force and effect. Landlord and Tenant shall use
their respective best efforts to obtain such a release and waiver of subrogation
from their respective insurance carriers and shall immediately notify the other
of any failure to obtain or maintain the same.
8.4 Waiver of Liability and Indemnity. Except as otherwise provided in
Section 16 hereof, Landlord and Landlord's directors, officers, employees and
agents shall not be liable to Tenant or any other party for any claims, demands,
causes of action, losses, expenses or liabilities of any kind or for any injury
to or death of any person or damage to property of Tenant or any other person
during the Term of this Lease from any cause, except Landlord's negligence or
willful acts for which Landlord is legally liable, occurring in and about the
Premises or the Building or as a result of Tenant's occupancy of the Premises.
In no event shall Landlord be liable as the result of the acts or omissions of
Tenant or any other tenant of the Premises. All personal property upon the
Premises shall be at the risk of Tenant only and Landlord shall not be liable
for any damage thereto or theft thereof. Tenant shall indemnify and hold
Landlord and Landlord's directors, officers, employees and agents harmless from
all claims, demands, causes of action, liens, costs,
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damages, expenses and liability whatsoever, including reasonable attorneys' fees
(but excluding claims resulting from the negligence or willful acts of the
Landlord for which Landlord is legally liable), arising out of the use and
occupancy of the Premises and the Building by Tenant or Tenant's directors,
officers, employees, agents, contractors, sub-lessees, invitees and licensees.
8.5 Certain Notices. In the event any claim is instituted against any
party hereto (or its permitted assigns) by any third party relating to the
Premises (including without limitation any accident or injury occurring on the
Premises), whether or not such claim is covered by insurance or otherwise, or a
party hereto learns of the placement of any lien on or against the Premises or
any portion thereof during the Term of this Lease, then such party shall inform
the other party hereto of the nature of such claim or lien, including providing
reasonable detail regarding such claim or lien and whether or not the notifying
party reasonably believes such claim is covered by insurance, shall periodically
update such other party of the progress of such claim or the status of such
lien, and shall promptly provide such other party reasonable evidence of any
resolution of such claim or the release of such lien.
9. DESTRUCTION OF LEASED PREMISES.
9.1 Obligation to Rebuild. In the event that some or all of the
improvements constituting a part of the Premises are damaged or destroyed,
partially or totally, from any cause whatsoever, then, unless Landlord requires
otherwise, Tenant shall repair, restore and rebuild the Premises to its
condition existing immediately prior to such damage or destruction and this
Lease shall remain in full force and effect. Such repair, restoration and
rebuilding (all of which are herein called "repair") shall be commenced within a
reasonable time after such damage or destruction has occurred, but not to exceed
60 days, and shall be diligently pursued to completion pursuant to plans and
specifications, and utilizing such contractor(s) and construction contract(s),
as are acceptable to Landlord.
9.2 Insurance Proceeds. The proceeds of any insurance maintained under
Section 8.2 hereof shall be made available to tenant for payment of costs and
expenses of repair, provided however, that any such proceeds made available to
Tenant may be subject to such conditions as Landlord may deem necessary,
appropriate or desirable. In the event the insurance proceeds are insufficient
to cover the cost of repair, then any amounts required over the amount of the
insurance proceeds received that are required to complete said repair shall be
paid by Tenant.
9.3 Abatement of Rent. Notwithstanding the partial or total destruction
of the Premises or any part thereof, and notwithstanding whether the casualty is
insured or not, this Lease shall continue in effect for the full Term; however,
from the date of the casualty to the completion of reconstruction, the monthly
rent due hereunder by Tenant to Landlord shall be abated in full or
proportionately, as the case may be, during the period in which the Premises are
not usable by the Tenant.
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9.4 Waiver. Tenant waives the provisions of any statutes which relate to
termination of leases when the property leased is destroyed, and agrees that
such event shall be governed by the terms of this Lease.
10. TAXES. Tenant shall pay the real property tax applicable to the
Premises and the Building during the Term of this Lease. As used herein, the
term "real property tax" shall include any ad-valorem tax or other form of real
estate tax or assessment, general, special, ordinary or extraordinary, and any
license fee, commercial rental tax, improvement bond or bonds, levy or tax
(other than inheritance, personal income or estate taxes) imposed on the
Premises or the Building by any authority having the direct or indirect power to
tax (including any city, state or federal government, or any school,
agricultural, sanitary, fire, street, drainage or other improvement district
thereof) as against any legal or equitable interest of Landlord in the Premises
or the Building as against Landlord's right to rent or other income therefrom,
and as against Landlord's business of leasing the Premises or the Building.
Each year during the Term of this Lease, Tenant shall timely pay to Landlord an
amount necessary to pay any and all real property taxes assessed against the
Premises. Landlord shall provide to Tenant copies of any and all statements
from taxing authorities for such real property taxes within fifteen (15) days of
receipt of such statements by Landlord. Tenant shall pay to Landlord by
personal check, money order or cashier's check the amount necessary to pay any
and all such real property taxes no sooner that January 1 but no later than
January 15 of each year. If Tenant does not timely pay Landlord for such taxes,
Landlord may, at its option, pay such taxes, and Tenant covenants on demand to
reimburse and pay Landlord any amount so paid or expended in the payment of the
taxes required hereby. Tenant shall pay, prior to delinquency, all taxes
assessed against and levied upon fixtures, furnishings, equipment and all other
personal property leased hereunder or owed by Tenant, as well as all sales and
use taxes, franchise taxes and any other taxes applicable to the business
operated at the Premises or otherwise owed by Tenant.
11. UTILITIES. Tenant shall arrange for and pay for all water, sewage,
gas, heat, light, power, garbage pick-up, telephone and other utilities and
services supplied to or utilized at the Premises, together with any taxes
thereon.
12. ASSIGNMENT AND SUBLETTING.
12.1 Sublease or Assignment. Tenant may, without the prior written
consent of Landlord, sublet the Premises or any part thereof, or assign this
Lease to any party upon notice thereof to Landlord. No such subletting or
assignment, however, shall release the Tenant from its obligations under this
Lease without the written consent of the Landlord.
12.2 Tenant's Consent Not Required. Landlord may assign, sell, transfer,
mortgage or otherwise transfer or encumber all or any part of Landlord's
interest in this Lease or in the Premises at any time during the Term of this
Lease without Tenant's consent.
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12.3 Attornment. Tenant will, upon request of any person or party
succeeding to the interest of Landlord, attorn to such successor in interest
without change in the terms or provisions of this Lease, provided such successor
in interest agrees not to disturb Tenant's occupancy of the Premises so long as
Tenant does not default hereunder.
13. DEFAULTS; REMEDIES.
13.1 Defaults. The occurrence of any one or more of the following events
shall constitute a material default and breach of this Lease by Tenant:
a. the vacating or abandonment of the Premises by Tenant; provided,
however, that no sublet or assignment by Tenant of all or any portion of the
Premises as permitted by Section 12.1 hereof shall be deemed an abandonment or a
vacation of the Premises by Tenant and provided further, that Tenant shall not
be deemed to be in violation of the provisions of this clause (a) in the event
it is then attempting in good faith to find a party to sublet the Premises and
it continues to perform its other obligations under this Lease;
b. the failure by Tenant to make any payment of rent or any other payment
required to be made by Tenant hereunder, as a when due and after ten (10) days
written notice of such default is given to Tenant; or
c. the failure by Tenant to observe or perform any of the non-monetary
covenants or provisions of this Lease to be observed or performed by Tenant
within thirty (30) days after notice of such default is given to Tenant.
13.2 Remedies. Upon the occurrence of any such material default or breach
by Tenant, Landlord may at any time thereafter, upon thirty (30) days written
notice, and without limiting Landlord in the exercise of any other right or
remedy which Landlord may have by law as a result of such default or breach:
a. Terminate Tenant's right to possession of the Premises, in which event
Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to
do so, Landlord may, without notice and without prejudice to any other remedy
Landlord may have, enter upon and take possession of the Premises and expel or
remove Tenant and all occupants and all fixtures and personal property (not
owned by Landlord) located in the Premises without being liable for prosecution
or any claim for damages therefor; and Tenant shall indemnify and reimburse
Landlord for all loss and damage which Landlord may suffer by reason of such
termination and removal, whether through inability to relet the Premises or
otherwise, including any loss of rent for the remainder of the Term of this
Lease.
b. Terminate this Lease and expel and remove Tenant and all occupants and
all fixtures and personal property (not owned by Landlord) located on the
Premises, in which event Tenant's event of default should be considered a total
breach of Tenant's obligations under this Lease and Tenant shall immediately
become liable for
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damages in an amount equal to the total of (i) all reasonable costs of
recovering the Premises; (ii) the unpaid rent earned as of the date of
termination; (iii) the amount of the excess of the total rent due hereunder and
other benefits which Landlord would have received under this Lease for the
remainder of the Term hereof, at the rates then in effect, together with all
other expenses incurred by Landlord in connection with Tenant's default as of
the time of such breach, less the then fair market rental value of the Premises
for the remainder of the Term hereof, discounted at the rate of six percent (6%)
per annum to the then present value; (iv) all other sums of money and damages
owing by Tenant to Landlord; and (v) reasonable attorneys' fees and court costs
incurred. Past due rent shall bear interest from the date due until paid at the
lesser of eighteen percent (18%) per annum or the maximum non-usurious interest
rate permitted by law;
c. Enter upon and take possession of the Premises as Tenant's agent and
expel and remove Tenant and all occupants and all fixtures and personal property
(not owned by Landlord) located on the Premises without terminating this Lease
and without being liable to prosecution or any claim for damages therefor, and
Landlord may relet the Premises or any portion thereof as Tenant's agent and
receive the rent therefor, in which event Tenant shall pay to Landlord on demand
the reasonable costs of reletting the Premises and any deficiency that may arise
by reason of such reletting; provided, however, that Landlord shall have no duty
to relet the Premises and Landlord's failure to relet the Premises shall not
release or affect Tenant's liability to pay rent hereunder or for damages; or
d. Enter upon the Premises and change, alter and/or modify the door locks
or other security devices on all entry doors and other areas of the Premises,
thereby excluding Tenant and Tenant's officers, employees, agents, invitees,
licensees and all other occupants therefrom. If Landlord elects to exclude
Tenant from the Premises without permanently repossessing the Premises or
terminating this Lease pursuant to the foregoing provisions of this Lease, then
Landlord shall not be obligated to provide Tenant a key to re-enter the Premises
until such time as all delinquent rental and other amounts due under this Lease
have been paid in full and all other defaults, if any, have been completely
cured to Landlord's reasonable satisfaction, and Landlord has been given
assurance reasonably satisfactory to Landlord of Tenant's ability to satisfy its
remaining obligations under this Lease. The foregoing provisions shall override
and control any conflicting provisions of section 93.002 of the Texas Property
Code, as well as any successor statute governing the right of a landlord to
change the door locks of its commercial tenants.
13.3 Default by Landlord. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord within thirty (30)
days after written notice by Tenant to Landlord specifying wherein Landlord has
failed to perform such obligations; provided, however, that if the nature of
Landlord's obligation is such that more than thirty (30) days are required for
performance, then Landlord shall not be in default if Landlord commences
performance within such 30-day period and thereafter diligently prosecutes the
same to completion, but in no event more than ninety (90) days. If Landlord is
in default hereunder, Tenant may terminate this Lease, and Tenant will have no
further obligations hereunder.
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14. CONDEMNATION. If, during the term of this Lease or any extension or
renewal hereof, all or a substantial part of the Premises or the Building should
be taken for any public or quasi-public use under any governmental law,
ordinance, regulation or by right of eminent domain, or should be sold to the
condemning authority under the threat of condemnation, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective from the date of taking of the Premises or the Building by the
condemning authority. If less than a substantial part of the Premises or the
Building is taken for public or quasi-public use under any governmental law,
ordinance or regulation or by right of eminent domain, or is sold to the
condemning authority under threat of condemnation, Landlord, at its option, may
by written notice terminate this Lease or shall forthwith, at its sole expense,
restore and reconstruct the buildings and improvements (other than leasehold
improvements made by Tenant or any assignee, sub-lessee or other occupant of the
Premises) situated on the Premises and in the Building in order to make the same
reasonably tenantable and suitable for the uses for which the Premises are
leased hereunder. The rent payable hereunder during the unexpired portion of
this Lease shall be adjusted equitably. Landlord and Tenant shall be entitled
to receive and retain such separate awards and portions of lump sum awards as
may be allocated to their respective interests in any condemnation proceedings.
The termination of this Lease shall not affect the rights of the respective
parties to such condemnation awards.
15. HAZARDOUS WASTE.
15.1 Indemnification by Landlord. Landlord hereby represents and warrants
to Tenant that Landlord has not caused or permitted any Hazardous Materials to
be used, stored, generated, or disposed of on, in or about the Premises by
Landlord, Landlord's agents, employees, contractors, or invitees prior to the
date Tenant takes possession of the Premises. If Hazardous Materials have been
used, stored, generated, or disposed of on, in or about the Premises by
Landlord, or if the Premises become contaminated in any manner as a result of
any actions taken by Landlord, Landlord shall indemnify and hold harmless the
Tenant (and its agents, employees and assigns) for any and all claims, damages,
fines, judgments, penalties, costs, liabilities, or losses arising during or
after the Lease Term and arising as a result of any use, storage, generation or
disposal of any Hazardous Material or any contamination by Landlord. This
indemnification includes, without limitation, any and all costs incurred because
of any investigation of the site or any cleanup, removal, or restoration
mandated by a federal, state, or local agency or political subdivision. If the
Landlord causes or permits the presence of any Hazardous Material on the
Premises that results in contamination, Landlord shall promptly, at its sole
expense, take any and all necessary actions to return the Premises to the
condition existing prior to the presence of any such Hazardous Material on the
Premises. As used herein, "Hazardous Material" means (1) any "hazardous waste"
as defined by any Governmental Law; (2) any "hazardous substance" as defined by
any Governmental Law; (3) asbestos; (4) polychlorinated biphenyls; (5)
underground storage tanks, whether empty, filled or partially filled with any
substance; (6) any substance the presence of which on the Premises is prohibited
by any Governmental Law; and (7) any other substance which by any Governmental
Law requires special handling or notification of any federal, state or local
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governmental entity in its collection, storage , treatment or disposal.
"Governmental Law" shall mean all laws, ordinances, rules and regulations of the
United States, the State of Texas, the county, the city or any other political
subdivision, agency or instrumentality exercising jurisdiction over the
Landlord, the Tenant or the Premises.
15.2 Indemnification by Tenant. Tenant hereby represents and warrants to
Landlord that Tenant shall not caused or permit any Hazardous Materials to be
used, stored, generated, or disposed of on, in or about the Premises by Tenant,
Tenant's agents, employees, subtenants, contractors, or invitees during the
Term of this Lease. If Tenant permits Hazardous Materials to be used, stored,
generated, or disposed of on, in or about the Premises, or if the Premises
become contaminated in any manner as a result of any actions taken by Tenant,
Tenant shall indemnify and hold harmless the Landlord (and its agents, employees
and assigns) for any and all claims, damages, fines, judgments, penalties,
costs, liabilities, or losses arising during or after the Lease Term and arising
as a result of any use, storage, generation or disposal of any Hazardous
Material or any contamination by Tenant. This indemnification includes, without
limitation, any and all costs incurred because of any investigation of the site
or any cleanup, removal, or restoration mandated by a federal, state, or local
agency or political subdivision. If the Tenant causes or permits the presence
of any Hazardous Material on the Premises that results in contamination, Tenant
shall promptly, at its sole expense, take any and all necessary actions to
return the Premises to the condition existing prior to the presence of any such
Hazardous Material on the Premises.
16. ESTOPPEL CERTIFICATE. Each of the parties hereto shall at any time,
upon not less than ten (l0) days prior written notice from the other party,
execute, acknowledge and deliver to such notifying party a statement in writing
(i) certifying that this Lease is unmodified and in full force and effect (or,
if modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date to which the
rent and other charges are paid in advance, if any, and (ii) acknowledging that
there are not, to such party's knowledge, any uncured defaults on the part of
the other party hereunder, or specifying such defaults if any are claimed, (iii)
certifying to such additional matters pertaining to this Lease or any subleases
as such notifying party may reasonably request. Any such statement may be
conclusively relied upon by any prospective purchaser or mortgagee of the
Premises.
17. TIME OF ESSENCE. Time is of the essence in the performance by Tenant
of all of Tenant's obligations hereunder.
18. NOTICE. Whenever in this Lease it shall be required that notice or
demand be given or served by either party to this Lease to or on the other, such
notice or demand shall be given or served and shall not be deemed to have been
given or served unless in writing and delivered personally or forwarded by
certified or registered mail, postage prepaid, or by nationally recognized
delivery service, addressed as follows:
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To the Landlord: Xxxxx X. Xxxxxxx
c/o North American Technologies Group, Inc.
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, Xxxxx 00000
To the Tenant: North American Technologies Group, Inc.
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, Xxxxx 00000
Attn: Xxx Xxxxxxxxxx, President
If personally delivered, the notice shall be deemed given upon delivery. If
sent via overnight delivery service, the notice shall be deemed given upon
deposit with the overnight delivery service. If sent via certified or registered
mail, the notice shall be deemed given upon deposit in a proper U.S. Mail
receptacle. Either party may change its address for notice by giving at least
ten (10) days written notice thereof to the other party hereto.
19. WAIVERS. No waiver by Landlord of any portion hereof shall be deemed
a waiver of any other provision hereof or of any subsequent breach by Tenant of
the same or any other provision. Landlord's consent to or approval of any act
shall not be deemed to render unnecessary the obtaining of Landlord's consent to
or approval of any subsequent act by Tenant. The acceptance of rent hereunder by
Landlord shall not be a waiver of any preceding breach by Tenant of any
provision hereof other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent.
20. HOLDING OVER. In the event of holding over by Tenant after the
expiration or termination of this Lease, such holdover shall be as a Tenant-at-
will, and all of the terms and provisions of this Lease shall be applicable
during such period, and Tenant will vacate the Premises and deliver the same to
Landlord upon Tenant's receipt of notice from Landlord to vacate the Premises.
The rental payable during such holdover period shall be payable to Landlord on
demand. No holding over by Tenant, whether with or without the consent of
Landlord, shall operate to extend this Lease except as herein provided.
21. SUBORDINATION. This Lease is subject and subordinate to any
mortgages, deeds of trust or other security instruments, if any, which may now
or hereafter encumber the Premises (including without limitation, any of the
same relating to any equipment, fixtures, or any other assets constituting
personal property therein) or any part thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof. This clause
shall be self-operative and no additional instrument of subordination shall be
necessary to evidence such subordination; provided, however, that each of
Landlord and Tenant hereby agrees to promptly execute and deliver any reasonable
instrument requested by the other party hereto to evidence such subordination.
In the event of the enforcement by the trustee, beneficiary, secured party or
lessor under any such mortgage, deed of trust, security instrument, Tenant will,
upon request of any person or party succeeding to the interest of Landlord as a
result of such enforcement, attorn to such successor in interest without change
in the terms or provisions of this Lease provided such
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successor in interest agrees not to disturb Tenant's occupancy of the Premises
so long as Tenant does not default hereunder.
22. ATTORNEYS' FEES. If either party brings an action to enforce the
terms hereof or declares rights hereunder, the prevailing party in any such
action, on trial or appeal, shall be entitled to his reasonably attorneys' fees
to be paid by the losing party as fixed by the court.
23. LANDLORD'S ACCESS. Landlord and Landlord's agents shall have the
right to enter the Premises at reasonable times for the purpose of inspecting
the same, showing the same to prospective purchasers, lenders or tenants, and
making such alterations, repairs, improvements or additions to the Premises as
Landlord may deem reasonably necessary or desirable.
24. TENANT'S SIGNAGE. Tenant shall have the right to install in the
interior of the Building, and on the exterior of the Premises or the Building,
at Tenant's sole cost and expense, Tenant's standard signage or such signage as
is customary to the business operated by Tenant in the Premises.
25. QUIET POSSESSION. Upon Tenant paying the rent for the Premises and
observing and performing all of the covenants, conditions and provisions on
Tenant's part to be observed and performed hereunder, Tenant shall have quiet
possession of the Premises for the entire term hereof subject to all of the
provisions of this Lease. Landlord agrees that Landlord will not cause the
Tenant's access to the Premises to be impeded or change the Premises view to and
from any adjoining streets.
26. SEVERABILITY. Every agreement contained in this Lease is and shall be
construed as a separate and independent agreement. If any term of this Lease or
the application thereof to any person or circumstances shall be illegal, invalid
or unenforceable, the remainder of this Lease or the application of such term to
persons or circumstances other than those to which it is invalid or enforceable
shall not be affected.
27. OPTIONS.
27.1 Option to Renew Lease. Subject to Landlord's superior right to
terminate this Lease as provided in the proviso of Section 3 hereof in the event
of a sale of the Premises pursuant to a bona fide offer, Tenant shall have and
may exercise an option to renew this Lease for one (1) additional period of
twenty-four (24) months upon the same terms and conditions as contained in this
Lease with the exception that this Lease shall not be further available for
renewal. If Tenant desires to renew this Lease, Tenant must exercise its renewal
option by notifying Landlord in writing of its election to renew this Lease
before the date which is at least thirty (30) days prior to the expiration of
the Term of this Lease.
28. ENTIRE AGREEMENT; ASSIGNMENT. This Lease, including all exhibits
hereto, (a) constitutes the entire agreement between the parties hereto with
respect
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to the Premises and its subject matter and supersedes all prior agreements and
understandings, both oral or written, between said parties or either of them
with respect to such subject matter, and (b) shall not be assigned by operation
of law or otherwise without the express prior written consent of the other party
hereto, except as provided in Section 13.1 hereof.
29. BINDING EFFECT; BENEFIT. This Lease shall inure to the benefit of and
be binding upon the parties and their respective successors and assigns.
Nothing in this Lease is intended to confer on any person other than the parties
to this Lease or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Lease.
30. HEADINGS. The descriptive headings of the articles, sections,
subsections, exhibits and schedules of this Lease are inserted for convenience
only, do not constitute a part of this Lease and shall not affect in any way the
meaning or interpretation of this Lease.
31. COUNTERPARTS. This Lease may be executed in counterparts, each of
which shall be deemed to be an original, and all of which together shall be
deemed to be one and the same instrument.
32. GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the laws of the State of Texas, without regard to the laws that
might otherwise govern under principles of conflicts of laws applicable thereto.
33. COURTS IN XXXXXX COUNTY, TEXAS TO HAVE NON-EXCLUSIVE JURISDICTION.
The parties agree that the federal and state courts located in Xxxxxx County,
Texas shall have non-exclusive jurisdiction over an action brought to enforce
the rights and obligations created in or arising from this Lease, and each of
the parties hereto irrevocably submits to the jurisdiction of said courts.
Notwithstanding the above, application may be made by a party to any court of
competent jurisdiction wherever situated for enforcement of any judgment and
entry of whatever orders are necessary for such enforcement.
34. SEVERABILITY. If any term, provision, covenant or restriction of this
Lease is held by a court of competent jurisdiction or other authority to be
invalid, void, unenforceable or against its regulatory policy, the remainder of
this Lease shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
35. FURTHER ASSURANCES. From time to time hereafter and without further
consideration, each of the parties hereto shall execute and deliver such
additional or further instruments, and take such actions as any other party
hereto may reasonably request or as shall be reasonably necessary or appropriate
in connection with the carrying out of such party's obligations hereunder or the
purposes of this Lease.
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EXECUTED as of the date first set forth above.
LANDLORD:
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
NORTH AMERICAN TECHNOLOGIES
GROUP, INC.
By: /s/Xxx Xxxxxxxxxx
Xxx Xxxxxxxxxx
As Its Authorized President
Exhibit A Description of Land and Adjacent Premises
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EXHIBIT A
DESCRIPTION OF LAND
Xxxx 0, 0 & 0
Xxxxx 00 xx Xxxxx Xxxxx
Location: 0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000
DESCRIPTION OF LAND INVOLVED IN ADJACENT PREMISES
Xxxx 0 & 0
Xxxxx 00 xx Xxxxx Xxxxx
Location: 2 vacant lots between 0000 Xxxxx Xxxxxx and 0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000
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