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Exhibit 10.28
LEASE AGREEMENT
THE STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS
COUNTY OF XXXXXX )
THIS LEASE AGREEMENT, made and entered into effect this 17th day of March,
1997, (the "Effective Date") by and between XXXXX X. XXXXXXX, hereinafter
called "Landlord", and NES ACQUISITION CORP. hereinafter called "Tenant".
WITNESSETH
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 00000 X.X. 000, Xxxxxxx, 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, 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 located
without the consent of Tenant.
2. TERM OF LEASE. The initial term of this Lease is five (5) years (the
"Term"), beginning on Effective Date unless sooner terminated or extended under
the terms hereof.
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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 of 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 $3,520.00
11-15 $3,872.00
16-20 $4,259.00
21-25 $4,685.00
(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 $3,200,000 ("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 be prorated. Should tenant fail to pay such
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
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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.
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
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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
$300,000.00 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 together with the air conditioning and heating system and shall
promptly and adequately repair all
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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 shall 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 responsible
for any damages or losses incurred by Tenant for the failure of Landlord to
furnish any
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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 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.
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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.
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
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herein; or (ii) if said Tenant shall fair 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
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
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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
hereunder 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 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
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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 acquires 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 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
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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
by occupying the Leased Premises as a tenant-at-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.
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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.
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.
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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 the 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, labilities, 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 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
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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") and 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 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,
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"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. Tenant is
aware that an underground diesel fuel storage tank is presently located at the
Leased Premises. Such fiberglass storage tank was installed in 1988. Landlord
shall have the right to remove such tank at its expense.
(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 part 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
limitation, the ADA with respect to any portion of the Property which have not
been heretofore entirely corrected.
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(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 reasonable
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
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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.
(e) Time if 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.
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LANDLORD: TENANT:
/s/ Xxxxx X. Xxxxxxx NES ACQUISITION CORP.
----------------------------
XXXXX X. XXXXXXX
00000 Xxxxxxxx Xxxxxx Xxxxxx /s/ Xxxxxx X. X'Xxxxxx
Xxxxxx, Xxxxx 00000 -----------------------------------
(000) 000-0000 Person: XXXXXX X. X'XXXXXX
Title: Chief Financial Officer
Address: c/o National Equipment Services, Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
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(ACKNOWLEDGEMENT)
THE STATE OF TEXAS
COUNTY OF XXXXXX
The foregoing instrument was acknowledged before me on this 17 day of
March, 1997, by XXXXX X. XXXXXXX.
/s/ Xxxxxx XxXxxxxx
-----------------------
Notary Public in and or
(SEAL) The State of Texas
THE STATE OF TEXAS
COUNTY OF XXXXXX
The foregoing instrument was acknowledged before me on this 17 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 or
(SEAL) The State of Texas
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TOMBALL
EXHIBIT "A"
LEGAL DESCRIPTION
All the tract or parcel of land out of the Xxxxxxx DeZavalla Survey, Abstract
Number 950, in Xxxxxx County, Texas, and being out of and a part of that
certain 4.03384 acre tract of land conveyed to Xxxxxx Xxxx, Trustee, under
Xxxxxx County Clerk's File Number E447193, and being more particularly
described by metes and bounds as follows:
BEGINNING at an old automobile axle found marking the southeast corner of the
said 4.03384 acre tract, said point being in the West line of Prestonwood
Forest Section One, and located North 02 deg. 43 min. 49 sec. West, 152.11 feet
from the southwest corner of said Prestonwood Forest Section One, according to
a map or plat thereof recorded in Volume 173, Page 126 of the Xxxxxx County Map
Records;
THENCE, South 61 deg. 50 min. 08 sec. West, 232.90 feet along the south line of
said 4.03384 acre tract to a 1/2 inch iron rod found in the east line of X.X.
Xxxxxxx Xx. 000, based on a right-of-way width of 180 feet, said point being
the southwest corner of the said 4.03384 acre tract and the herein described
tract;
THENCE, in a northwesterly direction with the said east line of F.M. Xxxxxxx
Xx. 000 following the arc of a curve to the right, having a radius of 2774.79
feet and a central angle of 02 deg. 07 min. 41 sec. a distance of 103.06 feet
to a 5/8 inch iron rod found for the northwest corner of the herein described
tract;
THENCE, North 61 deg. 50 min. 08 sec. East, 305.36 feet to a 1/2 inch iron rod
found in the east line of said 4.03384 acre tract, and the said west line of
Prestonwood Forest Section One, for the northeast corner of the herein
described tract;
THENCE, South 02 deg. 43 min. 49 sec. East, 110.73 feet with the east line of
said 4.03384 acre tract, and west line of Prestonwood Forest Section One, to
the POINT OF BEGINNING of the herein described 0.61844 acre tract.
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AND INCLUDING:
FIELD NOTES
0.3908 acre or 17,024.77 square feet of land, lying and being situated in
the Xxxxxxx Xx Xxxxxxx Survey, Abstract 950, Xxxxxx County, Texas and being a
portion of that certain 0.7889 acre tract described in deed dated September 9,
1982 from Xxxxxx Xxxxxx to Xxxxx X. Xxxxxxxx and R. Xxxx XxXxxxxx, recorded
under County Clerk's File Number H609488, Deed Records of Xxxxxx County, Texas;
said 0.3908 acre or 17,024.77 square feet of land being more particularly
described by metes and bounds as follows:
Beginning at a 1 inch iron rod set in concrete for the most northerly
corner of the said 0.7889 acre tract;
Thence South, along the easterly line of said 0.7889 acre tract 240.13
feet to a 1 inch iron pipe in the northeasterly right of way line of State
Highway 249, based on 400 feet in width;
Thence in a northwesterly direction along the said highway right of way
line and along a curve to the right having a central angle of 02 deg. 17 min.
48 sec. and a radius of 5529.58 feet for a distance of 221.66 feet to a 1 inch
iron pipe for corner;
Thence North 64 deg. 45 min. 00 sec. East, 154.02 feet to the point or
place of beginning and containing as aforesaid 9.3908 acre or 17,024.77 square
feet of land.
Surveyed: May 23, 1992
-------------------------------------------
Xxxxxxx Xxxxx
Registered Professional Land Surveyor, #116
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TOGETHER WITH:
a sanitary sewer easement with the right to construct, replace, and maintain
sanitary sewer lines over and across the passageway described in this paragraph
and located on the property as follows:
0.0165 acre or 717.25 square feet of land, lying and being
situated in the Xxxxxxx Xx Xxxxxxx Survey, Abstract 950, Xxxxxx
County, Texas and being a portion of that certain 0.7889 acre
tract described in deed dated September 9, 1992 from Xxxxxx Xxxxxx
to Xxxxx X. Xxxxxxxx and R. Xxxx XxXxxxxx, recorded under County
Clerk's File Number H-609488, Deed Records of Xxxxxx County,
Texas; said 0.0165 acre or 7.7.25 square feet of land being more
particularly described by metes and bounds as follows:
Commencing at a 1 inch iron rod set in concrete for the most
northerly corner of the said 0.7889 acre tract;
Thence South, along the easterly line of said 0.7889 acre
tract 162.11 feet to a point for the place of beginning of the
tract herein described;
Thence South, continuing along the easterly line of said
0.7889 acre tract, 78.02 feet to a 1 inch iron pipe in the
northeasterly right of way line of State Highway 249 based on 400
feet in width;
Thence along said highway right of way line and along a curve
to the right having a central angle of 00 deg. 09 min. 58 sec. and
a radius of 5529.58 feet, a distance of 16.08 feet to a point for
corner;
Thence North, parallel to and 10.00 feet west of said
easterly line of 0.7889 acre tract, 65.43 feet to a point for
corner;
Thence East, a distance of 10.00 feet to the point or place
of beginning and containing as aforesaid 0.0165 acre or 717.25
square feet of land.
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SAVE AND EXCEPT:
Being 0.187 of one acre (8,138 square feet) of land, more or less, out of a
called 0.61844 of one acre tract of land situated in the Xxxxxxx XxXxxxxxx
Xxxxxx, Xxxxxxxx 000, Xxxxxx Xxxxxx, Xxxxx; said 0.61844 of one acre tract
being the same land described in deed from Xxxxx Xxxxxx, Inc. to Xxxx X. Xxxxxx
and Xxxxx X. Xxxxxxx, dated May 27, 1987 and recorded under File Number
L148515, Film Code Number 000-00-0000 of the Xxxxxx County Official Public
Records of Real Property (H.C.O.P.R.R.P.); said 0.187 of one acre of land, more
or less, being more particularly described by metes and bounds as follows, with
all bearings based on the Texas Coordinate System, South Central Zone. All
distances and coordinates are surface and may be converted to grid by
multiplying by the combined adjustment factor of 0.999870:
Commencing at a 1/2-inch iron pipe found for the southeast corner of said
0.61844 of one acre tract being the most northerly corner of a called 0.7889 of
one acre tract, described in deed to Xxxxx X. Xxxxxxxx and R. Xxxx XxXxxxxx and
recorded under File Number H609488, Film Code Number 000-00-0000, of the
H.C.O.P.R.R.P.; thence as follows:
South 62 deg. 04 min. 50 sec. West, along the line common to said 0.61844
of one acre tract and said 0.7889 of one acre tract, a distance of 152.83
feet to the point of intersection with the proposed northeasterly
right-of-way line of State Highway 249 (S.H. 249) (400 feet wide), and
being the POINT OF BEGINNING (X = 3,089,185.83, Y = 793,415.71), from which
a 5/8-inch iron rod with S.D.H.P.T. aluminum cap at baseline station
130+00.00 bears along the arc of a curve to the left (Central Angle =
01 deg. 20 min. 45 sec; Radius = 5,529.58 feet; Chord Bearing and
Distance = South 40 deg. 43 min. 15 sec. East, 129.88 feet), an arc
distance of 129.88 feet;
1.) THENCE, SOUTH 62 deg. 04 min. 50 sec. West, continuing along said
common line, a distance of 78.78 feet to the point of intersection
with the existing northeasterly right-of-way line of said S.H. 240
(180 feet wide), and being in the arc of a non-tangent curve to the
right, from which a found 1/2-inch iron pipe bears South 62 deg.
04 min. 50 sec. West, 0.65 feet;
2.) THENCE, northwesterly, along the arc of said curve to the right
(Central Angle = 02 deg. 07 min. 30 sec.; Radius = 2,774.79 feet;
Chord Bearing and Distance = North 42 deg. 18 min. 15 sec. West,
102.91 feet), an arc distance of 102.91 feet to a point for corner,
being in the line common to said 0.61844 of one acre tract and a
called 3.4152 acre tract described in deed to NWH Properties, Inc.,
recorded under File Number J185936, Film Code Number 000-00-0000,
of the H.C.O.P.R.R.P., from which a found 5/8-inch iron rod bears
South 61 deg. 50 min. 19 sec West, 1.50 feet;
3.) THENCE NORTH 61 deg. 50 min. 19 sec East, along said common line,
a distance of 83.81 feet to a point of intersection with said
proposed northeasterly right-of-way
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line of S.H. 249, being in the arc of a non-tangent curve to the left,
having a radial bearing of South 51 deg. 00 min. 36 sec. West;
4.) THENCE, southeasterly, along said proposed northeasterly
right-of-way line of S.H. 249 and the arc of said curve to the left
(Central Angle = 01 deg. 03 min. 29 sec.; Radius = 5,529.58 feet;
Chord Bearing and Distance = South 39 deg. 31 min. 08 sec. East,
102.12 feet), an arc distance of 102.12 feet to the POINT OF
BEGINNING, containing an area of 0.187 of one acre (8.138 square
feet) of land, more or less.
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