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EXHIBIT 10.3
L E A S E
THE STATE OF TEXAS )
) KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF JEFFERSON )
THIS LEASE is made and entered into this 13th day of August, 1997, by
and among XXXXXXXX XXXXXXXX XXXXXX PROPERTIES, L.L.C., a Texas limited
liability company, NECHES STREET PROPERTIES, L.L.C., a Texas limited liability
company (hereinafter collectively referred to as "LANDLORD"), and EXELL, INC.,
a Texas corporation (hereinafter referred to as "TENANT").
1. Demised Premises. Upon the conditions, limitations, covenants
and agreements set forth below, Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord, those certain improvements situated on real
property located within the City of Beaumont, Jefferson County, Texas (the
"LEASED PROPERTY"), such real property being more particularly described on
Exhibit A attached hereto and made a part hereof.
2. Term. The term of this Lease shall be for a period (the
"LEASE TERM"), commencing on the 13 day of August, 1997, and terminating at
midnight on the day of the sale of the Leased Property by Landlord pursuant to
the terms of that certain Purchase and Sale Agreement dated effective May 14,
1997 (the "PURCHASE AGREEMENT"), by and between Babel, Xxxxxx & Xxxxxxxxx
Partnership, as Seller, and ITEQ, Inc., as Purchaser, as assigned and amended
by that First Amendment to Purchase and Sale Agreement dated of even date
herewith by and among Babel, Xxxxxx & Xxxxxxxxx Partnership, Landlord and ITEQ,
Inc., or in any event, no later than ninety-nine (99) years from the date
hereof.
3. Rent.
a. Tenant shall pay to Landlord, as the rent (the
"RENT") during the (i) first three (3) years of the Lease Term, the
sum of ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($150,000.00) per
annum, payable in twelve monthly installments of TWELVE THOUSAND FIVE
HUNDRED AND NO/100 DOLLARS ($12,500.00); (ii) next seven (years) of
the Lease Term, the sum of TWO HUNDRED FORTY THOUSAND AND NO/100
($240,000.00) per annum, payable in twelve monthly installments of
TWENTY THOUSAND AND NO/100 DOLLARS ($20,000.00); and (iii) remainder
of the Lease Term, at the beginning of each successive year of the
Lease Term, Landlord may increase the rent by the amount necessary to
maintain the monthly Rent at an amount which would have had the same
purchasing power as $20,000.00 at the beginning of year ten (10) of
the Lease Term according to the U.S. Consumer Price Index for all
Urban Consumers applicable to Beaumont, Texas. Such Rent shall be
payable on or before the first day of each month of the Lease Term;
provided, however, that if the term of this Lease commences or ends on
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day other than the first day of the calendar month, then Tenant shall
pay a pro rata portion of the monthly Rent for such partial month.
b. Landlord acknowledges and agrees that it is a party
to the Purchase Agreement, as amended, Landlord has agreed to sell and
ITEQ, Inc. has agreed to buy the Leased Property subject to certain
conditions contained in the Purchase Agreement. Pursuant to the
Purchase Agreement, the Landlord has agreed to cure certain title
matters as disclosed in Schedule C of the title commitments issued by
Xxxxxxx Title Company under File No. 97076934, dated effective April
21, 1997 (the "TITLE MATTERS"). Pursuant to title commitments issued
by Commonwealth Land Title Insurance Company through Beaumont Title
Company under File Nos. 9B21679A and 9B21679B, issued August 11, 1997
with an effective date of July 27, 1997 (the "NEW TITLE COMMITMENTS"),
Commonwealth Land Title Insurance Company is willing to insure that
Landlord owns the Leased Property in fee simple without taking
exception to the Title Matters. Provided that Commonwealth Land Title
Insurance Company is willing to issue an owner's title policy which
does not take exception to the Title Matters at the time of the
closing of the Purchase Agreement, such Title Matters will be deemed
cured.
c. Certain environmental matters (the "ENVIRONMENTAL
MATTERS") are disclosed in reports prepared by Dames & Xxxxx entitled
"Final Report, Phase I Environmental Site Assessment, Limited
Environmental Compliance Review, Excell Manufacturing Facility, 0000
Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxx for ITEQ, Inc." dated April 30, 1997,
and "Dames & Xxxxx Group Limited Phase II Investigation, Excell, Inc.
Facilities, Beaumont, Texas" dated July 14, 1997 (collectively, "DAMES
& XXXXX REPORTS"). As part of the consideration for the Lease, Tenant
has agreed to remediate, at its sole cost and expense, the
Environmental Matters under the Voluntary Cleanup Program provided for
in Texas Health and Safety Code, Sections 361.601 et. seq., as same
may be amended from time to time and the regulations promulgated
thereunder ("VCP"), pursuant to the following terms and conditions:
i. Tenant shall submit to the Texas Natural
Resource Conservation Commission (the "TNRCC") an application
to participate in the VCP to remediate the Environmental
Matters of concern on the Leased Property, and upon approval
by TNRCC shall execute and submit a VCP Agreement to TNRCC
regarding remediation related to the Leased Property.
ii. Unless other requirements are imposed by the
TNRCC or another governmental agency, clean up shall be in
accord with TNRCC's Risk Reduction Standard No. 3 for
industrial use of the Leased Property.
iii. At the sole cost and expense of Tenant,
Landlord agrees to cooperate fully in all matters necessary to
enable Tenant (A) to perform fully under the VCP Agreement,
(B) to meet obligations imposed by the TNRCC or any other
governmental agency relating to remediation of the Leased
Property, and (C) to obtain a TNRCC VCP Certificate of
Completion for the Leased Property.
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iv. Tenant shall complete the remediation in a
timely manner in accordance with the VCP Agreement or other
applicable government requirements (herein, the "WORK").
Tenant shall select qualified consultants and contractors as
necessary to perform the Work.
v. Tenant shall provide to Landlord a copy of
all work plans and reports related to the Work submitted to
the TNRCC or any other governmental agency and a copy of
material correspondence from the TNRCC or any other
governmental agency relating to the Work.
vi. Upon receipt, Tenant shall promptly file a
TNRCC VCP Certificate of Completion in the Official Public
Records of Jefferson County, Texas, and the remediation shall
be deemed complete at the time of filing.
vii. LANDLORD, ITS AFFILIATES, DIRECTORS,
OFFICERS, PARTNERS, LEGAL REPRESENTATIVES, INSURERS, AGENTS,
SUCCESSORS AND ASSIGNS HEREBY RELEASE AND DISCHARGE AND
COVENANT NOT TO XXX TENANT, ITS PARENT, AFFILIATES, PARTNERS,
INSURERS, LEGAL REPRESENTATIVES, EMPLOYEES, OFFICERS,
DIRECTORS, AGENTS, SUCCESSORS OR ASSIGNS FROM OR FOR ANY AND
ALL CLAIMS, ACTIONS, DEMANDS, CROSS-ACTIONS, CAUSES OF ACTION,
LOSSES, FEES, COSTS AND EXPENSES, INCLUDING LEGAL FEES AND
EXPENSES, OF WHATSOEVER NATURE, AS WELL AS ANY OTHER KIND OR
CHARACTER OF ACTION, WHETHER KNOWN OR UNKNOWN, LIQUIDATED OR
UNLIQUIDATED, CONTINGENT, PAST, PRESENT OR FUTURE, ARISING OR
RELATING DIRECTLY OR INDIRECTLY TO OR OUT OF OR IN CONNECTION
WITH TENANT'S PERFORMANCE OF ITS OBLIGATIONS UNDER THIS
PARAGRAPH 3(c), WHETHER BASED UPON TORT, USURY, VIOLATION OF
LAW, BREACH OF ANY FAIR DEALING OR GOOD FAITH, BREACH OF
CONFIDENCE, BREACH OF FIDUCIARY DUTY, BREACH OF ANY OTHER
DUTY, BREACH OF ANY STATUTORY RIGHT, UNDUE INFLUENCE, DURESS,
ECONOMIC COERCION, CONFLICT OF INTEREST, NEGLIGENCE, BAD
FAITH, MALPRACTICE, INTENTIONAL OR NEGLIGENT INFLICTION OF
MENTAL DURESS, DECEPTIVE TRADE PRACTICES, CONSPIRACY OR ANY
OTHER CAUSE OF ACTION OR BASED UPON ANY OTHER THEORY; PROVIDED
THAT LANDLORD'S RELEASE OF TENANT SHALL NOT APPLY TO ANY
CLAIM, LIABILITY OR CAUSE OF ACTION ARISING OUT OF TENANT'S
FAILURE TO REMEDIATE THE LEASED PROPERTY AS HEREIN SET FORTH,
AND PROVIDED FURTHER THAT TENANT SHALL INDEMNIFY, DEFEND AND
HOLD HARMLESS LANDLORD, ITS AFFILIATES, MANAGERS, OFFICERS,
LEGAL REPRESENTATIVES, SUCCESSORS, ASSIGNS AND PREDECESSORS IN
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TITLE NAMED AS ORIGINAL SELLERS IN THE PURCHASE AGREEMENT,
AGAINST AND IN RESPECT OF ANY AND ALL CLAIMS, LIABILITY OR
CAUSES OF ACTION WHICH ARISE, RESULT FROM OR RELATE TO
TENANT'S REMEDIATION OF THE PROPERTY. THIS PARAGRAPH
3(c)(vii) SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS
LEASE.
viii. With the exception of liability insurance
coverage for third party claims against Landlord, Landlord
hereby assigns and grants to Tenant any and all right, title
and interest Landlord may have in any claim for (A) insurance
coverage, or (B) damages, cost recovery or contribution from
or against any other person or entity that may be responsible
under any statute or common law for contamination of the
Leased Property or costs relating to investigation or
remediation thereof. Landlord shall cooperate fully with
Tenant in any effort by Tenant to pursue any such assigned
claims. This Paragraph 3(c)(viii) shall survive the
termination or expiration of this Lease.
4. Use of Leased Property. The Leased Property is to be used and
occupied by Tenant for general office, warehouse and manufacturing purposes.
5. Governmental Compliance. Tenant shall at all times during the
term of the Lease comply with all governmental rules, regulations, ordinances,
statutes and laws, and shall obtain and maintain all required licenses, permits
and approvals.
6. Utilities. Tenant shall be responsible for all usage charges
for utilities, including water, gas, heat, electricity, power, garbage service,
air conditioning, telephone service, water, sewer service charges and sewer
rentals charged or attributable to the Leased Property, and all other services
or utilities used in, upon or about the Leased Property by Tenant. The Tenant
shall also be liable for any such charge which is incurred during the Lease
Term, but which does not become due and payable until after the expiration or
earlier termination of this Lease. Tenant shall not permit any liens to be
filed against the Leased Property by any governmental entity for nonpayment of
utilities.
7. Taxes. Tenant shall be liable for and shall pay before
delinquency all ad valorem taxes, fees, impositions, and assessments of
whatsoever kind or nature, and penalties and interest thereon, if any, levied
against the Leased Property. Tenant also agrees to pay all taxes, fees,
impositions and assessments levied or assessed against the equipment and
personal property belonging to Tenant and located on the Leased Property.
8. Maintenance. Tenant, at its sole cost, shall maintain and
repair the entirety of the Leased Property. Upon the expiration or earlier
termination of the Lease Term, Tenant shall peaceably quit and surrender the
Leased Property in its current condition, excepting ordinary wear and tear and
casualty or condemnation damage.
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9. Alterations and Improvements. Tenant may make alterations and
improvements to the Leased Property; provided, however, Tenant may not remove
or demolish existing improvements and fences without Landlord's prior written
consent, which consent shall not be unreasonably withheld or delayed. No
mechanic's, materialmen's or similar liens shall be allowed on the Leased
Property and same shall be immediately removed by Tenant.
10. Insurance.
a. Landlord shall, at its sole expense, procure and
maintain throughout the Lease Term, for the protection of Landlord,
policies of insurance written by insurance companies rated "A" or
better, and a financial rating of not less than Class "X" by A.M. Best
Company Inc. and otherwise acceptable to Landlord, which afford the
following coverages:
i. Commercial general liability insurance in
amounts of not less than $2,000,000.00 each occurrence
limited, $2,000,000.00 general aggregate limit, and
$2,000,000.00 personal injury and aggregate injury limit or
such other amounts as prudent business judgment may from time
to time require, covering bodily injury and property damage
liability, and including owned and non-owned vehicle coverage
and contractual liability coverage, insuring Landlord, against
any and all liability to the extent obtainable for injury to
or death of a person or persons or damage to property
occasioned by or arising out of or in connection with the
ownership and maintenance of the Leased Premises, during the
policy period, regardless of when the claim is made; and
ii. Such other insurance as Landlord may, in its
sole discretion, deem advisable, including, without
limitation, rental loss insurance.
b. Tenant shall, at its sole expense, procure and
maintain throughout the Lease Term for the protection of Tenant and
Landlord, as their interests may appear, policies of insurance written
by insurance companies rated "A" or better, and a financial rating of
not less than Class "X" by A.M. Best Company Inc. and otherwise
acceptable to Landlord, which afford the following coverages:
i. A policy of standard fire and standard
extended coverage insurance covering the improvements on the
Leased Property, in such amount as Tenant shall deem
advisable, but not less than $1,500,000.00 and naming Landlord
and Tenant as loss payee;
ii. Worker's compensation - statutory limits;
iii. Employer's liability in amounts not less than
$250,000.00 each accident for bodily injury by accident;
$250,000.00 policy limit each employee for bodily injury by
disease;
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iv. Property insurance insuring Tenant's
fixtures, equipment, tenant improvements and personalty
against direct risk of loss, broad form coverage;
v. Commercial general liability insurance in
amounts of not less than $2,000,000.00 each occurrence
limited, $2,000,000.00 general aggregate limit, $2,000,000.00
products/completed operations aggregate limit, and
$2,000,000.00 personal injury and advertising injury limit,
covering bodily injury and property damage liability, and
including owned and non-owned vehicle coverage and contractual
liability coverage, insuring Tenant against any and all
liability to the extent obtainable for injury to or death of a
person or persons or damage to property occasioned by or
arising out of or in connection with the use, operation and
occupancy of the Leased Premises, during the policy period,
regardless of when the claim is made.
c. Tenant shall furnish to Landlord, concurrent with the
execution of this Lease, certificates of insurance and such other
evidence satisfactory to Landlord of the maintenance of all insurance
coverages required hereunder. Tenant shall obtain and deliver to
Landlord a written obligation on the part of each insurance company to
notify Landlord at least thirty (30) days prior to cancellation or
material change of any such insurance. Tenant shall deliver renewal
certificates at least thirty (30) days prior to the expiration of each
policy. Tenant agrees that if it does not keep this insurance in full
force and effect, Landlord may notify Tenant of this failure, and if
Tenant does not deliver to Landlord certificates showing all such
insurance to be in full force and effect within thirty (30) days after
such notice, Landlord may, at its option, but with no obligation to do
so, take out and/or pay the premiums on the insurance needed to
fulfill Tenant's obligations under the provisions of this article.
Upon demand from Landlord, Tenant shall reimburse Landlord the full
amount of any insurance premiums paid by Landlord, with interest at
the rate of ten percent (10%) per annum from the date of Landlord's
demand until reimbursement by Tenant. Landlord makes no
representation that the minimum limits of liability specified to be
carried by Tenant are adequate to protect Tenant. Tenant shall
provide any such additional coverage as Tenant deems adequate.
d. The parties desire to avoid liability to each other's
insurers. Thus, Landlord and Tenant each for itself and for any
person or entity claiming through it (including any insurance company
claiming by way of subrogation), hereby waives any and every claim
which arises or may arise in its favor against the other party hereto
and the other party's officers, directors and employees for any and
all loss of or damage to property, to the extent (but only to the
extent) that the waiving party who suffers such loss or damage is
actually compensated by insurance or would be compensated by the
insurance policies contemplated herein if such policies were
maintained as required hereby. Each party agrees to have such
insurance policies properly endorsed so as to make them valid
notwithstanding this waiver, if such endorsement is required to
prevent a loss of insurance.
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11. Casualty Damage.
a. If the Leased Property shall be damaged by fire or
other casualty, Landlord shall repair the same with reasonable
dispatch, due allowance being made for any delay resulting from a
cause beyond Landlord's reasonable control; provided, however, that
Landlord shall not be required to repair or replace any of Tenant's
leasehold improvements, trade fixtures, equipment or personalty, and
provided further that Landlord's obligations to repair the Leased
Property shall be limited to the aggregate amount of insurance
proceeds which are received by it pursuant to Paragraph 10(b)(i)
hereof.
b. Landlord shall use its best efforts to effect such
repairs and reconstruction in such a manner as to not unreasonably
interfere with Tenant's occupancy. No damages, compensation or claims
shall be payable by Landlord for any inconvenience, loss of business
or annoyance arising from any such repair and reconstruction. After
the occurrence of such fire or other casualty damage and during the
period of repair and reconstruction, Tenant shall be entitled to an
abatement or reduction of Rent based on the percentage of the Leased
Property that is unusable by Tenant.
12. Condemnation. If the Leased Property or any portion thereof
is taken under the power of eminent domain, or sold under the threat of the
exercise of said power (all of which are herein called "CONDEMNATION"), this
Lease shall terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever occurs first and the Rent shall
be reduced proportionately. Tenant shall have the right to claim directly from
the condemnor, but not from Landlord, such compensation as may be recoverable
by Tenant in its own right for damage to Tenant's business, fixtures, and
leasehold improvements, to the extent such improvements were made by Tenant, if
such claim can be made separate and apart from any award to Landlord. Landlord
shall repair any damage to the structure of the Leased Property caused by such
Condemnation except to the extent Tenant has been reimbursed therefor by the
condemning authority.
13. Default by Tenant. Each of the following shall constitute a
"DEFAULT" by Tenant:
a. The failure of Tenant to pay the Rent, any part
thereof or other sum or charge when due, which failure continues for
five (5) days after written notice thereof from Landlord to Tenant; or
b. Tenant shall default in the performance of any other
term, covenant or condition of this Lease on the part of Tenant to be
kept and performed and such default continues for twenty (20) days
after written notice thereof from Landlord to Tenant; or
c. If Tenant shall be adjudicated a bankrupt, or shall
file a petition for reorganization, arrangement or other relief under
any present or future provisions of the Bankruptcy Code, or if such a
petition be filed by creditors of Tenant or if Tenant shall seek
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a judicial readjustment of the rights of its creditors under any
present or future federal or state law.
14. Landlord's Remedies. In the event of default as designated in
this Lease, Landlord, as its exclusive remedy, may exercise its rights of
forcible entry and detainer as allowed by Texas law, and xxx only for unpaid
Rent and other amounts or charges due Landlord hereunder through the date of
default if the Leased Property is tenantable. Landlord may xxx for unpaid Rent
and other amounts or charges due Landlord through the date of the default and
for any damage to the Leased Property if the Leased Property is untenantable.
Provided, however, Tenant shall not be liable to Landlord for consequential or
punitive damages, and Landlord's damages shall be limited to actual damages and
reasonable attorneys' fees directly attributable to Tenant's default under this
Lease. Notwithstanding the foregoing, to the extent allowed by law, Landlord
shall have the right to compel specific performance of Tenant's obligations
under Paragraph 3(c)(vii) and of Guarantor's obligations under Paragraph 35
hereof.
15. Quiet Possession. Tenant, upon paying the amounts provided
for herein required from Tenant, and upon Tenant's performance of all of the
terms, covenants and conditions of this Lease on its part to be kept and
performed, may quietly have, hold and enjoy the Leased Property during the
Lease Term without any disturbance from Landlord or from any other person.
16. Default by Landlord. If Landlord shall fail or refuse to
perform any of the provisions, covenants or conditions of this Lease on
Landlord's part to be kept or performed, Tenant shall provide Landlord written
notice of such default and a twenty (20) day period to cure such default, prior
to Tenant exercising any of Tenant's remedies under Texas law. In addition to
all other remedies available to Tenant at law or in equity, if Landlord fails
to cure its default, Tenant may, at its sole option, terminate its obligations
under Paragraph 3(c)(vii) of this Lease.
17. Assignment and Subletting. Tenant may assign, transfer,
mortgage, sublet or otherwise transfer or encumber all or any part of Tenant's
interest in this Lease or in the Leased Property, only with the prior written
consent of Landlord, but is otherwise not assignable or delegable by any party,
and no such assignment shall release Tenant or Guarantor from their respective
obligations under Paragraph 3(a) and Paragraph 35 of this Lease; provided,
however, Tenant may assign or sublet the Leased Premises to its subsidiaries or
affiliates without the prior consent of Landlord. Any attempted assignment of
this Lease or delegation of duties hereunder, except as expressly allowed
herein, is void.
18. Entry by Landlord. Landlord and/or Landlord's agents shall
have the right to enter the Leased Property upon reasonable notice to Tenant
(such notice may be oral, but no notice shall be required in the case of any
emergency) for any purpose which Landlord may reasonably deem necessary for the
operation, maintenance and/or repair (without implying any obligation of
Landlord to repair unless expressly provided herein) of the Leased Property.
19. Holdover. If Tenant shall remain in possession of the Leased
Property after the expiration or earlier termination of this Lease, then Tenant
shall be deemed a tenant-at-will,
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terminable at any time, and shall pay Rent at one hundred and fifty percent
(150%) the rate of the Rent prevailing on the date of such termination or
expiration, but otherwise shall be subject to all of the terms and obligations
of Tenant under this Lease. Additionally, Tenant shall pay to Landlord all
damages sustained by Landlord on account of such holding over by Tenant.
20. Attorneys' Fees and Other Expenses. In the event either party
hereto defaults in the faithful performance or observance of any of the terms,
covenants, provisions, agreements or conditions contained in this Lease, the
party in default shall be liable for and shall pay to the non-defaulting party
all reasonable expenses incurred by such party in enforcing any of its
remedies for such default, and if the non-defaulting party places the
enforcement of all or any part of this Lease in the hands of an attorney, the
party in default agrees to pay the non-defaulting party's reasonable attorneys'
fees in connection therewith.
21. No Partnership. Nothing contained in this Lease shall be
deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent or of partnership or of joint venture or of
any association between Landlord and Tenant. Neither the method of computation
of rent nor any other provisions contained in this Lease nor any acts of the
parties hereto shall be deemed to create any relationship between Landlord and
Tenant other than the relationship of Landlord and Tenant.
22. Authority. Each individual executing this Lease on behalf of
Tenant represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of Tenant. Tenant shall deliver, within thirty
(30) days after execution and delivery of this Lease, satisfactory evidence of
such authority to Landlord. Each individual executing this Lease on behalf of
Landlord represents and warrants that he is duly authorized to execute and
deliver this Lease on behalf of Landlord. Landlord represents and warrants
that it is the owner, in fee simple, of the Leased Property and has the right
to enter into this Lease and no other party has any claim to or lien on the
Leased Property.
23. Notice. Any and all notices and demands by or from Landlord
to Tenant, or by or from Tenant to Landlord, required or desired to be given
hereunder shall be in writing and shall be validly given or made if served
either personally or if deposited in the United States mail, certified or
registered, postage prepaid, return receipt requested. If such notice or demand
be served by registered or certified mail in the manner provided, service shall
be conclusively deemed given five (5) days after mailing or upon receipt,
whichever is sooner. Any party hereto may change its address for the purpose
of receiving notices or demands as herein provided by a written notice given in
the manner aforesaid to the other party hereto, which notice of change of
address shall not become effective, however, until the actual receipt thereof
by the other party.
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If to Landlord to: Xxxxxxxx Xxxxxxxx Street Properties, L.L.C.
Neches Street Properties, L.L.C.
X.X. Xxx 0000
Xxxxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
(000) 000-0000
FAX: (000) 000-0000
with a copy to: Xxxxxx, Xxxx & Xxxxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxxxx, III, Esquire
(000)000-0000
FAX: (000)000-0000
If to Tenant: Exell, Inc.
c/o ITEQ, Inc.
0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxxxx X. XxXxxx
(000) 000-0000
FAX: (000) 000-0000
with a copy to: Xxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esquire
(000)000-0000
FAX: (000)000-0000
The parties shall have the right from time to time to change their
respective addresses by giving written notice to the other party in the manner
set forth in this paragraph.
24. Brokers. Tenant warrants that it has had no dealings with any
broker or agent in connection with this Lease, and covenants to pay, hold
harmless and indemnify Landlord from and against any and all cost, expense or
liability for any compensation, commissions and charges claimed by any broker
or agent with respect to this Lease or the negotiation thereof. Landlord
warrants that it has had no dealings with any broker or agent in connection
with this Lease, and covenants to pay, hold harmless and indemnify Tenant from
and against any and all cost, expense or liability for any compensation,
commissions and charges claimed by any broker or agent with respect to this
Lease or the negotiation thereof.
25. Rights of Parties. Nothing in this Lease, whether express or
implied, with the exception of the release in Paragraph 3(c)(vii), is intended
to confer any rights or remedies under
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or by reason of this Lease on any persons other than the parties hereto and
their respective successors and permitted assigns, nor shall any provision give
any third persons any right of subrogation or action over against any party to
this Lease. Without limiting the generality of the foregoing, it is expressly
understood that this Lease does not create any third-party beneficiary rights.
26. Captions. The captions appearing at the commencement of the
sections hereof are descriptive only and for convenience in reference to this
Lease and in no way whatsoever define, limit or describe the scope or intent
of this Lease, nor in any way affect this Lease.
27. Governing Law. The laws of the State of Texas shall govern
the validity, construction, performance and effect of this Lease.
28. Binding Effect. The terms, provisions, covenants and
conditions contained in this Lease shall apply to, bind and inure to the
benefit of the legal representatives, successors and assigns of Landlord and
Tenant, respectively.
29. Severability. If any term, covenant or condition of this
Lease, or any application thereof, should be held by a court of competent
jurisdiction to be invalid, void or unenforceable, all terms, covenants and
conditions of this Lease, and all applications thereof, not held invalid, void
or unenforceable, shall continue in full force and effect and shall in no way
be affected, impaired or invalidated thereby.
30. No Waiver. No waiver of any breach of the covenants,
warranties, agreements, provisions or conditions contained in this Lease shall
be construed as a waiver of said covenant, warranty, provision, agreement or
condition of any subsequent breach thereof.
31. Time of the Essence. Time is of the essence of this Lease and
all of the terms, covenants and conditions hereof.
32. Recording. A memorandum of this Lease may be recorded or
filed for record in any public records or governmental office by Tenant.
33. Entire Agreement. This Lease, together with the Purchase
Agreement, contains the entire agreement between the parties and cannot be
changed or terminated orally. This Lease supersedes and cancels any and all
previous statements, negotiations, arrangements, agreements and understandings,
if any, between Landlord and Tenant with respect to the subject matter of this
Lease.
34. Counterparts. This Lease may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, but such counterparts shall together constitute one and the same
instrument; provided, however, this Lease shall not be effective until a
counterpart has been signed by each party to be bound hereby.
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35. Guarantee. By its joinder in execution hereof, ITEQ, Inc.
("GUARANTOR") hereby guarantees Tenant's payment and performance obligations
under Paragraphs 3(a) and 3(c) of this Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the
day and year first above written.
LANDLORD:
XXXXXXXX XXXXXXXX XXXXXX PROPERTIES, L.L.C.
By: /s/ XXX XXXXXX XXXXXXXXX
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Name: Xxx Xxxxxx Xxxxxxxxx
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Title: Managing Member
---------------------------------------
NECHES STREET PROPERTIES, L.L.C.
By: /s/ XXX XXXXXX XXXXXXXXX
------------------------------------------
Name: Xxx Xxxxxx Xxxxxxxxx
----------------------------------------
Title: Managing Member
---------------------------------------
TENANT:
EXELL, INC.
By: /s/ XXXXXXXX X. XxXXXX
------------------------------------------
Name: Xxxxxxxx X. XxXxxx
----------------------------------------
Title: Vice President
---------------------------------------
GUARANTOR:
ITEQ, INC.
By: /s/ XXXXXXXX X. XxXXXX
-------------------------------
Xxxxxxxx X. XxXxxx
Executive Vice President and
Chief Financial Officer
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