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EXHIBIT 10.68
LEASE
TERMS AND DEFINITIONS
EFFECTIVE DATE: January 1, 1998
LANDLORD: Xxxxxx Xxxxx
XXXXXXXX'S MAILING ADDRESS:
Xxxxxx Xxxxx
0000 X. Xxxxxx'x Xxxxxx Xxxx
Xxxxxx, XX 00000
Xxxx Xxxxxx
TENANT: Belco Manufacturing Company, Inc.
TENANT'S MAILING ADDRESS:
Belco Manufacturing Company, Inc.
P.O. Box 210
Belton, TX 76513
Bell County
PREMISES: 8.71 acres in the O.T. Tyler Survey in Bell County, Texas,
described on the certificate of Xxxxxx Xxxxxxx, Xx., Registered Professional
Engineer dated July 6, 1978, which certificate is attached hereto as Exhibit "A"
and made a part hereof for all purposes
BASE RENT (MONTHLY): $17,400.00
TERM (MONTHS): One Hundred twenty (120) months
COMMENCEMENT DATE: January 1, 1998
TERMINATION DATE: December 31, 2008
USE: Manufacturing facility
AMOUNT OF LIABILITY INSURANCE:
Death/Bodily Injury: $1,000,000.00
Property: $250,000.00
GUARANTORS: NONE
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"RENT" means base rent plus any other sums of money due Landlord by Xxxxxx.
"LANDLORD" means Landlord and its agents, employees, invitees, licensees, or
visitors.
"TENANT" means Tenant and its agents, employees, invitees, licensees, or
visitors.
"ESSENTIAL SERVICES" means heating, ventilating, air conditioning, water, and
utility connections reasonably necessary for occupancy of the premises for the
use stated above.
LEASE CLAUSES AND COVENANTS
A. TENANT AGREES TO--
1. Lease the premises for the entire term beginning on the
commencement date and ending on the termination date.
2. Accept the premises in their present condition "as IS," the
premises being currently suitable for Tenant's intended use.
3. Obey all laws, ordinances, orders, and rules and regulations
applicable to the use, condition, and occupancy of the premises,
including the rules and regulations of the building adopted by
Landlord.
4. Pay monthly, in advance, on the first day of the month, the base
rent to Landlord at Landlord's address.
5. Pay, as additional rent, all other sums due under this lease.
6. Pay a late charge of five (5%) percent of any rent not received by
Landlord by the tenth day of the month in which the rent is due.
7. Pay for all utility services used by Tenant and not provided by
Landlord.
8. Allow Landlord to enter the premises to perform Landlord's
obligations, inspect the premises, and show the premises to prospective
purchasers or tenants.
9. Repair, replace, and maintain any and all parts (including the
roof, foundation, parking and common areas, exterior walls, doors,
corridors, windows and other structures or equipment serving the
premises) of the premises.
10. Repair any damage to the premises.
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11. Submit in writing to Landlord any request for repairs, replacement,
and maintenance that are the obligations of Landlord.
12. Maintain public liability insurance for the premises and the
conduct of Tenant's business, naming Landlord as an additional insured,
in the amounts stated in the basic lease terms and definitions.
13. Maintain insurance on Tenant's personal property.
14. Deliver certificates of insurance to Landlord before the
commencement date and thereafter when requested.
15. Indemnify, defend, and hold Landlord harmless from any loss,
attorney's fees, expenses, or claims arising out of use of the
premises.
16. Deliver to Landlord a financing statement perfecting the security
interest.
17. Vacate the premises on termination of this lease.
B. TENANT AGREES NOT TO--
1. Use the premises for any purpose other than that stated in the
basic lease terms and definitions.
2. (a) Create a nuisance, (b) permit any waste, or (c) use the
premises in any way that is extra hazardous, would increase insurance
premiums, or would void insurance on the building.
3. Change Landlord's lock system.
4. Alter the premises.
5. Allow a lien to be placed on the premises.
6. Assign this lease or sublease any portion of the premises without
Landlord's written consent.
C. LANDLORD AGREES TO--
1. Lease to Tenant the premises for the entire term beginning on the
commencement date and ending on the termination date.
2. Obey all laws, ordinances, orders, and rules and regulations
applicable to
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the use, condition, and occupancy of the building.
3. Insure the building against all risks of direct physical loss in an
amount equal to at least 90 percent of the full replacement cost of the
building as of the date of the loss and liability; Tenant will have no
claim to any proceeds of Landlord's insurance policy.
D. XXXXXXXX AGREES NOT TO--
1. Interfere with Xxxxxx's possession of the premises as long as Tenant
is not in default.
2. Unreasonably withhold consent to proposed assignment or sublease.
X. XXXXXXXX AND TENANT AGREE TO THE FOLLOWING:
1. ALTERATIONS. Any physical additions or improvements to the premises
made by Tenant will become the property of Landlord. Landlord may
require that Tenant, at termination of this lease and at Tenant's
expense, remove any physical additions and improvements, repair any
alterations, and restore the premises to the condition existing at the
commencement date, normal wear excepted.
2. ABATEMENT. Tenant's covenant to pay rent and Landlord's covenants
are independent of each other. Except as otherwise provided, Tenant
shall not be entitled to xxxxx rent for any reason.
3. RELEASE OF CLAIMS/SUBROGATION. Landlord and Tenant release each
other from any claim, by subrogation or otherwise, for any damage to
the premises, the building, or personal property within the building,
by reason of fire or the elements, regardless of cause, including
negligence of Landlord or Tenant. This release applies only to the
extent that it is permitted by law, the damage is covered by insurance
proceeds, and the release does not adversely affect any insurance
coverage.
4. NOTICE TO INSURANCE COMPANIES. Landlord and Tenant will notify the
issuing insurance companies of the release set forth in the preceding
paragraph and will have the insurance policies endorsed, if necessary,
to prevent invalidation of the insurance coverage.
5. CASUALTY/TOTAL OR PARTIAL DESTRUCTION. (a) If the premises are
damaged by casualty and can be restored within ninety days, Landlord
will, at its expense, restore the premises to substantially the same
condition as they existed before the casualty. If Landlord fails to
complete restoration within ninety days from the date of written
notification by Tenant to Landlord of the casualty, Tenant
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may terminate his lease by written notice to Landlord. (b) If the
premises cannot be restored within ninety days, Landlord has an option
to restore or not to restore the premises. If Landlord chooses not to
restore, this lease will terminate. If Landlord chooses to restore, it
will notify Tenant of the estimated time to restore and give Tenant an
option to terminate this lease by notifying Landlord within ten days.
If Tenant does not terminate this lease, it shall continue and Landlord
shall restore the premises as provided in (a) above. (c) To the extent
the premises are untenantable after the casualty and the damage was not
caused by Tenant, the rent will be adjusted as may be fair and
reasonable.
6. CONDEMNATION/SUBSTANTIAL OR PARTIAL TAKING. (a) If the premises
cannot be used for the purposes contemplated by this lease because of
condemnation or purchase in lieu of condemnation, this lease will
terminate. (b) If there is a condemnation or purchase in lieu of
condemnation and this lease is not terminated, Landlord will, at
Landlord's expense, restore the premises, and the rent payable during
the unexpired portion of the term will be adjusted as may be fair and
reasonable. (c) Tenant will have no claim to the condemnation award or
proceeds in lieu of condemnation.
7. UNIFORM COMMERCIAL CODE. Tenant grants Landlord a security interest
in Xxxxxx's personal property now or subsequently located on the
premises. This lease is a security agreement under the Uniform
Commercial Code. Landlord may file a copy of this lease as a financing
statement.
8. DEFAULT BY LANDLORD/EVENTS. Defaults by Landlord are (a) failing to
comply with any provision of this lease within thirty days after
written notice or (b) failing to provide essential services to Tenant
within ten days after written notice.
9. DEFAULT BY LANDLORD/TENANT'S REMEDIES. Xxxxxx's remedies for
Landlord's default are to (a) sue for damages, and (b) if Landlord does
not provide an essential service for thirty days after default,
terminate this lease.
10. DEFAULT BY TENANT/EVENTS. Defaults by Tenant are (a) failing to pay
timely rent, (b) abandoning or vacating a substantial portion of the
premises, or (c) failing to comply within then days after written
notice with any provision of this lease other than the defaults set
forth in (a) and (b) above.
11. DEFAULT BY TENANT/LANDLORD'S REMEDIES. Xxxxxxxx's remedies for
Tenant's default are to (a) enter and take possession of the premises,
after which Landlord may relet the premises on behalf of Tenant and
receive the rent directly by reason of the reletting, and Xxxxxx agrees
to reimburse Landlord for any expenditures made in order to relet; (b)
enter the premises and perform Tenant's obligations; or (c) terminate
this lease by written notice and sue for damages. Landlord may enter
and take possession of the premises by self-help, by picking or
changing locks if necessary, and may lock out Tenant or any other
person who may be occupying the premises, until the default is cured,
without being liable for damages.
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12. DEFAULT/WAIVER/MITIGATION. It is not a waiver of default if the
nondefaulting party fails to declare immediately a default or delays in
taking any action. Pursuit of any remedies set forth in this lease does
not preclude pursuit of other remedies in this lease or provided by
law. Landlord and Tenant have a duty to mitigate damages.
13. HOLDOVER. If Tenant does not vacate the premises following
termination of this lease, Tenant shall be a tenant at will and shall
vacate the premises on receipt of notice from Landlord. No holding over
by Xxxxxx, whether with or without the consent of Landlord, will extend
the term.
14. ALTERNATIVE DISPUTE RESOLUTION. Landlord and Tenant shall submit in
good faith to mediation before filing a suit for damages.
15. ATTORNEY'S FEES. If either party retains an attorney to enforce
this lease, the prevailing party is entitled to recover reasonable
attorney's fees.
16. VENUE. Venue is in the county in which the premises are located.
17. ENTIRE AGREEMENT. This lease, together with the attached exhibits
and riders, is the entire agreement of the parties, and there are no
oral representations, warranties, agreements, or promises pertaining to
this lease or to the expressly mentioned exhibits and riders not
incorporated in writing in this lease.
18. AMENDMENT OF LEASE. This lease may be amended only by an instrument
in writing signed by Landlord and Tenant.
19. LIMITATION OF WARRANTIES. There are no implied warranties of
merchantability, of fitness for a particular purpose, or of any other
kind arising out of this lease, and there are no warranties that extend
beyond those expressly stated in this lease.
20. NOTICES. Any notice required by this lease shall be deemed to be
delivered (whether or not actually received) when deposited with the
United States Postal Service, postage prepaid, certified mail, return
receipt requested, and addressed to Landlord or Tenant at their
addresses.
21. ABANDONED PROPERTY. Landlord may retain, destroy, or dispose of any
property left on the premises at the end of the term.
LANDLORD
Xxxxxx Xxxxx
TENANT
Belco Manufacturing, Inc.
Xxxxxx Xxxxx, President
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EXHIBIT A
FIELD NOTES for a tract of land out of and a part of the O.T. Tyler Survey,
Abstract #20, Bell County, Texas, and the land herein described being a part of
that certain 193 acre tract conveyed to Xxxxxx X. Xxxxxxx, et al, by deed
recorded in Volume 1339, Page 1, Bell County Deed Records.
BEGINNING at the intersection of the south right-of-way of P.M. Road #93 with
the east line of a Texas Rockwool Corporation tract described in a deed recorded
in Volume 723, Page 188, Bell County Deed Records, a fence post for the
northwest corner of this.
THENCE S. 68(Degree) 43' 53" E., 195.55 feet and S. 68(Degree) O2' 24" E.,
999.44 fest with the said right-of-way to an iron rod at a corner post for the
northeast corner of this.
THENCE S. 36(Degree) 03' 59" W., 185.0 feet and S. 41(Degree) 26' 10" W.,
300.22 feet with a fence to an iron rod at a corner post for the southeast
corner of this.
THENCE with a fence, N. 53(Degree) 16' 29" W., 366.74 feet, N. 54(Degree) 03'
51" W., 466.50 feet, and N. 57(Degree) 12' 25" W., 230.14 feet to a corner post
in the east line of the said Rockwool tract for the southwest corner of this.
THENCE with the said east line, N. 17(Degree) 30' 00" E., 211.36 feet to the
place of beginning, containing 8.717 acres of land.
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STATE OF TEXAS
COUNTY OF BELL
KNOW ALL MEN BY THESE PRESENTS, that I Xxxxxx Xxxxxxx, Xx., Registered
Professional Engineer, do hereby certify that I did cause to be surveyed on the
ground the above described tract of land and to the best of my knowledge and
belief the said description is true and correct.
IN WITNESS THEREOF, my hand and seal, this the 6th day of July A.D. 1978
XXXXXX XXXXXXX, XX.
(SEAL)
