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Exhibit 10.17
LEASE
THIS LEASE (this "Lease") is made and entered into this 6th day of
January, 1997, by and between ES&L Service, a Texas general partnership
(hereinafter called "Landlord"), and NES Acquisition Corp., a Delaware
corporation (hereinafter called "Tenant").
W I T N E S S E T H:
Landlord, for and in consideration of the covenants and agreements
hereinafter set forth to be kept and performed by both parties, does hereby
demise and lease to Tenant (for the term hereinafter stipulated) the premises
(hereinafter called the "Demised Premises") commonly known as Xx. 0, 0000 X.
Xxxxxx, Xxxxxxxx, Xxxxx 00000, consisting of an area approximately 45,300
square feet.
Landlord hereby leases the Demised Premises to Tenant and hereby grants to
Tenant its guests, invitees and licensees all easements, rights and privileges
appurtenant thereto, including the right to use adjoining parking areas,
driveways, roads, alleys and means of ingress and egress.
1. TERM; RENEWAL AND USE.
A. The original term ("Term") of this Lease shall begin on January 6, 1997
(the "Commencement Date") and shall expire on January 5, 1999. Tenant may
renew the Term of the Lease for an additional three (3) year period by
providing Landlord with notice of such renewal 90 days prior to the
expiration of the Term. The "Term" shall include the original Term and
any renewals thereof.
B. The Demised Premises may be used and occupied for any lawful purpose.
2. RENTAL.
A. Tenant does hereby covenant and agree to pay to Landlord, for the use
and occupancy of the Demised Premises, at the times and in the manner
hereinafter provided, $5,000 a month during the original Term and any renewal
Term ("Base Rent"). Such Base Rent shall be paid in advance, without notice or
invoice from Landlord, on the first day of each and every month during the Term
hereof. In the event such Base Rent shall be determined under the provisions
of Article 2 hereof to commence on a day other than the first day of a month or
the term shall end on other than the last day of a month, then Base Rent shall
be prorated accordingly.
B. In order to secure the performance of the provisions of this Lease to
be performed by the Tenant, Tenant has deposited with Landlord cash in the sum
of $5,000 (the "Security Deposit"). In the event a default occurs of the type
described in Article 17 hereof, Landlord may use or apply all or any part of
the Security Deposit to remedy any such default. The Security Deposit may be
applied to the last monthly Base Rent payment. Any balance of the Security
Deposit remaining at the expiration of the Term shall be returned to Tenant
within thirty (30) days after the expiration of the Term.
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3. TAXES. Landlord agrees to pay on or before the date when due, all real
estate property taxes, general and special assessments which may be levied or
assessed against the Demised Premises.
4. COMPLIANCE WITH LAWS. Tenant and Landlord agree to comply with all laws,
ordinances, orders and regulations regarding the use and occupancy of the
Demised Premises and the cleanliness, safety or operation thereof. Tenant
agrees to comply with the reasonable regulations and requirements of any
insurance underwriter, inspection bureau or similar agency with respect to
improvements installed by Tenant. Tenant agrees to permit Landlord to comply
with such recommendations and requirements with respect to that portion of the
Demised Premises for which Landlord is responsible to repair and maintain.
5. CONDITION OF PREMISES. Tenant shall, during the Term of this Lease, have
the right to report to Landlord any defects or condition which are in need of
repair based upon the obligations of Landlords under this Lease. In connection
therewith, Landlord shall be obligated within a reasonable amount of time, not
to exceed thirty (30) days, to cure and correct such defects and conditions.
Landlord warrants that upon delivery of the Demised Premises to Tenant the
interior and exterior of the Demised Premises will meet with all present codes
required at the time by regulations of governing authorities. If at any time
the Demised Premises does not meet with codes as required by regulations of
governing authorities, then, except for work that is specifically required by
Tenant's use and occupancy, the Demised Premises will be brought up to the
proper standards at Landlord's expense. If Landlord fails to prosecute such
diligently and continuously until completion then Tenant may prosecute such
repairs itself and apply the cost of same against the next Base Rent obligation
due hereunder. Landlord shall also be responsible for paying any and all fines
or penalties assessed by any governmental authority if the Demised Premises
fails to meet codes and regulations of governmental authorities during the Term
of this Lease with respect to items for which Landlord is responsible to repair
and maintain as set forth in Article 6 of this Lease. Tenant shall be
responsible for paying any or all fines or penalties for noncompliance or
violation of codes and regulations of governmental authorities during the Term
of this Lease with respect to items for which Tenant is responsible to repair
and maintain as set forth in this Lease.
6. REPAIRS AND MAINTENANCE. Landlord covenants and agrees, at its expense
without reimbursement or contribution by Tenant, to keep, maintain and replace,
if necessary, the foundations, the exterior paint, the HVAC system, the
plumbing system, the electrical system, the utility lines and connections to
and other systems servicing the Demised Premises, the sprinkler mains, if any,
structural elements including, without limitation, the roof, roof membrane,
roof covering (including interior ceiling), load-bearing walls, floors and
masonry walls in good condition and repair. Tenant covenants and agrees to
keep and maintain the Demised Premises in the same condition as existed at the
Commencement Date, normal wear and tear, damage from casualty and condemnation
excepted. In the event the Demised Premises become or are out of repair and
condition due to the failure of Landlord or Tenant to comply with the terms of
this Article 6, then the non-defaulting party shall have the right to perform
or cause to be performed any and all repairs necessary to restore and repair
the Demised Premises.
7. ALTERATIONS. Tenant shall not make any exterior or structural alterations
in any portion of the Demised Premises nor any alterations in the interior or
the exterior of the Demised Premises without, in each instance, first obtaining
the written consent of Landlord, which consent shall not be unreasonably
withheld. Tenant shall be permitted to make interior nonstructural
alterations, additions and improvements without Landlord's prior consent.
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8. FIXTURES AND PERSONAL PROPERTY. Any trade fixtures, business equipment,
inventory, trademarked items, signs, and other removable personal property
installed in or on the Demised Premises ("Tenant's Property"), shall remain the
property of the Tenant. Landlord agrees that Tenant shall have the right, at
any time or from time to time, to remove any and all of Tenant's Property.
Tenant, at its expense, shall immediately repair any damage occasioned by the
removal of Tenant's Property and upon expiration or earlier termination of this
Lease, shall leave the Demised Premises in a neat and clean condition, free of
debris, normal wear and tear excepted.
9. LIENS. Neither Landlord nor Tenant shall permit to be created nor to remain
undischarged any lien, encumbrance or charge arising out of any work or work
claim of any contractor, mechanic or laborer of Tenant or material supplied by
a materialman to, Landlord or Tenant which might be, or become, a lien or
encumbrance or charge upon the Demised Premises. If any lien or notice of lien
on account of an alleged debt of Landlord or Tenant or any notice of contract
by a party engaged by Landlord or Tenant or Landlord's or Tenant's contractor
to work in the Demised Premises shall be filed against the Demised Premises,
the responsible party shall, within thirty (30) days after notice of the filing
thereof, cause the same to be discharged of record by payment, deposit or bond.
10. ACCESS TO PREMISES. Upon reasonable prior written notice, but in no event
less than twenty-four (24) hours (except in the case of an emergency), Landlord
may enter the Demised Premises during Tenant's business hours for purposes of
inspection, to show the Demised Premises to prospective purchasers and lenders,
or to perform maintenance and repair obligations imposed upon Landlord by this
Lease.
11. SERVICES.
A. Landlord agrees to cause the necessary mains, conduits and other
facilities to be provided to make water, sewer, gas, phone and electricity
available to the Demised Premises and to make available to Tenant water, sewer,
gas, phone and electrical services prior to the Commencement Date at Landlord's
expense.
B. Tenant shall be solely responsible for and promptly pay all charges for
the use and consumption of sewer, gas, electricity, water, phone and all other
utility services used within the Demised Premises.
C. Tenant shall be solely responsible for any necessary upgrading of
mains, conduits and other facilities in connection with Tenant's election to
upgrade water, sewer, gas, phone and electricity services to the Demised
Premises for Tenant's own use.
D. Landlord shall not be liable to Tenant for damages or otherwise if the
said utilities or services are interrupted or terminated because of necessary
repairs, installations, or improvements, or any cause beyond the Landlord's
reasonable control, nor shall any such interruption or termination relieve
Tenant of the performance of any of its obligations hereunder, except that if
Tenant is unable to operate its business, there shall be an abatement of all
Base Rent and all other charges and items payable under this Lease during such
time period and if such interruption shall continue for a period of more than
seven (7) days, then Tenant may terminate the Lease.
12. DAMAGE TO PREMISES. In the event the Demised Premises is damaged or
destroyed or rendered totally or partially untenantable for its accustomed use,
by fire or other casualty, then Landlord
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shall, within sixty (60) days after such casualty, commence repair of said
Demised Premises and within one hundred twenty (120) days after commencement of
such repair, restore the Demised Premises to substantially the same condition
in which it was immediately prior to the occurrence of the casualty, except as
otherwise provided in this Article 12. From the date of such casualty until
the Demised Premises is so repaired and restored all Base Rent and all other
charges and items payable under this Lease shall xxxxx in such proportion as
the part of the Demised Premises thus damaged, destroyed or rendered
untenantable bears to the total Demised Premises. If the Demised Premises
cannot be repaired within 120 days, then Landlord or Tenant shall have right to
terminate this Lease effective as of the date of such casualty, by giving one
to the other within thirty (30) days of such casualty, written notice of
termination. Tenant may also terminate this Lease upon thirty (30) days notice
if Landlord fails to commence or complete such restoration and repairs within
the time period specified in this Article 12. If notice of termination is
given within the applicable thirty (30) day period, this Lease shall terminate
and Base Rent and all other charges shall xxxxx as aforesaid from the date of
such casualty, and Landlord shall promptly repay to Tenant any Base Rent paid
in advance which has not been earned as of the date of such casualty.
13. INSURANCE.
A. Landlord also agrees to carry, during the Term hereof, all risk
property insurance (hereinafter, "Landlord's Property Insurance") covering fire
and extended coverage, vandalism and malicious mischief, sprinkler leakage and
all other perils of direct physical loss or damage insuring the improvements
and betterments located in the Demised Premises, including the Demised Premises
and all appurtenances thereto (excluding Tenant's Property) for the full
replacement value thereof. Landlord, upon request, shall furnish Tenant a
certificate of such Landlord's Property Insurance. During the Term of this
Lease, Tenant agrees to reimburse to Landlord, for Tenant's proportionate share
of Landlord's annual total costs for the premiums for Landlord's Property
Insurance.
B. Tenant agrees to carry, during the Term hereof, Commercial General
Liability insurance on the Demised Premises, naming Landlord as an additional
insured, covering both Tenant and Landlord as their interest may appear, with
companies reasonably satisfactory to Landlord and giving Landlord and Tenant a
minimum of ten (10) days' written notice by the insurance company prior to
cancellation or termination of such insurance. Such insurance shall be for
limits of not less than One Million Dollars ($1,000,000.00) combined Bodily
Injury and Property Damage Liability.
C. Landlord and Tenant and all parties claiming under them, mutually
release and discharge each other from all claims and liabilities arising from
or caused by any casualty or hazard, covered or required hereunder to be
covered in whole or in part by insurance on the Demised Premises or in
connection with property on or activities conducted on the Demised Premises,
and waive any right of subrogation which might otherwise exist in or accrue to
any person on account thereof. This waiver shall not be required if the
insurance carrier charges an additional premium in order to provide such waiver
and the party benefitting from the waiver does not agree to pay the additional
premium.
14. INDEMNIFICATION.
A. Tenant hereby indemnifies and holds Landlord harmless from and against
any and all claims, demands, liabilities and expenses, including attorneys,
fees, arising from Tenant's use of the Demised Premises or from any act
permitted, or any omission to act, in or about the Demised Premises by Tenant
or its agents, employees or contractors, or from any breach or default by
Tenant of this Lease, except to the
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extent caused by Landlord's negligence or willful misconduct. In the event any
action or proceeding shall be brought against Landlord by reason of any such
claim, Tenant shall defend the same at Tenant's expense by counsel reasonably
satisfactory to Landlord.
B. Landlord hereby indemnifies and holds Tenant harmless from and against
any and all claims, demands, liabilities and expenses, including attorneys'
fees, arising from Landlord's obligations, actions or from any act permitted,
or any omission to act, in or about the Demised Premises by Landlord or its
agents, employees, contractors or invitees, or from any breach or default by
Landlord of this Lease, 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 claim, Landlord shall defend the same at
Landlord's expense by counsel reasonably satisfactory to Tenant.
15. ASSIGNMENT, SUBLETTING AND OWNERSHIP.
A. Tenant shall have the right to sublet, assign or otherwise transfer its
interest in this Lease to any parent, affiliate, or operating subsidiary of
Tenant, subsidiary of Tenant's parent, or to a corporation with which it may
merge or consolidate or to a Company, entity or individual that purchases all
or substantially all of the assets or common stock of Tenant either in one
transaction or a series of transactions, without Landlord's approval, written
or otherwise. In the event of any such subletting, assignment or other
transfer, Tenant shall automatically be released from all liability upon such
assignment or sublease with respect to that portion of the Tenant's leasehold
estate so assigned or subleased.
B. The consent by Landlord to any other transfer, assignment, subletting,
encumbrance, license or concession agreement, change of ownership or
hypothecation shall not be unreasonably withheld, conditioned or delayed;
provided, however, if Landlord fails to respond to any request by Tenant for
Landlord's consent or approval within fifteen (15) days of such request, the
consent or approval of Landlord shall be deemed given.
C. Landlord shall have the right to transfer, assign and convey, in whole
or in part, any or all of the right, title and interest to the Demised
Premises, provided such transferee or assignee shall be bound by the terms,
covenants and agreements herein contained, and shall expressly assume and agree
to perform the covenants and agreements of Landlord herein contained.
16. NON-DISTURBANCE AND ATTORNMENT.
A. Upon written request of Landlord, or any mortgagee or beneficiary of
Landlord, Tenant will, in writing, subordinate its right hereunder to the
interest of any ground lessor of the land upon which the Demised Premises is
situated and to the lien of any mortgage or deed of trust now or hereafter in
force against the land and building of which the Demised Premises is a part,
and upon any building hereafter placed upon the land of which the Demised
Premises is a part and to all advances made or hereafter to be made upon the
security thereof; provided, however, that the ground lessor, or the mortgagee
or trustee named in said mortgage or trust deed shall agree that Tenant's
peaceable possession of the Demised Premises or its rights under this Lease
will not be disturbed on account thereof.
B. In the event any proceedings are brought for foreclosure, or in the
event of the exercise of the power of sale under any mortgage or deeds of
trust, upon any such foreclosure or sale Tenant agrees to
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recognize such beneficiary or purchaser as the Landlord under this Lease,
provided Tenant's rights under this Lease continue unabated and its tenancy
shall not be disturbed.
17. DEFAULTS BY TENANT.
A. The occurrence of any of the following shall constitute a material
default and breach of this Lease by Tenant:
1. Any failure by Tenant to pay Base Rent or make any other payment
required to be made by Tenant hereunder within ten (10) days after receipt
of written notice from the Landlord; and
2. A failure by Tenant to observe and perform any other material
provision of this Lease to be observed or performed by the Tenant, where
such failure continues for thirty (30) days after written notice thereof
by Landlord to Tenant, except that this thirty (30) day period shall be
extended for a reasonable period of time if the alleged default is not
reasonably capable of cure within said thirty (30) day period and Tenant
proceeds to diligently cure the default.
B. In the event of any such default by Tenant, then Landlord shall be
entitled to terminate this Lease by giving written notice of termination to
Tenant, in which event Tenant shall immediately surrender the Demised Premises
to Landlord. If Tenant fails to so surrender the Demised Premises, then
Landlord may, without prejudice to any other remedy it has for possession of
the Demised Premises or arrearages in Base Rent or other damages, re-enter and
take possession of the Demised Premises and expel or remove Tenant and any
other person occupying the Demised Premises or any part thereof, in accordance
with applicable law.
18. DEFAULTS BY LANDLORD. If Landlord should be in default in the performance
of any of its obligations under this Lease, which default continues for a
period of more than thirty (30) days after receipt of written notice from
Tenant specifying such default, or if such default is of a nature to require
more than thirty (30) days for remedy and continues beyond the time reasonably
necessary to cure (and Landlord has not undertaken procedures to cure the
default within such thirty (30) day period and diligently pursued such efforts
to complete such cure), Tenant may, in addition to any other remedy available
at law or in equity, at its option, upon written notice, terminate this Lease,
or may incur any expense necessary to perform the obligation of Landlord
specified in such notice and deduct such expense from the Base Rent or other
charges and payments next becoming due.
19. SURRENDER OF PREMISES. Tenant shall, upon the expiration of the Term
granted herein, or any earlier termination of this Lease for any cause,
surrender to Landlord the Demised Premises, and all alterations, improvements
and other additions which may be made or installed by either party to, in, upon
or about the Demised Premises, other than Tenant's Property which shall remain
the property of Tenant as provided in Article 8 hereof.
20. EMINENT DOMAIN.
A. In the event that any portion of the Demised Premises shall be
appropriated or taken under the power of eminent domain by any public or
quasipublic authority, then at the election of Tenant, this Lease shall
terminate and expire as of the date of such taking, and both Landlord and
Tenant shall thereupon
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be released from any liability thereafter accruing hereunder. Notice of any
termination relating to such eminent domain proceeding must be made by Tenant
to Landlord within sixty (60) days after receipt of written notice of such
taking.
B. If Tenant elects not to so terminate this Lease, Landlord shall
promptly repair and restore the Demised Premises to the condition that existed,
as near as possible, prior to such appropriation or taking, and Tenant may
remain in that portion of the Demised Premises which shall not have been
appropriated or taken, and thereafter all Base Rent and all other payments and
charges under this Lease of Tenant shall be adjusted on an equitable basis,
taking into account the relative value of the portion taken as compared to the
portion remaining.
C. Tenant shall have the right to pursue a claim for damages with the
public or quasipublic authority in connection with any eminent domain
proceeding.
21. ATTORNEYS' FEES. In the event that at any time during the Term of this
Lease either Landlord or Tenant shall institute any action or proceeding
against the other relating to the provisions of this Lease, or any default
hereunder, the unsuccessful party in such action or proceeding agrees to
reimburse the successful party for the reasonable expenses of attorneys' fees
and paralegal fees and disbursements incurred therein by the successful party.
Such reimbursement shall include all legal expenses incurred prior to trial, at
trial and at all levels of appeal and post-judgment proceedings.
22. NOTICES. Notices and demands required, or permitted, to be sent to those
listed hereunder shall be sent by certified mail, return receipt requested,
postage prepaid, or by Federal Express or other reputable overnight courier
service and shall be deemed to have been given upon the date the same is
postmarked if sent by certified mail or the day deposited with Federal Express
or such other reputable overnight courier service, but shall not be deemed
received until one (1) business day following deposit with Federal Express or
other reputable overnight courier service or three (3) days following deposit
in the United States Mail if sent by certified mail to address shown below, and
addressed to:
LANDLORD: TENANT:
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ES&L Service NES Acquisition Corp.
00 Xxxxxx Xxx c/o National Equipment Services, Inc.
Xxxx Xxxxxxx, Xxxxx 00000 6100 Sears Tower
Attn: Xxxxx X. Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
or at such other address requested in writing by either party upon thirty (30)
days' notice to the other party.
23. REMEDIES. All rights and remedies of Landlord and Tenant herein created or
otherwise extending at law are cumulative, and the exercise of one or more
rights or remedies may be exercised and enforced concurrently or consecutively
and whenever and as often as deemed desirable.
24. SUCCESSORS AND ASSIGNS. All covenants, promises, conditions,
representations and agreements herein contained shall be binding upon, apply
and inure to the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
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25. WAIVER. The failure of either Landlord or Tenant to insist upon strict
performance by the other of any of the covenants, conditions, and agreements of
this Lease shall not be deemed a waiver of any subsequent breach or default in
any of the covenants, conditions and agreements of this Lease.
26. HOLDING OVER. If Tenant or any party claiming under Tenant remains in
possession of the Demised Premises or any part thereof after any termination or
expiration of this Lease, Landlord, in Landlord's sole discretion, may treat
such holdover as an automatic renewal of this Lease for a month-to-month
tenancy subject to all the terms and conditions provided herein.
27. INTERPRETATION. The parties hereto agree that it is their intention hereby
to create only the relationship of Landlord and Tenant, and no provision
hereof, or act of either party hereunder, shall ever be construed as creating
the relationship of principal and agent, or a partnership, or a joint venture
or enterprise between the parties hereto.
28. COVENANT OF TITLE AND QUIET ENJOYMENT. Landlord covenants that it has full
right, power and authority to make this Lease, and that Tenant or any permitted
assignee or sublessee of Tenant, upon the payment of the Base Rent and
performance of the covenants hereunder, shall and may peaceably and quietly
have, hold and enjoy the Demised Premises and improvements thereon during the
Term or any renewal or extension thereof.
29. ESTOPPEL. At any time and from time to time either party, upon request of
the other party, will execute, acknowledge and deliver an instrument, stating,
if the same be true, that this Lease is a true and exact copy of this Lease
between the parties hereto, that there are no amendments hereof (or stating
what amendments there may be), that the same is then in full force and effect
and that, to the best of its knowledge, there are no offsets, defenses or
counterclaims with respect to the payment of Base Rent reserved hereunder or in
the performance of the other terms, covenants and conditions hereof on the part
of Tenant or Landlord, as the case may be, to be performed, and that as of such
date no default has been declared hereunder by either party or if not
specifying the same. Such instrument will be executed by the other party and
delivered to the requesting party within fifteen (15) days of receipt, or else
the statements made in the proposed estoppel request shall be deemed to be
correct.
30. CONSENT. Wherever in this Lease Landlord or Tenant is required to give its
consent or approval, such consent or approval shall not be unreasonably
withheld, conditioned or delayed. Except as otherwise provided in this Lease,
if no written response to a consent or request for approval is provided within
fifteen (15) days from the receipt of the request, then the consent shall be
presumed to have been given.
31. WAIVER OF LANDLORD'S LIEN. Landlord hereby waives any contractual,
statutory or other Landlord's lien on Tenant's furniture, fixtures, supplies,
equipment, inventory and Tenant's Property.
32. SEVERABILITY. Any provision of this Lease which shall prove to be invalid,
void or illegal shall in no way affect, impair or invalidate any other
provisions hereof and such other provisions shall remain in full force and
effect.
33. GOVERNING LAW AND VENUE. This Lease shall be governed by the laws of the
state in which the Demised Premises is located.
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34. BROKERS. Landlord and Tenant represent and warrant one to the other that
they have not had any dealing with any real estate brokers or agents in
connection with the negotiation of this Lease. Landlord and Tenant indemnify
and hold each other harmless from and against any and all liability and cost
which Landlord or Tenant may suffer in connection with real estate brokers
claiming by, through or under either party seeking any commission, fee or
payment in connection with this Lease.
35. TENANT'S CONDUCT OF BUSINESS. Notwithstanding anything herein to the
contrary, nothing herein shall be construed as an obligation for Tenant to open
or operate its business in the Demised Premises. Tenant shall have the right
to remove Tenant's Property and cease operations in the Demised Premises at any
time and at Tenant's sole discretion.
36. TIME OF THE ESSENCE. Time shall be of the essence in interpreting the
provisions of this Lease.
37. ENTIRE AGREEMENT. This Lease contains all of the agreements of the parties
hereto with respect to matters covered or mentioned in this Lease and no prior
agreement, letters, representations, warranties, promises or understandings
pertaining to any such matters shall be effective for any such purpose. This
Lease may be amended or added to only by an agreement in writing signed by the
parties hereto or their respective successors in interest.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease on the day
and year first mentioned.
TENANT:
NES ACQUISITION CORP.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: President
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LANDLORD:
ES&L SERVICE,
a Texas general partnership
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: co-owner
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