EXHIBIT 6.2.CE
LEASE WITH
OPTION TO PURCHASE
THE STATE OF TEXAS ss.
ss.
COUNTY OF XXXXX xx.
This Lease is made and entered into this 6th day of January, 1992, by
and between XXXXXX PROPERTIES, INC., a Texas Corporation, referred to in this
lease as Lessor, and XXXXX'X, INC., a Texas Corporation, referred to in this
lease as Lessee.
ARTICLE 1. DEMISE OF LEASED PREMISES
In consideration of the mutual covenants and agreements set forth in this lease,
and other good and valuable consideration, Lessor does hereby demise and lease
to Lessee and Lessee does hereby lease from Lessor, that certain property
located in Longview, Xxxxx County, Texas, more particularly described in Exhibit
A attached to this lease. The property is referred to in this lease as the "the
premises" or "the leased premises."
Lessee is to have and to hold the leased premises, together with all
rights, privileges, easements, appurtenances, and immunities belonging to or in
any way appertaining to the leased premises, including, but not limited to, any
and all easements, rights, title, and privileges of Lessor, existing now or in
existence at any time during the lease term, in, to, or under adjacent streets,
sidewalks, alleys, party walls, and property contiguous to the leased premises
and reversions which may later accrue to Lessor as owner of the leased premises
by reason of the closing of any street, sidewalk, or alley.
ARTICLE 2. LEASE TERM
Fixed Commencement and Termination Date
ss. 2.01. This lease shall be for a term of twenty (20) years, referred to as
the lease term, commencing on the 1st day of the month in which operation of the
business for which the property is being leased begins or commencing one hundred
twenty (120) days after execution of this Lease, whichever is sooner, and
continuing thereafter for said twenty (20) year period, subject, however to
earlier termination as provided in this lease.
Termination
ss. 2.02. This lease shall terminate and become null and void without further
notice on the expiration of the term specified in ss. 2.01, and any holding over
by Lessee after the expiration of that term shall not constitute a renewal of
the lease or give Lessee any rights under the lease in or to the leased
premises.
ARTICLE 3. RENT
ss. 3.01. Lessee agrees to pay to Lessor as rent for the use and occupancy of
the lease premises the greater of the "minimum yearly rent" as set forth in ss.
3.02 below or the "lease rent" as set forth in ss. 3.03 below.
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Minimum Yearly Rent
ss. 3.02. Minimum yearly rent shall be payable in the following amounts:
a. $12,000.00 per year during the first three (3) years of this lease;
b. $15,600.00 per year during years 4 and 5 of this lease;
c. $18,000.00 per year during years 6-10 of this lease; and
d. $19,200.00 per year during years 11-20 of this lease.
Lease Rent
ss. 3.03. Lease rent shall be payable in the following amounts:
a. 3.0% of gross sales during years 1-5 of this lease; and
b. 3.5% of gross sales during years 6-20 of this lease.
For purposes of this Lease, "gross sales" shall not include
federal or state sales taxes.
For the purpose of ascertaining the amount payable as lease
rent, Lessee agrees to prepare and maintain on the leased premises adequate
records that will show inventories and receipts of merchandise at the leased
premises and daily receipts from all sales and other transactions on or from the
leased premises by Lessee and nay other persons conducting any business on or
from the leased premises. At the time of each transaction, Lessee or any other
person conducting the transaction on or from the leased premises will record all
receipts from sales and other transactions, whether for cash or credit, in a
cash register or registers having a cumulative total and sealed in a manner
approved by Lessor, and having such other features as approved by Lessor. Lessee
further agrees to maintain on the leased premises all sales, use, value added,
gross receipts, and occupation tax returns with respect to the lease year, and
all pertinent original sales records. Pertinent original sales records shall
include all cash register tapes, serially numbered sales slips, and originals of
all mail orders filled by lessee from the leased premises or processed by lessee
at the leased premises and filled from some location other than the leased
premises.
Lessee shall furnish to Lessor, on a monthly basis, copies of
Lessee 5 monthly profit and loss statements. Further, Lessor and authorized
representatives of Lessor shall have the right to examine the records described
in the preceding paragraph at the leased premises during Lessee 5 regular
business hours upon three (3) days' notice to Lessee. If, on examination of the
books or records of Lessee, an error shall be revealed in favor of Lessor that
results in additional percentage rental due Lessor in excess of $100.00, then
the reasonable costs of the examination must be paid by Lessee to Lessor.
Otherwise, Lessor will bear the cost of the examination.
Time and Manner of Payment.
ss. 3.04. All minimum yearly rent due under this article shall be paid by Lessee
on a monthly basis and in advance, on the 1st day of each month of each year
beginning on the 1st day of the month in which operation of the business for
which the property is being leased begins. All lease rent due under this
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article shall be paid by Lessee on a monthly basis on the 10th day of the month
following the month for which lease rent is being paid. All installments of rent
shall be paid in lawful money of the United States to Lessor in Longview, Texas.
Interest on Delinquent Payments
ss. 3.05. Rent installments unpaid for thirty (30) days shall bear interest at
the rate of eighteen percent (18.00%) per annum, commencing on the day after
each such installment was due and continuing until the installment is paid as
provided in ss. 3.04 above.
ARTICLE 4. TAXES
Payment by Lessee
ss. 4.01. In addition to the rent specified in Article 3, Lessee shall pay and
discharge all taxes, general and special assessments, and other charges of every
description which are levied on or assessed against the leased premises, whether
such taxes and/or assessments are made against Lessor or Lessee, and all
interests in the leased premises and all improvements and other property on the
leased premises during the term of this lease, whether belonging to Lessor or to
Lessee. Lessee shall pay all such taxes, charges, and assessments to Lessor or
directly to the taxing authority charged with their collection not less than
fifteen (15) days before the same shall become delinquent, and Lessee agrees to
indemnify Lessor and save Lessor harmless from all such taxes, charges, and
assessments. Lessee shall have the right in good faith at its own sole cost and
expense (in its own name or in the name of Lessor, or both, as Lessee may
determine appropriate) to contest any such taxes, charges, and assessments, and
shall be obligated to pay the contested amount, plus any penalties and interest
imposed, only if and when finally determined to be due.
Payment by Lessor
ss. 4.02. At any time that the payment of any item of taxes, special
assessments, or governmental charges which Lessee is obligated to pay under the
provisions of ss. 4.01 remains unpaid and uncontested later than fifteen (15)
days before the same shall become delinquent, Lessor may give written notice to
Lessee of its default under ss. 4.01, specifying the default. If Lessee
continues to fail to pay the taxes, special assessments, or governmental
charges, or to contest the same in good faith within ten (10) days of such
written notice, Lessor may pay the items specified in the notice, and Lessee
covenants to reimburse Lessor on demand any amount paid or expended by Lessor
for this purpose, with interest on the amount at the rate of eighteen percent
(18%) per annum from the date of payment by Lessor until reimbursement by
Lessee. If Lessor pays any such item which has not been paid by Lessee within
the time required in ss. 4.01 or successfully contested by Lessee without giving
ten (10) days notice, Lessee shall nevertheless reimburse Lessor for such item,
but without interest.
ARTICLE 5. UTILITIES
Lessee shall pay or cause to be paid all charges for water, heat, gas,
electricity, sewers, and all other utilities used on the leased premises
throughout the term of this lease, including any connection fees.
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ARTICLE 6. USE OF PREMISES
Primary Purpose
ss. 6.01. Lessee shall have the right to use the leased premises as a
restaurant. In this connection, and without detracting from the foregoing, it is
understood and agreed that the primary purpose for which the leased premises
have been leased and hired is for the development and construction of a
commercial building more particularly described on Exhibit B.
Illegal Use Not Permitted
ss. 6.02. Lessee agrees not to use all or part of the leased premises or any
building situated upon the leased premises for any use or purpose in violation
of any valid and applicable law, regulation, or ordinance of the United States,
the State of Texas, or the City of Longview, or other lawful authority having
jurisdiction over the leased premises; provided, however, that there shall be no
violation by Lessee of this provision unless and until Lessor has notified
Lessee in writing, specifying the alleged violation and until there has been a
final adjudication that the specified use is in violation of the law,
regulation, or ordinance specified in the written notice, and that the specified
law, regulation, or ordinance is valid and applicable to the leased premises,
and until Lessee has had a reasonable time after the final adjudication to cure
the specified violation.
ARTICLE 7. CONSTRUCTION BY LESSEE
General Conditions
ss. 7.01. Lessee shall have the right at any time and from time to time during
the term of this lease, to erect, maintain, alter, remodel, reconstruct,
rebuild, and replace buildings and other improvements on the leased premises,
and correct and change the contour of the leased premises, subject to the
following general conditions:
a. The cost of any such work shall be borne and paid for by Lessee.
b. The leased premises shall at all times be kept free of mechanics and
materialmen's liens.
x. Xxxxxx shall be notified of the time of commencement and the
general nature of any such work, other than routine
maintenance of existing buildings or improvements, at the time
of commencement.
d. The provisions of ss. 7.04 concerning Lessor's approval of plans
shall be followed.
Blockage of Roadway
ss. 7.02. It is further understood and agreed by and between Lessor and Lessee
that during the construction period and otherwise, Lessee and/or Lessee's
contractor(s) will not allow or cause the blockage of the roadway or any
existing right-of-ways. Further Lessee agrees that neither Lessee nor Lessee's
contractor(s) will do anything to cause a hazard to Lessee or Lessor, or to any
of Lessee's or Lessor's tenants, agents, employees, guests and/or invitees.
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Easements, Dedications, Zoning, and Restrictions
ss. 7.03. Lessor shall cooperate with Lessee concerning easements, dedications,
zoning, and restrictions of the leased premises as follows:
a. Easements and Dedications. In order to provide for the more orderly
development of the leased premises, it may be necessary, desirable, or
required that street, water sewer, drainage, gas, power lines, and
other easements and dedications and similar rights be granted or
dedicated over or within portions of the leased premises. Lessor
shall, on request of Lessee, join with Lessee in executing and
delivering such documents, from time to time, and throughout the term
of this lease, as may be appropriate, necessary, or required by the
several governmental agencies, public utilities, and companies for the
purpose of granting such easements and dedications.
b. Zoning. In the event that Lessee deems it necessary or appropriate to
obtain use, zoning, or subdivision and precise plan approval and
permits for the leased premises, or any part of them, Lessor agrees to
execute such documents, petitions, applications, and authorizations as
are appropriate or required to submit the leased premise, or any part
of them, for the purposes of obtaining conditional use permits, zoning
and rezoning, tentative and final tract approval, precise plan
approval, and further, for the purposes of annexation to or the
creation of districts and governmental subdivisions. Lessor shall
execute these documents from time to time as requested by Lessee.
c. Restrictions. At the request of Lessee, Lessor shall, from time to
time, execute and deliver or join in the execution and delivery of
such documents as are appropriate, necessary, or required to impose on
the leased premises covenants, conditions, and restrictions providing
for the granting of exclusive uses of the leased premises, or any part
of them, the establishment of common and parking areas, the
establishment of party walls, and provisions for the enlargement of
the common parking areas by the establishment of mutual and reciprocal
parking rights and the rights of ingress and egress, and other like
matters, all of which are for the purpose of the orderly development
of the leased premises as a commercial unit.
d. Expenses. The cost and expense of any action required of Lessor under
Subsection (a) through (c) above shall be borne solely by Lessee.
Lessor's Approval of Plans
ss. 7.04. Lessor's approval of construction, additions, and alterations of
buildings or other improvements on the leased premises shall be governed by the
following provisions:
a. Written Approval Required. No building or other improvement shall be
constructed on plans, specifications, and other proposed location of
the building or other improvement has received the written approval of
Lessor and the building or other improvement complies with the
approved plans, specifications, and proposed location. No material
addition to or alteration of any building or structure erected on the
leased premises shall be commenced until plans and specifications
covering the exterior of the proposed addition or alteration shall
have been first submitted to and approved by Lessor.
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b. Submission of Plans. Lessee shall, at its own expense, engage a
licensed architect or engineer to prepare plans and specifications for
the construction of a commercial building or for the construction of
any other buildings or improvements or additions or alterations to any
buildings or improvements which require Lessor's approval under
Subsection (a) above. Lessee shall submit two (2) copies of detailed
working drawings, plans, and specifications for the construction of a
commercial building to Lessor for approval within sixty (60) days
after execution of this lease. If Lessee wishes to construct any other
buildings or improvements or make any additions or alterations to
buildings or improvements for which the approval of Lessor is required
under Subsection (a) above, Lessee must submit two (2) copies of
detailed working drawings, plans, and specifications for any such
projects for Lessor's approval prior to commencement of the project.
c. Approval by Lessor. Lessor will promptly review and approve all plans
submitted pursuant to Subsection (b) above or note in writing any
required changes or corrections which must be made to the plans. Any
required changes or corrections must be made and the plans resubmitted
to Lessor within fifteen (15) days after the corrections or changes
have been noted. Failure of Lessor to object to such resubmitted plans
and specifications within thirty (30) days shall constitute Lessor 5
approval of the changes. Minor changes in work or materials, not
affecting the general character of the building project, may be made
at any time without the approval of Lessor, but a copy of the altered
plans and specifications shall be furnished to Lessor.
d. Exception to Lessor's Approval. The following items do not require
submission to, and approval by, Lessor:
i. Such minor repairs and alterations as may be
necessary to maintain existing structures and
improvements in a useful state of repair and
operation.
ii. Such changes and alterations as are required by an
authorized public official having authority or
jurisdiction over such buildings or improvements in
order to comply with legal requirements.
e. Effect of Approval. The approval by Lessor of any plans and
specifications applies only to the conformity of such plans and
specifications to the general architectural plan for the leased
premises, and such approval shall not be withheld reasonably. Lessor's
approval does not constitute approval of the architectural or
engineering design, and Lessor, by approving such plans and
specifications, assumes no liability or responsibility for the
architectural or engineering design or for any defect in any building
or improvement constructed from the plans or specifications.
Ownership of Buildings, Improvements, and Fixtures
ss. 7.05. Any and all buildings, improvements, additions, alterations, and
fixtures, except furniture and trade fixtures, constructed, placed, or
maintained on any part of the leased premises during the lease term shall be
considered part of the real property of the premises and shall remain on the
premises and become the property of Lessor on termination of this lease.
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Right to Remove Improvements
ss. 7.06. Lessee shall have the right at any time during Lessee's occupancy of
the leased premises, or within a reasonable time thereafter, to remove any and
all furniture, machinery, equipment, or other trade fixtures, owned or placed by
Lessee, its sublessees or licensees, in, under, or on the leased premises, or
acquired by Lessee, as long as same is not attached to the leased premises,
whether before or during the lease term, but prior to the termination of the
lease Lessee must repair any damage to any buildings or improvements on the
premises resulting from their removal. Any such items which are not removed by
the termination date of the lease shall become the property of Lessor as of that
date.
ARTICLE 8. PROHIBITION AGAINST
ENCUMBERING THE LEASEHOLD ESTATE
Prohibition of Lessee's Right to Encumber
ss. 8.01. Lessee shall not, at any time, encumber the leasehold interest, by
deed of trust, mortgage, or other security instrument.
ARTICLE 9. REPAIRS, MAINTENANCE AND RESTORATION
Lessee's Duty to Maintain and Repair
ss. 9.01. At all times during the term of this lease, Lessee will keep and
maintain, or cause to be kept and maintained, all buildings and improvements
which may be erected on the leased premises in a good state of appearance and
repair, reasonable wear and tear excepted, at Lessee's own expense.
Damage or Destruction
ss. 9.02. In the event any building or improvement constructed on the leased
premises is damaged or destroyed by fire or any other casualty, regardless of
the extent of such damage or destruction, Lessee shall, within ninety (90) days
from the date of such damage or destruction, begin to repair, reconstruct, or
replace the damaged or destroyed building or improvement and pursue the repair,
reconstruction, or replacement with reasonable diligence so that the building
shall be restored to substantially the condition it was in prior to the
happening of the casualty; provided, however, that if commencement or completion
of this restoration is prevented or delayed by reason of war, civil commotion,
acts of God, strikes, governmental restrictions or regulations, or
interferences, fire or other casualty, or any other reason beyond the control of
Lessee, whether similar to any of those enumerated or not, the time for
commencing or completing, or both, of the restoration will automatically be
extended for the period of each such delay.
ARTICLE 10. MECHANICS' LIENS
Lessee shall not cause or permit any mechanic's liens or other liens to
be filed against the fee of the leased premises or against Lessee's leasehold
interest in the land or any buildings or improvements on the leased premises by
reason of any work, labor, services, or materials supplied or claimed to have
been supplied to Lessee or to anyone holding the leased premises or any part of
them through or under Lessee. If such a mechanic's lien or materialman's lien is
recorded against the leased premises or any buildings or improvements on the
premises, Lessee shall either cause the same to be removed or, if Lessee in good
faith desires to contest the lien, take timely action to do so, at Lessee's sole
expense. If Lessee contests the lien, Lessee agrees to indemnify Lessor and hold
Lessor harmless from all liability for damages occasioned by the lien or the
lien contest and shall, in the event of a judgment of foreclosure on
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the lien, cause the lien to be discharged and removed prior to execution of the
judgment. Such indemnification by Lessee shall be accomplished by placing in an
escrow account held by Lessor in Lessor's name 1.5 times the amount of such
mechanic's and/or materialman's lien filed against the property. In the event of
the filing of any mechanic's and/or materialman's lien described herein, all
funds to be held in escrow will be paid to Lessor within 15 days of the filing
of said lien.
ARTICLE 11. CONDEMNATION
Interests of Parties
ss. 11.01. In the event the leased premises or any part of the leased premises
are taken for public or quasi-public purposes by condemnation as a result of any
action or proceeding in eminent domain, or are transferred in lieu of
condemnation to any authority entitled to exercise the power of eminent domain,
the interests of Lessor and Lessee in the award or consideration for the
transfer and the effect of the taking or transfer on this lease shall be as
provided by this article.
Total Taking-Termination
ss. 11.02. If the entire leased premises are taken or so transferred as
described in ss. 11.01, this lease and all of the rights, title and interest
under the lease shall cease on the date title to the premises or part of the
premises vests in the condemning authority, and the proceeds of the condemning
authority, and the proceeds of the condemnation shall be divided as follows:
eighty percent (80%) to Lessor and twenty percent (20%) to Lessee.
Partial Taking-Termination
ss. 11.03. If only part of the leased premises is taken or transferred as
described in ss. 11.01, this lease shall terminate if, in Lessee's opinion, the
remainder of the premises is in such location, or in such form, shape, or
reduced size, that Lessee's business cannot be effectively and practicably
operated on the remaining premises. In that event, this lease and all rights,
title, and interest under this lease shall cease on the date title to the
portion of the premises taken or transferred vests in the condemning authority.
The proceeds of the condemnation shall be divided as follows: eighty percent
(80%) to Lessor and twenty percent (20%) to Lessee.
Partial Taking-Continuation With Rent Abatement
ss. 11.04. If part of the leased premises is taken or transferred as described
in ss. 11.01 and, in Lessee's opinion, the remainder of the premises is in such
location and in such form, shape, or size that Lessee's business can be
effectively and practicably operated on the remaining premises, this lease shall
terminate as to the portion of the premises taken or transferred as of the date
title to such portion vests in the condemning authority, but shall continue in
full force and effect as to the portion of the leased premises not taken or
transferred. From and after that date, the rental required to be paid by Lessee
to Lessor shall be reduced during the unexpired portion of this lease to that
proportion of the annual rent which the value of the part of the leased premises
not so taken bears to the value of the total of the leased premises, such values
to be determined as of the date immediately before any actual taking. The
proceeds of the condemnation shall be divided as follows: eighty percent (80%)
to Lessor and twenty percent (20%) to Lessee.
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Voluntary Conveyance
ss. 11.05. Nothing in this article prohibits Lessor from voluntarily conveying
all or part of the leased premises to a public utility, agency, or authority
under threat of a taking under the power of eminent domain. Any such voluntary
conveyance shall be treated as a taking within the meaning of this article.
ARTICLE 12. INSURANCE AND INDEMNIFICATION
Insurance on Buildings and Improvements
ss. 12.01. At all times during the term of this lease, Lessee shall keep all
buildings and other improvements located or being constructed on the leased
premises insured against loss or damage by fire, with extended coverage
endorsement or its equivalent. This insurance shall be carried by insurance
companies authorized to transact business in Texas, selected by Lessee and
approved by Lessor. The insurance shall be paid for by Lessee and shall be in
amounts not less than eighty percent (80%) of the fair insurable value of the
buildings and other improvements. Such policy or policies of insurance shall
name both Lessor and Lessee as a named insured and shall provide that any loss
of $1,000.00 or less shall be payable solely to Lessee, which sum Lessee shall
use for repair and restoration purposes and any loss over $1,000.00 shall be
made payable jointly to Lessor and Lessee.
Liability Insurance
ss. 12.02. At all times during the term of this lease, Lessee shall provide and
keep in force during the term of this lease, liability insurance covering Lessor
and Lessee for liability for property damage and personal injury. This insurance
shall be carried by one or more insurance companies duly authorized to transact
business in Texas, selected by Lessee and approved by Lessor, and shall be paid
for by Lessee. The insurance provided pursuant to this section shall be in the
amount of not less than $100,000.00 for property damage and not less than
$300,000.00 for one person and $1,000,000.00 for one accident for personal
injury. This insurance shall protect Lessor and Lessee against liability to any
employees or servants of Lessee and to any other person or persons whose
property damage or personal injury arises out of or in connection with the
occupation, use, or condition of the leased premises.
Construction Liability Insurance
ss. 12.03. Lessee agrees to obtain and maintain (to the extent reasonably
procurable) construction liability insurance at all times when demolition,
excavation, or construction work is in progress on the premises. This insurance
shall be carried by insurance companies authorized to transact business in the
State of Texas, selected by Lessee and approved by Lessor, and shall be paid for
by Lessee. The insurance shall have limits of not less than $100,000.00 for
property damage and $300,000.00 for one person and $1,000,000.00 for one
accident for personal injury and shall protect Lessor and Lessee, as well as any
other person or persons Lessee may designate, against all liability for injury
or damage to any person or property in any way arising out of demolition,
excavation, or construction work on the premises.
Certificates of Insurance
ss. 12.04. Lessee shall furnish Lessor with certificates of all insurance
required by this article. Lessee agrees that if it does not keep this insurance
in full force and effect, Lessor may notify Lessee of this failure, and if
Lessee does not deliver to Lessor certificates showing all such insurance to be
in full force and effect within ten (10) days after this notice, Lessor may, at
its option, take out and/or pay the premiums on the insurance needed to fulfill
Lessee's obligations under the provisions of this article. Upon
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demand from Lessor, Lessee shall reimburse Lessor the full amount of any
insurance premiums paid by Lessor pursuant to this section, with interest at the
rate of eighteen percent (18%) per annum from the date of Lessor's demand until
reimbursement by Lessee.
Indemnification of Lessor
ss. 12.05. Lessor shall not be liable for any loss, damage, or injury of any
kind or character to any person or property arising from any use of the leased
premises, or any part of the leased premises, caused by any defect in any
building, structure, improvement, equipment, or facility on the leased premises
or caused by or arising from any act or omission of Lessee, or of any of its
agents, employees, licensees, or invitees, or by or from any accident, fire, or
other casualty on the land, or occasioned by the failure of Lessee to maintain
the premises in safe condition. Lessee waives all claims and demands on its
behalf against Lessor for any such loss, damage, or injury, and agrees to
indemnify and hold Lessor entirely free and harmless from all liability for any
such loss, damage, or injury of other persons, and from all costs and expenses
arising from any claims or demands of other persons concerning any such loss,
damage, or injury.
ARTICLE 13. ASSIGNMENT AND SUBLEASE
Lessee may sell or assign its leasehold estate in its entirety or any
portion of it, or may sublet the leased premises or any portion of it, or may
sublet the leased premises or any portion of them or any portion of any building
or other improvement erected on the premises, at any time and from time to time,
and the rights of Lessee, or any successors or assignee of Lessee, may pass by
operation of law. It is agreed, however, that each such transfer, assignment or
sale shall be subject to the obligations to Lessor as set forth in this lease,
and shall not release Lessee of Lessee's obligations under this lease. It is
further agreed that each such transfer, assignment or sale shall be subject to
Lessor's written consent, which said consent shall not be unreasonably withheld
by Lessor.
ARTICLE 14. DEFAULT AND REMEDIES
Termination on Default
ss. 14.01. Should Lessee default in the performance of any covenant, condition,
or agreement in this lease, and not correct the default within ten (10) days
after receipt of written notice from Lessor to Lessee and lender as required by
Section 8.02, Lessor may declare this lease, and all rights and interest created
by it, to be terminated. Upon Lessor's electing to terminate, this lease shall
cease and come to an end as if the day of Lessor's election were the day
originally fixed in the lease for its expiration Lessor or Lessor's agent or
attorney may resume possession of the premises and relet them for the remainder
of the term at the best rent obtainable for the account Lessee, who shall make
good any deficiency.
Other Remedies
ss. 14.02. Any termination of this lease as provided in this article shall not
relieve Lessee from the payment of any sum or sums that are due and payable to
Lessor under the lease at the time of termination, or any claim for damages then
or previously accruing against Lessee under this lease, and any such termination
shall not prevent Lessor from enforcing the payment of any such sum or sums or
claim for damages by any remedy provided for by law, or from recovering damages
from Lessee for default under the lease. All rights, options, and remedies of
Lessor contained in this lease shall be construed and held to be cumulative, and
no one of them shall be exclusive of the other, and Lessor shall have the right
to pursue any one or all of such remedies or any other remedy or relief which
may be provided by law,
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whether or not stated in this lease. No waiver by Lessor of a breach of any of
the covenants, conditions, or restrictions of this lease shall be construed or
held to be a waiver of any succeeding or preceding breach of the same or any
other covenant, condition, or restriction contained in this lease.
Subleases Not Affected
ss. 14.03. The exercise by Lessor of any remedy shall not affect the existence
of subleases which were entered into with Lessee in accordance with the terms of
this lease and which cover any portion of the leased premises.
ARTICLE 15. LESSOR'S WARRANTIES AND COVENANTS
Warranty of Title
ss. 15.01. Lessor hereby represents and warrants that it is the owner in fee
simple absolute of the leased premises, subject only to the following covenants,
conditions, restrictions, easements, and other matters of record as reflected on
Exhibit D which is attached hereto and made a part hereof for all purposes.
Warranty of Quiet Enjoyment
ss. 15.02. Lessor covenants and agrees that as long as Lessee pays the rent and
other charges as provided in this lease and observes and keeps the covenants,
conditions, and terms of this lease, Lessee shall lawfully and quitely hold,
occupy, and enjoy the leased premises during the term of this lease without
hindrance or molestation by Lessor or any person claiming under Lessor, except
such portion of the leased premises, if any, as shall be taken under the power
of eminent domain.
ARTICLE 16. GENERAL PROTECTIVE PROVISIONS
Right of Entry and Inspection
ss. 16.01. Lessee shall permit Lessor or Lessor's agents, representatives, or
employees to enter on the leased premises for the purposes of inspection,
determining whether Lessee is in compliance with the terms of this lease,
maintaining, repairing, or altering the premises, or showing the leased premises
to prospective lessees, purchasers, mortgagees, or beneficiaries under trust
deeds.
No Partnership or Joint Venture
ss. 16.02. The relationship between Lessor and Lessee at all times shall remain
solely that of landlord and tenant and not be deemed a partnership or a joint
venture.
Force Majeure
ss. 16.03. It is expressly understood and agreed that if the construction of the
building provided for in Section 7.03 of this lease or the curing of any default
(other than failure to pay rent, insurance premiums, or ad valorem taxes) or the
performance of any other covenant, agreement, obligation, or undertaking
contained in this lease is delayed by reason of war, civil commotion, act of
God, governmental restrictions, regulations, or interference, fire or other
casualty, or any other circumstances beyond Lessee's control or beyond the
control of the party obligated or permitted under the terms of this lease to do
or perform the same, regardless of whether any such circumstance is similar to
any of those
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enumerated or not, each party so delayed shall be excused from doing or
performing the same during the period of delay.
No Termination on Bankruptcy
ss. 16.04. Neither bankruptcy, insolvency, assignment for the benefit of
creditors, nor the appointment of a receiver shall affect this lease so long as
Lessee and Lessor or their respective successors or legal representatives
continue to perform all covenants of this lease.
No Waiver
ss. 16.05. No waiver by either party of any default or breach of any covenant,
condition, or stipulation contained in this lease shall be treated as a waiver
of any subsequent default or breach of the same or any other covenant,
condition, or stipulation of this lease.
Release of Lessor
ss. 16.06. If Lessor sells or transfers all or part of the leased premises and
as a part of the transaction assigns its interest as Lessor in and to this
lease, then from and after the effective date of the sale, assignment, or
transfer, Lessor shall have no further liability under this lease to Lessee,
except as to matters of liability which have accrued and are unsatisfied as of
that date, it being intended that the covenants and obligations of Lessor
contained in this lease shall be binding on Lessor and its successors and
assigns only during and in respect of their respective successive periods of
ownership of the fee.
Joint and Several Liability
ss. 16.07. If more than one Lessee or Lessor is named under this lease, the
obligation of all such Lessees or Lessors shall be, and is, joint and several.
ARTICLE 17. OPTION TO PURCHASE
ss. 17.01. Lessor hereby grants to Lessee for the first five (5) year period of
this lease, an option to purchase the premises (surface only) on the following
terms and conditions:
a. Lessee may exercise this option only by sending notice to
Lessor at the address shown in ss. 19.01. below by registered
mail, postage prepaid.
b. The full purchase price for the premises shall be the sum of
$160,000.00, payable in cash, which sum represents the value
of the real property at the time of execution of this Lease,
plus the value of any improvements made to the property.
c. The promissory note described in subparagraph (b) of this
Section shall be secured by a deed of trust which shall be a
first lien on the property.
d. On close of Lessee's exercise of this option, Lessor shall
convey to Lessee good and marketable title to the premises
(surface only), as evidenced by a title insurance policy in
the full amount of the purchase price issued by U.S. Title
Company, Inc., subject only to such liens, encumbrances,
clouds, and conditions as may be approved in writing by Lessee
and subject to the execution of a reciprocal easement granting
ingress and egress and
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customer parking over those areas described in Exhibit C,
attached to and incorporated into this lease. Such reciprocal
easement shall be in a form acceptable to Lessor.
e. On exercise of this option, all real property taxes levied or
assessed against the premises as shown by the latest available
tax xxxx shall be prorated between Lessee and Lessor on the
basis of 30-day months as of 12:00 midnight on the date of the
closing.
ARTICLE 18. PARKING EASEMENT
ss. 18.01. Throughout the term of this lease, including any extensions or
renewals of the lease, and upon the purchase of the property by Lessee in
accordance with the terms of Article 17, Lessee and its officers, agents,
employees, suppliers, invitees, and customers, have a right to use the area
marked "Parking Lot" on Exhibit C, attached to and incorporated into this lease,
for vehicular parking and ingress to and egress from the leased premises, under
the terms and conditions set forth below. This right constitutes a nonexclusive
easement and is shared in common and on the same terms with the other tenants in
the shopping center.
a. Vehicles may be parked only in spaces designated by Lessor as
parking spaces, either by painted lines or otherwise as Lessor
deems fit.
b. Use of the parking lot by Lessee and Lessee's officers,
agents, employees, suppliers, invitees, and customers must be
in accordance with reasonable rules and regulations adopted by
Lessor and communicated to Lessee by written notice.
x. Xxxxxx and Lessee will maintain the parking lot described on
Exhibit C. Costs of such maintenance shall be borne by Lessor
and Lessee on a pro rata basis according to the number of
square feet of the entire project owned or leased by Lessee
and Lessor, respectively.
ss. 18.02. It is acknowledged and understood by and between Lessor and Lessee
that the right to use the parking lot described on Exhibit "C" and the right of
ingress and egress to the leased premises described herein shall be mutual to
both Lessor and Lessee and to any and all other successors and/or assigns of
Lessor and Lessee.
ARTICLE 19. HAZARDOUS MATERIALS
Hazardous Materials
ss. 19.01. For the purposes of this Instrument, Lessor and Lessee agree that,
unless the context otherwise specifies or requires, the following terms shall
have the following meanings:
a. "Hazardous Materials" shall mean (i) any "hazardous waste" as
defined by the Resource Conservation and Recovery Act of 1976 (42
U.S.C. Section 6901 et seq.), as amended from time to time, and
regulations promulgated thereunder; (ii) any "hazardous
substance" as defined by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C.
Section 9601 et seq.) ("CERCLA"), as amended from time to time,
and regulations promulgated thereunder; (iii) asbestos; (iv)
polychlorinated biphenyls; (v) underground storage tanks, whether
empty, filled or partially filled with any substance, (vi) any
substance the presence of which on the Property is prohibited by
any applicable governmental requirements and regulations
("Governmental Requirements");
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and (vii) any other substance which by any Governmental
Requirements requires special handling or notification of any
federal, state, or local governmental entity in its
collection, storage, treatment, or disposal.
b. "Hazardous Materials Contamination" shall mean the
contamination (whether presently existing or hereafter
occurring) of any improvements, facilities, soil, groundwater,
air or other elements on or of the Property by hazardous
Materials, or the contamination of the buildings, facilities,
soil, groundwater, air, or other elements on or of any other
property as a result of Hazardous Materials at any time
(whether before or after the date of this Instrument)
emanating from the Property.
Representations and Warranties
ss. 19.02. Lessor represents and warrants that, to the best of Lessor's
knowledge and belief, no Hazardous Materials are now located on the Property,
and neither Lessor nor, to Lessor's knowledge, any other person has ever caused
or permitted any Hazardous materials to be placed, held, located, or disposed of
on, under, or at the property or any part thereof.
Lessee represents and warrants that Lessee will not
intentionally or unintentionally cause or permit any Hazardous materials as
defined in ss. 19.01 to be brought upon, kept, or used in or about the property
or any part thereof by Lessee, its agents, employees, contractors, or invitees.
Covenants
ss. 19.03. Lessor and Lessee mutually agree to give notice to the other party
immediately upon either party's acquiring knowledge of the presence of any
Hazardous Materials on the property or of any Hazardous Materials Contamination
with a full description thereof. Lessee agrees to promptly comply with any
Governmental Requirements requiring the removal, treatment or disposal of such
Hazardous Materials or Hazardous Materials Contamination and provide the other
party with satisfactory evidence of such compliance and to provide Lessor,
within thirty (30) days after demand by Lessor, with a bond, letter of credit or
similar financial assurance evidencing to Lessor's satisfaction that the
necessary funds are available to pay the cost of removing, treating and
disposing of such Hazardous Materials or Hazardous Materials Contamination and
discharging any assessments which may be established on the property as a result
thereof.
Indemnification
ss. 19.04. Lessee hereby agrees to defend, indemnify, and hold harmless Lessor
from any and all liabilities (including strict liability), actions, demands,
penalties, losses, costs, or expenses (including without limitation attorneys'
fees and expenses, and remedial costs), suits, costs of any settlement or
judgment and claims of any and every kind whatsoever which may now or in the
future be paid, incurred or suffered by or asserted against Lessor by any person
or entity or governmental agency as a result of Lessee's violation of any
prohibition, covenant or warranty contained herein concerning the use,
disposition, sale and/or storage of any Hazardous Materials or Hazardous
Materials Contamination.
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ARTICLE 20. MISCELLANEOUS
Delivery of Rents and Notices
ss. 20.01. All rents or other sums, notices demands, or requests from one party
to another may be personally delivered or sent by mail, certified or registered,
postage prepaid, to the addresses stated in this section and shall be deemed to
have been given at the time of personal delivery or at the time of mailing.
All payments, notices, demands, or requests from Lessee to Lessor shall
be given or mailed to Lessor at X.X. Xxx 0000, Xxxxxxxx, Xxxxx 00000, or at such
other address as requested by Lessor in writing.
All payments, notices, demands, or requests from Lessor to Lessee shall
be given or mailed to Lessee at 000 Xxxx Xxxxxxx, Xxxxxxxx, Xxxxx 00000, or at
such other address as requested by Lessee in writing.
Multiple Parties
ss. 20.02. If more than one Lessor or Lessee is named in this lease, service of
any notice on any one Lessee or Lessor shall be deemed service on all Lessees or
Lessors, respectively.
Parties Bound
ss. 20.03. This agreement shall be binding upon and inure to the benefit of the
parties to the lease and their respective heirs, executors, administrators,
legal representatives, successors, and assigns.
Texas Law to Apply
ss. 20.04. This agreement shall be construed under and in accordance with the
laws of the State of Texas, and all obligations of the parties created by this
lease for performable in Xxxxx County, Texas.
Legal Construction
ss. 20.05. In case any one or more of the provisions contained in this agreement
shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, this invalidity, illegality, or unenforceability shall not affect any
other provision of the lease, and this agreement shall be construed a if the
invalid, illegal, or unenforceable provision had never been contained in the
lease.
Prior Agreements Superseded
ss. 20.06. This agreement constitutes the sole and only agreement of the parties
to the lease and supersedes any prior understandings or written or oral
agreements between the parties respecting the subject matter of the lease.
Amendment
ss. 20.07. No amendment, modification, or alteration of the terms of this lease
shall be binding unless it is in writing, dated subsequent to the date of this
lease, and duly executed by the parties to this lease.
d
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Rights and Remedies Cumulative
ss. 20.08. The rights and remedies provided by this lease agreement are
cumulative, and the use of any one right or remedy by either party shall not
preclude or waive its right to use any and all other remedies. The rights and
remedies provided in this lease are given in addition to any other rights the
parties may have by law, statute, ordinance, or otherwise.
Attorney's Fees and Costs
ss. 20.09. If, as a result of a breach of this agreement by either party, the
other party employs an attorney or attorneys to enforce its rights under this
lease, then the breaching party agrees to pay the other party the reasonable
attorney's fees and costs incurred to enforce the lease.
Time of Essence
ss. 20.10. Time is of the essence of this agreement.
THIS LEASE has been executed by the parties on the date and year first
above written.
LESSOR
XXXXXX PROPERTIES, INC.,
a Texas Corporation
By:
Xxxxxxx Xxxxxx
Chairman of the Board
LESSEE
XXXXX'X, INC.,
a Texas Corporation
By:
Name:
Title:
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