EXHIBIT 10.11
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LEASE AGREEMENT
THIS LEASE AGREEMENT, entered into effective the 8th day of September,
2003, by and between 1607 COMMERCE LIMITED PARTNERSHIP, a Texas limited
partnership ("Landlord"), and PLASTIC PALLET PRODUCTION, INC., a Texas
corporation ("Tenant").
W I T N E S S E T H:
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In consideration of the mutual covenants and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. LEASED PREMISES. Landlord does hereby lease, demise and let unto
Tenant and Tenant does hereby lease from Landlord, the real property described
on Exhibit "A" attached hereto and made a part hereof, located at 0000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxx, together with all buildings and leasehold
improvements being hereinafter collectively referred to as the "Leased
Premises").
2. LEASE TERM. This Lease shall be for a term of three (3) years,
commencing on the 8th day of September, 2003, and terminating on the 7th day of
September, 2006 (the "Term").
3. RENTAL. During the Term, Tenant hereby covenants and agrees to pay
Landlord as rent for the Leased Premises, the sum of Two Hundred Twelve Thousand
Six Hundred Forty and no/100 Dollars ($212,640.00) per year, in equal monthly
installments of Seventeen Thousand Seven Hundred Twenty and no/100 Dollars
($17,720.00), each without demand, payable in advance on the first day of each
and every calendar month during the term of this Lease. All rent and other
amounts to be paid to the Landlord hereunder shall be payable and mailed to
Landlord at Landlord's address set forth in the notice paragraph below, unless
Landlord designates in writing a different mailing address or a different payee
for said rent. Rent for any partial month shall be pro-rated based upon the
number of days during such month that this Lease is in effect.
4. LATE CHARGE. If Tenant fails to make any installment of Rent, or any
other sum due Landlord hereunder, within ten (10) days after such amount is due,
then the Landlord may make or assess a late charge of five percent (5%) of the
amount of each delinquent payment. Any assessment of late charges by Landlord
shall be considered for all purposes as additional rent under the terms of this
Lease, and shall be added to and payable with the next maturing monthly rental
installment following such assessment. Assessment by Landlord of a late charge
as herein provided shall be without prejudice to any remedies provided by law or
under the provisions hereof. No assessment, payment or acceptance of a late
charge shall operate as a waiver or estoppel of the right of Landlord to declare
a default hereunder, or to pursue any default remedies provided by this Lease or
by law.
5. TRIPLE NET LEASE. This Lease shall be considered a "triple net
lease" in all respects and Landlord shall have no obligation or liability with
respect to the Leased Premises, it being the intent of the parties that Landlord
shall receive the rent reserved hereunder free from any charges, taxes,
assessments, fees, impositions, expenses, deductions or offsets of every kind or
nature.
6. PAYMENT OF REAL ESTATE TAXES AND ASSESSMENTS. Tenant shall pay all
taxes and assessments against the Leased Premises during the Term of this Lease.
The taxes and assessments shall be adjusted and prorated so that the Landlord
shall pay its prorated share for the periods preceding and following the term of
this Lease and the Tenant shall pay its prorated share for such term. The Tenant
shall furnish to the Landlord for its inspection, within fifteen (15) days after
the date any amount is payable by the Tenant, official receipts from the
appropriate taxing authority or other proof satisfactory to the Landlord
evidencing payment.
7. INSURANCE. Landlord shall keep the Leased Premises insured at all
times during the Term of this Lease against loss or damage by fire and such
other extended hazards as are embraced by the standard extended coverage
endorsement approved for use in the State in which the Leased Premises are
located covering the full insurable value of the improvements located on the
Leased Premises in an amount and on terms consistent with the insurance coverage
previously maintained on the Leased Premises, but no less than $1,500,000.00.
During the Term of this Lease, Tenant shall reimburse Landlord for the cost of
such insurance within fifteen (15) days after receipt of written notice from the
Landlord setting forth the premium therefor. Landlord shall have no obligation
to provide insurance covering the Tenant's contents, personal property,
equipment, fixtures or alterations to the Leased Premises; however, Tenant shall
have such an obligation pursuant to an Equipment Lease of even date herewith.
Tenant shall, at its sole cost and expense, carry on its personal
property including, without limitation, fixtures, equipment and inventory in the
Lease Premises, fire and such other extended hazards as are embraced by the
standard extended coverage policy approved for use in the State in which the
Leased Premises are located in an amount and on terms consistent with the
insurance coverage previously maintained on the Leased Premises. Tenant shall,
at Tenant's sole cost and expense, obtain and keep in force during the term
hereof comprehensive general public liability insurance and property damage
insurance in an amount and on terms consistent with the insurance coverage
previously maintained on the Leased Premises.
All policies of insurance provided for under this paragraph shall name
Landlord, such mortgage lenders as Landlord shall designate, and Tenant as named
insureds to the extent of their respective interests. All such policies of
insurance shall provide that any loss shall be payable as therein provided
notwithstanding any act or negligence of Landlord, Tenant or any other occupant
of the Leased Premises which might otherwise result in a forfeiture of said
insurance.
All such insurance carried by Tenant shall further contain a clause
that the insurer thereof will not cancel or amend the policy without first
giving Landlord thirty (30) days advance written notice. All insurance required
to be obtained and maintained hereunder shall be with an insurance company
approved by Landlord and a copy of the policy and/or certificate of insurance
shall be delivered to Landlord. If Tenant refuses or neglects to secure and
maintain insurance policies in compliance with the provisions of this Section,
Landlord may, but shall not be required to, secure and maintain such insurance
and Tenant shall immediately pay the cost thereof to Landlord as additional
rent.
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8. MUTUAL WAIVER OF SUBROGATION. Notwithstanding anything to the
contrary contained in this Lease, Landlord and Tenant do each hereby release the
other from any and all liability or responsibility (to the other or to anyone
claiming through or under the other by way of subrogation or otherwise) for any
loss or damage to property caused by fire, any of the extended coverage perils,
or any other insured peril, even if such fire or other casualty shall have been
caused by the negligence of the other party or of anyone for whom such party may
be responsible. Such waiver of subrogation shall be effective with respect to
such loss or damage and each policy hereunder shall contain a clause of
endorsement to the effect that any release shall not adversely affect or impair
said policies or prejudice the right of the releasing party to recover
thereunder. Landlord and Tenant each agree that their policies shall include
such a clause or endorsement.
9. LIMIT TO LANDLORD'S LIABILITY. The Landlord shall not be liable for
any damage to property of Tenant or of others located on the Leased Premises,
nor for the loss of or damages to any property of Tenant or of others by theft,
and Landlord shall not be liable for any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity, water,
smoke, rain, or snow, bursting of or leaks from any part of the Leased Premises
or from the pipes, appliances, or plumbing works, or from the roof, street or
subsurface, or from any other place or by dampness, stoppage or leakage from
sewer pipes or from any other cause whatsoever, provided, that nothing herein
shall exempt the Landlord from liability as a result of injury to persons or
property resulting from latent defects in the construction of the improvements
on the Leased Premises by Landlord or breach by Landlord of any of Landlord's
obligations under this Lease or unless the foregoing shall be caused by the
willful, intentional or negligent act or omission of Landlord. All property of
Tenant kept or stored on the Leased Premises shall be so kept and stored at the
risk of Tenant only and unless herein otherwise provided, Tenant shall hold
Landlord harmless from any claim arising out of damage to the same except for
any willful, intentional or negligent act or omission of Landlord in connection
with or arising out of said property.
10. REPAIRS AND MAINTENANCE. Tenant represents and warrants to Landlord
that it has had the opportunity to inspect the Leased Premises prior to the
execution of this Lease and that the same are clean and in good repair. Tenant
shall keep and maintain the interior and exterior of the Leased Premises in good
order, condition and repair including, without limitation, (a) the roof, down
spouts, gutters, sidewalks, walls, plate glass of windows and doors; (b) all
mechanical, electrical and heating and air conditioning systems (including but
not limited to all duct work and transmission conduits), and all plumbing pipes,
fixtures and connections both in and under the Leased Premises; (c) all interior
and exterior repairs of a structural nature or arising out of structural defect,
of which plastered surfaces shall be considered a part; (d) the parking area
(which shall include without limitation, keeping such area repaired, clear and
free of debris, lighted and striped); (e) the landscaping on the Leased
Premises; (f) all tubes and bulbs used in lighting in the Leased Premises; and
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(g) all of Tenant's trade fixtures, equipment, furniture and other personal
property placed in or about the Leased Premises, regardless of whether or not
permanently affixed to the Leased Premises. Tenant shall make all repairs to
said improvements when necessary. Tenant shall keep and maintain all portions of
the Leased Premises and other improvements in a clean and orderly condition.
If Tenant fails to make the repairs required of Tenant herein, or in
the event of an emergency, Landlord may, at its option, make the repairs in
which event Tenant shall reimburse Landlord for the cost thereof, together with
twenty percent (20%) of said cost for administrative fees, as additional rent
hereunder within five (5) days of demand therefor.
11. USE OF LEASED PREMISES. Tenant shall at all times during the Term,
occupy the Leased Premises and use the same solely for the design, development
and manufacture of plastic pallets and related machinery and for no other use.
Tenant shall not use the Leased Premises for any purpose that would constitute a
nuisance or in any manner violate any ordinance, law, regulation or statute of
any governmental authority.
12. EQUIPMENT, FIXTURES AND SIGNS. Tenant shall have the right, at
Tenant's sole cost and expense to place, erect, install, maintain and operate on
the Leased Premises, such equipment, fixtures, signs, awnings, advertising
matter or other thing of any kind which Tenant may reasonably require for the
purposes of its business so long as the same are not in violation of any
existing laws, ordinances or governmental regulations. Upon termination or
expiration of the Lease, any equipment, fixtures, signs, awnings advertising
matter or other thing placed upon the Leased Premises by Tenant may be removed
by Tenant at its sole cost and expense. In such event, Tenant shall repair any
damage caused by such removal and shall restore the site to the same condition
existing at the commencement of this Lease.
13. HAZARDOUS SUBSTANCES. Tenant shall not use or allow the Leased
Premises to be used for the Release, storage, use, treatment, disposal or other
handling of any Hazardous Substance, without the prior consent of Landlord. The
term "Release" shall have the same meaning as is ascribed to it in the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
ss.9601, et seq., as amended ("CERCLA"). The term "Hazardous Substance" means
(i) any substance defined as a "hazardous substance" under CERCLA, (ii)
petroleum, petroleum products, natural gas, natural gas liquids, liquefied
natural gas, and synthetic gas, and (iii) any other substance of material deemed
to be hazardous, dangerous, toxic, or a pollutant under any federal, state or
local law, code, ordinance or regulation.
Tenant shall: (a) give prior notice to Landlord of any activity or
operation to be conducted by Tenant at the Leased Premises which involves the
Release, use, handling, generation, treatment, storage or disposal of any
Hazardous Substance ("Tenant's Hazardous Substance Activity"), (b) at its
expense comply with all federal, state and local laws, codes, ordinances,
regulations, permits and licensing conditions governing the use, storage,
Release, discharge, emission or disposal of any Hazardous Substances, (c) at its
own expense, promptly contain and remediate any Release of Hazardous Substances
arising from or related to Tenant's Hazardous Substance Activity in the
Premises, or the environment and remediate and pay for any resultant damage to
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property, persons or environment, (d) give prompt notice to Landlord and all
appropriate regulatory authorities of any Release of any Hazardous Substances in
the Leased Premises or the environment arising from or related to Tenant's
Hazardous Substance Activities, which Release is not made pursuant to and in
conformance with the terms of any permit or license duly issued by appropriate
governmental authorities, and such notice to include a description of measures
taken or proposed to be taken by Tenant to contain and remediate the Release and
any resultant damage to property, persons, or the environment, (e) at Landlord's
request retain an independent engineer or other qualified consultant or expert
acceptable to Landlord, to conduct an environmental audit of the Leased Premises
and immediate surrounding areas, with the scope of work to be performed by such
engineer, consultant or expert to be approved in advance by Landlord, and all of
the engineer's, consultant's or expert's work product shall be made available to
Landlord; provided that there is no more than one audit per calendar year, the
cost of such audit shall be paid by Tenant; (f) at Landlord's request from time
to time, execute affidavits, representations and the like concerning Tenant's
best knowledge and belief regarding the presence of Hazardous Substances in the
Leased Premises, (g) reimburse to Landlord, upon demand, the reasonable cost of
any testing for the purpose of ascertaining if there has been any Release of
Hazardous Substances in the Leased Premises, if such testing is required by any
governmental agency or any Mortgagee of the Leased Premises, and (h) upon
expiration or termination of this lease, surrender the Leased Premises to
Landlord free from the presence and contamination of any Hazardous Substance.
14. TENANT ORGANIZATION; COMPLIANCE WITH LAWS, ORDERS, ORDINANCES.
Tenant represents and warrants that Tenant is a Corporation duly organized,
validly existing and in good standing under the laws of the State of Texas and
has all requisite corporate power and authority to execute and fulfill the
obligations of this Lease. Tenant shall observe and comply with the requirements
of all policies of public liability, fire and all other policies of insurance at
any time in force with respect to the Leased Premises or improvements or to the
use or manner of use of the same.
15. ASSIGNMENT AND SUBLETTING. Tenant may not assign or sublet the
Leased Premises, in whole or in part, or mortgage or otherwise encumber the
Leased Premises, unless the prior written consent of Landlord is first obtained,
which consent may be withheld in Landlord's sole and absolute discretion. Any
such attempted assignment, sublease, mortgage, or other encumbrance without such
consent shall be void and shall constitute a default under this Lease. Consent
by Landlord to any assignment or sublease shall not be deemed to be consent to
any further or other assignment or sublease. Landlord shall not sell or transfer
the Leased Premises except to a buyer which agrees to be bound by the terms of
this Lease Agreement.
16. INSPECTION OF LEASED PREMISES. Landlord shall have the right to
enter upon the Leased Premises or any portion thereof during the regular
business hours of Tenant upon giving reasonable notice for the purpose of
inspecting the same or correcting any condition which may exist thereon which is
or may be in violation of this Lease, but such rights shall be exercised in a
manner so as not to interfere with the business of the Tenant. Nothing herein
contained shall prevent Landlord from entering upon the Leased Premises at any
time and under any condition for the purpose of correcting any emergency or the
violation of any ordinance, statute or law by Tenant.
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17. DAMAGE OR DESTRUCTION. In the event the Leased Premises should be
partially destroyed (meaning less than twenty-five percent [25%]) as a result of
fire or other casualty, regardless of the cause, then Landlord shall, at its
sole cost and expense promptly, but only to the extent of insurance proceeds
actually received, commence to build or place the same in as good condition as
prior to such casualty, which rebuilding or replacement shall be completed
within nine (9) months following such casualty. In the event the Leased Premises
should be substantially (meaning twenty-five percent [25%] or more) destroyed as
a result of fire or other casualty, or it should be untenable and unfit for
occupancy, then, Landlord may at Landlord's sole option, expressed to Tenant in
writing within thirty (30) days of such occurrence, (a) promptly commence to
build or replace the same as aforesaid, which rebuilding and replacement shall
be completed within twelve (12) months following such substantial destruction,
or (b) terminate this Lease, effective on the date of such casualty. Monthly
rent, but not taxes and insurance, shall equitably xxxxx during such period any
such portion of the Leased Premises are untenable or unfit for occupancy, based
upon the area of such portion of the buildings rendered untenable or unfit for
occupancy in the event of partial destruction, or substantial destruction
subsequent to which this Lease is not terminated by Tenant pursuant to the terms
of this Lease, divided by the total area of the buildings on the Leased
Premises.
18. UTILITIES. The Leased Premises are presently served by gas, water,
electric, sewer and other utilities commonly used by commercial buildings
similar to the Leased Premises. Tenant shall be responsible for the repair,
reconnection or replacement of any of the lines, conduits, connectors or
plumbing which connect the Leased Premises to any such utilities and their
common source of supply. At all times during the term of this Lease, Tenant
shall pay all deposits and charges for water, sewer, electricity, gas, trash or
refuse hauling and any other public or private utility service used or consumed
by Tenant on the Leased Premises.
19. ADDITIONS, ALTERATIONS OR REMODELING. Tenant shall have the right,
at Tenant's sole cost and expense and with the prior written consent of Landlord
obtained in each instance, such consent to not be unreasonably withheld, to make
any alterations, improvements or additions to the Leased Premises. Any such
alterations, improvements or additions shall be made in compliance with all
local ordinances and public authorities having jurisdiction thereof. All
alterations, improvements or additions made by Tenant shall become the property
of the Landlord.
20. CONDITION OF PROPERTY. Tenant has inspected the Leased Premises
prior to the commencement of this Lease and accepts the same in its present
condition. The Leased Premises are being leased to Tenant in an "AS IS, WHERE
IS, WITH ALL FAULTS" condition as of the date first above written. Tenant's
taking possession shall be conclusive evidence against Tenant that the Leased
Premises were in good order, repair, and satisfactory condition on the effective
date of this Lease. Landlord has made no promise to Tenant to alter, remodel, or
improve the Leased Premises or any adjacent area, nor made any representation
regarding the condition of the Leased Premises.
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21. BROKERAGE FEES. The parties covenant, warrant, and represent to
each other that no broker was instrumental in consummating this Lease and
neither party had any conversation or prior negotiations with any broker
concerning the renting of the Leased Premises. Each party shall protect,
indemnify, save, and keep harmless the other against any brokerage commission
allegedly due or attorney's fees, arising out of or from any claims for
brokerage commissions and/or finders' fees resulting from any conversation or
negotiations by such party with any broker or any other person.
22. EVENTS OF DEFAULT. The following events shall be deemed to be
events of default by Tenant hereunder: (a) Failure by Tenant to pay any portion
of the rent required to be paid hereunder or failure to pay any other financial
obligation imposed upon Tenant by the terms hereof within ten (10) days of when
due; (b) Failure by Tenant to comply with any term, covenant or provision of
this Lease, other than as referred to in subparagraph (a) above and failure to
correct such failure within ten (10) days after written notice thereof to Tenant
from Landlord specifying such failure and requesting that it be remedied, or if
such failure cannot with due diligence be corrected within ten (10) days,
failure to commence to correct the same and/or, having so commenced to correct
such failure, neglecting to prosecute such correction with due diligence to
completion; (c) If an order, judgment or decree shall be entered by any court
adjudicating the Tenant a bankrupt or insolvent, or approving a petition seeking
reorganization of the Tenant or any Guarantor of Tenant's obligations pursuant
to this Lease (the "Guarantor") or appointing a receiver, trustee or liquidator
of the Tenant or any Guarantor, or of all or a substantial part of its assets;
(d) Tenant shall file an answer admitting the material allegations of a petition
filed against the Tenant or any Guarantor in any bankruptcy, reorganization or
insolvency proceeding or under any laws relating to the relief of debtors,
readjustment or indebtedness, reorganization, arrangements, composition or
extension; (e) Tenant or any Guarantor shall make any assignment for the benefit
of creditors or shall apply for or consent to the appointment of a receiver,
trustee or liquidator of Tenant or any Guarantor, or any of the assets of Tenant
or any Guarantor; (f) Tenant or any Guarantor shall file a voluntary petition in
bankruptcy, or shall admit in writing its inability to pay its debts as they
come due or shall file a petition or an answer seeking reorganization or
arrangement with creditors or take advantage of any insolvency laws; (g) Tenant
materially defaults under its Equipment Lease with Landlord of even date
herewith; or (h) A decree or order appointing a receiver to the property of
Tenant or any Guarantor shall be made and such decree or order shall not have
been vacated within sixty (60) days from the date of entry or granting thereof.
Upon the occurrence of any of the aforesaid events of default Landlord
shall have the option to pursue any one or more of the following remedies
without any demand or notice whatsoever: (a) terminate this Lease, in which
event Tenant shall immediately surrender the Leased Premises to Landlord; (b)
without terminating this Lease, enter upon the Leased Premises and perform
whatever Tenant is obligated to do under the terms of this Lease and Tenant
shall reimburse Landlord upon demand for any expenses which Landlord may incur
in effecting compliance with Tenant's obligations under this Lease; (c) whether
or not Landlord terminates this Lease, recover the present value of all rent for
a period equal to the remaining Term of this Lease without any obligation to
re-let the Leased Premises; or (d) take any other action allowed by law.
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Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies provided by law.
Nothing provided by law or contained herein shall be deemed to obligate Landlord
to expend any funds.
Failure or delay by Landlord to enforce any one or more of the remedies
herein provided or provided by law upon any event of default shall not be deemed
or construed to constitute a waiver thereof or preclude the exercise thereof
during the continuation of any default hereunder or be deemed or construed to
constitute a waiver of any other violation or breach of any of the terms,
provisions and covenants herein contained.
In the event of default by Tenant of any of the terms and conditions of
this Lease, and upon such default, interest at the highest rate allowed by law
in the State in which the Leased Premises are situated shall accrue on all
amounts due or which will become due, including costs and attorney's fees.
23. REDELIVERY OF LEASED PREMISES. Tenant shall, upon termination or
expiration of this Lease, peacefully quit, surrender and deliver the Leased
Premises unto Landlord empty, broom clean and in as good a condition as when
received, normal wear and tear excepted. If Tenant shall leave any personal
property in or on the Leased Premises for more than three (3) days after
termination, Tenant shall be conclusively deemed to have abandoned such personal
property and Landlord may dispose of such property as it sees fit, with no
obligation to account to Tenant.
24. INDEMNIFICATION. During the term hereof, Tenant covenants and
agrees to hold Landlord harmless from any claims, demands, judgments, losses,
costs, expenses or damages of any character or nature regardless of by whom
imposed including but not limited to claims for loss or damage to any property
or injury to or death of any person asserted by or on behalf of any person,
arising out of, resulting from or in any way connected with Tenant's occupancy
and/or use of the Leased Premises or the condition, occupancy, use, possession,
conduct or management or any work done in or about the Leased Premises or any
portion thereof attributable to Tenant or its assignees or subtenant. Tenant
further covenants and agrees, at Tenant's expense, to pay, indemnify and save
Landlord harmless of, from and against all costs, counsel fees, expenses and
liabilities incurred in any action or proceeding brought by reason of any such
claim or demand.
25. CONDEMNATION. In the event the entire Leased Premises shall be
taken in condemnation proceedings or by exercise of any right of eminent domain
for public or quasi public use, this Lease shall terminate as of the date of
said taking and all unearned rent and other charges paid in advance shall be
refunded to Tenant after deducting any charges owed by Tenant to Landlord, and
Tenant shall surrender possession of the Leased Premises to Landlord. In the
event a portion of the Leased Premises shall be taken by such proceedings,
either party may terminate this Lease within thirty (30) days after the taking,
in which event Landlord and Tenant shall be relieved of all further liability
hereunder, or Tenant may elect to continue this Lease in effect with an
appropriate reduction of rent during the remainder of the lease term. The award
for any such taking shall belong entirely to Landlord. The Tenant shall be
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entitled to make a claim in its own name to the condemning authority for the
value of any furniture, trade fixtures, trade equipment, merchandise or personal
property of any kind belonging to the Tenant, and not forming a part of the
Leased Premises, or for the cost of moving all of the same or for moving such
business as is necessary or for lost profits; provided that such claim shall not
reduce the award to the Landlord.
26. LIENS. Tenant shall at all times keep the Leased Premises free and
clear of any liens, charges or claims arising from any act or omission to act on
the part of Tenant in connection with the maintenance and repair of the Leased
Premises or the installation therein of any fixtures and equipment. In the event
any such liens, charges or claims are made or filed against the Leased Premises,
Tenant agrees to promptly discharge the same and deliver to Landlord evidence
thereof.
27. QUIET ENJOYMENT. So long as Tenant is not in default of the terms
hereunder, Tenant shall peacefully hold and quietly enjoy the Leased Premises
without interruption by Landlord, any mortgagee, or any other person claiming
under Landlord or any mortgagee, except as otherwise provided herein.
28. SUBORDINATION. This Lease is subject and subordinate at all times
to any present or future mortgage or deed of trust constituting a lien on the
Leased Premises, and to all renewals, modifications, consolidations,
replacements and extensions thereof, to the full extent of the indebtedness
secured thereby, with the same force and effect as if the mortgage had been
executed, delivered and duly recorded prior to the execution of the Lease.
Tenant shall execute and deliver any instrument reasonably requested by Landlord
in confirmation of such subordination within ten (10) days of Landlord's
request.
29. ESTOPPEL CERTIFICATE. Within ten (10) days after request by the
Landlord, Tenant shall, without charge, deliver a duly executed and acknowledged
estoppel certificate to the Landlord or any mortgagee, purchaser, assignee of
mortgagee or purchaser, or any other person, firm or corporation reasonably
requested by Landlord. It is intended that any such statement delivered pursuant
to this paragraph may be relied upon by Landlord or any mortgagee, purchaser,
assignee of mortgagee or purchaser, or any other person, firm or corporation
relying upon such statement.
30. ATTORNMENT. In the event that, by reason of the foreclosure of the
mortgage for any reason or due to any exercise of a power of sale or as a result
of the taking of a deed in lieu of foreclosure, mortgagee or any successor or
assignee of mortgagee succeeds to the interest of the Landlord under this Lease,
then upon receipt of notice from the mortgagee or such successor or assignee
that it has succeeded to the rights of the Landlord under this Lease, Tenant
hereby agrees to recognize mortgagee or such successor or assignee as Tenant's
landlord under this Lease and hereby agrees to attorn to mortgagee or such
successor or assignee. Said attornment is to be effective and self-operative
without the execution of any other instrument immediately upon mortgagee or any
successor or assignee of mortgagee succeeding to the rights of the Landlord
under the Lease, and this Lease shall continue in accordance with its terms
between Tenant and mortgagee or any successor assignee of mortgagee, as
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Landlord; provided, however, that mortgagee or any successor or assignee of
mortgagee shall not: (a) be bound by any prepayment of rent more than 60 days in
advance; (b) be bound by any amendment or modification of this Lease made after
the succession or assignment without the consent of mortgagee or its successor
or assignee; (c) be personally liable under this Lease, and mortgagee's or its
successor's or assignee's liability under the Lease shall be limited to the
interest of mortgagee or its successor or assignee in the Leased Premises; (d)
be liable, except by way of set-off, for any act, omission, neglect, or default
of any prior landlord under this Lease including, without limitation, the
Landlord; and (e) be subject to any claims, credits, offsets, or defenses which
Tenant might have against any prior landlord under this Lease including, without
limitation, the Landlord. Tenant agrees to execute and deliver within ten (10)
days of Landlord's request or such successor's request an attornment agreement
certifying as to the matters set forth in this paragraph.
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32. TIME OF ESSENCE. Tenant agrees that time is of the essence in the
performance of each and every term, covenant and condition of this Lease.
33. ENTIRE AGREEMENT. This instrument constitutes the entire agreement
of the parties. It supersedes any and all other agreements, either oral or in
writing, between the parties hereto. Each party to this Agreement acknowledges
that no representations, inducements, promises or agreements, oral or otherwise,
have been made by any party or anyone acting on behalf of any party, which are
not embodied herein, and that no other agreement, statement or promise not
contained in this Agreement shall be valid or binding. This Agreement may not be
modified or amended by oral agreement, but only by an agreement in writing,
signed by the parties hereto.
34. SEVERABILITY. If any provision of this Lease is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Lease will remain in full force and effect. Any provision of this Lease
held invalid or unenforceable only in part or degree will remain in full force
and effect to the extent not held invalid or unenforceable.
35. BINDING EFFECT. It is agreed that the provisions, covenants and
conditions of this Lease shall be binding upon each of the parties hereto, their
heirs, successors and permitted assigns.
36. NOTICES AND COMMUNICATIONS. All notices consents, waivers and other
communications under this Lease shall be deemed to be properly given and served
if sent by registered or certified mail, postage prepaid, with return receipt
requested, hand delivery (with confirmation of receipt), prepaid overnight
delivery service, or facsimile with confirmation sheet if sent to the following:
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If to Landlord: 1607 Commerce Limited Partnership
0000 XxXxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
If to Tenant: Plastic Pallet Production, Inc.
0000 X. 00xx Xx.
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Unless otherwise stated, the effective date of any such notice or communication
shall be the date on which the same is received. Either party hereto may change
the address to which notice is to be sent by prior written notice to the other
party.
37. APPLICABLE LAW. This Lease is to be interpreted, construed and
enforced in accordance with the laws of the State in which the Leased Premises
is located, without regard to its conflict of laws principles.
38. DUPLICATE ORIGINALS. Any fully executed copy of this Lease shall be
deemed for all purposes as a duplicate original hereof.
39. AGENCY. Nothing herein contained shall be deemed or construed by
the parties hereto nor by any third party as creating the relationship of
principal and agent or of partnership or of joint venture between the parties
hereto, nor shall any act of the parties hereto be deemed to create any
relationship between the parties hereto other than the relationship of landlord
and tenant.
40. ATTORNEY FEES AND COSTS. In the event either party hereto shall
file an action to enforce any agreement contained in this Lease or for breach of
any covenant or condition hereof, then the prevailing party in any such action
shall be entitled to recover from the other party or parties attorney's fee for
the services of the prevailing parties' attorney, together with any and all
costs of such action, said fees to be fixed by a court having competent
jurisdiction over the subject matter in dispute.
41. EXECUTION IN COUNTERPARTS. This Lease may be executed in one or
more counterparts, each of which will be deemed an original copy of the Lease
and all of which, when taken together will be deemed to constitute one and the
same agreement.
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IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered
this Lease the day and year first above written.
"LANDLORD" 1607 COMMERCE LIMITED PARTNERSHIP
A Texas Limited Partnership
By: COMMERCE, L.L.C.,
An Oklahoma Limited Liability Company,
General Partner
By: /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, Manager
"TENANT" PLASTIC PALLET PRODUCTION, INC.,
a Texas corporation
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
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All annexes to this agreement are omitted from this Exhibit. The registrant will
furnish supplementally a copy of any omitted annex to the Commission upon
request.
