1
Exhibit 10.49
INDUSTRIAL LEASE
SPRINT INDUSTRIAL SERVICES, INC.,
A TEXAS CORPORATION
LANDLORD
AND
NES ACQUISITION CORP.,
A DELAWARE CORPORATION
TENANT
2
LEASE
THIS LEASE made and entered into as of the first day of July, 1997,
between Sprint Industrial Services, Inc., a Texas corporation (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") being eight (8) acres of that
certain eleven (11) acre tract of land described on Exhibit "A" attached hereto
and made a part hereof along with that certain trailer and equipment barn
thereon, located at 0000 Xxxxxxx 00 Xxxxx, Xxxxxxxx, Xxxxx. The three (3)
acres not included in the Demised Premises is that certain area currently being
used as a trailer park (the "Trailer Park").
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.
ARTICLE 1
TERM AND USE
A. The Primary Term (herein so called) of this Lease shall begin on the
date (the "Commencement Date") July 1, 1997 and shall expire on June 30, 2002.
For purposes of this Lease, a "Lease Month" shall be defined as those
successive calendar month periods beginning with the Commencement Date and
continuing through the Primary Term or any Renewal Term of this Lease;
provided, however, if the Commencement Date is a day other than the first day
of a calendar month, then the first Lease Month shall include that period of
time from the Commencement Date up to the first day of the next calendar month,
and each subsequent Lease Month shall be a calendar month period beginning on
the first day of such month. The Primary Term and any Renewal Terms
(hereinafter defined) are sometimes collectively referred to herein as the
"Term."
B. Provided Tenant is not in default of any material term, condition or
covenant contained in this Lease and no event has occurred which with the
notice or the passage of time would constitute a default under any material
term, condition or covenant contained in this Lease at the time of exercise of
an option to renew the Primary Term beyond any period for curing same, Tenant
shall have the option of renewing this Lease for two (2) additional terms of
five (5) years each (hereinafter, collectively referred to as "Renewal Terms,"
or individually as "Renewal Term"). Each Renewal Term will be on the same
terms and conditions as provided herein except for the Base Rent which shall be
as shown on "Exhibit D" attached hereto and made a part hereof. Notice of the
exercise of such options shall be given by Tenant to Landlord in writing not
later than one hundred and eighty days prior to expiration of the Primary Term
or the previous Renewal Term.
C. The Demised Premises may be used for the operation of an equipment
rental business and any other lawful purpose provided that Landlord consents,
which consent shall not be unreasonably withheld, conditioned or delayed.
3
ARTICLE 2
EXHIBITS AND ORIGINAL CONSTRUCTION
A. The exhibits listed below and attached to this Lease are incorporated
herein by reference:
EXHIBIT "A" - Legal Description of the Demised Premises
EXHIBIT "B" - Non-Disturbance and Attornment Agreement
EXHIBIT "C" - Memorandum of Lease
EXHIBIT "D" - Renewal Term Rent Schedule
B. Landlord will deliver the Demised Premises to Tenant no later than the
date of execution of this Lease (the "Delivery Date").
ARTICLE 3
DATE ON WHICH RENT BEGINS
A. The Base Rent (as defined herein) and all Additional Rent (as herein
defined) (Base Rent and Additional Rent are sometimes collectively referred to
herein as "Rent") shall begin to accrue on the date (the "Rent Commencement
Date") which is the Commencement Date.
B. 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, the following sums of money:
Lease
Years Base Rent
------- --------------
1-10 $2,000/month
to be paid in U.S. Dollars, in advance, without notice or invoice from
Landlord, on the first day of each and every month during the Term hereof,
commencing upon the date on which Base Rent is determined to commence under the
provisions of Article 3 hereof and ending upon the termination date of this
Lease. In the event such Base Rent shall be determined under the provisions of
Article 3 hereof to commence on a day other than the first (1st) day of a
month, then the Base Rent for the period from such Rent Commencement Date until
the first day of the month next following shall be prorated accordingly. All
payments in this Lease provided for (those hereinafter stipulated as well as
Base Rent) shall be paid or mailed to:
Sprint Industrial Services, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: President
or to such other payee or address as Landlord may designate in writing to
Tenant.
- 2 -
4
ARTICLE 4
TAXES
In addition to the Base Rent provided for in Article 3 hereof, Tenant
agrees to pay the additional payments as follows:
A. Tenant shall be responsible for all real property taxes and assessments
(hereinafter, "Real Estate Taxes") which may be levied or assessed against the
Demised Premises by any lawful authority for each calendar year or portion
during the Term of this Lease. As the Demised Premises is only eight (8) acres
of an eleven (11) acre tax parcel, Tenant shall only be responsible for its pro
rata share of Real Estate Taxes, which pro rata share shall be determined by
the parties taking into account the relative acreage of each parcel and the
value of the improvements thereon. As the lease years under this Lease do not
coincide with a calender year, Real Estate Taxes for such partial years shall
be prorated accordingly based on the number of days which this Lease was in
full force and effect during such calender year.
B. Tenant's proportionate share of all Real Estate Taxes during the Term
hereof shall be paid annually or semiannually to the appropriate taxing
authority, but no more frequently than Landlord is required to make payment.
Upon receipt of all tax bills and assessment bills attributed to any calendar
year during the Term hereof, Landlord shall furnish Tenant with a written
statement of the actual amount of Tenant's proportionate share of the Real
Estate Taxes for such year or part thereof, together with a copy of such tax
bills, and Tenant shall pay such actual amount within thirty (30) days of such
statement from Landlord but no more than ten (10) days prior to the date
Landlord is required to pay said Real Estate Taxes. A copy of a tax xxxx or
assessment xxxx submitted by Landlord to Tenant shall at all times be
sufficient evidence of the amount of Real Estate Taxes levied or assessed
against the property to which such xxxx relates. Landlord's and Tenant's
obligations under this Article 4 shall survive the expiration of the Term of
this Lease. No Real Estate Taxes, assessments, fees or charges referred to in
this paragraph shall be considered as taxes under the provisions of Article 10
hereof.
C. Tenant may, upon the receipt of prior written approval of Landlord,
such approval not to be unreasonably withheld, contest any Real Estate Taxes
against the Demised Premises and attempt to obtain a reduction in the assessed
valuation upon the Demised Premises for the purpose of reducing any such
taxment. In the event Landlord approves and upon the request of Tenant but
without expense or liability to Landlord, Landlord shall cooperate with Tenant
and execute any document which may be reasonably necessary and proper for any
proceeding. If a tax reduction is obtained there shall be a subsequent
reduction in Tenant's total Real Estate Taxes for such year, and any excess
payments by Tenant shall be refunded by Landlord, without interest, when all
refunds to which Landlord is entitled from the taxing authority with respect to
such year have been received by Landlord. In the event Landlord desires to
contest any Real Estate Taxes, Tenant agrees to cooperate with Landlord and
execute any document which may be reasonably necessary and proper for any
proceeding at no cost to Tenant.
D. Tenant shall not be liable for increases in Real Estate Taxes
attributable to additional improvements to the Demised Premises that are
constructed after the first tax year included within the terms of this Lease,
unless the additional improvements are constructed for Tenant's sole benefit.
E. There shall be excluded from the tax xxxx to which Tenant contributes,
for the purposes of computing Real Estate Taxes income, excess profits,
estate, single business, inheritance, succession, transfer or franchise tax
assessments upon Landlord or the Rent payable under this Lease. Landlord
hereby represents and warrants that Landlord has no actual knowledge (without
independent investigation) of current or future special assessments.
- 3 -
5
ARTICLE 5
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 recognize such
beneficiary or purchaser as the Landlord under this Lease, provided Tenant's
rights under this Lease continue unabated.
C. Landlord agrees to obtain a Non-Disturbance and Attornment Agreement
from its current lender(s) and the ground lessor, if any, and deliver same to
Tenant on or before the date hereof and from any future lender on or before
obtaining financing from such lender, substantially in accordance with the form
attached hereto as Exhibit "B". The delivery of a fully executed
Non-Disturbance and Attornment Agreement shall be a condition precedent to the
effectiveness of this Lease and if said Non-Disturbance and Attornment is not
so delivered, Tenant may at its option terminate this Lease by written notice
to Landlord.
ARTICLE 6
CONDITION OF PREMISES
Landlord warrants that upon completion of the construction of the building
currently being undertaken on the Demised Premises, the interior and exterior
of the building being constructed will meet with all present codes required at
the time by regulations of governing authorities for use and occupancy by
Tenant. Such construction shall be completed in a good, workmanlike and timely
manner. Except for the warranty and representation set forth in the preceding
sentence, Tenant accepts the Demised Premises and all improvements thereon AS
IS, AND WITHOUT ALL FAULTS AND DEFECTS, BOTH PATENT AND LATENT, KNOWN OR
UNKNOWN. Tenant acknowledges that it has been given the opportunity to inspect
the Demised Premises prior to its execution of this Lease.
ARTICLE 7
REPAIRS AND MAINTENANCE
Tenant covenants and agrees, at its expense without reimbursement or
contribution by Landlord, to keep and maintain all improvements on the Demised
Premises, including, without limitation, the foundations, exterior paint,
plumbing system, electrical system, utility lines and connections to the
Demised Premises, sprinkler mains, if any, structural systems (including,
without limitation, the roof, roof membrane roof covering [including interior
ceiling if damaged by leakage] and load-bearing walls and floor slabs and
masonry walls) in good condition and repair. In addition, Tenant will be
responsible for mowing the grass for the entire eleven (11) acre parcel
including the trailer park. In the event the Demised Premises become or are
out of repair and not in good condition due to the failure of Tenant to comply
with the terms of this Article 7 and if any and all
- 4 -
6
repairs necessary to restore the Demised Premises to a state of good condition
and repair are not completed within ten (10) days after Tenant has received
written notice of such state of disrepair or if such repairs cannot reasonably
be completed within such ten (10) day period and Tenant shall fail to commence
such repairs within ten (10) days after notice and proceed diligently
thereafter, then Landlord may either (i) terminate this Lease immediately upon
delivery of written notice to Tenant or (ii) prosecute such repairs itself and
add the reasonable cost of such repairs to the next maturing monthly
installment of Rent due hereunder. Notwithstanding the foregoing in the case
of an emergency, Landlord shall have the right to prosecute immediately any and
all necessary repairs and shall deliver contemporaneous notification to Tenant
of the emergency and related repairs and add the reasonable cost of such
repairs to the next maturing monthly installment of Rent due hereunder;
provided further that if contemporaneous notice is not practicable, as
determined by Landlord in its sole judgment, then Landlord shall provide such
notice as soon thereafter as reasonably practicable. Upon termination of this
Lease for any reason, Tenant shall return the Demised Premises to Landlord in
substantially the same condition it is in on the date hereof, ordinary wear and
tear excepted.
ARTICLE 8
ENVIRONMENTAL MATTERS
Landlord represents and warrants that to the best of Landlord's knowledge
any handling, transportation, storage, treatment or usage of hazardous or toxic
substances that has occurred on the Demised Premises has been in compliance
with all applicable federal, state and local laws, regulations and ordinances.
Landlord further represents and warrants to the best of Landlord's knowledge
that no leak, spill, discharge, emission or disposal of hazardous or toxic
substances has occurred on the Demised Premises and that the soil, groundwater,
soil vapor on or under the Demised Premises are free of toxic or hazardous
substances as of the date hereof. Landlord agrees to indemnify, defend and
hold Tenant and its officers, employees and agents harmless from any claims,
judgments, damages, fines, penalties, costs, liabilities (including sums paid
in settlement of claims) or loss, including attorneys, fees, consultants fees,
and expert fees, which arise during or after the Primary Term or any Renewal
Term, or in connection with the presence or suspected presence of toxic or
hazardous substances in the soil, groundwater, or soil vapor on or under the
Demised Premises, unless such toxic or hazardous substances are present solely
as the result of the negligence or wilful misconduct of Tenant, its officers,
employees or agents. This indemnification shall also specifically cover costs
in connection with:
(a) Toxic or hazardous substances present or suspected to be present in
the soil, ground water or soil vapor on or under the Demised
Premises before the date hereof;
(b) Toxic or hazardous substances that migrate, flow, percolate, diffuse
or in any way move onto or under the Demised Premises after date
hereof; or
(c) Toxic or hazardous substances present on or under the Demised
Premises as a result of any discharge, dumping, spilling (accidental
or otherwise) onto the Demised Premises during or after the Primary
Term or any Renewal Term by any person or entity.
Tenant agrees to indemnify and hold harmless Landlord and its officers,
employees and agents from any claims, judgments, damages, fines, penalties,
costs, liabilities (including sums paid in settlement of claims) or loss,
including, without limitation, attorneys' fees, consultants' fees, and expert
fees, which arise during or after the Primary Term or any Renewal Term, or in
connection with the presence or suspected presence of toxic or hazardous
substances in the soil, groundwater, or soil vapor on or under the Demised
Premises, except to the extent that such toxic or hazardous substances are
present (i) on the Commencement Date of this Lease or (ii) due to Landlord or
Landlord's agents, invitees, contractors or employees.
- 5 -
7
ARTICLE 9
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 costing less than $75,000 without Landlord's prior consent.
ARTICLE 10
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 by Tenant at its expense ("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.
ARTICLE 11
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.
ARTICLE 12
LAWS AND ORDINANCES
A. 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 that portion of the Demised
Premises installed by Tenant.
B. In connection with the installation of any electrical equipment not
included within the Demised Premises, Tenant shall, at Tenant's own expense,
make from time to time whatever changes are necessary to comply with the
requirements of the insurance inspectors, underwriters, government authorities
and codes.
- 6 -
8
ARTICLE 13
SERVICES
A. Landlord warrants that the necessary mains, conduits and other
facilities have been provided to make water, sewer, gas, phone and electricity
available to the Demised Premises.
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. 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; provided,
however, if such interruption shall be due to the Landlord's or Landlord's
agent's, employee's, contractor's or invitee's negligent or willful misconduct
and Tenant is unable to operate its business there shall be an abatement of all
Rent hereunder during such time period and if such interruption shall continue
for a period of more than thirty (30) days, then Tenant may terminate this
Lease.
D. Tenant shall not install any equipment which could exceed the capacity
of any utility facilities servicing the Demised Premises of which capacity
Tenant has notice, and if any equipment installed by Tenant requires additional
utility facilities the same shall be installed by Tenant in compliance with all
code requirements.
ARTICLE 14
DAMAGE TO PREMISES
In the event the Demised Premises is hereafter damaged or destroyed or
rendered partially untenable for their accustomed use, by fire or other
casualty insured or which should have been insured under the coverage which
Tenant is obligated to carry pursuant to Article 15 hereof, then Tenant 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 14. From the date of such casualty until
the Demised Premises is so repaired and restored Rent and all other charges and
items payable hereunder shall xxxxx in such proportion as the part of the
Demised Premises thus destroyed or rendered untenable bears to the total
Demised Premises. Notwithstanding the foregoing, in the event the Demised
Premises is rendered untenable, in the reasonable opinion of the parties,
Tenant and Landlord shall have the right to terminate this Lease upon thirty
(30) days notice to the other and all insurance proceeds attributable to the
impairment shall be remitted to Landlord immediately upon receipt.
ARTICLE 15
INSURANCE
A. Landlord agrees to carry, or cause to be carried, during the Term
hereof, Commercial General Liability Insurance (hereinafter, "Landlord's
Liability Insurance") providing coverage of not less than One Million Dollars
($1,000,000.00), combined Bodily Injury and Property Damage Liability in
separate limits for each of the following: General Aggregate,
Products-Completed Operations Aggregate, Each Occurrence,
- 7 -
9
Personal & Advertising Injury and Fire Damage, limits of Fifty Thousand Dollars
($50,000.00). Landlord, upon written request by Tenant, shall promptly deliver
to Tenant a certificate of Landlord's Liability Insurance.
B. Tenant agrees to carry Commercial General Liability insurance on the
Demised Premises during the Term hereof 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, termination or change in 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 in
separate limits for each of the following: General Aggregate,
Products-Completed Operations Aggregate, Each Occurrence, Personal &
Advertising Injury, and Fire Damage, limits of Two Hundred Fifty Thousand
Dollars ($250,000.00).
Tenant also agrees to carry, during the Term hereof, all risk property
insurance (hereinafter, "Tenant'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 for the full replacement value thereof. Landlord
shall be named as an additional insured under Tenant's Property Insurance to the
extent its interest shall appear. Tenant, upon request, shall furnish Landlord
a certificate of such Tenant's Property Insurance.
Landlord agrees that it shall not have any right, title or interest in
and to Tenant's property insurance covering Tenant's Property located on or
within the Demised Premises or any proceeds therefrom.
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, to the extent covered by insurance 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.
ARTICLE 16
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, 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 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, 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.
- 8 -
10
ARTICLE 17
ASSIGNMENT, SUBLETTING AND OWNERSHIP
A. Tenant shall have the absolute right to sublet, assign or otherwise
transfer its interest in this Lease to any parent 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 not be released from any 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,
license or concession agreement, or hypothecation shall not be unreasonably
withheld, conditioned or delayed.
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 as
performance of such covenants and agreements becomes due after any such
assignment.
ARTICLE 18
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 repairs in accordance with Article 7 hereof. Landlord
shall use Landlord's best efforts to minimize interference with Tenant's
business.
ARTICLE 19
DEFAULTS BY TENANT
A. The occurrence of any of the following shall constitute a material
default and breach of this Lease by Tenant:
(i) Any failure by Tenant to pay Rent or make any other payment required
to be made by Tenant hereunder within seven (7) days after receipt of
written notice from the Landlord; and
(ii) 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,
- 9 -
11
without prejudice to any other remedy it has for possession of the Demised
Premises or arrearages in 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.
C. Notwithstanding anything to the contrary contained in this Lease: (i)
Landlord shall not have any right to accelerate the Rent and other amounts
payable hereunder and (ii) in the event of any default by Tenant under this
Lease Landlord shall, in each case, use its reasonable efforts to mitigate its
damages.
ARTICLE 20
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 Rent or other charges next becoming due.
ARTICLE 21
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 10 hereof, without any damage, injury or
disturbance thereto, or payment therefor.
ARTICLE 22
EMINENT DOMAIN
A. (i) 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 and such appropriation or taking renders the Demised
Premises unfit for the conduct of Tenant's business thereon in the reasonable
opinion of the parties, 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 be released from any liability thereafter accruing
hereunder.
(ii) 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.
(iii) In the event of such termination, both Landlord and Tenant shall
thereupon be released from any liability thereafter accruing hereunder.
- 10 -
12
B. Whether or not this Lease is terminated, nothing herein shall be deemed
to affect Tenant's right to receive compensation for damages to Tenant's
Property. If this Lease is terminated as hereinabove provided, all items of
Rent and other charges for the last month of Tenant's occupancy shall be
prorated and Landlord agrees to refund to Tenant any Rent, or other charges
paid in advance.
C. In the event of any such appropriation or taking that does not render
the Demised Premises unfit for the conduct of Tenant's business thereon in the
reasonable opinion of the parties, or if Tenant otherwise elects not to so
terminate this Lease, Tenant shall remain in that portion of the Demised
Premises which shall not have been appropriated or taken as herein provided,
and Landlord agrees, at Landlord's cost and expense, to, as soon as reasonably
possible, restore the remaining portion of the Demised Premises to a complete
unit of like quality and character as existed prior to such appropriation or
taking, and thereafter all Rent and payment obligations 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. For the purpose of this
Article 22, a voluntary sale or conveyance in lieu of condemnation, but under
threat of condemnation shall be deemed an appropriation or taking under the
power of eminent domain.
D. Tenant shall have the right to pursue its claim for damages in
connection with any eminent domain proceeding.
ARTICLE 23
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.
ARTICLE 24
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:
--------- -------
Sprint Industrial Services, Inc. NES Acquisition Corp.
1041 Xxxxxx Xxxxx c/o National Equipment Services, Inc.
Xxxxxxx, Xxxxx 00000 1800 Xxxxxxx, Suite 100
Attn: President Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
- 11 -
13
or at such other address requested in writing by either party upon thirty (30)
days' notice to the other party.
ARTICLE 25
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.
ARTICLE 26
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; it
being understood and agreed, however, that the provisions of Article 20 are in
nowise impaired by this Article 26.
ARTICLE 27
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. No surrender of the
Demised Premises by Tenant shall be affected by Landlord's acceptance of Rent
or by other means whatsoever unless the same is evidenced by Landlord's written
acceptance of the surrender.
ARTICLE 28
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.
ARTICLE 29
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.
- 12 -
14
ARTICLE 30
COVENANT OF TITLE AND QUIET ENJOYMENT
Landlord covenants that it has full right, power and authority to make
this Lease, subject only to the Permitted Liens (as defined in Article 37), and
that Tenant or any permitted assignee or sublessee of Tenant, upon the payment
of the 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.
Additionally, except as provided in this Lease or by law, Landlord shall
take no action that will interfere with Tenant's intended usage of the Demised
Premises.
ARTICLE 31
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 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.
ARTICLE 32
RECORDING
Neither Landlord nor Tenant shall record this Lease. The parties shall
join in the execution of a memorandum or so-called "short-form" of this Lease
for the purposes of recordation in accordance with the form attached hereto as
Exhibit "C" and made a part hereof. Any recording costs associated with the
memorandum or short form of this Lease shall be borne by the party requesting
recordation.
ARTICLE 33
FORCE MAJEURE
In the event that either party hereto shall be delayed or hindered in or
prevented from the performance required hereunder by reason of strikes,
lockouts, labor troubles, failure of power, riots, insurrection, war, acts of
God, or other reasons of like nature not the fault of the party delayed in
performing work or doing acts (hereinafter, "Permitted Delay" or "Permitted
Delays"), such party shall be excused for the period of time equivalent to the
delay caused by such Permitted Delay. Notwithstanding the foregoing, (i) any
extension of time for a Permitted Delay shall be conditioned upon the party
seeking an extension of time delivering written notice of such Permitted Delay
to the other party within ten (10) days of the event causing the Permitted
Delay, (ii) the maximum period of time which Landlord may delay any act or
performance of work due to a
- 13 -
15
Permitted Delay shall be sixty (60) days, and (iii) no Permitted Delay or
Permitted Delays shall have the effect of extending the time for payments of
rent as required under this Lease.
ARTICLE 34
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.
ARTICLE 35
WAIVER OF LANDLORD'S LIENS
Landlord hereby waives any contractual, statutory or other Landlord's lien
on Tenant's furniture, fixtures, supplies, equipment, inventory and Tenant's
Property.
ARTICLE 36
Intentionally omitted.
ARTICLE 37
TITLE
Landlord hereby represents and warrants to Tenant that (i) there are no
mortgages, deeds of trust, liens, covenants, restrictions or easements
affecting the Demised Premises except those matters which will not interfere
with Tenant's use of the Demised Premises and those mortgages or deeds of trust
from such lenders that have delivered non-disturbance and attornment agreements
to Tenant in accordance with the requirements of Article 5 of this Lease
(collectively the "Permitted Liens") and (ii) to the best of Landlord's
knowledge, there are no zoning laws, ordinances or regulations of public
authorities that will materially interfere with Tenant's use of the Demised
Premises.
ARTICLE 38
ZONING, DEED RESTRICTIONS, ETC.
Landlord represents and warrants that the Demised Premises can be used by
Tenant for conduct of the business it is acquiring from Landlord on the date
hereof and Tenant's ability to so use the Demised Premises is a condition
precedent to this Lease. Landlord covenants, warrants, represents and agrees
to reasonably cooperate and provide assistance in obtaining any necessary
certificates of occupancy, building permits, sign permits and any variances
necessary for the conduct of such business. Notwithstanding the foregoing,
Tenant's sole remedy for breach of the representation and warranty set forth in
this Article 38 shall be termination of this Lease after notice to Landlord and
providing an opportunity to cure as required by Article 20 hereof.
- 14 -
16
ARTICLE 39
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.
ARTICLE 40
GOVERNING LAW AND VENUE
This Lease shall be governed by the laws of the state in which the Demised
Premises is located.
ARTICLE 41
TENANT FINANCING
Tenant shall have the absolute right from time to time during the Term
hereof and without Landlord's further approval, written or otherwise, to grant
and assign a mortgage or other security interest in Tenant's interest in this
Lease and all of Tenant's Property to Tenant's lenders in connection with
Tenant's financing arrangements. Landlord agrees to execute such amendments,
confirmation, certificates and other documents as Tenant's lenders may
reasonably request in connection with any such financing.
ARTICLE 42
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.
ARTICLE 43
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. Tenant shall operate its business on the Demised Premises at all
times during the Term of this Lease or any Renewal Term in accordance with all
laws, rules, regulations or court orders governing or applicable to its
operations thereon. Under no circumstances shall Tenant move the trailer
located on the Demised Premises.
- 15 -
17
ARTICLE 44
TIME OF THE ESSENCE
Time shall be of the essence in interpreting the provisions of this Lease.
ARTICLE 45
ENTIRE AGREEMENT
This Lease contains all of the agreements of the parties hereto with
respect to the lease of the Demised Premises 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.
ARTICLE 46
PRELIMINARY NEGOTIATIONS
The submission of this lease form by Tenant for examination does not
constitute an offer to lease or a reservation of an option to lease. In
addition, Landlord and Tenant acknowledge that neither of them shall be bound
by the representations, promises or preliminary negotiations with respect to
the Demised Premises made by their respective employees or agents. It is their
intention that neither party be legally bound in any way until this Lease has
been fully executed by both Landlord and Tenant.
- 16 -
18
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the day
and year first mentioned, the corporate party or parties by its or their proper
officers thereto duly authorized.
TENANT:
NES ACQUISITION CORP.,
A DELAWARE CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxx
--------------------------------
Title: Vice President
--------------------------------
LANDLORD:
SPRINT INDUSTRIAL SERVICES, INC.,
A TEXAS CORPORATION
By: /s/ X. X. X'Xxxx
--------------------------------
Name: X. X. X'Xxxx
--------------------------------
Title: President
--------------------------------
- 17 -
19
State of __________ )
)SS:
County of _________ )
On this _____ day of ___________________, 1997, before me, the undersigned
Notary Public in and for said County and State, personally appeared
_______________________, ____________________ of NES Acquisition Corp., a
Delaware corporation, who executed the foregoing instrument on behalf of said
corporation for the purposes therein expressed. In witness whereof, I have
hereunto set my hand and official seal the day and year last above written.
-------------------------------------------
Notary Public
My commission expires:
---------------------
State of ___________ )
) SS:
County of __________ )
On this _____ day of ___________________, 1997, before me, the undersigned
Notary Public in and for said County and State, personally appeared
_______________________, ____________________ of Sprint Industrial Services,
Inc., a Texas corporation, who executed the foregoing instrument on behalf of
said corporation for the purposes therein expressed. In witness whereof, I
have hereunto set my hand and official seal the day and year last above
written.
------------------------------------------
Notary Public
My commission expires:
--------------------
- 18 -
20
EXHIBIT "A"
LEGAL DESCRIPTION OF THE DEMISED PREMISES
[to be furnished]
A-1
21
EXHIBIT "B"
RECORDING REQUESTED BY,
AND WHEN RECORDED RETURN TO:
________________________________
________________________________
________________________________
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this "Agreement") is made
and entered into this the _______ day of 19___ by and between NES Acquisition
Corp., a Delaware corporation ("Tenant") and ____________________, a _________
____________________ ("Lender") and Sprint Industrial Services, Inc., a Texas
corporation ("Landlord").
R E C I T A L S:
WHEREAS, Landlord has executed a Lease dated as of July 1, 1997 in favor
of Tenant, a memorandum of which may be recorded simultaneously herewith,
covering a certain Demised Premises therein described located on a parcel of
real estate, a legal description of which is attached hereto and incorporated
herein by this reference as Exhibit "A" (said parcel of real estate and the
Demised Premises being sometimes collectively referred to herein as the
"Property");
WHEREAS, Landlord has executed a ________________ (the "Mortgage") dated
________________, 19____ and recorded on _______________ 19 ____ at Volume
________, Page ________, on the _____________ Records of __________ County,
_________________ in favor of Lender, payable upon the terms and conditions
described therein;
WHEREAS, it is a condition to said loan that said Mortgage shall
unconditionally be and remain at all times a lien or charge upon the Property,
prior and superior to this Lease and to the leasehold estate created thereby;
and
WHEREAS, the parties hereto desire to assure Tenant's possession and
control of the Property under this Lease upon the terms and conditions therein
contained.
NOW, THEREFORE, for and in consideration of the mutual covenants and
premises herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged and confessed by the parties
hereto, the parties hereto do hereby agree as follows:
A G R E E M E N T:
1. The Lease is and shall be subject and subordinate to the Mortgage, and
to all renewals, modifications, consolidations, replacements and extensions
thereof, and to all future advances made thereunder.
B-1
22
2. Should Lender become the owner of the Property, or should the Property
be sold by reason of foreclosure, or other proceedings brought to enforce the
Mortgage which encumbers the Property, or should the Property be transferred by
deed in lieu of foreclosure, or should any portion of the Property be sold
under a trustee's sale, this Lease shall continue in full force and effect as a
direct lease between the then owner of the Property covered by the Mortgage and
Tenant, upon, and subject to, all of the terms, covenants and conditions of
this Lease for the balance of the term thereof remaining, including any
extensions therein provided. Tenant does hereby agree to attorn to Lender or
to any such owner as its landlord, and Lender hereby agrees that it will accept
such attornment.
3. Notwithstanding any other provision of this Agreement, Lender shall not
be (a) liable for any default of any landlord under the Lease (including
Landlord), except that Lender agrees to cure any default of Landlord that is
continuing as of the date Lender forecloses the Property within thirty (30)
days from the date Tenant delivers written notice to Lender of such continuing
default, unless such default is of such a nature to reasonably require more
than thirty (30) days to cure and then Lender shall be permitted such
additional time as is reasonably necessary to effect such cure, provided
Landlord diligently and continuously proceeds to cure such default; (b) bound
by any Rent that Tenant may have paid under the Lease more than one month in
advance; (c) bound by any amendment or modification of the lease hereafter made
without Lender's prior written consent; (d) responsible for the return of any
security deposit delivered to Landlord under the Lease and not subsequently
received by Lender.
4. If Lender sends written notice to Tenant to direct its Rent payments
under the Lease to Lender instead of Landlord, then Tenant agrees to follow the
instructions set forth in such written instructions and deliver Rent payments
to Lender; however, Landlord and Lender agree that Tenant shall be credited
under the Lease for any Rent payments sent to Lender pursuant to such written
notice.
5. All notices which may or are required to be sent under this Agreement
shall be in writing and shall be sent by first-class certified U.S. mail,
postage prepaid, return receipt requested, and sent to the party at the address
appearing below or such other address as any party shall hereafter inform the
other party by written notice given as set forth below:
LANDLORD: TENANT:
--------- -------
Sprint Industrial Services, Inc. NES Acquisition Corp.
1041 Xxxxxx Xxxxx c/o National Equipment Services, Inc.
Xxxxxxx, Xxxxx 00000 1800 Xxxxxxx, Suite 100
Attn: President Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
All notices delivered as set forth above shall be deemed effective three (3)
days from the date deposited in the U.S. mail.
6. Said Mortgage shall not cover or encumber and shall not be construed as
subjecting in any manner to the lien thereof any of Tenant's trade fixtures,
furniture, equipment or other personal property at any time placed or installed
in the Premises. In the event the Property or any part thereof shall be taken
for public purposes by condemnation or transfer in lieu thereof or the same are
damaged or destroyed, the rights of the parties to any condemnation award or
insurance proceeds shall be determined and controlled by the applicable
provisions of this Lease.
B-2
23
7. This Non-Disturbance Agreement shall inure to the benefit of and be
binding upon the parties hereto, their successors in interest, heirs and
assigns and any subsequent owner of the Property secured by the Mortgage.
8. Should any action or proceeding be commenced to enforce any of the
provisions of this Non-Disturbance Agreement or in connection with its meaning,
the prevailing party in such action shall be awarded, in addition to any other
relief it may obtain, its reasonable costs and expenses, not limited to taxable
costs, and reasonable attorneys' fees.
9. Tenant shall not be enjoined as a party/defendant in any action or
proceeding which may be instituted or taken by reason or under any default by
Landlord in the performance of the terms, covenants, conditions and agreements
set forth in the Mortgage.
IN WITNESS WHEREOF, the parties hereto have caused this Non-Disturbance
Agreement to be executed as of the day and year first above written.
LENDER:
--------------------------------------
a
------------------------------------
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
TENANT:
NES ACQUISITION CORP.,
A DELAWARE CORPORATION
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
LANDLORD:
SPRINT INDUSTRIAL SERVICES, INC.,
A TEXAS CORPORATION
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
B-3
24
STATE OF ______________ )
) SS:
COUNTY OF _____________ )
[Acknowledgment of Lender]
Personally appeared before me, a Notary Public in and for the above County
and State, ___________________________ known personally by me and acknowledged
by me to be on the date of execution, ________________________ of ____________
___________________________________________________ and he/she executed the
foregoing for and on behalf of said Corporation by authority of its Board of
Directors for the uses and purposes therein set forth.
Witnessed by hand and this notarial seal, this _____ day of ____________,
1997.
----------------------------------
Notary Public in and for the State
and County aforesaid
----------------------------------
(Printed Name of Notary)
My Commission Expires:
----------------------------------
B-4
25
[Acknowledgement of Tenant)
STATE OF ______________ )
) SS:
COUNTY OF _____________ )
Personally appeared before me, a Notary Public in and for the above County
and State, ___________________________ known personally by me and acknowledged
by me to be on the date of execution, ____________________ of NES Acquisition
Corp., a Delaware corporation, and he/she executed the foregoing for and on
behalf of said Corporation by authority of its Board of Directors for the uses
and purposes therein set forth.
Witnessed by hand and this notarial seal, this _____ day of ____________,
1997.
----------------------------------
Notary Public in and for the State
and County aforesaid
My Commission Expires:
---------------------------------
B-5
26
STATE OF ______________ )
) SS:
COUNTY OF______________ )
[Acknowledgment of Landlord]
Personally appeared before me, a Notary Public in and for the above County
and State, ___________________________ known personally by me and acknowledged
by me to be on the date of execution, ____________________ of Sprint Industrial
Services, Inc., a Texas corporation, and he/she executed the foregoing for and
on behalf of said Corporation by authority of its Board of Directors for the
uses and purposes therein set forth.
Witnessed by hand and this notarial seal, this _____ day of ____________,
1997.
-----------------------------------
Notary Public in and for the State
and County aforesaid
-----------------------------------
(Printed Name of Notary)
My Commission Expires:
_________________________
B-6
27
EXHIBIT "C"
WHEN RECORDED MAIL TO:
-------------------------------------------------------------------------------
SPACE ABOVE THIS LINE FOR RECORDER'S USE
MEMORANDUM OF LEASE
This is a Memorandum of Lease by and between Sprint Industrial Services,
Inc., a Texas corporation (hereinafter called Landlord) and NES Acquisition
Corp., a Delaware corporation (hereinafter called Tenant) upon the following
terms:
Date of Lease: July 1, 1997
Description of Demised Premises: See Exhibit "A" attached hereto
Date of Commencement: July 1, 1997
Term: Five (5) years
Renewal Option(s): Two (2) five (5) year options
The purpose of this Memorandum of Lease is to give record notice of the
lease and of the rights created thereby, all of which are hereby confirmed.
IN WITNESS WHEREOF the parties have executed this Memorandum of Lease as
of the dates set forth in their respective acknowledgements.
(SEAL) LANDLORD:
SPRINT INDUSTRIAL SERVICES, INC.,
A TEXAS CORPORATION
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
(SEAL) TENANT:
NES ACQUISITION CORP.,
A DELAWARE CORPORATION
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
C-1
28
C-2
29
STATE OF _______________ )
) SS:
COUNTY OF_______________ )
Personally appeared before me, a Notary Public in and for the above County
and State, ___________________________ known personally by me and acknowledged
by me to be on the date of execution, ___________________ of Sprint Industrial
Services, Inc., a Texas corporation, and he/she executed the foregoing for and
on behalf of said Corporation by authority of its Board of Directors for the
uses and purposes therein set forth.
Witnessed by hand and this notarial seal, this _____ day of ____________,
1997.
----------------------------------
Notary Public in and for the State
and County aforesaid
----------------------------------
(Printed Name of Notary)
My Commission Expires:
________________________
STATE OF _______________ )
) SS:
COUNTY OF ______________ )
Personally appeared before me, a Notary Public in and for the above County
and State, ___________________________ known personally by me and acknowledged
by me to be on the date of execution, ____________________ of NES Acquisition
Corp., a Delaware corporation, and he/she executed the foregoing for and on
behalf of said Corporation by authority of its Board of Directors for the uses
and purposes therein set forth.
Witnessed by hand and this notarial seal, this _____ day of ____________,
1997.
----------------------------------
Notary Public in and for the State
and County aforesaid
----------------------------------
(Printed Name of Notary)
My Commission Expires:
_________________________
C-3
30
EXHIBIT "D"
RENEWAL TERM RENT SCHEDULE
BASE RENT FOR ______________YEAR RENEWAL TERM:
The Base Rent during the _______ Renewal Term shall be the "Market Rent,"
as hereinafter defined.
(a) The term "Market Rent" shall mean the Base Rent for the Demised
Premises at the time in question which Landlord sets forth in a notice
(hereinafter referred to as the "Market Rent Notice") to Tenant. No later than
thirty (30) days after Tenant may exercise Tenant's option to extend this Lease
for the Renewal Term, Landlord shall send the Market Rent Notice to Tenant for
said Renewal Term and shall specify in the Market Rent Notice for the period
contained in the Renewal Term as applicable. In the event that Tenant shall,
in good faith, disagree with the Market Rent set forth in the Market Rent
Notice established by Landlord for the Demised Premises, Tenant shall, within
ten (10) days after receipt of the Market Rent Notice, furnish Landlord with a
written explanation in reasonable detail of the basis for Tenant's good faith
disagreement, the amount which, in Tenant's good faith opinion, is the Market
Rent for the period contained in the Renewal Term (hereinafter referred to as
the "Tenant's Notice"). If Tenant's Notice is not received by Landlord within
said ten (10) day period, the Market Rent shall be the Market Rent set forth in
the Market Rent Notice to Tenant. If Tenant's notice is received by Landlord
within said ten (10) day period, the Market Rent for the Demised Premises shall
be established as follows:
(i) No later than twenty (20) days following the receipt of the
Market Rent Notice from Landlord, Tenant shall select an individual as an
appraiser of its choice and give Landlord written notice of such
appraiser's name, address and telephone number.
(ii) Within ten (10) days after receipt of such notice by Landlord,
Landlord shall select an appraiser of its choice and give Tenant written
notice of such appraiser's name, address and telephone number.
(iii) The two appraisers so selected by Landlord and Tenant shall
then select an individual as a third appraiser within fifteen (15) days
after receipt by Tenant of Landlord's notification as to its selection of
an appraiser, and furnish Landlord and Tenant written notice of such
appraiser's name, address and telephone number.
(iv) All appraisers selected pursuant to this provision shall be
M.A.I. appraisers, unless Landlord and Tenant shall otherwise agree in
writing, each having at least ten (10) years experience with commercial
property in the state of the location of the Demised Premises. Each of
the three (3) selected appraisers shall then determine the fair rental
value of the Demised Premises for each applicable period of the Renewal
Term and the Market Rent hereunder for each Renewal Term, as applicable,
shall be determined to be the average of the three (3) appraisals for
each such years.
(b) If the procedure set forth in above in (a)(i) through and including
(a)(iv) is implemented, and if for any reason whatsoever (including, without
limitation, the institution of any judicial or other legal proceedings), the
Market Rent for any Renewal Term has not been finally determined prior to the
first day of said Renewal Term, then the amount of the Market Rent set forth by
Landlord in good faith in the Market Rent Notice shall be the Rent for all
purposes under this Lease until such time as the Market Rent is
D-1
31
finally determined as set forth above, and Landlord and Tenant shall, by
appropriate payments to the other, correct any overpayment or underpayment
which may have been made prior to such final determination.
(c) If Landlord fails to select its appraiser in the manner and within the
time specified in (a)(ii) above, then the Market Rent for the Renewal Term
shall be the Market Rent set forth in Tenant's Notice.
(d) If Tenant fails to select its appraiser in the manner and within the
time specified in (a)(i) above, then the Market Rent for the Renewal Term shall
be the Market Rent set forth in the Market Rent Notice.
(e) If the appraisers selected by Landlord and Tenant fail to appoint the
third appraiser within the time and in the manner prescribed in (a)(iii)
above, then Landlord and/or Tenant shall promptly apply to the local office of
the American Arbitration Association for the appointment of the third
appraiser.
(f) All fees, costs and expenses incurred in connection with obtaining the
appraisals and the arbitration procedure set forth in this section shall be
shared equally by Landlord and Tenant; however, Landlord and Tenant shall each
bear their own attorneys' fees incurred with respect to this procedure.
(g) Notwithstanding the provisions of this Exhibit "D", in no event shall
the rental during the Renewal Term be less than the rental specified for the
Initial Term.
D-2