LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into on the date of execution
hereof by and between XXXXXXX & XXXXXXXXX SERVICES, INC. (hereinafter "Lessee"),
a Texas corporation, and MILES XxXXXXX and XXXX XXXXXX (hereinafter referred to
as "Lessor"), individual residents of Texas.
ARTICLE 1. PREMISES
Lessor hereby leases to Lessee and Lessee hereby leases from Lessor the
premises situated in the City of Beaumont, Jefferson County, Texas, and more
particularly described in Exhibit A attached and made a part hereof. Said
premises together with all improvements thereon are hereinafter referred to as
the "Leased Premises".
ARTICLE 2. TERM
The term of this Lease Agreement shall begin on April 15, 1997, and shall
terminate at midnight on April 14, 2002, unless extended as provided below.
The term of this Lease Agreement may be extended, at the option of Lessee,
for five successive periods of one year, each such period of one year being
hereinafter referred to as an Extended Term, as follows:
First Extended Term - April 15, 2002 through April 14, 2003
Second Extended Term - April 15, 2003 through April 14, 2004
Third Extended Term - April 15, 2004 through April 14, 2005
Fourth Extended Term - April 15, 2005 through April 14, 2006
Fifth Extended Term - April 15, 2006 through April 14, 2007
Such options to extend the term of this Lease Agreement shall be exercised
by Lessee by the giving of written notice to Lessor not less than sixty days
prior to the expiration of the then existing term.
Each extended term shall be upon the same terms, covenants, and conditions,
with the same monthly rent payable, as provided in this Lease Agreement for the
initial term.
ARTICLE 3. PURCHASE OPTION
At any time from the date of execution of this Lease Agreement, Lessee may,
at its option, purchase the Leased Premises for a price to be agreed upon with
Lessor. Should the parties fail to agree upon such price, the price shall be
determined by appraisal. Lessor and Lessee shall each appoint one appraiser who
shall, in turn, jointly select a third appraiser. The three appraisers shall
appraise promptly the Leased Premises and the decision of any two appraisers as
to the purchase price for the Leased Premises shall be binding upon the parties.
ARTICLE 4. RENT
Without offset or deduction, Lessee shall pay Lessor at the address shown
in Article 18, or at such other address as Lessor may from time to time notify
Lessee in writing on the first day of each calendar month, monthly in advance,
for each and every month in the term hereof, the sum of Six Thousand Six Hundred
United States Dollars (U.S. $6,600.00). The monthly rent will be divided as
follows: 90.675% Miles XxXxxxx and 9.325% Xxx. Xxxx Xxxxxx.
ARTICLE 5. PAYMENT OF TAXES
Lessee, in addition to the rent and all other charges provided for in this
Lease Agreement, shall pay all taxes and assessments upon the Leased Premises
which are assessed during the existence of this Lease Agreement. All taxes
assessed prior to but payable in whole or in installments after the effective
date of this Lease Agreement and all taxes assessed during the existence of this
Lease Agreement but payable in whole or in installments after termination of
this Lease Agreement shall be adjusted and prorated so that Lessor shall pay its
prorated share for the period prior to the commencement and subsequent to the
termination of this Lease Agreement and Lessee shall pay its prorated share for
the duration of this Lease Agreement.
ARTICLE 6. UTILITY CHARGES
Lessee shall pay all charges for utilities used in and about the Leased
Premises. All such charges are to be paid by Lessee to the utility companies or
municipalities furnishing the same, before the same shall become delinquent.
ARTICLE 7. INSURANCE
Throughout the duration of this Lease Agreement, Lessee shall maintain fire
and casualty insurance equal to the replacement value of all structures and
fixtures situated upon the Leased Premises. Additionally, Lessee shall maintain
liability insurance protecting both Lessor and Lessee from claims by their
persons for personal injury and property damage.
ARTICLE 8. REPAIRS
At its own expense, Lessee shall perform all routine maintenance as is
reasonably necessary to keep the Leased Premises in good condition and repair
normal wear and tear excepted. Lessee agrees that all damages or injury done to
the Leased Premises shall be repaired by Lessee at Lessee's sole expense (other
than structural damage to the walls, roofs, and foundations not caused by
Lessee).
ARTICLE 9. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS
Lessee shall not make any alterations, additions, or improvements to the
Leased Premises without the prior written consent thereto by Lessor. All
alterations, additions, or improvements made by Lessee to the Leased Premises
shall become the property of Lessor at the termination of this Lease Agreement.
However, Lessee shall remove promptly, if Lessor so elects, all alterations,
additions, and improvements or any other property placed on the Leased Premises
by Lessee and Lessee shall repair any damages caused by such removal.
ARTICLE 10. ENTRY AND INSPECTION
Lessee shall permit Lessor to enter and to inspect the Leased Premises at
any time and shall permit Lessor to make whatever reasonable repairs Lessor
deems necessary to satisfy Lessee's obligations under Article 7 of this Lease
Agreement. Any such necessary repairs shall be charged to Lessee together with
interest at the rate of ten percent (10%) per annum from the time Lessor pays
for such repairs until the time Lessor is repaid by Lessee. The rights of Lessor
under this Article shall be exercisable without the rebate of any rent to Lessee
for the loss of any occupancy or quiet enjoyment of the Leased Premises
occasioned by such repairs.
ARTICLE 11. DESTRUCTION OF THE LEASED PREMISES
If the building situated upon the Lease Premises should be damaged or
destroyed by fire, tornado, or other casualty, Lessee shall give immediate
notice thereof to Lessor. If the building(s) situated on the Leased Premises
should be totally destroyed by fire, tornado, or other casualty or if the
building(s) should be so damaged that rebuilding or repair cannot be completed
within thirty days after the date the Lessor is notified by Lessee of such
damage or destruction, this Lease Agreement shall terminate at Lessee's
elections and the rent shall be abated effective with the date of such damage or
destruction. Lessor will rebuild or repair the Leased Premises promptly if
requested to do so by Lessee.
ARTICLE 12. CONDEMNATION OF THE LEASED PREMISES
If during the term of this Lease Agreement, all of the Leased Premises
should be taken for any public or quasi-public use under any governmental law,
ordinance, or regulation, or by right of eminent domain, or should be sold to
the condemning authority under threat of condemnation, this Lease Agreement
shall terminate effective as of the date of the taking of the Leased Premises by
the condemning authority or as of the date of the sale of the Leased Premises to
such authority.
If less, then all of the Leased Premises shall be taken for any public or
quasi-public use under any governmental law, ordinance, or regulation, or by
right of eminent domain, or should be sold to the condemning authority under
threat of condemnation, this Lease Agreement shall neither terminate nor shall
the rent be abated.
Lessor and Lessee shall each be entitled to receive and retain such
separate awards and portions of lump sum awards as may be allocated to their
respective interest in any condemnation proceedings. Termination of this Lease
Agreement will not affect the rights of the parties hereto to such awards.
ARTICLE 13. LIMITATION LIABILITY
Lessor shall not be liable for any injury or damage to the persons or
property of Lessee, its agents and employees, or to any other occupant of the
Leased Premises irrespective of how such injury or damage may be caused except
where such injury or damage is caused by Lessor or its agents in bad faith and
with the intent to cause such injury or damage.
ARTICLE 14. INDEMNITY
Except as to injury, death, or property damage proximately caused solely by
the negligence of Lessor for which Lessor is legally liable, Lessee agrees to
indemnify and to hold Lessor harmless from all claims, suit, actions, damages,
and liability (including attorney's fees and other expenses of defending against
all of the aforesaid) arising or alleged to have arisen from any act or
omissions or Lessee or Lessee's agent, employees, assignees, subleases,
contractors, customers, or invitees, or arising from any injury to or death of
any person(s) or damage to the property of any person(s) occurring on or about
the Leased Premises or on the sidewalks adjacent thereto. Lessee assumes full
responsibility for the condition of the Leased Premises except as otherwise
provided in this Lease Agreement, and agrees to use and to occupy the Leased
Premises and to place its fixtures, equipment, merchandise, and other property
therein at its own risk.
ARTICLE 15. ASSIGNMENT OR SUBLEASING
Lessee neither will assign his rights hereunder, nor sublease the Leased
Premises or any part thereof, nor mortgage, pledge, or hypothecate its leasehold
interest without the express prior written consent of Lessor which consent will
not be unreasonably withheld. In any case where Lessor consents to any
assignment, subleasing, or mortgage, pledge, or hypothecation of the leasehold,
Lessee will remain liable for all its obligations hereunder.
ARTICLE 16. REMEDIES
16.1 The occurrence of any one or more of the following events shall
constitute a default and breach of this Lease Agreement by Lessee:
(a) The vacating or abandonment of the Leased Premises.
(b) Failure by Lessee to make any payment or rent or any other
payment required to be made by Lessee hereunder, as and when
due, when such failure shall continue for a period of ten days
after written notice thereof from Lessor to Lessee.
(c) The failure by Lessee to observe or to perform any of the
terms of this Lease Agreement other than described in
sub-article (b) above, where such failure shall continue for a
period of thirty days after written notice thereof from Lessor
to Lessee; provided, however, that if the nature of Lessee's
default is such that more than thirty days are reasonably
required for its cure, the Lessee shall not be deemed to be in
default if Lessee commences such a cure within the said
thirty-day period and thereafter diligently prosecutes such
cure to completion.
(d) (i) The making of Lessee of any general assignment or
general arrangement for the benefit of creditors;
(ii) The adjudication of Lessee as a bankrupt;
(iii) The appointment of a trustee or receiver to take
possession of substantially all of Lessee's assets located at
the premises or of Lessee's interest in this Lease Agreement
where possession is not restored to Lessee within thirty days;
(iv) The attachment, execution, or other judicial seizure of
substantially of all of Lessee's assets located at the Leased
Premises or of Lessee's interest in this Lease Agreement,
where such seizure is not discharged within thirty days.
16.2 In the event of any such default by Lessee, Lessor may at any time
thereafter, with or without notice or demand and without limiting Lessor's
exercise of any right or remedy which Lessor may have reason of such default of
breach;
(a) Terminate Lessee's right to possession of the Leased Premises by
any lawful means in which case this Lease Agreement shall terminate and Lessee
shall immediately surrender possession of the Lease Premises to Lessor. In such
event Lessor shall be entitled to recover from Lessee all damages incurred by
Lessor by reason or Lessee's default including, but not limited to, the cost of
recovering possession of the Leased Premises, expenses of reletting, including
necessary renovation and alteration of the Leased Premises, reasonable
attorney's fees, and any real estate commission actually paid; the worth at the
time of the award by the court having jurisdiction thereof of the amount of
which the unpaid rent for the balance of the term after the time of such award
exceeds the amount of such rental loss for the same period that Lessee proves
could be reasonably avoided; and that portion of the leasing commission paid by
lessor applicable to the unexpired term of this Lease Agreement. Unpaid
installments of rent or other sums shall bear interest from the date due at the
rate of ten percent per annum. In the event Lessee shall have abandoned the
Leased Premises, Lessor shall have the option of either retaking possession of
the Leased Premises and recovering from Lessee the amount specified in this
sub-article or proceeding under the following sub-articles set forth below.
(b) Maintain Lessee's right to possession, in which case this Lease
Agreement shall continue in effect whether or not Lessee shall have abandoned
the premises. In such event Lessor shall be entitled to enforce all of Lessor's
rights and remedies under this Lease Agreement, including the right to recover
the rent as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws of the State of Texas.
ARTICLE 17. NON-WAIVER OF DEFAULT
The forbearance of the exercise of any right of Lessor arising
hereunder or the subsequent acceptance of rent hereunder by Lessor shall not be
deemed a waiver of any right of Lessor. All rights and remedies of Lessor
hereunder shall be cumulative and may be exercised and enforced concurrently
whenever and as often as occasion therefor arises.
ARTICLE 18. COMPLIANCE WITH THE LAW
Lessee, at its own cost and expense, shall comply with all applicable
laws, rules, regulations, and order of all federal, state, and municipal
governments and agencies.
ARTICLE 19. NOTICE
All notices to be given to Lessee by Lessor shall be in writing,
deposited in the United States mail, certified or registered, postage prepaid,
and addressed to Lessee at Xxxxxxx & Xxxxxxxxx Services, Inc., X.X. Xxx 0000,
Xxxxxxx, Xxxxx 00000. All notices to be given to Lessor by Lessee shall be in
writing, deposited in the United States mail, certified or registered, postage
prepaid, and addressed to Lessor at 0000 Xxx Xxxxxx, Xxxxxx, Xxxxx 00000, to the
attention of Miles X. XxXxxxx and Xxxx Xxxxxx. Notices shall be deemed to be
delivered when deposited in the United States mail as above provided. Changes of
address of either party must be by notice given to the other party in the same
manner as above provided.
ARTICLE 20. PRIOR AGREEMENTS SUPERSEDED
This Lease Agreement constitutes the sole and only agreement between
the parties respecting the subject matter of this Lease Agreement and supersedes
any prior agreements and understandings, whether oral or written, including a
lease dated and beginning April 15, 1982, with monthly rental of $5,070.00.
ARTICLE 21. AMENDMENT
No amendment or alteration of the terms hereof shall be of any force
or effect unless the same shall be in writing, dated subsequent to the date of
execution hereof, and duly executed by the parties hereto.
EXECUTED this 7th day of April, 1997.
XXXXXXX & XXXXXXXXX SERVICES, INC.
By: /s/ C. Xxx Xxxxxxx II /s/ Miles XxXxxxx
/s/ Xxxx Xxxxxx by
/s/ Xxx Xxxxxxx POA Xxxx Xxxxxx
