Exhibit 10.91
Greater Fort Worth Association of REALTORS, Inc.
Commercial-Industrial Lease Agreement |
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| ARTICLE ONE: BASIC TERMS |
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| 1.01 |
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DATE OF LEASE |
May 16 , 1994 |
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| 1.02 |
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LANDLORD: |
Region Enterprises, Inc., a Texas corporation |
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______________________________________________________________________ |
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| 1.03 |
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TENANT: |
Esmor Fort Worth, Inc., a Texas corporation |
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______________________________________________________________________ |
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| 1.04 |
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PROPERTY: The entire property known as the Downtown Motor Inn |
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600 North Henderson Street
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(street address) |
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Fort Worth (Tarrant Country, Texas) |
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(City) |
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Legal Description:
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____________________________________________________________________________________ |
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| 1.05 |
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LEASE TERM: 60 months, commencing on the 16th day of May , (19 94 ,) |
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and ending on the 15th , day of April , 19 99 . |
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| 1.06 |
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RENT: See Section 16.01 for Rent provisions |
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| 1.07 |
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SECURITY DEPOSIT (See Section 3.03): None Dollars |
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($ ). (If none, so state) |
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| 1.08 |
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LAST MONTH’S RENT PAYABLE IN ADVANCE: See Section 16.01 Dollars |
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($ _________________ ). (If none, so state) |
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| 1.09 |
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PERMITTED USE (See Section 4.01) A correctional facility, residential treatment center or |
| any other lawful purpose.
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| 1.10 |
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BASE YEAR FOR TAXES (See Section 12.02)__________________________ |
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| 1.11 |
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RENT TO BE PAID TO: Region Enterprises, Inc. |
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Address: 7200 Evergreen Road, Fort Worth, Texas 76118 |
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| 1.12 |
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DAILY RATE CHARGE (See Section 3.02) None Dollars |
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($ ) per day. (If none, so state) |
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| 1.13 |
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PRINCIPAL REALTOR (If none, so state): None |
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| 1.14 |
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COOPERATING REALTOR (If none, so state): None |
ARTICLE TWO: LEASE AND LEASE TERM
| 2.01 LEASE OF PROPERTY. Landlord hereby leases the Property
to Tenant and Tenant hereby leases the Property from Landlord for the Lease Term stated in Section
1.05. As used herein, the “Commencement Date” shall be the date specified in Section 1.05
for the beginning of the Lease Term. |
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| 2.03 HOLDING OVER. Tenant shall vacate the Property upon the expiration
or earlier termination of this Lease. Tenant shall reimburse Landlord for and indemnify Landlord
against all damages incurred by Landlord from any delay by Tenant in vacating the Property. If Tenant
does not vacate the Property upon the expiration or earlier termination of this Lease, Tenant’s
occupancy of the Property shall be a “month-to-month” tenancy, subject to all the terms
and provisions applicable to a month-to-month tenancy, except that the rent then in effect shall
be increased by fifty percent (50%) |
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| ARTICLE THREE: RENT AND SECURITY DEPOSIT |
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| 3.01 RENT. Tenant agrees to pay rent for the Property at the
rate specified in Section 16.01. Tenant shall pay the rent for the first and last two months of the
Lease Term upon the execution of this Lease. One monthly rental installment shall be due and payable on or before the same day of the second calendar month of the Lease Term as the Commencement
Date, and a like monthly installment shall be due and payable on or before the same day of each succeeding
calendar month during the Lease Term. All rent shall be paid to the party designated in Section 1.11
at the address stated herein for such party. |
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| 3.02 LATE CHARGE. If any rent due hereunder is not received within five (5) days after its due date,
Tenant shall pay the party named in Section 1.11 above a late charge equal to the sum stated in Section
1.12 above for each day from its due date until such delinquent sum is received. The parties agree
that such late charge represents a fair and reasonable estimate of the costs of Landlord will incur
by reason of such late payment. |
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| 3.03 SECURITY DEPOSIT. Upon execution of hereof, Tenant shall deposit
with the party named in Section 1.11 above a cash Security Deposit in the sum stated in Section 1.07.
Landlord may apply all or part of the Security Deposit to any unpaid rent or other charges due from
Tenant or to cure any other defaults of Tenant. No interest shall be paid on the Security Deposit.
Landlord shall not be required to keep the Security Deposit separate from its other accounts and
no trust relationship is created in respect to the Security Deposit. Upon any termination of the
Lease not resulting from Tenant’s default, and after Tenant has vacated the Property in the
manner required by this Lease, Landlord shall refund the unused portion of the Security Deposit to Tenant. |
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| ARTICLE FOUR: USE OF PROPERTY |
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| 4.01 PERMITTED USE. Tenant may use the Property only for Permitted Use
stated in Section 1.09 |
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| 4.02 COMPLIANCE WITH LAW. Tenant shall comply with all governmental laws,
ordinances and regulations applicable to the use of the Property, and shall promptly comply with
all governmental orders and directives for the correction, prevention and abatement of nuisances
on or upon, or connected with the Property, all at Tenant’s sole expense. Tenant agrees to not
store or permit hazardous or toxic substances to be placed on the premises without prior written
permission from the Landlord. Hazardous or toxic substances as referred to in this paragraph shall
be defined by U.S. Environmental Protection Agency Regulations and/or Texas Water Commission Regulations.
Tenant further agrees to not place underground or above ground storage tanks on the leased premises
without prior written consent of Landlord. |
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| 4.03 SIGNS. Without the prior written consent
of Landlord, Tenant shall not place or affix any signs or other objects upon or to the Property,
including but not limited to the roof or exterior walls of the building or other improvements thereon,
or paint (except for a color approved by Landlord) or otherwise deface said exterior walls. Any signs
installed by Tenant shall conform with applicable laws and deed and other restrictions. Tenant shall
remove all signs at the termination of this Lease and shall repair any damage and close any holes
caused or revealed by such removal. See Section 16.09 for additional sign provisions. |
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| 4.04 UTILITIES. Tenant shall pay the cost of all
utility services, including but not limited to initial connection charges, all charges for gas, water
and electricity used on the Property, and for all electric lights, telephone service, trash removal, lamps and tubes. |
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| 4.05 LANDLORD’S ACCESS. Landlord and its
authorized agents shall have the right, during normal business hours, to enter the Property and any
buildings and other improvements thereon to view, inspect, repair or show the Property, * with Tenant’s
prior consent, which will not be unreasonably withheld. |
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| 4.06 INTERRUPTION OF SERVICE. Interruption or curtailment of services
furnished to the Property, if caused by strikes, mechanical difficulties, or any cause beyond Landlord’s
control, whether similar or dissimilar to those enumerated, shall not entitle Tenant to any claim
against Landlord or to any abatement in rent, nor shall the same constitute constructive or partial
eviction, unless Landlord fails to take such measures as may be reasonable in the circumstances to
restore the service without undue delay. If the premises are rendered untenantable in whole or in
part for fifteen (15) business days because of such interruption or curtailment of services (other
than caused by any act or omission of Tenant or its invitees, employees or customers there shall
be a proportionate abatement of rent during the period of such untenantability. |
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| 4.07 EXEMPTIONS FROM LIABILITY. Landlord shall not be liable for any damage
or injury to the person, business (or any loss of income therefrom), goods, wares, merchandise or
other property of Tenant, Tenant’s employees, invitees, customers or any other person in or
about the Property, whether such damage or injury is caused by or results from: (a) fire, steam,
electricity, water, gas, or rain; (b) the breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures or any other cause;
(c) conditions arising on or about the Property or upon other portions of any building of which the
Property is a part, or from other sources or places; or (d) any act or omission of any other tenant
of any building of which the Property is a part. Landlord shall not be liable for any such damage
or injury even though the cause of or the means of repairing such damage or injury are not accessible
to Tenant. The provisions of this Section 4.07 shall not, however, exempt Landlord from liability
for Landlord’s gross negligence or willful
misconduct. |
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| ARTICLE FIVE: MAINTENANCE, REPAIRS AND ALTERATIONS |
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| 5.01 ACCEPTANCE OF PREMISES. Tenant acknowledges that Tenant
has fully inspected the Property. Tenant hereby accepts the property and the buildings and improvements
situated thereon, as suitable for the purpose for which the same are leased, in their present condition
(including all latent or environmental defects or risks), with such changes therein as may be caused
by reasonable deterioration between the date hereof and the Commencement Date; Landlord expressly
disclaims and Tenant waives any and all warranties (including the warranty of suitability), representations
and obligations of Landlord or Landlord’s agents that are not expressly stated herein. |
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| * Subject to the regulation of the Texas Dept (2) of Criminal Justice, Pardons, and Paroles Division, if applicable. |
5.02 MAINTENANCE AND REPAIRS BY LANDLORD. Landlord shall at his expense
maintain only the roof, foundation, and the structural soundness of the exterior walls (excluding
all windows, window glass, plate glass, and all doors) of the improvements on the Property in good
repair and condition, except for reasonable wear and tear and any damage caused by the act or omission
of Tenant, or Tenant’s invitees, employees or customers. Tenant shall give immediate written
notice to Landlord of the need for repairs or corrections and Landlord shall proceed promptly to
make such repairs.
5.03 MAINTENANCE AND REPAIRS BY TENANT. Tenant shall at his expense and risk
maintain all other parts of the improvements on the Property in good repair and condition, including
but not limited to repairs (including necessary replacement) to the interior plumbing, windows, window
glass, plate glass, doors, heating system, air condition equipment, fire protection sprinkler system,
elevators, and the interior of the said improvements in general; and including the reasonable care
of landscaping and regular mowing of the grass, and maintenance of the paving outside of the improvements
and any railroad siding. In the event Tenant should neglect reasonably to maintain the demised premises,
Landlord shall have the right (but not the obligation) to cause repairs or corrections to be made
and any reasonable costs therefor shall be payable by Tenant to Landlord as additional rental on
the next rental payment due date. Upon termination of this Lease, Tenant shall deliver up the Property
in good repair and condition, reasonable wear and tear, and damage by fire, windstorms or other casualty
excepted. Tenant shall repair any damage caused by Tenant’s act or omission, or the act or omission
of Tenant’s invitees, employees or customers. See Section 16.10 for additional Maintenance provisions.
5.04 ALTERATIONS.
Tenant shall not create any openings in the roof or exterior wall, or make any
alterations, additions or improvements to the Property without the prior
written consent of Landlord. Consent to nonstructural alterations, additions
or improvements shall not be unreasonably withheld by Landlord. Tenant shall
have the right to erect or install shelves, bins, machinery, air conditioning
or heating equipment and trade fixtures, provided that Tenant complies with
all applicable governmental laws, ordinances and regulations. At expiration
or termination of this Lease, Tenant shall subject to the restrictions of Section
5.05 below, have the right to remove such items so installed by it, provided
Tenant is not in default at the time of such removal and provided further that
Tenant shall, at the time of removal of such items, repair in a good and workmanlike
manner any damage caused by installation or removal thereof. Tenant shall pay
for all costs incurred or arising out of alterations, additions or improvements
in or to the Property and shall not permit a mechanic’s or materialman’s
lien to be asserted against the Property. See Section 16.04 for additional provisions.
5.05 CONDITION UPON TERMINATION. Upon termination
of this Lease, Tenant shall surrender the Property to Landlord, broom clean and in the same condition
as received except for ordinary wear and tear which Tenant was not otherwise obligated to remedy
under any provision of this Lease. However, Tenant shall not be obligated to repair any damage which
Landlord is required to repair under Article Five. In addition, Landlord may require Tenant to remove
any alterations, additions or improvements (whether or not made with Landlord’s consent) prior
to the termination of this Lease. In no event, however, shall tenant remove any of the following
materials or equipment without Landlord’s prior written consent: any power wiring or power panels;
lighting or lighting fixtures; wall coverings; drapes, blinds or other window coverings; carpets
or other floor coverings; heaters; air conditioners or any other heating or air conditioning equipment;
fencing or security gates; or other similar building operation equipment and decorations.
| ARTICLE SIX: INSURANCE AND INDEMNITY |
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See Section 16.08 for Property Insurance Provisions. |
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| 6.02 LIABILITY
INSURANCE. During the Lease Term, Tenant shall maintain a policy of comprehensive
public liability insurance, at Tenant’s expense, insuring Landlord
against liability arising out of the ownership, use occupancy or maintenance
of the Property. The initial amount of such insurance shall be at least
$3,000,000. Such policy shall contain a provision which prohibits cancellation
or modification of the policy except upon thirty (30) days prior written
notice to Landlord. Tenant shall deliver a copy of such policy or certificate
(or a renewal thereof) to Landlord prior to the Commencement Date and prior
to the expiration of any such policy during the Lease Term. If Tenant fails
to maintain such policy, Landlord may elect to maintain such insurance at
Tenant’s expense. |
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| 6.03 INDEMNITY. Tenant hereby agrees to indemnify Landlord and hold harmless from
any loss, expense or claims arising out of any injury to persons or damage to property on or about
the Property or any adjacent area owned by Landlord caused by the negligence or misconduct of Tenant,
its employees, subtenants, licensees or concessionaires or any other person entering the Property
under express or implied invitation of Tenant, or arising out of the use of the Property by Tenant
and the conduct of its business therein, or arising out of any breach or default by Tenant in the
performance of its obligations hereunder. Tenant shall not be liable for any injury or damage caused
by the negligence or misconduct of Landlord, or its employees or agents, and Landlord agrees to indemnify
Tenant and hold it harmless from any loss, expense or damage arising out of such damage or injury. |
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| 6.04 WAIVER OF SUBROGATION. Landlord and Tenant each hereby waive any and all
rights of recovery against the other, or against the officers, employees, agents or representatives
of the other, for loss of or damage to its property, or the property of others under its control,
if such loss or damage is covered by any insurance policy in force (whether or not described in this
Lease) at the time of such loss or damage; provided however such waiver is made only on the condition
that it does not adversely affect the right of the insured to recover under the applicable insurance
policy or policies. |
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| ARTICLE SEVEN: ASSIGNMENT AND SUBLETTING |
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| Tenant shall not assign this agreement or sublet the premises, or any part thereof, except to an affiliate
of Tenant, without the consent of the Landlord in writing, which consent Landlord agrees it will
not unreasonably withhold, but no assignment or subletting shall release Tenant from any obligation
hereunder. |
ARTICLE EIGHT: DAMAGE OR DESTRUCTION
| 8.01 PARTIAL DAMAGE. In event the improvements situated on the property
are partially damaged, or rendered partially unfit for occupancy, by fire or other casualty, Tenant shall give immediate written notice thereof to Landlord.
If Landlord’s insurance proceeds are sufficient to pay for the necessary repairs, and if the
repairs can reasonably be made within 90 days after Landlord receives such written notice from Tenant,
Landlord shall forthwith cause such repairs to be made and this Lease shall not terminate. While
such repairs are being made, Landlord shall allow Tenant a fair reduction in rent in proportion to
the extent the improvements are partially unfit for occupancy, is due to the act or omission of Tenant
or Tenant’s employees, invitees or licensees. |
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| 8.02 UNINSURED PARTIAL DAMAGE OR TOTAL OR SUBSTANTIAL DESTRUCTION. In the event of
total or substantial destruction of the improvements situated on the Property by fire or other casualty,
Tenant shall give immediate written notice thereof to Landlord. If Landlord’s insurance proceeds
are insufficient to pay for the necessary repairs or restoration, or the repairs or restoration cannot
reasonably be made within 90 days after Landlord receives such written notice from Tenant, this
Lease shall terminate and the rent shall be paid to the date of such casualty. However, if such damage
or destruction is due to the act or omission of Tenant or tenant’s employees, invitees or licensees,
Tenant shall pay to Landlord, within 60 days after the occurrence of such casualty, any portion of
the anticipated cost of repairing or restoring the improvements to the same condition as on the date
of this Lease that are not reimbursed to Landlord by insurance proceeds. Such anticipated cost shall
be determined by Landlord. Tenant shall make such payment to Landlord, whether or not Landlord repairs
or restores the improvements. |
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| ARTICLE NINE: DEFAULT AND REMEDIES |
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| 9.01 DEFAULT. The following events shall
be deemed to be events of default under this Lease: |
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| a. Failure of Tenant to pay
any installment of the rent or other sum payable to Landlord hereunder on
the date that same is due and such failure shall continue for a period of
ten (10) days after written notice thereof to Tenant; |
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| b. Failure of Tenant to comply with any term, condition or covenant of this Lease, other than
the payment of rent or other sum of money, and such failure shall not be cured within thirty (30)
days after written notice thereof to Tenant; |
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| c. Tenant shall make an assignment for the benefit of creditors; |
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| d. Abandonment by Tenant of any substantial portion of the Property or cessation of the use of
the use of the Property for the purpose leased for a period of more than 5 consecutive calendar days. |
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| 9.02 REMEDIES. Upon the occurrence of any of the
events of default listed in Section 9.01, Landlord shall have the option to pursue any one or more
of the following remedies without any notice or demand whatsoever. |
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| a. Terminate this Lease, in which event Tenant shall immediately surrender the Property to Landlord.
If Tenant fails to so surrender such premises, Landlord may, without prejudice to any other remedy
which it may have for possession of the Property or arrearages in rent, enter upon and take possession
of the Property and expel or remove Tenant and any other person who may be occupying such premises
or any part thereof. Landlord may hold Tenant liable for all rent and other indebtedness accrued
to the date of such termination, plus, as liquidated damages and not as a penalty, an amount equal
to the then present value of rent provided for hereunder for the remaining portion of the Lease Term
(had this Lease not been terminated) using a ten (10%) percent value discount factor. In the event
Landlord elects to terminate this Lease by reason of an event of default, in lieu of recovering from
Tenant under the preceding sentence, Landlord may hold Tenant liable for the amount of all loss and
damage which Landlord may suffer by reason of such termination, whether through inability to relet the Property on satisfactory terms or otherwise. |
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| b. Enter upon and take possession of the Property without terminating this Lease, and expel or
remove Tenant and any other person who may be occupying such premises, or any part thereof. Landlord
may relet the Property and receive the rent therefor. Tenant agrees to pay to Landlord monthly or
on demand from time to time any deficiency that may arise by reason of any such releting. In determining
the amount of such deficiency, the brokerage commission, attorneys fees, remodeling expenses and
other costs of reletting shall be subtracted from the amount of rent received under such reletting. |
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| c. Enter upon the Property without terminating the Lease, and do whatever Tenant is obligated
to due under the terms of this Lease. Tenant agrees to pay Landlord on demand for expenses which
Landlord may incur in thus effecting compliance with Tenant’s obligations under this Lease,
together with interest thereon at the rate of eighteen (18%) percent per annum from the date expended
until paid. Landlord shall not be liable for any damages resulting to Tenant from such action, whether
caused by negligence of Landlord or otherwise. |
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| d. Tenant is presumed to have abandoned the Property if Tenant’s goods, equipment, or other
property are removed from the Property in an amount substantial enough to indicate a probable intent
to abandon the Property and such removal is not within the normal course of Tenant’s business.
In the event that Tenant is presumed to have abandoned the Property, Landlord may remove and store
any property of Tenant that remains on the Property. Landlord may store such property at any location
satisfactory to Landlord. Landlord may dispose of such stored property after the expiration of sixty
(60) days from the date such property is so stored. Landlord shall deliver by certified mail to Tenant
at Tenant’s last known address as shown by Landlord’s records a notice stating that Landlord
may dispose of Tenant’s property if Tenant does not claim the same within sixty (60) days after
the date the property was stored. |
Upon the occurrence of any of such events of default, Landlord may enter upon and take possession of
the Property by force, if necessary, without being liable for prosecution of any claim for damages
therefor. 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, nor shall pursuit of any remedy herein
provided constitute a forfeiture or waiver of any rent due to landlord hereunder or of any damages
accruing to Landlord by reason of the violation of any of the terms, conditions and covenants herein
contained.
| ARTICLE TEN: REALTOR’S COMMISSIONS |
| ARTICLE ELEVEN: CONDEMNATION |
Landlord shall notify Tenant if Landlord receives notice of any potential condemnation of the Property
or portion thereof. If all or any portion of the Property is taken under the power of eminent domain
or sold under the threat of that power (all of which are called “Condemnation”), this Lease
shall terminate as to the part taken or sold on the date the condemning authority takes title or
possession. If such taking substantially interferes with Tenant’s use of the premises Tenant
may terminate this Lease by delivering written notice to Landlord within ten (10) days after receipt
of written notice of such taking (or in the absence of such notice, within ten (10) days after the
condemning authority takes possession). If Tenant does not terminates this Lease, this Lease shall remain
in effect as to the portion of the Property not taken, except that the rent shall be reduced in proportion
to the reduction in floor area of the Property. Any Condemnation award or payment shall be distributed
in the following order; (a) first, to any ground lessor, mortgagee or beneficiary under a deed of
trust encumbering the Property, the amount of its interest in the Property; (b) second, to Tenant,
only the amount of any award specifically designated for loss of or damage to Tenant’s trade
fixtures or removable personal property; and (c) third, to Landlord, the remainder of such award,
whether as compensation for reduction in the value of the leasehold, the taking of the fee, or otherwise.
If this Lease is not terminated, Landlord shall repair any damage to the Property caused by the Condemnation,
except that Landlord shall not be obligated to repair any damage for which Tenant has been reimbursed
by the condemning authority. If the severance damages received by Landlord are not sufficient
to pay for such repair, Landlord shall have the right to either terminate this Lease or make such
repair at Landlord’s expense.
| ARTICLE TWELVE: TAXES |
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See Section 16.07 for Taxes to be paid by Tenant. |
| 12.04 CONTEST BY TENANT. Tenant may, at its own expense, contest any tax or assessment for which Tenant may be wholly or partially responsible. Except as hereinafter provided, Tenant need not pay the tax, assessment or charge during the pendency of the contest and Tenant may prevent Landlord from paying any tax, assessment or charge that Tenant is contesting pursuant to this section 12.04, pending any resolution of the contest, by depositing with Landlord, before such tax, assessment or charge becomes delinquent, Tenant’s portion of the full amount of the tax or assessment, plus the full amount of any penalty that might be imposed for failure to make timely payment and six (6) months of interest at the rate imposed by the entity levying the tax or assessment. Upon final resolution of the tax or assessment contest, Landlord may use the money deposited by Tenant to pay Tenant’s portion of any tax or assessment, plus
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| full amount of any penalty or interest, due under the final resolution, and Tenant shall receive the balance of the deposit, if any. If the deposit is insufficient to pay these amounts, Tenant must immediately pay such insufficiency to Landlord. Notwithstanding the foregoing, Landlord may pay, or require Tenant to pay, any tax, assessment or charge, or any portion thereof, for which Tenant is responsible under this Article Twelve, pending resolution of Tenant’s contest of the tax, assessment or charge, if payment is demanded by a holder of a mortgage on the property, or if failure to pay will subject all or part of the Property to forfeiture or loss. Landlord reserves the right to contest any tax, assessment or charge on the Property. |
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| ARTICLE THIRTEEN: LANDLORD’S LIEN |
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| In addition to the statutory landlord’s lien, Tenant hereby grants to Landlord a security interest to secure payment of all rent and other sums of money becoming due hereunder from Tenant, upon all goods, wares, equipment, fixtures, furniture and other personal property of Tenant situated in or upon the Property, together with the proceeds from the sale or lease thereof. Such property shall not be removed without the consent of Landlord until all arrearages in rent and other sums of money then due to Landlord hereunder shall first have been paid and discharged. Upon request by Landlord, Tenant agrees to execute and deliver to Landlord a financing statement in form sufficient to perfect the security interest of Landlord in the aforementioned property and proceeds thereof under the provisions of the Uniform Commercial Code in force in the State of Texas. |
| ARTICLE FOURTEEN: SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE |
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| 14.01 SUBORDINATION. Landlord shall have the right to subordinate this lease to any ground lease, deed of trust or mortgage encumbering the Property, and advances made on the security thereof and any renewals, modifications, consolidations, replacements or extensions thereof, whenever made or recorded. However, Tenant’s right to quiet possession of the Property during the Lease Term shall not be disturbed if Tenant pays the rent and performs all of Tenant’s obligations under this Lease and is not otherwise in default. If any ground lessor, beneficiary or mortgagee elects to have this Lease prior to the lien of its ground lease, deed of trust or mortgage and gives written notice thereof to Tenant, this Lease shall be deemed prior to such ground lease, deed of trust or mortgage whether this lease is dated prior or subsequent to the date of said ground lease, deed of trust or mortgage or the date of r
ecording thereof. Landlord warrants that no liens affect the premises at this time. |
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| 14.02 ATTORNMENT. If Landlord’s interest in the Property is acquired by any ground lessor, beneficiary under a deed of trust, mortgage or purchaser at a foreclosure sale, Tenant shall attorn to the transferee of or successor to Landlord’s interest in the Property and recognize such transferee or successor as landlord under this Lease. Tenant waives the protection of any statue or rule of law which gives or purports to give Tenant any right to terminate this Lease or surrender possession of the property upon the transfer of Landlord’s interest. |
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| 14.03 SIGNING OF DOCUMENTS. Tenant shall sign and deliver any instruments or documents necessary or appropriate to evidence any such attornment or subordination or agreement to do so. If Tenant fails to do so within ten (10) days after written request, Tenant hereby makes, constitutes and irrevocably appoints Landlord, or any transferee or successor of Landlord the attorney-in-fact of Tenant to execute and deliver any such instrument or document. |
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| 14.04 ESTOPPEL CERTIFICATES |
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| (a) Upon Landlord’s written request, Tenant shall execute, acknowledge and deliver to Landlord a written statement certifying (i) that none of the terms or provisions of this Lease have been changed (or if they have been changed, stating how they have been changed); (ii) that this Lease has not been cancelled or terminated; (iii) the last due date of payment of the rent and other charges and the time period covered by such payment; and (iv) that Landlord is not in default under this Lease (or, if Landlord is claimed to be in default, stating why). Tenant shall deliver such statement to Landlord within ten (10) days after Landlord’s request. Any such statement by Tenant may be given by Landlord to any prospective purchaser or encumbrancer of the Property. Such purchaser or encumbrancer may r
ely conclusively upon such statement as true and correct. |
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| (b) If
Tenant does not deliver such statement to Landlord within such ten (10)
day period, Landlord, and any prospective purchaser or encumbrancer, may
conclusively presume and rely upon the following facts: (i) that the terms
and provisions of this Lease have not been changed except as otherwise represented
by Landlord; (ii) that this Lease has not been cancelled or terminated except
as otherwise represented by the Landlord; (iii) that not more than one month’s
rent or other charges have been paid in advance; and (iv) that Landlord
is not in default under the Lease. In such event, Tenant shall be estopped
from denying the truth of such facts. |
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| ARTICLE FIFTEEN: MISCELLANEOUS |
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| 15.01 EXHIBITS. All exhibits, attachments, annexed instruments and addenda referred to herein shall be considered a part hereof for all purposes with the same force and effect as if copied at full length herein. |
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| 15.02 INTERPRETATION. Words of any gender used in this Lease shall be held and construed to include any other gender, and words in the singular shall be held to include the plural, unless the context otherwise requires. In any provision relating to the conduct, acts or missions of Tenant, the term “Tenant” shall include Tenant’s agents, employees, contractors, invitees, sucessors, permitted assigns or others using the Property with Tenant’s expressed or implied permission. |
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| 15.03 CAPTIONS. The captions or headings of paragraphs in the Lease are inserted for convenience only, and shall not be considered construing the provisions hereof if any question of intent should arise. |
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| 15.04 WAIVERS. All waivers must be in writing and signed by the waiving party. Landlord’s failure to enforce any provision of this Lease its acceptance of rent shall not be a waiver and shall not prevent Landlord from enforcing that provision or any other provision of this lease in the future. No statement on a check from Tenant or in a letter accompanying a payment check shall be binding on Landlord. Landlord may, with or without notice to Tenant, negotiate such check without being bound to the conditions of such statement. |
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| 15.05 SEVERABILITY. A determination by a court of competent jurisdiction that any provision of this Lease or any part thereof is illegal unenforceable shall not cancel or invalidate the remainder of such provision of this Lease, which shall remain in full force and effect. |
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| 15.06 JOINT AND SEVERAL LIABILITY. All parties signing this Lease as Tenants shall be jointly and severally liable for the obligations Tenant. |
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| 15.07 INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS. This lease is the only agreement between the parties pertaining to the lease of the Property and no other agreements are effect. All amendments to this Lease shall be in writing and signed by all parties. Any other attempted amendment shall be void. |
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| 15.08 BINDING
EFFECT. The terms, conditions and covenants contained in the Lease, shall
apply to, inure to the benefit of, and be binding upon the parties hereto
and their respective heirs, representatives, successors and permitted assigns,
except as otherwise herein expressly provided. All rights, powers,
privileges, immunities and duties of Landlord under this Lease, including
but not limited to any notices required or permitted to be delivered
by Landlord to Tenant hereunder, may, at Landlord’s option, be exercised
or performed by Landlord’s agent or attorney. |
| 15.09 NOTICES. Any notice or document required or permitted to be delivered hereunder shall be deemed to be delivered whether actually received or not when deposited in the United States Mail, postage prepaid, registered or certified mail, return receipt requested, addressed to parties hereto at the respective addresses stated herein, or at such other address as they have theretofore specified by written notice delivered in accordance herewith. Notices to Tenant shall be delivered to the address specified on the signature page hereof, except that, upon Tenant’s taking possession of the Property, the Property address shall be Tenant’s address for notice purposes. |
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| 15.10 FORCE MAJEURE. In the event performance by Landlord of any term, condition or covenant in this Lease is delayed or prevented by any Act of God, strike, lockout, shortage of material or labor, restriction by any governmental authority, civil riot, flood or any other cause not within the control of Landlord, the period of performance of such term, condition or covenant shall be extended for a period equal to the period Landlord is so delayed or hindered. |
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| 15.11 ATTORNEYS FEES. If on account of any breach or default of any party hereto in its obligations to any other party hereto (including but not limited to the Principal Realtor), it shall become necessary for the non-defaulting party to employ an attorney to enforce or defend any of its rights or remedies hereunder, the defaulting party agrees to pay the non-defaulting party its reasonable attorneys’ fees, whether or not suit is instituted, in connection therewith. |
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| 15.12 TIME OF ESSENCE. Time is the essence of this Lease. |
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| ARTICLE SIXTEEN: SPECIAL PROVISIONS AND RIDERS. |
| Special provisions may be set forth in the blank space and/or on a rider or riders attached hereto. If no additional provisions are to be inserted in the blank space below, please draw line through such space. If no rider or riders are to be attached hereto, please state “No Riders” in the blank space below. If a rider or riders are to be attached hereto, please state in the blank space below: “See Rider or Riders Attached,” and please have Landlord and Tenant initial all such riders. |
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| See Rider attached for additional provisions to this Lease Agreement. |
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| THIS IS A LEGAL DOCUMENT, READ IT CAREFULLY. IF YOU DO NOT UNDRESTAND THE EFFECT OF ANY PART OF THIS LEASE, SEEK COMPETENT LEGAL ADVICE. THE GREATER FORT WORTH ASSOCIATION OF REALTORS (“GFWAR”) HAS FURNISHED THIS FORM FOR THE CONVENIENCE OF ITS MEMBERS. LANDLORD AND TENANT ACKNOWLEDGE THAT THEY HAVE NOT RELIED ON ANY LEGAL ADVICE FROM PRINCIPAL REALTOR, COOPERATING REALTOR, GFWAR OR GFWAR’S OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, AFFILIATES OR ATTORNEYS. |
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| EXECUTED as of the date stated in Section 1.01 above. |
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| LANDLORD |
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TENANT |
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| Region Enterprises, Inc.
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Esmor Fort Worth, Inc. |
| By: /s/ Earl Region |
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By: /s/ James F. Slattery |
| TITLE: President |
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TITLE: President |
| ADDRESS 7200 Evergreen
Road |
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ADDRESS: |
| Fort Worth, Texas 76118
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| Date of execution by Landlord:
5-17-94 |
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Date of execution by Tenant: 5/12/94 |
| 16.01 Rent.
Tenant agrees to pay Landlord rent in the amount of $10,200.00 for each
of the first twenty-four (24) months during the term of this lease; rent
in the amount of $10,404.00 for each of the next twelve months during the
term of this Lease, rent in the amount of $10,820.15 for each of the next
twelve months during the term of this lease and rent in the amount of $11,252.97
for each month thereafter during the term of this Lease. Rent shall be due
and payable on the sixteenth day of each calendar month during the term
of this Lease commencing May 16, 1994. In addition, an amount of rent equal
to $40,800.00 shall be paid to Landlord upon execution of this Lease, of
which $20,400.00 shall be an additional payment to Landlord to cover any
damages or expenses incurred by Landlord as a result of closing the motel
and $20,400.00 shall be applied to the last two payments of rent due hereunder. |
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| 16.02 No Contingency. This Lease and Tenant’s obligations under this Lease are not contingent on Tenant obtaining any federal, state or local permits, licenses or approval or on community acceptance of Tenant’s proposed use of the demised premises. Any modifications to the property which may be required by any federal, state or local authority, for the continued operation of Tenant’s business, shall be made at Tenant’s expense. |
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| 16.03 Renewals. Provided Tenant is not in default hereunder at the expiration of the initial term or a renewal term, Tenant shall have the option to renew the term of this Lease for three (3) successive terms upon the same terms and condition, except the rent shall be increased by an amount equal to four percent (4%) per annum during each year of the renewal terms. The first renewal term shall be for three (3) years and the second and third renewal terms shall be for two (2) years each. Tenant will provide Landlord notice of its exercise of each renewal option by delivering written notice to Landlord at least thirty (30) days prior to the expiration date of this Lease as extended by any renewal term. |
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| 16.04 Alterations. Landlord is aware that Tenant, at its sole cost, may fill in the swimming pool with sand, maintain a portable building in the parking lot and make certain non-structural alterations to cause the demised premises to comply with rules of the Texas Department of Criminal Justice applicable to corrections facilities and Landlord consents in advance to those alterations. |
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| 16.05 Personal Property and Fixtures. Landlord agrees to include in the property leased to Tenant some of the personal property and fixtures located on the demised premises or used in connection with the operation of the demised premises, including without limitation, all floor, window, and wall coverings, furniture, appliances, telephones, and telephone systems, ten (10) television sets, satellite dish, towels, pillows, pillow cases and lawn mower. |
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| 16.06 Storage Agreement. If Tenant does not wish to lease certain of such items (i.e., beds or other items), Landlord shall remove the unwanted personal property from the demised premises and store it at a cost to Tenant of the lesser of Landlord’s cost or $450.00 per month for twelve months or such lesser period as Landlord may use said space; provided that Landlord will use its best efforts to dispose of such property as soon as possible. The first monthly payment to Landlord shall be due on May 16, 1994 and like payment shall be due on the same day of each month thereafter for a period not to exceed twelve months. |
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| 16.07 Taxes to be Paid by Tenant. Tenant will pay all ad valorem and personal taxes on the demised premises during the term of this Lease. Ad valorem taxes due for 1994 and the year in which the term of this Lease terminates shall be prorated between Landlord and Tenant with Tenant paying taxes for the portion of such year this Lease was in effect and Landlord paying taxes for the portion of such year prior to or after the term of this Lease. |
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| 16.08 Insurance. During the term of this Lease, Landlord shall, at Tenant’s sole cost and expense, provide and maintain or cause to be provided and maintained insurance on the improvements on the Premises. The insurance shall include protection against all hazards and perils covered by the all-risk form of insurance policy in effect in Texas, and shall be in amounts equal to the full replacement value of the improvements, and list Landlord as the loss payee. Tenant shall pay to Landlord the annual premium for such insurance within thirty (30) days after receipt of the premium notice from Landlord. |
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| 16.09 Sign. Tenant shall, during the term of this Lease, leave the existing motel sign in its current location, however, Tenant may remove the neon and paint the face of the sign. If at any time during the term of this Lease, the City of Fort Worth requires that the sign be removed, it will be done at Tenant’s expense. |
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| 16.10 Additional Tenant Maintenance. During the term hereof, Tenant will maintain the parking lot, including, but not limited to, eradication of any weeds or grass growing on the parking lot. Tenant shall also mow the alley-way and keep the trees trimmed away from the premises. Tenant shall also maintain a regular termite eradication and pest control service for the premises. |
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| 16.11 Guarantee. Tenant’s obligations hereunder shall be fully guaranteed by Esmor Correctional Services, Inc., a Delaware corporation. |
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| 16.12 Miscellaneous, (a) Landlord shall retain possession of the motel office space until the end of business on May 20, 1994. (b) Tenant acknowledges that Landlord has personal property stored in the basement of the premises. Landlord shall have reasonable access to the basement until all personal property is removed. Landlord will use its best efforts to remove its personal property from the basement by June 1, 1994. |
GUARANTY OF LEASE AGREEMENT
| For valuable consideration, the undersigned (“Guarantor”) for itself, its successors and assigns, hereby unconditionally guarantees to Region Enterprises, Inc. (“Landlord”), it successors and assigns, the due performance of all obligations of Esmor Fort Worth, Inc., a Texas corporation (“Tenant”) to Landlord in connection with that certain Lease Agreement dated May 16, 1994, between Landlord and Tenant, covering the property known as the Downtown Motor Inn, 600 North Houston Street, Fort Worth, Texas. |
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| This guaranty will become effective upon the default by Tenant of any of the terms and conditions set forth in the Lease Agreement. Guarantor agrees to immediately cure any such default, upon receipt of written notice from Landlord stating the nature of the default and the amount due to cure the default. |
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| Guarantor waives any right to require Landlord to (a) proceed against Tenant; or (b) pursue any other remedy in Landlord’s power whatsoever. Guarantor waives any defense arising by reason of the cessation from any cause whatsoever of the liability of Tenant. Guarantor hereby indemnifies Landlord against loss, cost or expense, by reason of the assertion by the Tenant of any defense to its obligations under any of the aforesaid Lease Agreement, or resulting from the attempted assertion by the Guarantor of any defense hereunder based upon any such action or inaction of the Tenant. Guarantor waives any right or claim of right to cause a marshalling of the Borrower’s assets or to require the Landlord to proceed against the Guarantor in any particular order. No delay on the part of the Landlord
in the exercise of any right, power or privilege under the documentation with the Tenant or under this guaranty shall operate as a waiver of any such privilege, power or right. |
| Guarantor agrees to pay a reasonable attorney’s fee and all other costs and expenses which may be incurred by Landlord in the enforcement of the Tenant’s obligation and/or of this guaranty. |
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| Notwithstanding any provision herein or in the instrument now or hereafter covering said indebtedness, the total liability for payments in the nature of interest shall not exceed the limits now imposed by the usury laws of the state of applicable jurisdiction governing the provisions of this guaranty or in any instrument now or hereafter covering said indebtedness. |
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| The Guarantor acknowledges that the Landlord has been induced by this guaranty to enter into the Lease Agreement with Tenant, and this agreement shall, without further reference or assignment, be relied upon and enforced by, any successor or participant or assignee of the Landlord in and to any liabilities or obligations of the Tenant. |
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| This guaranty shall, for all purposes, be governed by and construed in accordance with the laws of the State of Texas, and is performable and enforceable at Fort Worth, Tarrant County, Texas. |
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| IN WITNESS WHEREOF, the undersigned Guarantor has hereunto set his hand this 12 day of May, 1994. |
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ESMOR CORRECTIONAL SERVICES, INC.,
a Delaware corporation |
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By: /s/ James F. Slattery, As President |
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James F. Slattery, President |