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EXHIBIT 10.16
WAREHOUSE LEASE AGREEMENT
By and Between
Omni Capital Corporation, Landlord,
and Hastings Books, Music & Video, Inc., Tenant
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WAREHOUSE
LEASE AGREEMENT
TERMS AND DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
LEASE CLAUSES AND COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Tenant's Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. Lease of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. Minimum Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. Additional Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
6. Taxes on Tenant's Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
7. Tenant's Property Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
8. Tenant's Liability Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
9. Repair and Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
10. Tenant Finish . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
11. Indemnification by Tenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
12. Environmental . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
13. Title III of the Americans with Disabilities Act . . . . . . . . . . . . . . . . . . . . . . . . . . 4
14. Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
15. Cleaning and Snow Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Landlord's Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1. Lease of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2. Use of the Common Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6. Maintenance of the Common Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7. Common Area Maintenance Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
8. Real Estate Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
9. Landlord's Property Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
10. Landlord's Liability Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
11. Indemnification by Landlord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
12. Delivery of the Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
13. Environmental . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
14. Title III of the Americans with Disabilities Act . . . . . . . . . . . . . . . . . . . . . . . . . . 6
15. Maintenance and Repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
16. Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
17. Right to Protest Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
C. Landlord and Tenant agree to the following: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2. Trade Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3. Parking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4. Ingress and Egress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5. Signs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6. Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7. Removal of Tenant's Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8. Waiver of Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10. Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
11. Casualty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
12. Default by Landlord/Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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13. Default by Landlord/Tenant's Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
14. Default by Tenant/Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
15. Default by Tenant/Landlord's Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
16. Assignment and Subletting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
17. Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
18. Alternative Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
19. Annual Statements/Prorations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
20. Emergency Repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
21. Commencement Date Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
22. Options to Extend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
23. Blanket Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
24. Zoning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
25. Curb Cuts/Dock Doors/Connecting Door . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
26. Shed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
27. Roof Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
28. Preferential Right to Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
29. Additional HVAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
D. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(1) Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(2) Non-Waiver/Cumulative Remedies/Mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(3) Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(4) Choice of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(5) Lease Memorandum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(6) Binding Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(7) Holdover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(8) Attorney's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(9) Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(10) Partial Invalidity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(11) Relationship of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(12) Waiver of Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(13) Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(14) Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(15) Prior Termination of this Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(16) Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(17) Number/Gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(18) Waiver of DTPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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WAREHOUSE
LEASE AGREEMENT
TERMS AND DEFINITIONS
Date: August 3, 1994
Landlord: Omni Capital Corporation
Landlord's Address: 1715 West 58th
Amarillo, Texas 79110
Tenant: Hastings Books, Music & Video, Inc., a Texas corporation
Tenant's Address: P.O. Box 35350
Amarillo, Texas 79120-5350
Tenant's Trade Name: Hastings
Premises: Approximately 100,000 square feet in the Shopping Center. The
Premises are outlined in red on Exhibit "A". The address of
the Premises is ______________________________.
Shopping Center: That portion of Sunset Center in Amarillo, Potter
County, Texas, described on Exhibit "B".
Minimum Rent: (a) For the eighteen (18) month period beginning on
the Commencement Date and ending on the last day of
the eighteenth (18th) month following the
Commencement Date - $90,000.00 per annum, payable in
monthly installments of $7,500.00 each.
(b) For the eighteen (18) month period beginning on
the first day of the nineteenth (19th) month
following the Commencement Date and ending on the
last day of the thirty-sixth (36th) month following
the Commencement Date - $180,000.00 per annum,
payable in monthly installments of $15,000.00 each.
Additional Rent: Tenant's Proportionate Share of the real estate taxes
on the Shopping Center, Landlord's premiums for
property insurance on Landlord's improvements in the
Shopping Center, and Landlord's premiums for
liability insurance on the Common Area, for each
calendar year or partial calendar year during the
Term of this Lease.
Initial Term: Thirty-six (36) months beginning on the Commencement
Date.
"AFFILIATE" means any person or entity that, directly or indirectly, controls,
is controlled is under common control with, Tenant.
"BUILDING" means the building in the Shopping Center that contains the
Premises.
"COMMENCEMENT DATE" means the earlier of (a) October 1, 1994, or (b) the date
Tenant begins operating in the Premises; provided, however, if prior to October
1, 1994, Tenant begins operating in the Premises on a day other than the first
day of a month, the Commencement Date shall be the first day of the month
following the date Tenant begins operating in the Premises.
"COMMON AREA" means the areas in the Shopping Center that are available for the
common use of Tenant and the other tenants of the Shopping Center, including
(without limitation) the parking areas, sidewalks, driveways, loading areas,
and service areas.
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"COMMON AREA MAINTENANCE EXPENSES" means the costs and expenses of operating,
and maintaining the Common Area.
"COMMON AREA MAINTENANCE RECORDS" means the records of the Common Area
Maintenance Expenses maintained by Landlord.
"DELIVERY DATE" means August 4, 1994.
"ENVIRONMENTAL LAWS" means all federal, state, and local environmental
statutes, ordinances, rules, regulations, and orders.
"LEASE YEAR" means a period of twelve (12) full consecutive months. The first
Lease Year shall begin on the Commencement Date. Each successive Lease Year
shall begin on the anniversary of the Commencement Date.
"LIABILITY INSURANCE PAYMENTS" means Tenant's monthly payments to Landlord in
an amount equal to one-twelfth (1/12th) of Tenant's Proportionate Share of
Landlord's premiums for liability insurance on the Common Area for each
calendar year as reasonably estimated by Landlord based upon the actual
liability insurance premiums for the prior calendar year. The Liability
Insurance Payments during the first partial calendar year shall be $_________
per month. The Liability Insurance Payments shall be adjusted within thirty
(30) days after the end of each calendar year or partial calendar year.
"PROPERTY INSURANCE PAYMENTS" means Tenant's monthly payments to Landlord in an
amount equal to one-twelfth (1/12th) of Tenant's Proportionate Share of
Landlord's premiums for property insurance on Landlord's improvements in the
Shopping Center for each calendar year as reasonably estimated by Landlord
based upon the actual property insurance premiums for the prior calendar year.
The Property Insurance Payments during the first partial calendar year shall be
$_ per month. The Property Insurance Payments shall be adjusted within thirty
(30) days after the end of each calendar year or partial calendar year.
"PROPORTIONATE SHARE" means a fraction, the numerator of which shall be the
number of square feet in the Premises, and the denominator of which shall be
the number of leasable square feet in the Shopping Center.
"RENT" means the Minimum Rent and Additional Rent.
"TAX PAYMENTS" means Tenant's monthly payments to Landlord in an amount equal
to one-twelfth (1/12th) of Tenant's Proportionate Share of the real estate
taxes on the Shopping Center for each calendar year as reasonably estimated by
Landlord based upon the actual real estate taxes for the prior calendar year.
The Tax Payments during the first partial calendar year shall be $_________ per
month. The Tax Payments shall be adjusted within thirty (30) days after the
end of each calendar year or partial calendar year.
"TERM OF THIS LEASE" means the Initial Term and any extended terms exercised in
accordance with this Lease.
LEASE CLAUSES AND COVENANTS
A. TENANT'S AGREEMENTS:
1. LEASE OF PREMISES. Upon and subject to the provisions of this
Lease, Tenant leases the Premises for the Initial Term and any extended terms
exercised in accordance with this Lease.
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2. COMPLIANCE WITH LAWS. Except as otherwise provided in this
Lease, Tenant agrees to comply with all laws, ordinances, rules, regulations,
and orders of any governmental authority that are applicable to Tenant's
specific use of the Premises; provided, however, Tenant shall not be obligated
to make any structural alterations, improvements, or additions to the Premises.
3. MINIMUM RENT. Except as otherwise provided in this Lease,
Tenant agrees to make monthly Minimum Rent payments to Landlord in advance on
the first day of each month beginning on the Commencement Date. If prior to
October 1, 1994, Tenant begins operating in the Premises on a day other than
the first day of a month, Tenant agrees to pay Minimum Rent for any partial
month preceding the Commencement Date on the basis of 1/30th of the first
month's Minimum Rent for each day in the partial month.
4. UTILITIES. Tenant agrees to pay all charges for water,
telephone, electricity, gas, and other utilities used by Tenant in the
Premises.
5. ADDITIONAL RENT. Except as otherwise provided in this Lease,
Tenant agrees to pay the Additional Rent that is due for each calendar year or
partial calendar year by making a Tax Payment, Property Insurance Payment, and
Liability Insurance Payment, with each payment of Minimum Rent.
6. TAXES ON TENANT'S PERSONAL PROPERTY. Tenant agrees to pay all
taxes on Tenant's personal property in the Premises.
7. TENANT'S PROPERTY INSURANCE. Tenant agrees to keep its
personal property in the Premises insured against loss or damage by fire and
such other risks as are from time to time included in broad form extended
coverage insurance.
8. TENANT'S LIABILITY INSURANCE. Tenant agrees to maintain a
commercial general liability insurance policy covering the Premises, under
which the Landlord is named as an additional insured. A duplicate original or
a certificate of the policy shall be delivered to Landlord within ten (10) days
after Landlord's written request therefor. Each policy shall (a) contain a
provision that the underwriter will give Landlord at least thirty (30) days
prior written notice of any cancellation or lapse of the insurance, and (b)
provide (i) bodily injury and property damage coverage of at least
$1,000,000.00 for any one occurrence, and (ii) general aggregate coverage of at
least $2,000,000.00.
9. REPAIR AND MAINTENANCE. Except as otherwise provided in this
Lease and for normal wear and tear, Tenant agrees to maintain (a) the interior
of the Premises, (b) the electrical, plumbing, and sewage systems in the
Premises, (c) the doors and plate glass in the Premises, (d) the heating,
ventilating, and air conditioning systems exclusively servicing the Premises,
and (e) Tenant's signs in the Shopping Center, in good order, condition, and
repair at Tenant's cost and expense.
10. TENANT FINISH. Promptly after the Premises are delivered to
Tenant, Tenant shall (a) finish the Premises, and (b) equip the Premises for
the operation of Tenant's business, subject to delays resulting from strikes or
other labor disputes, weather, or other causes beyond the reasonable control of
Tenant. All alterations, improvements, and additions made by Tenant in
finishing the Premises shall (a) be made in accordance with all applicable laws
and in a good and workmanlike manner, and (b) remain the property of Tenant
until the expiration or termination of this Lease. At the expiration or
termination of this Lease, Tenant shall not be required to remove any
alterations, or improvements, or additions made by Tenant in finishing the
Premises or to restore the Premises to the condition in which the Premises
existed on the Delivery Date.
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11. INDEMNIFICATION BY TENANT. Tenant agrees to indemnify and
hold Landlord harmless from and against the costs, claims, expenses (including,
without limitation, reasonable attorneys' fees), or liabilities resulting from
any injury to or death of any person or persons or any damage to property that
(a) occurs in the Premises, and (b) arises from the negligence or willful
misconduct of Tenant or Tenant's employees or agents.
12. ENVIRONMENTAL. Tenant agrees to comply in all material
respects with all applicable Environmental Laws relating to the Premises.
Tenant agrees to indemnify and hold Landlord harmless from and against any
costs, claims, expenses (including, without limitation, reasonable attorneys'
fees), or liabilities arising from or related to any breach or alleged breach
of Tenant's agreement set forth in this paragraph.
13. TITLE III OF THE AMERICANS WITH DISABILITIES ACT. Tenant
agrees to comply with Title III of the Americans with Disabilities Act and the
rules and regulations issued thereunder, insofar as they apply to the Premises;
provided, however, Tenant shall not be obligated to make any structural
alterations, improvements, or additions to the Premises. Tenant agrees to
indemnify and hold Landlord harmless from and against any costs, claims,
expenses (including, without limitation, reasonable attorneys' fees), or
liabilities arising from or related to any breach or alleged breach of Tenant's
agreement set forth in this paragraph.
14. ESTOPPEL CERTIFICATES. On not less than twenty (20) days
prior written notice from Landlord, Tenant agrees to execute and deliver to
Landlord a statement in writing (a) certifying that this Lease is unmodified
and is in full force and effect (or if modified, stating the nature of the
modification and certifying that this Lease, as modified, is in full force and
effect), (b) noting the dates to which the Rent is paid in advance, if any, and
(c) acknowledging there are not, to the best of Tenant's knowledge, any uncured
defaults on the part of Landlord, or specifying the defaults if any are
claimed.
15. CLEANING AND SNOW REMOVAL. Tenant agrees to (a) keep the area
outlined in blue on Exhibit "A" clean, and (b) remove any snow in the area
outlined in blue on Exhibit "A" that it deems necessary in order to conduct
business in the Premises. Tenant shall remove the snow in a manner that will
not unreasonably interfere with the use of the Common Area by the other tenants
of the Shopping Center.
B. LANDLORD'S AGREEMENTS:
1. LEASE OF PREMISES. Upon and subject to the provisions of this
Lease, Landlord leases the Premises to Tenant for the Initial Term and any
extended terms exercised in accordance with this Lease.
2. USE OF THE COMMON AREA. Landlord grants to Tenant the
non-exclusive right to use the Common Area; provided, however, Tenant shall
have the exclusive use of those portions of the Common Area to the rear of the
Premises that are reasonably necessary for loading areas, trash enclosures, and
other service facilities.
3. COMPLIANCE WITH LAWS. Except as otherwise provided in this
Lease, Landlord agrees to comply with all laws, ordinances, rules, regulations,
and orders of any governmental authority that are applicable to the use,
condition, and occupancy of the Shopping Center, including (without limitation)
making any required structural alterations, improvements, or additions to the
Premises.
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4. QUIET ENJOYMENT. Landlord agrees to provide quiet and
exclusive enjoyment of the Premises to Tenant without any claim or interference
by Landlord or anyone claiming through Landlord.
5. UTILITIES. Landlord agrees to (a) make all utilities
available to the Premises, and (b) have the electricity used by Tenant in the
Premises separately metered.
6. MAINTENANCE OF THE COMMON AREA.
(a) Landlord agrees (i) to operate the Common Area in an
efficient manner, (ii) to maintain the Common Area in good order, condition,
and repair, (iii) to provide, adequate lighting in the Common Area, and (iv)
not to discriminate against Tenant in Tenant's use of the Common Area.
Notwithstanding anything contained in this paragraph to the contrary, Landlord
shall not be obligated to clean or remove snow in the area outlined in blue on
Exhibit "A".
(b) All parking areas, driveways, loading areas, and
service areas in the Common Area shall be (i) clearly marked with painted
lines, and (ii) repainted as and when required.
7. COMMON AREA MAINTENANCE EXPENSES. Except as otherwise
provided in this Lease, Landlord agrees to pay all Common Area Maintenance
Expenses.
8. REAL ESTATE TAXES. Landlord agrees to pay all real estate
taxes and assessments on the Shopping Center. Notwithstanding anything
contained in this paragraph to the contrary, Tenant shall pay its Proportionate
Share of the real estate taxes on the Shopping Center as a part of the
Additional Rent.
9. LANDLORD'S PROPERTY INSURANCE. Landlord agrees to keep
Landlord's improvements in the Shopping Center (including, without limitation,
the Building) insured against loss or damage by fire and such other risks as
are from time to time included in broad form extended coverage insurance, in an
amount equal to the replacement cost thereof. A duplicate original or a
certificate of the policy shall be delivered to Tenant within ten (10) days
after Tenant's written request therefor. Each policy shall contain a provision
that the underwriter will give Tenant at least thirty (30) days prior written
notice of any cancellation or lapse of the insurance.
10. LANDLORD'S LIABILITY INSURANCE. Landlord agrees to maintain a
commercial general liability insurance policy covering the Common Area, under
which the Tenant is named as an additional insured. A duplicate original or a
certificate of the policy shall be delivered to Tenant within ten (10) days
after Tenant's written request therefor. Each policy shall (a) contain a
provision that the underwriter will give Tenant at least thirty (30) days prior
written notice of any cancellation or lapse of the insurance, and (b) provide
(i) bodily injury and property damage coverage of at least $1,000,000.00 for
any one occurrence, and (ii) general aggregate coverage of at least
$2,000,000.00.
11. INDEMNIFICATION BY LANDLORD. Landlord agrees to indemnify and
hold Tenant and Tenant's shareholders, officers, directors, employees, and
agents harmless from and against the costs, claims, expenses (including,
without limitation, reasonable attorneys' fees), or liabilities resulting from
any injury to or death of any person or persons or any damage to property that
(a) occurs in the Common Area and arises from the negligence or willful
misconduct of Landlord or Landlord's employees or agents, or (b) arises from
structural defects or failures in the Shopping Center, unless the structural
defect or failure in the Shopping Center was caused by any alteration,
improvement, or addition made by Tenant.
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12. DELIVERY OF THE PREMISES.
(a) Landlord agrees to deliver the Premises to Tenant on
or before the Delivery Date in broom-clean condition. Tenant shall have
fifteen (15) days after the Premises are delivered in which to notify Landlord
of any defects Tenant finds in the Premises. Landlord shall notify Tenant
whether Landlord will correct the defects within five (5) days after Landlord
receives Tenant's notice of any defects. If Landlord elects not to correct the
defects, Tenant may terminate this Lease by giving Landlord written notice of
termination or waive the defects. If Tenant waives the defects or if Landlord
elects to correct the defects, this Lease shall continue and Landlord shall
correct the defects within a reasonable time period. If Landlord does not
correct the defects within a reasonable time period, Tenant may terminate this
Lease by giving Landlord written notice of termination.
(b) Landlord represents to Tenant that on the Delivery
Date the heating, ventilating, and air conditioning system exclusively
servicing the Premises shall be in good operating condition.
(c) Landlord agrees to indemnify and hold Tenant and
Tenant's shareholders, officers, directors, employees, and agents harmless from
and against the costs, claims, expenses (including, without limitation,
reasonable attorneys' fees), or liabilities for any injury to or death of any
person or persons or any damage to property arising from or related to any work
performed by Landlord in or about the Premises.
13. ENVIRONMENTAL. Landlord agrees (a) to comply in all material
respects with all applicable Environmental Laws relating to the Shopping
Center, and (b) not to engage in or otherwise permit the occurrence of any
activity on or relating to the Shopping Center in violation of any
Environmental Law. Landlord agrees to indemnify and hold Tenant and Tenant's
shareholders, officers, directors, employees, and agents harmless from and
against any costs, claims, expenses (including, without limitation, reasonable
attorneys' fees), or liabilities arising from or related to any breach or
alleged breach of Landlord's representation or agreements set forth in this
paragraph. During any period of environmental remediation work on the
Premises, the Rent shall be reduced by an amount equal to the product of the
Rent times a fraction, the numerator of which shall be the area of the Premises
that is untenable due to the remediation work, and the denominator of which
shall be the area of the Premises.
14. TITLE III OF THE AMERICANS WITH DISABILITIES ACT. Landlord
agrees to comply with Title III of the Americans with Disabilities Act and the
rules and regulations issued thereunder insofar as they apply to the Common
Area, or (b) any required structural alterations, improvements, or additions to
the Premises. Landlord agrees to indemnify and hold Tenant and Tenant's
shareholders, officers, directors, employees, and agents harmless from and
against any costs, claims, expenses (including, without limitation, reasonable
attorneys' fees), or liabilities arising from or related to any breach or
alleged breach of Landlord's representation or agreement set forth in this
paragraph. During any period of work on the Premises required under Title III
of the Americans with Disabilities Act and the rules and regulations issued
thereunder, the Rent shall be reduced by an amount equal to the product of the
Rent times a fraction, the numerator of which shall be the area of the Premises
that is untenable due to the work, and the denominator of which shall be the
area of the Premises.
15. MAINTENANCE AND REPAIRS. In addition to maintaining the
Common Area in accordance with the provisions of this Lease, Landlord agrees to
maintain (a) the exterior, the roof, the foundation, and the structural
components of the Premises, and (b) the electrical, plumbing, and sewage
systems lying outside of
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the Premises. Landlord agrees to make annual inspections of the fire sprinkler
system servicing the Premises and to repair any defects shown by the
inspection.
16. ESTOPPEL CERTIFICATES. Landlord agrees to reimburse Tenant
for Tenant's reasonable legal expenses for the second and each subsequent
estoppel certificate requested by Landlord during the Term of this Lease.
17. RIGHT TO PROTEST TAXES. Landlord grants to Tenant the right
to protest any taxes that Tenant believes are unreasonable.
C. LANDLORD AND TENANT AGREE TO THE FOLLOWING:
1. USE. The Premises may be used for any lawful purpose.
2. TRADE NAME. Tenant may conduct business in the Premises under
the trade name "Hastings" or any other lawful trade name adopted by Tenant.
3. PARKING. During the Term of this Lease, Landlord agrees to
provide the parking spaces shown in the area outlined in blue on Exhibit "A".
Tenant shall have the exclusive use of the parking spaces shown in the area
outlined in blue on Exhibit "A". Each parking space shall be single striped on
at least a nine (9) foot center. Landlord agrees not to (a) charge for parking
in the Common Area, or (b) alter the location of the parking spaces in the area
outlined in blue on Exhibit "A", without Tenant's prior written consent.
4. INGRESS AND EGRESS. During the Term of this Lease, there
shall be ingress to and egress from the Shopping Center at the locations shown
on Exhibit "A", subject to unavoidable temporary closings or relocations
necessitated by governmental action or other circumstances beyond Landlord's
reasonable control. Notwithstanding anything contained in this Lease to the
contrary, if ingress to and egress from the Shopping Center is materially
changed as a result of any action by Landlord for a period of thirty (30) days
or more without Tenant's written consent, Tenant may terminate this Lease by
giving Landlord written notice of termination. If Tenant does not terminate
this Lease under this paragraph, the Rent shall be reduced by fifty percent
(50%) until the ingress to and egress from the Shopping Center required by this
paragraph is restored.
5. SIGNS. Tenant may place signs on (a) the exterior of the
Premises at Tenant's cost and expense, provided (i) the signs conform with
applicable laws, and (ii) the design and proposed placement of any exterior
sign have been approved by Landlord (which approval shall not be unreasonably
withheld), and (b) on the billboard shown on Exhibit "A".
6. ALTERATIONS. Tenant may make non-structural alterations,
improvements, and additions to the Premises. All alterations, improvements,
and additions made by Tenant shall (a) be made in accordance with all
applicable laws and in a good and workmanlike manner, and (b) remain the
property of Tenant until the expiration or termination of this Lease. At the
expiration or termination of this Lease, Tenant shall not be required to remove
any alterations, improvements, or additions made by Tenant or to restore the
Premises to the condition in which the Premises existed on the Commencement
Date.
7. REMOVAL OF TENANT'S PERSONAL PROPERTY. Tenant's personal
property may be removed from the Shopping Center by Tenant at any time during
the Term of this Lease, and Tenant agrees to repair any material damage to the
Shopping Center caused by the removal.
8. WAIVER OF SUBROGATION. Notwithstanding anything contained in
this Lease to the contrary, Landlord and Tenant waive any claims, actions, or
causes
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of action against the other party or their respective shareholders, officers,
directors, employees, or agents for any loss or damage that may occur to the
Premises or any other portion of the Shopping Center by reason of fire or any
other cause that is insured against under the terms of any fire and broad form
extended coverage insurance carried in accordance with this Lease or for which
Landlord or Tenant may be reimbursed as a result of insurance coverage for any
loss suffered by either party to this Lease, regardless of the cause or origin,
including the negligence (whether sole, joint, or concurrent) of Landlord or
Tenant or their respective shareholders, officers, directors, employees, or
agents. In addition, all insurance policies carried by either party covering
the Premises or any other portion of the Shopping Center shall be endorsed to
expressly waive the insurer's right of recovery under subrogation.
9. INSPECTION. After reasonable notice to Tenant, Landlord may
enter the Premises to inspect the Premises or to make repairs. If repairs are
required to be made by Tenant under this Lease, and Tenant fails or refuses
after written demand from Landlord to make the repairs, then Landlord shall
have the right (but not the obligation) to make the repairs or cause the
repairs to be made. If Landlord makes the repairs or causes the repairs to be
made, Tenant agrees to pay Landlord the reasonable costs and expenses incurred
by Landlord.
10. CONDEMNATION.
(a) If the Premises are appropriated or taken under the
power of eminent domain by any public or quasi-public authority or are sold to
the authority under the threat of condemnation, this Lease shall terminate
effective as of the date the authority takes lawful possession of the Premises.
(b) If five percent (5%) or more of the Premises is
appropriated or taken under the power of eminent domain by any public or
quasi-public authority or is sold to the authority under the threat of
condemnation, Tenant may terminate this Lease effective as of the date the
authority takes lawful possession of the portion of the Premises by giving
Landlord written notice of termination. If Tenant does not terminate this
Lease under this subparagraph, this Lease shall continue and Landlord agrees to
restore the Premises at Landlord's cost and expense to an architectural unit as
nearly like their condition prior to the appropriation, taking, or sale as
shall be practicable within ninety (90) days from the date the authority takes
lawful possession. If Landlord fails to restore the Premises to the condition
and within the time period provided in this subparagraph, Tenant may terminate
this Lease by giving Landlord written notice of termination.
(c) If less than five percent (5%) of the Premises is
appropriated or taken under the power of eminent domain by any public or
quasi-public authority or is sold to the authority under the threat of
condemnation, this Lease shall continue and Landlord agrees to restore the
Premises at Landlord's cost and expense to an architecture unit as nearly like
their condition prior to the appropriation, taking, or sale as shall be
practicable within ninety (90) days from the date the authority takes lawful
possession. If Landlord fails to restore the Premises to the condition and
within the time period provided in this subparagraph, Tenant may terminate this
Lease by giving Landlord written notice of termination.
(d) If (i) any portion of the Premises is appropriated or
taken under the power of eminent domain by any public or quasi-public authority
or is sold to the authority under the threat of condemnation, and (ii) this
Lease continues, then (effective as of the date the authority takes lawful
possession of the portion of the Premises) the Rent shall be reduced by an
amount equal to the product of the Rent times a fraction, the numerator of
which shall be the
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area of the Premises appropriated, taken, or sold, and the denominator of which
shall be the area of the Premises prior to the appropriation, taking, or sale.
(e) Tenant shall be entitled to any separate award,
portion of the Jump sum award, or portion of the proceeds attributable to (i)
the value of Tenant's leasehold interest in the Premises prior to the
appropriation, taking, or sale, (ii) the damage to Tenant's business, (iii)
Tenant's moving and relocation expenses, (iv) the taking of any of Tenant's
personal property in the Shopping Center, and (v) the unamortized value of
Tenant's leasehold improvements,
11. CASUALTY.
(a) If (i) any portion of the Premises is damaged by fire
or other casualty, and (ii) rebuilding or repairs can be completed within
ninety (90) days from the date of the damage, this Lease shall continue and
Landlord agrees to rebuild or repair the Premises at Landlord's cost and
expense to substantially the condition in which they existed prior to the
damage within ninety (90) days from the date of the damage. If Landlord fails
to rebuild or repair the Premises to the condition and within the time period
provided in this subparagraph, Tenant may terminate this Lease by giving
Landlord written notice of termination.
(b) If (i) any portion of the Premises is damaged by fire
or other casualty, and (ii) rebuilding or repairs cannot be completed within
ninety (90) days from the date of the damage, Landlord agrees to promptly
notify Tenant in writing of the estimated time required to rebuild or repair
the Premises. Tenant may terminate this Lease by giving Landlord written
notice of termination within thirty (30) days after receipt of Landlord's
notice. If Tenant does not terminate this Lease under this subparagraph, this
Lease shall continue and Landlord agrees to rebuild or repair the Premises at
Landlord's cost and expense to substantially the condition in which they
existed prior to the damage within the estimated time. If Landlord fails to
rebuild or repair the Premises to the condition provided in this subparagraph
and within the estimated time period, Tenant may terminate this Lease by giving
Landlord written notice of termination.
(c) If (i) any portion of the Premises is damaged by fire
or other casualty, and (ii) this Lease continues, then (during the period from
the date of the damage to the date the Premises are rebuilt or repaired) the
Rent shall be reduced by an amount equal to the product of the Rent times a
fraction, the numerator of which shall be the area of the Premises damaged and
the denominator of which shall be the area of the Premises.
12. DEFAULT BY LANDLORD/EVENTS. Defaults by Landlord are (a)
failing to keep or perform any provision of this Lease required to be kept or
performed by Landlord within thirty (30) days after receipt of written notice
from Tenant, or (b) the incorrectness of any material representation made by
Landlord in this Lease.
13. DEFAULT BY LANDLORD/TENANT'S REMEDIES. Tenant's remedies for
Landlord's default are (a) to terminate this Lease by giving Landlord written
notice of termination, (b) to cure Landlord's default by any action deemed
necessary by Tenant, and in connection with the cure Tenant may pay expenses
and incur obligations, provided that no expenditure in excess of $3,000.00 may
be made by Tenant under this subparagraph without the prior written approval of
Landlord, which approval shall not be unreasonably withheld, or (c) any other
remedy available to Tenant at law or in equity. If Tenant pays expenses or
incurs obligations to cure Landlord's default, Landlord agrees to reimburse
Tenant upon receipt of Tenant's request for reimbursement. If Landlord fails to
reimburse Tenant within fifteen (15) days after Landlord receives Tenant's
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request for reimbursement, Tenant may deduct the amount of the sums expended or
obligations incurred from the Rent due or to become due under this Lease.
14. DEFAULT BY TENANT/EVENTS. Defaults by Tenant are (a) failing
to pay Rent within ten (10) days after receipt of written notice from Landlord,
(b) failing to keep or perform any provision of this Lease, other than the
payment of Rent, required to be kept or performed by Tenant within thirty (30)
days after receipt of written notice from Landlord, (c) the filing of an
involuntary petition of bankruptcy against Tenant or the appointment of a
receiver for all or substantially all the property of Tenant and such petition
or order shall not be dismissed or stayed within ninety (90) days after the
filing or entry thereof, or (d) if Tenant makes an assignment of all or
substantially all of its property for the benefit of creditors or files a
voluntary petition of bankruptcy.
15. DEFAULT BY TENANT/LANDLORD'S REMEDIES. Landlord's remedies
for Tenant's default are (a) to terminate this Lease by giving Tenant written
notice of termination, (b) to reenter, take possession, and relet the Premises
or any part thereof for the balance of the then current initial or extended
term of this Lease, or (c) any other remedy available to Landlord at law or in
equity. If Landlord elects not to terminate this Lease, Landlord shall use
reasonable efforts to relet the Premises and all rental received by Landlord
from the reletting during the Term of this Lease shall be applied to the Rent
and the other amounts Tenant is obligated to pay under this Lease. If the
rental received from the reletting is less than the Rent and the other amounts
Tenant is obligated to pay under this Lease, Tenant shall remain liable for the
deficiency.
16. ASSIGNMENT AND SUBLETTING. Tenant agrees not to sublet all or
any part of the Premises or assign this Lease without the written consent of
Landlord, which consent will not be unreasonably withheld. Notwithstanding the
foregoing, Tenant may (a) assign this Lease or sublease all or any part of the
Premises to an Affiliate, and (b) transfer this Lease by Tenant's merger or
consolidation with another corporation, without the written consent of
Landlord. If Tenant assigns this Lease with Landlord's written consent,
Tenant's liability for the payment of Rent and all other amounts Tenant is
obligated to pay under this Lease and for the performance of the provisions of
this Lease required to be performed by Tenant shall continue for a period of
one (1) year after the assignment, but shall terminate at the end of the one
(1) year period.
17. SUBORDINATION. Tenant's interest under this Lease shall be
subordinate to any first lien mortgage hereafter covering Landlord's interest
in the Premises, provided, however, the foregoing subordination shall apply
only to mortgages under which the mortgagee executes a non-disturbance
agreement that contains provisions that are reasonably satisfactory to Tenant
and the mortgagee. With respect to any existing mortgages, Landlord shall use
reasonable efforts to furnish Tenant with a non-disturbance agreement that
contains provisions that are reasonably satisfactory to Tenant and the
mortgagee.
18. ALTERNATIVE DISPUTE RESOLUTION. Landlord and Tenant agree to
submit in good faith to mediation before filing a suit for damages.
19. ANNUAL STATEMENTS/PRORATIONS.
(a) Within thirty (30) days after the end of each
calendar year or partial calendar year, Landlord shall furnish to Tenant a
written statement (in form and substance satisfactory to Tenant) that sets
forth (i) the Property Insurance Payments, Liability Insurance Payments, and
Tax Payments, made during the calendar year or partial calendar year, and (ii)
the actual premiums for the property insurance Landlord carried on Landlord's
improvements in the Shopping
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Center, premiums for the liability insurance Landlord carried on the Common
Area, and real estate taxes on the Shopping Center, paid by Landlord during the
calendar year or partial calendar year. The Property Insurance Payments,
Liability Insurance Payments, and Tax Payments made during the calendar year or
partial calendar year shall be reconciled (within thirty (30) days after the
date Tenant receives Landlord's written statement) with Tenant's Proportionate
Share of the actual premiums for the property insurance Landlord carried on
Landlord's improvements in the Shopping Center, premiums for the liability
insurance Landlord carried on the Common Area, and real estate taxes on the
Shopping Center, paid by Landlord during the calendar year or partial calendar
year. Tenant agrees to promptly pay to Landlord any deficiency and Landlord
agrees to promptly refund to Tenant any excess.
(b) Property insurance premiums for insurance carried by
Landlord on Landlord's improvements in the Shopping Center, liability insurance
premiums for insurance carried by Landlord on the Common Area, and real estate
taxes on the Shopping Center, that cover any partial calendar year shall be
prorated.
20. EMERGENCY REPAIRS. If the need for emergency repairs to the
Premises or to any system servicing the Premises arises, and the repairs are
the obligation of Landlord hereunder, Tenant may make the repairs and request
reimbursement of the cost of the repairs from Landlord. If Landlord fails to
reimburse Tenant within fifteen (15) days after Landlord receives Tenant's
request for reimbursement, Tenant may deduct the cost of the repairs from the
Rent due or to become due under this Lease.
21. COMMENCEMENT DATE LETTER. On or before thirty (30) days after
the Commencement Date, the parties shall execute a letter that sets forth the
Commencement Date and the expiration date of the Initial Term of this Lease.
22. OPTIONS TO EXTEND. Landlord grants to Tenant four (4) options
to extend the Term of this Lease for periods of eighteen (18) months each, with
each extended term to begin upon the expiration of the preceding initial or
extended term. If Tenant desires to exercise an option to extend the Term of
this Lease, it shall do so by giving Landlord written notice of Tenant's
election to extend the Term of this Lease not later than three (3) months prior
to the expiration of the then current initial or extended term. If Tenant
timely exercises an option to extend the Term of this Lease, this Lease shall
continue on the same provisions, except the Minimum Rent shall be (a)
$16,666.67 per month during the first extended term, if exercised, (b)
$16,666.67 per month during the second extended term, if exercised, (c)
$18,333.33 per month during the third extended term, if exercised, and (d)
$18,333.33 per month during the fourth extended term, if exercised. If Tenant
fails to timely exercise any option to extend the Term of this Lease, Tenant
shall not have the right to exercise any succeeding option to extend the Term
of this Lease.
23. BLANKET INSURANCE. The insurance to be provided by Landlord
or Tenant may be provided under a blanket insurance policy; provided, however,
that in no event shall the protection afforded by the blanket insurance policy
be less than that required under this Lease.
24. ZONING. On or before the Commencement Date, Landlord agrees
to change the zoning of the Premises to allow the operation of a warehouse in
the Premises. Landlord shall obtain the change in the zoning of the Premises
at its cost and expense. If Landlord fails to obtain the change in the zoning
of the Premises on or before the Commencement Date, Tenant may terminate this
Lease by giving Landlord written notice of termination.
25. CURB CUTS/DOCK DOORS/CONNECTING DOOR. At any time during the
Term of this Lease, Tenant may (at Tenant's cost and expense) (a) enlarge any
of the
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curb cuts on Plains Boulevard so long as the curb cuts conform with applicable
local ordinances regarding curb cuts, (b) install six (6) additional dock doors
on the South end of the West side of the Premises, and (c) place a connecting
door between the Premises and the space that is covered by the Office Lease
Agreement dated August 3, 1994, between Landlord and Tenant. If any curb cut
enlargement proposed by Tenant does not conform with any local ordinance
regarding curb cuts, Tenant shall have the right to obtain a waiver of the
local ordinance. Notwithstanding anything contained in this paragraph to the
contrary, Tenant shall not enlarge any curb cut, install any additional dock
door, or place a connecting door between the Premises and the office space
without Landlord's approval of the plans, which approval shall not be
unreasonably withheld. At the expiration or termination of this Lease, Tenant
shall restore the wall that contains the connecting door to the condition in
which the wall existed prior to the placement of the connecting door in the
wall.
26. SHED. Notwithstanding anything contained in this Lease to the
contrary, Tenant shall have the right to use the shed on the West side of the
Premises that is shown on Exhibit "A".
27. ROOF MAINTENANCE. Landlord agrees to repair the roof on the
Premises prior to the Commencement Date at Landlord's cost and expense so that
it does not leak. After Landlord's repairs are made, Tenant agrees to maintain
the roof of the Premises; provided, however, if Tenant makes any repairs to the
roof, Tenant shall have the right to deduct fifty percent (50%) of the costs of
such repairs from the Rent due or to become due under this Lease.
28. PREFERENTIAL RIGHT TO PURCHASE. If Landlord desires to sell
all or any part of the Premises, Landlord shall promptly give written notice
to, Tenant with full information concerning the proposed sale, which shall
include the name and address of the prospective purchaser, the purchase price,
and all other terms of the sale. Tenant shall have the right, for a period of
ten (10) days after receipt of the notice, to elect to purchase the interest on
the same terms and conditions. If Tenant elects to purchase the interest,
Tenant shall have ninety (90) days after the date of its election in which to
purchase the interest. If Tenant elects not to purchase the interest, and
Landlord does not sell the interest or Landlord does not sell the interest on
the terms and conditions contained in Landlord's notice to Tenant, the interest
shall remain subject to Tenant's preferential right to purchase.
29. ADDITIONAL HVAC. Tenant shall have the right to add
additional heating, ventilating, and air conditioning units to service the
Premises at any time during the term of this Lease at Tenant's expense.
D. MISCELLANEOUS:
(1) NOTICE. Any notice given under this Lease must be in writing,
and shall be (a) mailed, postpaid, registered or certified, return receipt
requested, and addressed to the party to be notified, or (b) delivered by
personal delivery or by overnight courier. Notice shall be deemed given when
received by the party to be notified or when the party to be notified refuses
to accept delivery of the notice. For purposes of notice the addresses of the
parties shall be as set forth in the terms and definitions, except Tenant's
address for overnight courier delivery is 421 East 34th, Amarillo, Texas 79103.
Any notice to Tenant shall be addressed to Tenant, Attn: Real Estate
Department. A copy of any notice given to Tenant shall be given to Wayne
Moore, SPROUSE, MOZOLA, SMITH & ROWLEY, P.C., 801 S. Fillmore, Suite 600,
Amarillo, Texas 79105-5008. The parties shall have the right to change their
respective addresses upon at least ten (10) days written notice to the other
party.
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(2) NON-WAIVER/CUMULATIVE REMEDIES/MITIGATION. No failure or
delay on the part of either party in exercising any right or remedy under this
Lease shall operate as a waiver thereof; nor shall any single or partial
exercise of any right or remedy preclude any other or further exercise thereof
or the exercise of any other right or remedy under this Lease. The exercise of
any right or remedy under this Lease by either party shall not prevent the
concurrent or subsequent exercise of any other right or remedy under this Lease
or otherwise available to that party at law or in equity. Landlord and Tenant
have a duty to mitigate damages.
(3) COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which shall
constitute one agreement.
(4) CHOICE OF LAW. This Lease shall be governed by and construed
and enforced in accordance with the laws of the State of Texas.
(5) LEASE MEMORANDUM. The parties agree that neither party will
record this Lease. However, the parties agree to execute and deliver a
memorandum of this Lease, which does not contain the amount of Rent, for
recording purposes if either party so requests.
(6) BINDING PROVISIONS. This Lease constitutes the entire
agreement of Landlord and Tenant regarding the leasing of the Premises by
Tenant, superseding any prior understandings or agreements (whether written or
oral). No modification of or amendment to this Lease shall be binding upon any
party unless set forth in writing and executed by the party. The provisions of
this Lease shall be binding upon and shall inure to the benefit of Landlord and
Tenant and their respective heirs, executors, administrators, successors, and
assigns.
(7) HOLDOVER. If Tenant remains in possession of the Premises
after the expiration or termination of this Lease, Tenant shall occupy the
Premises as a tenant from month-to-month upon all of the provisions of this
Lease, insofar as the provisions of this Lease are applicable to a
month-to-month tenancy.
(8) ATTORNEY'S FEES. If Landlord or Tenant fails to keep or
perform any of the provisions of this Lease required to be kept or performed by
that party under this Lease and the non-defaulting party employs an attorney to
protect or enforce its rights under this Lease, then the defaulting party shall
pay the non-defaulting party's reasonable attorneys' fees.
(9) HEADINGS. The paragraph headings throughout this Lease are
for convenience of reference only, and the headings shall not be used to aid in
the interpretation or construction of this Lease.
(10) PARTIAL INVALIDITY. If any provision of this Lease is held to
be invalid, illegal, or unenforceable, the invalid, illegal, or unenforceable
provision shall not affect any other provision of this Lease, and this Lease
shall be construed as if the invalid, illegal, or unenforceable provision had
never been contained in this Lease.
(11) RELATIONSHIP OF THE PARTIES. Nothing contained in this Lease
shall be construed as creating any relationship between Landlord and Tenant
other than that of landlord and tenant.
(12) WAIVER OF LIENS. Landlord waives its rights, statutory or
otherwise, to claim a lien against Tenant's personal property in the Shopping
Center.
(13) BROKERS. Landlord and Tenant each represent and warrant to
the other party that they have not dealt with any realtor, broker, or agent in
connection
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with this Lease. If either party has dealt with a realtor, broker, or agent in
connection with this Lease, that party shall indemnify and hold the other party
and the other party's shareholders, officers, directors, employees, and agents
harmless from and against any costs, claims, expenses (including, without
limitation, reasonable attorneys' fees), or liabilities arising from or related
to any claim by the realtor, broker, or agent for a fee, commission, or other
compensation for services rendered in connection with this Lease.
(14) CONSTRUCTION. Landlord and Tenant agree that (a) each party
and its counsel have reviewed and revised this Lease, and (b) the rule of
construction that any ambiguity is to be resolved against the drafting party
shall not be employed in the interpretation of this Lease or any amendment or
exhibit hereto.
(15) PRIOR TERMINATION OF THIS LEASE. If (a) this Lease terminates
prior to its expiration date, and (b) Tenant is not in default, the Rent shall
be prorated.
(16) EXHIBITS. The exhibits referred to in this Lease are (a)
attached to this Lease, and (b) made a part of this Lease for all purposes.
(17) NUMBER/GENDER. When used in this Lease, the singular number
shall include the plural, the plural number shall include the singular, and the
use of any gender shall include all other genders.
(18) WAIVER OF DTPA.
(a) Recognizing that the parties hereto cannot by matters
contained solely in this Lease stipulate conclusively that the Tenant is not in
a significantly disparate bargaining position as to the Landlord, nevertheless,
the parties do hereby state and acknowledge that the Tenant is not in a
disparate bargaining position in comparison to the Landlord for purposes of
waiving the provisions of the Texas Deceptive Trade Practices - Consumer
Protection Act, Sections 17.41 - 17.62 of the Texas Business and Commerce Code
(the "DTPA") with respect to this transaction.
(b) The Tenant represents that it is and has been
represented by legal counsel of its own choosing in seeking or acquiring the
goods and services provided and to be provided to it by the Landlord pursuant
to the terms of this Lease, and that the Tenant also represents that it is and
has been represented by legal counsel of its own choosing in executing this
waiver with respect to the transaction contained in and covered by this Lease.
(c) Pursuant to the foregoing stipulations, Tenant waives
all of the provisions of the DTPA, except the provisions of Section 17.555
thereof, with respect to this Lease and this transaction (including all
negotiations and representations related thereto whether made prior to the
execution hereof, simultaneously with the execution hereof and during the
performance of the terms of this Lease).
LANDLORD: OMNI CAPITAL CORPORATION
By: /s/ C.W. COUCH
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C.W. Couch, President
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18
TENANT: HASTINGS BOOKS, MUSIC & VIDEO, INC.
By: /s/ JOHN H. MARMADUKE
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John H. Marmaduke, President
Sprouse, Mozola, Smith & Rowley, P.C. has executed this Warehouse
Lease Agreement to acknowledge that it has represented Hastings Books, Music &
Video, Inc. in connection with the waiver contained in Paragraph D(18).
SPROUSE, MOZOLA, SMITH & ROWLEY, P.C.
By: /s/ R. WAYNE MOORE
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R. Wayne Moore
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