Exhibit 10.1
GROSS LEASE AGREEMENT
1. PARTIES
This Gross Lease Agreement (the "Lease"), dated as of April 28, 2003, is
made by and between ▇▇▇▇ ▇▇▇▇▇▇ Property, Inc. ("Landlord"), ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and U.S. Global Aerospace, Inc., a Delaware
corporation ("Tenant").
2. PREMISES
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord for
the term, at the rental, and upon all of the conditions set forth in this Lease,
the real property situated in the City of Arlington, County of Tarrant, State of
Texas, commonly known as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇ ▇▇ and described as
approximately 39,000 SF Building on Block 1, ▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. Said real property, including the land and all improvements
located on the land, is defined in this Lease as "the Premises". Vehicle Parking
Spaces Allocated to Tenant: all spaces on premises and as indicated on Site Plan
attached. No Parking in fire lanes (See Site Plan)
3. TERM
3.1 Term. The term of this Lease shall be for 37 months, commencing on _May
1, 2003 (the "Commencement Date") and ending on _May 31, 2006, unless sooner
terminated pursuant to any provisions of this Lease.
3.2 Delay in Commencement. If for any reason Landlord cannot deliver
possession of the Premises to Tenant on the Commencement Date, Landlord shall
not be subject to any liability for such failure, nor shall such failure affect
the validity of this Lease or the obligations of Tenant under this Lease, or
extend the term of this Lease, but in such case Tenant shall not be obligated to
pay rent until possession of the Premises is tendered to Tenant; provided,
however, that if Landlord shall not have delivered possession of the Premises
within 90 days from the Commencement Date, Tenant may, at Tenant's option, by
notice in writing to Landlord following ten days after such notice, cancel this
Lease. If Landlord shall not have delivered possession of the Premises within
one year from the commencement Date, Landlord may, by notice in writing to the
Tenant following ten days after such notice, cancel the Lease. If either party
cancels as set forth in this Article 3.2, Landlord shall return any monies
previously deposited by Tenant and the parties shall be discharged from all
obligations under this Lease.
3.3 Early Possession. In the event that Landlord shall permit Tenant to
occupy the premises prior to the Commencement Date, such occupancy shall be
subject to all of the provisions of this Lease. Such early possession shall not
advance the termination date of this Lease.
3.4 Delivery of Possession. Tenant shall be deemed to have taken possession
of the Premises when Landlord delivers possession of the Premises to Tenant. It
is expressly understood and agreed, however, that Tenant shall bear all costs
and expenses incurred with regard to obtaining a certificate of occupancy from
any appropriate governmental entity; provided, however, that Tenant shall not be
deemed to have taken possession of the Premises until a certificate of occupancy
is obtained. Landlord represents that it reasonably believes, after due inquiry,
that a certificate of occupancy will be granted without required modification of
the Premises. However, if any modification is required in order to obtain such
certificate of occupancy and Tenant is unwilling to pay the expense of such
modification, then this Lease shall be void and all monies paid by Tenant to
Landlord shall be returned to Tenant.
4. RENT
Tenant shall pay to Landlord as rent for the Premises the sum of $396,000
to be made in equal monthly installments of $11,000, in advance, on the first
day of each month during the term of this lease. Tenant shall pay the Landlord
upon the execution of this Lease the sum of $11,000 as rent for June 1, 2003 to
June 30, 2003 only. Rent for any period during the term of this Lease which is
for less than one month shall be a pro rata portion of the monthly installment.
Rent shall be payable without notice or demand and without any deduction,
offset, or attachment in lawful money of the United States of
America to Landlord at the address stated in this Lease or to such other persons
or at such other places as Landlord may designate in writing.
5. SECURITY DEPOSIT
Tenant shall deposit with Landlord upon execution of this Lease the sum of
$11,000 as security for Tenant's faithful performance of Tenant's obligations
under this Lease. If Tenant fails to pay rent or other charges due under this
Lease, or otherwise defaults with respect to any provision of this Lease,
Landlord may use, apply, or retain all or any portion of said deposit for the
payment of any rent or other charge in default, for the payment of any other sum
to which Landlord may become obligated by reason on Tenant's default, or to
compensate Landlord for any loss or damage which Landlord may suffer as a result
of such default. If Landlord so uses or applies all or any portion of said
deposit, Tenant shall, within ten days after written demand, deposit cash with
Landlord in an amount sufficient to restore said deposit to the full amount set
forth above and Tenant's failure to do so shall be a breach of this Lease, and
Landlord may, at its option, terminate this Lease. Landlord shall not be
required to keep said deposit separate from its general accounts. If Tenant
performs all of Tenant's obligations under this Lease, such deposit or so much
of the deposit as has not been applied previously by Landlord, shall be
returned, without payment of interest or other increment for its use, to Tenant
(or, at Landlord's option, to the last assignee, if any, of Tenant's interest
under this Lease) within 30 days after the expiration of the term of this Lease,
or after Tenant has vacated the Premises, whichever is later. In the event of a
sale of the land and building of which the Premises forms a part, Landlord shall
have the right to transfer the security deposit to such purchaser or owner,
provided that such purchaser has agreed in writing to be bound by the terms and
conditions of this Lease, and Landlord shall be released by Tenant from all
liability for the return of such security deposit. Subject to the foregoing,
Tenant agrees to look solely to the new purchaser or owner for the return of
such security deposit.
6. USE
6.l Use. The Premises shall be used and occupied only for Research,
Development, Light Manufacturing and Storage.
6.2 Compliance with Law. Tenant shall, at Tenant's expense, comply promptly
with all applicable statutes, ordinances, rules, regulations, orders, and
requirements in effect during the term or any part of the term of this Lease
regulating the use by Tenant of the Premises. Tenant shall procure, at Tenant's
sole expense, any permits and licenses required for the transaction of Tenant's
business in the Premises. Tenant shall not use or permit the use of the Premises
in any manner that will tend to create waste, or a nuisance, or, if there shall
be more than one tenant of the Building containing the Premises, which shall
tend to unreasonably disturb such other tenants. Tenant shall keep the Premises,
sidewalks, service ways, and any loading areas adjacent to the Premises, neat,
clean, and free from dirt or rubbish at all times. In connection with the
provisions contained in Article 8.1, Tenant shall store all trash and garbage
within the Premises, arranging for the regular pick-up of such trash or garbage
at Tenant's expense. Tenant shall not operate an incinerator or burn trash or
garbage within the area of the Premises.
6.3 Condition of Premises. Tenant hereby accepts the Premises in the
condition existing as of the date of possession of same, subject to all
applicable zoning, municipal, county and state laws, ordinances and regulations
governing and regulating the use of the Premises, and accepts this Lease subject
to such laws, ordinances, regulations, all matters disclosed in connection with
same and by any exhibits attached to this Lease. Tenant acknowledges that
neither Landlord or Landlord's agent has made any representation or warranty as
to the suitability of the Premises for the conduct of Tenant's business.
6.4 Insurance Cancellation. Notwithstanding the provisions of Article 6.1,
no use shall be made or permitted to be made of the Premises nor acts done which
will cause the cancellation of any insurance policy covering said Premises or
any building of which the Premises may be a part, and if Tenant's use of the
Premises or Tenant's storage of anything within the Premises causes an increase
in said insurance rates Tenant shall pay any such increase.
6.5 Landlord's Rules and Regulations. Tenant shall faithfully observe and
comply with the rules and regulations that Landlord shall from time to time
promulgate. A copy of said rules and regulations is attached to this Lease.
Landlord reserves the right from time to time to make all reasonable
modifications to said rules and regulations. The additions and modifications to
those rules and regulations shall be binding upon Tenant upon delivery of a copy
of such rules and regulations to Tenant. Landlord shall not be responsible to
Tenant for the nonperformance of any of said rules and regulations by any other
tenants or occupants.
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7. MAINTENANCE, REPAIRS AND ALTERATIONS
7.1 Landlord's Obligations. Subject to the provisions of Article 9, and
except for damage caused by any negligent or intentional act or omission of
Tenant, Tenant's agents, employees, or invitees, Landlord, at Landlord's
expense, shall keep in good order, condition, and repair the foundations,
exterior walls, and the exterior roof of the Premises. Landlord shall not,
however, be obligated to paint such exterior, nor shall Landlord be required to
maintain the interior surface of exterior walls, windows, doors or plate glass.
Landlord shall have no obligation to make repairs under this Article 7.1 until a
reasonable time after receipt of written notice of the need for such repairs.
7.2 Tenant's Obligations.
(a) Subject to the provisions of Article 7.l, Article 9, and Article 16.22,
Tenant, at Tenant's expense, shall keep in good order, condition, and repair the
Premises and every part of the Premises (regardless of whether the damaged
portion of the Premises or the means of repairing the same are accessible to
Tenant), including, without limitation, all plumbing, heating, air conditioning,
ventilating, electrical and lighting facilities, and equipment within the
Premises, fixtures, interior walls, ceilings, windows, doors, plate glass, and
skylights located within the Premises, and all sidewalks, landscaping and
regular mowing of the grass, driveways, parking lots, fences, and signs located
in the area which are adjacent to and included with the Premises. Provided,
however, that if Tenant occupies a portion of a multi-tenant building, that
Tenant shall not have to maintain the landscaping, grass areas, outside paving
or railroad siding, if any. 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.
(b) If Tenant fails to perform Tenant's obligations under this Article 7.2,
Landlord may, at Landlord's option, enter upon the Premises after ten days'
prior written notice to Tenant, and put the same in good order, condition, and
repair, and the cost of same, together with interest at the rate of ten percent
per annum, shall be due and payable as additional rent to Landlord together with
Tenant's next rental installment.
(c) On the last day of the term of this Lease, or on any sooner
termination, Tenant shall surrender the Premises to Landlord in good condition,
broom clean, ordinary wear and tear excepted. Tenant shall repair any damage to
the Premises occasioned by Tenant's use of the Premises, or by the removal of
Tenant's trade fixtures, furnishings, and equipment pursuant to Article 7.3(c),
which repair shall include but not be limited to the patching and filling of
holes and repairs of structural damages. In the event Tenant shall fail to
surrender the Premises to Landlord in the condition set forth above, Landlord
may, in accordance with Article 7.2(c) and Article 5, make such repairs and take
such steps as are necessary to put the Premises in good, broom clean condition,
ordinary wear and tear excepted, and to offset such expenses incurred by
Landlord against the security deposit.
7.3 Alterations, Additions and Improvements.
(a) Tenant shall not create any openings in the roof or exterior walls, nor
shall Tenant make any alterations, additions, or improvements to the Premises
without the prior written consent of Landlord. Landlord, at Landlord's sole
discretion, may accept the tenant improvements and require them to remain part
of the premises at the time of written approval of the addition, alteration or
improvement, or may elect to have them designated to be removed at the
termination of the lease. All improvements that Tenant fails to notify Landlord
of in writing by either error, omission, or otherwise also are at Landlord's
sole discretion (i) to become part of the premises, (ii) to be removed at the
termination of the lease, or (iii) the Landlord may require such item or items
to be removed at Tenant's expense upon a ten (10) day written notice.
(b) Tenant may, without the prior written consent of Landlord, but, at its
own cost and expense, and in good workmanlike manner, make such minor
alterations, additions, or improvements or erect, remove or alter such
partitions, or erect shelves, bins, machinery, and trade fixtures as Tenant may
deem advisable, without altering the basic character of the Premises, and in
each case complying with all applicable governmental laws, ordinances,
regulations, and other requirements.
(c) At the termination of this lease, Tenant shall, if Landlord so elects,
remove all or part of any alterations, additions, improvements, and partitions
erected by Tenant (exact items to be determined at the sole discretion of the
Landlord, also pursuant to Para. 7.3(a) above) and restore the Premises to its
original condition or condition acceptable to Landlord, otherwise such
improvements shall be delivered up to Landlord with the Premises. All shelves,
bins, machinery, and trade fixtures installed by Tenant may be removed by Tenant
at the termination of this Lease if Tenant so elects, and shall be so
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removed if required by Landlord, and Tenant shall restore the Premises to its
original condition or condition acceptable to Landlord (see Para. 7.1(c) above).
(d) In connection with Paragraph 7.3(c), all of Tenant's furniture, movable
trade fixtures and other personal property not removed by Tenant from the
Premises within five days after Landlord shall request such removal in writing
following the termination of this Lease, whether termination shall occur by
lapse of time or otherwise, shall be conclusively presumed to have been
abandoned by Tenant, and Landlord may, at its option and election, subsequently
take possession of such property and either (i) declare same to be the property
of the Landlord, or (ii) at the cost and expense of Tenant, dispose of such
property in any manner Landlord, in its sole discretion, shall deem most
advisable. Nothing contained in this Paragraph 7.3(d) shall prejudice or impair
Landlord's rights pursuant to Paragraph 14 and Paragraph 20 of this Lease.
Rights granted Landlord under this Paragraph 7.3(d) shall be cumulative of
Landlord's rights as set forth in Paragraph 14 and Paragraph 20.
(e) In regard to Tenant installed electrical wiring, electrical switches,
circuit boxes, electrical conduit, water coolers, windows, light fixtures,
exhaust fans, exhaust fan motors, office improvements or additions, storage
additions, drywall construction, gas fired or infrared type heat units (whether
attached or hanging), air conditioning units, natural gas piping, gas heaters,
doors, locks, or hardware for windows and doors located in or upon the subject
property, it is expressly agreed by the parties hereto that, once installed
(whether bolted, screwed or hanging), any such property described in this
paragraph shall be and become part of the Leased Property and owned by Landlord
once attached to the building and/or premises.
7.4 Signs. Tenant shall not place any signs or other objects upon the roof
of the Premises or otherwise deface the exterior walls of the Premises, except
with the prior written approval of Landlord. Tenant shall have the right to
erect signs on the exterior walls of the Premises, securely attached to and
parallel to said walls, subject to applicable laws and deed restrictions. Tenant
shall not erect any signs other than customary trade signs identifying Tenant's
business. Tenant shall remove all signs at the termination of this Lease, and
shall repair any damage and close any holes caused by such removal.
8. OUTDOOR ACTIVITIES
8.1 Outdoor Storage. No articles, goods, materials, refuse receptacles,
incinerators, storage tanks, or other items shall be stored in the open or
exposed to public view from the adjacent land or improvements. If it shall
become necessary to keep or store such materials or items in the open, the
portion of the Premises used for such storage shall be fenced with a fence of
permanent construction, except that portion of a fence that faces streets or
highways shall be of the screen type, the design of which shall be approved in
writing by the Landlord prior to construction. Storage shall be restricted to
the side and rear areas of the Premises. No storage shall be permitted between
the front building line and street.
8.2 Manufacturing and Processing. All manufacturing and processing
activities will be conducted within the confines of the Premises as described in
Article 8.l.
9. DAMAGE OR DESTRUCTION
9.1 If the building or other improvements situated on the Premises be
damaged or destroyed by fire or other casualty, Landlord shall have 30 days from
the date of receipt of written notice Tenant of such occurrence to give written
notice to Tenant of its election to repair said damage or not. If Landlord
elects to repair said damage, this Lease shall continue in force, but the rent
under this Lease may be abated as provided below. If Landlord elects not to
repair said damage or to completely rebuild said building, this Lease shall
terminate as of the date of said damage and rent shall be abated for the
unexpired portion of this Lease. In no event shall Landlord be obligated to
repair any improvements made by Tenant. If Landlord elects not to repair said
damage, Tenant may elect to repair same at Tenant's sole expense by giving
written notice of Tenant's election to Landlord within ten days of Tenant's
receipt of notice from Landlord of Landlord's election not to repair.
9.2 Abatement of Rent.
(a) If the Premises are partially destroyed or damaged and Landlord or
Tenant repairs or restores them pursuant to the provisions of Article 9, the
rent payable under this Lease for the period during which such damage, repair,
or restoration continues shall be abated in proportion to the degree to which
Tenant's reasonable use of the Premises is impaired. Except for abatement of
rent, if any, Tenant shall have no claim against Landlord for any damage
suffered by reason of any such damage, destruction, repair or restoration.
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(b) If Landlord shall be obligated to repair or restore the Premises under
the provisions of this Article 9 and shall not commence such repair or
restoration within 60 days after such obligations shall accrue, Tenant may, at
Tenant's option, cancel and terminate this Lease by giving Landlord written
notice of Tenant's election to do so at any time prior to the commencement of
such repair or restoration. In such event this Lease shall terminate as of the
date of such notice. Any abatement in rent shall be computed as provided in
Article 9.2(a).
9.3 Restoration. Landlord's obligation to restore shall not include the
restoration or replacement of Tenant's trade fixtures, equipment, merchandise,
or any improvements or alterations made by Tenant to the Premises.
9.4 Prorations. Upon termination of this Lease pursuant to Article 9, an
equitable pro rata adjustment of rent based upon a 30 day month shall be made.
Landlord shall, in addition, return to Tenant so much of Tenant's security
deposit as has not previously been applied by Landlord.
10. INDEMNIFICATION
10.1 Hold Harmless. Tenant shall indemnify, defend, and hold Landlord
harmless from any and all claims arising from Tenant's use of the Premises or
from the conduct of its business or from any activity, work or things which may
be permitted or suffered by Tenant in or about the Premises and shall further
indemnify, defend, and hold Landlord harmless from and against any and all
claims arising from any breach or default in the performance of any obligation
on Tenant's part to be performed under the provision of this Lease or arising
from any negligence of Tenant or any of its agents, contractors, employees, or
invitees, and from any and all costs, attorney's fees, expenses, and liabilities
incurred in the defense of any such claim or any action or proceeding brought as
the result of such claim. Tenant hereby assumes all risk of damage to property
or injury to persons in or about the Premises from any cause, except Landlord's
negligence, and Tenant hereby waives all claims against Landlord, except where
said damage arises out of negligence or claimed negligence of Landlord.
10.2 Exemption of Landlord from Liability. Tenant hereby agrees that
Landlord shall not be liable for injury to Tenant's business or any loss of
income from Tenant's business or for damage to goods, wares, merchandise, or
other property of Tenant, Tenant's employees, invitees, customers, or any other
person in or about the Premises; nor, unless through Landlord's negligence,
shall Landlord be liable for injury to the person of Tenant, Tenant's employees,
agents or contractors and invitees, whether such damage or injury is caused by
or results from fire, steam, electricity, gas, water, or rain, or from the
breakage, leakage, obstruction, or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning, or lighting fixtures, or from any other
cause whether the said damage or injury results from conditions arising upon the
Premises or upon other portions of the building of which the Premises are a
part, or from other sources or places, and regardless of whether the cause of
such damage or injury or the means of repairing the same is inaccessible to
Landlord or Tenant. Landlord shall not be liable for any damages arising from
any act or neglect of any other tenant, if any, of the building in which the
Premises are located.
11. [INTENTIONALLY OMMITTED]
12. UTILITIES
Tenant shall pay for all water, gas, heat, light, power, telephone, and
other utilities and services supplied to the Premises, whether supplied by the
utility companies, governmental agencies, or Landlord, together with any taxes.
13. ASSIGNMENT AND SUBLETTING
13.1 Landlord's Consent Required. Tenant shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Tenant's interest in this Lease or in the Premises
without Landlord's prior written consent, which Landlord shall not unreasonably
withhold. Any attempted assignment, transfer, mortgage, encumbrance, or
subletting without such consent shall be void and shall constitute a breach of
the Lease. Any transfer of Tenant's interest in this Lease or in the Premises
from Tenant by merger, consolidation, or liquidation shall be deemed a
prohibited assignment within the meaning of Article 13.
13.2 No Release of Tenant. Regardless of Landlord's consent, no subletting
or assignment shall release Tenant of Tenant's obligation to pay rent and to
perform all other obligations to be performed by Tenant under this Lease for the
term of
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this Lease. The acceptance of rent by Landlord from any other person shall not
be deemed to be a waiver by Landlord of any provision of this Lease. Consent to
one assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting.
13.3 Assignment Fee. In the event that Landlord shall consent to a sublease
or assignment under Article 13.1, Tenant shall pay Landlord reasonable fees not
to exceed $250.00 incurred in connection with giving such consent.
14. DEFAULTS; REMEDIES
14.1 Defaults. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant:
(a) The failure by Tenant to make any payment of rent or any other payment
required to be made by Tenant under this Lease, as and when due, where such
failure shall continue for a period of three days after written notice from
Landlord to Tenant.
(b) The failure by Tenant to observe or perform any of the covenants,
conditions, or provisions of this Lease to be observed or performed by Tenant,
other than described in Article 14.1(a), where such failure shall continue for a
period of 30 days after written notice of such failure from Landlord to Tenant;
provided, however, that if the nature of Tenant's default is such that more than
30 days are reasonably required for its cure, then Tenant shall not be deemed to
be in default if Tenant commenced such cure within said 30 day period and
diligently prosecutes such cure to completion.
(c) (i) The making by Tenant of any general assignment, or general
arrangement for the benefit of creditors; (ii) to the extent permitted by
bankruptcy law, the filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within 60 days); (iii) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where possession
is not restored to Tenant within 30 days; or (iv) the attachment, execution, or
other judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where such seizure is not
discharged within 30 days.
(d) Landlord may lock Tenant out of the Premises in accordance with Article
16.24, and all other applicable laws, including, without limitation, Section
92.008 of the Texas Property Code, as amended from time to time.
(e) [INTENTIONALLY OMMITTED]
(f) Pursuit of any of the remedies set forth above shall not preclude
pursuit of any other remedies set forth in the Lease, or any other remedies
provided by law, nor shall pursuit of any remedy provided in this Lease
constitute a forfeiture or waiver of any rent due to Landlord, or any damages
accruing to Landlord by reason of the violation of any of the terms, conditions,
and covenants contained in this Lease.
14.2 Remedies in Default. In the event of any such default or breach by
Tenant, Landlord may exercise any one or more of the following remedies at any
time after such default or breach, with or without notice or demand and without
limiting Landlord in the exercise of any right or remedy which Landlord may have
by reason of such default or breach.
(a) Terminate this Lease Agreement in which event Tenant shall immediately
surrender the Premises to Landlord, but if Tenant shall fail so to do, Landlord
may, subject to applicable law, without notice and without prejudice to any
other remedy for possession or arrearages in rent, enter upon and take
possession of the Premises and expel or remove Tenant and its effects, without
being liable to prosecution or any claim for damages for taking such actions;
and Tenant agrees to indemnify Landlord for all loss and damage which Landlord
may suffer by reason of such termination, whether through inability to relet the
Premises on satisfactory terms, or through decrease in rent or otherwise,
provided, however, that in no event shall Tenant's liability hereunder exceed
the entire amount of rent which would have become due and payable during the
remainder of the term of this Lease, and provided further, that Landlord shall
have a duty to mitigate damages to the extent reasonably practicable.
(b) [INTENTIONALLY OMMITTED]
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(c) Subject to applicable law, enter upon and take possession of the
Premises as the agent of Tenant, without being liable to prosecution or any
claim for damages for taking such actions, and Landlord may relet the Premises
as the agent of the Tenant and receive the rent, and in such event, Tenant shall
pay Landlord the cost of renovating, repairing and altering the Premises for a
new tenant or tenants and any deficiency that may arise by reason of such
reletting, on demand at the address of Landlord specified in this Lease;
provided however, the failure of Landlord to relet the Premises after taking
reasonably practicable measures to do so, shall not release or affect Tenant's
liability for rent or for damages and such rent and damages shall be paid by
Tenant on the dates specified in this Lease.
(d) Landlord may, as agent of Tenant, do whatever Tenant is obligated to do
by the provisions of this Lease and may enter the Premises, by force if
necessary, without being liable to prosecution or any claim for damages for same
in order to accomplish this purpose. Tenant agrees to reimburse Landlord
immediately upon demand for any expenses which Landlord may incur in thus
effecting compliance with this Lease on behalf of Tenant, and Tenant further
agrees that Landlord shall not be liable for any damages resulting to Tenant
from such action, whether caused by the negligence of Landlord or otherwise.
Pursuit of any of the remedies set forth above shall not preclude pursuit of any
of the other remedies provided in this Lease or any other remedies provided by
law.
14.3 Late Charges. Tenant hereby acknowledges that late payment by Tenant
to Landlord of rent and other sums due under this Lease will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Tenant shall
not be received by Landlord or Landlord's designee within four days after said
amount is due, then Tenant shall, without prior notice or demand, pay to
Landlord a late charge equal to ten percent of such overdue amount. The parties
hereby agree that such late charge represents a fair and reasonable estimate of
the cost Landlord will incur by reason of late payment by Tenant. Acceptance of
such late charge by Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted under this Lease.
15. CONDEMNATION
If the Premises or any portion of the Premises are taken under the power of
eminent domain, or sold by Landlord under the threat of the exercise of said
power (all of which is referred to as "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever occurs first. If more than 10% of the land area
of any buildings on the Premises, or more than 10% of the land area of the
Premises not covered with buildings, is taken by condemnation, either Landlord
or Tenant may terminate this Lease as of the date the condemning authority takes
possession by notice in writing of such election within 20 days after Landlord
shall have notified Tenant of the taking or, in the absence of such notice then
within 20 days after the condemning authority shall have taken possession.
If this Lease is not terminated by either Landlord or Tenant then it shall
remain in full force and effect as to the portion of the Premises remaining,
provided the rental shall be reduced in proportion to the floor and/or land area
of the Premises taken within the Premises as bears to the total floor and/or
land area of the entire Premises. In the event this Lease is not so terminated
then Landlord agrees, at Landlord's sole cost, to restore the Premises as soon
as reasonably possible to a complete unit of like quality and character as
existed prior to the condemnation. All awards for the taking of any part of the
Premises or any payment made under the threat of the exercise of power of
eminent domain shall be the property of Landlord, whether made as compensation
for diminution of value of the leasehold or for the taking of the fee or as
severance damages; provided, however, that Tenant shall be entitled to any award
for loss of or damage to Tenant's trade fixtures and removable personal
property.
16. GENERAL PROVISIONS
16.1 Offset Statement.
(a) Tenant shall at any time upon not less than ten days prior written
notice from Landlord, execute, acknowledge, and deliver to Landlord a statement
in writing (i) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and certifying
that this Lease, as so modified, is in full force and effect)
7
and the date to which the rent, security deposit, and other charges are paid in
advance, if any, and (ii) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord under this Lease, or
specifying such defaults, if any, which are claimed. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer of the
Premises.
(b) Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant (i) that this Lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) that there are no
uncured defaults in Landlord's performance, and (iii) that not more than one
months rent has been paid in advance.
(c) If Landlord desires to finance or refinance the Premises, or any part
of the Premises, Tenant hereby agrees to deliver to any lender designated by
Landlord copies of any and all financial statements of Tenant filed with the
Securities and Exchange Commission as may be reasonably required by such lender.
All such financial statements shall be used only for the purposes set forth in
this Lease.
16.2 Landlord's Interests. The term "Landlord" as used in this Lease shall
mean only the owner or owners or their agents at the time in question of the fee
title or Tenant's interest in a ground lease of the Premises. In the event of
any transfer of such title or interest, Landlord named in this Lease (and in
case of any subsequent transfers, the then grantor) shall be relieved from and
after the date of such transfer of all liability as respects Landlord's
obligations to be performed after that time, provided that any funds in the
hands of Landlord or the then grantor at the time of such transfer, in which
Tenant has an interest, shall be delivered to the grantee. The obligations
contained in this Lease to be performed by Landlord, subject to the terms of
this Lease, shall be binding on Landlord's successors and assigns, only during
their respective periods of ownership.
16.3 Severability. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision of this Lease.
16.4 Interest on Past-Due Obligations. Except as expressly provided in this
Lease, any amount due to Landlord not paid when due shall bear interest at the
highest lawful rate per annum from the date due. Payment of such interest shall
not excuse or cure any default by Tenant under this Lease.
16.5 Time of Essence. Time is of the essence.
16.6 Captions. Article captions are not a part of this Lease.
16.7 Incorporation of Prior Agreements; Amendments. This Lease contains all
agreements of the parties with respect to any matter mentioned in this Lease. No
prior agreement or understanding pertaining to any such matter shall be
effective. This Lease may be modified in writing only, signed by the parties in
interest at the time of the modification.
16.8 Waivers. No waiver by Landlord of any provision of this Lease shall be
deemed a waiver of any other provision of this Lease, or of any subsequent
breach by Tenant of the same or any other provision. Landlord's consent to or
approval of any act shall not be deemed to render unnecessary the obtaining of
Landlord's consent to or approval of any subsequent act by Tenant. The
acceptance of rent under this Lease by Landlord shall not be a waiver of any
preceding breach by Tenant of any provision of this Lease, other than the
failure of Tenant to pay the particular rent so accepted. regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent.
16.9 Recording. Tenant shall not record this Lease. Any such recordation
shall be a breach under this Lease.
16.10 Holding Over. If Tenant remains in possession of the Premises or any
part of the Premises after the expiration of the term of this Lease, unless
otherwise agreed in writing, such occupancy shall be a tenancy from
month-to-month at a rental in the amount of 150% of the last monthly rental,
plus all other charges payable under this Lease, and upon the terms of this
Lease applicable to month-to-month tenancy. This provision shall not be
construed, however, as permission by Landlord for Tenant to hold over.
16.11 Cumulative Remedies. No remedy or election under this Lease shall be
deemed exclusive, but shall wherever possible, be cumulative with all other
remedies at law or in equity.
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16.12 Covenants and Conditions. Each provision of this Lease performable by
Tenant shall be deemed both a covenant and a condition.
16.13 Binding Effect; Choice of Law. Subject to any provisions of this
Lease restricting assignment or subletting by Tenant and, subject to the
provisions of Article 16.2, this Lease shall bind the parties, their personal
representatives, successors, and assigns. This Lease shall be governed by the
laws of the State of Texas, and is executed, and to be performed in Tarrant
County, Texas.
16.14 Subordination.
(a) This Lease, at Landlord's option shall be subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation for security now or
subsequently placed upon the real property of which the Premises are a part and
to any and all advances made on the security and to all renewals, modifications,
consolidations, replacements and extensions of same. Notwithstanding such
subordination, Tenant's rights to quiet possession of the Premises shall not be
disturbed if Tenant is not in default and so long as Tenant shall pay the rent
and observe and perform all of the provisions of this Lease, unless this Lease
is otherwise terminated pursuant to its terms. If any mortgagee, trustee or
ground lessor shall elect to have this Lease prior to the lien of its mortgage,
deed of trust, or ground lease, and shall give written notice of such election
to Tenant, this Lease shall be deemed prior to such mortgage, deed of trust or
ground lease, whether this Lease is dated prior or subsequent to the date of
said mortgage, deed of trust or ground lease or the date of recording of such
documents.
(b) Tenant agrees to execute any documents required to effectuate such
subordination or to make this Lease prior to the lien of any mortgage, deed of
trust or ground lease, as the case may be, and failing to do so within ten days
after written demand, does hereby make, constitute, and irrevocably appoint
Landlord as Tenant's attorney-in-fact and in Tenant's name, place and stead, to
do so.
16.15 Attorney's Fees. In the event Tenant defaults in the performance of
the terms, covenants, agreements, or conditions contained in this Lease, and
Landlord places the enforcement of this Lease in the hands of an attorney, or
files suit upon the Lease, Tenant agrees to pay Landlord reasonable attorneys'
fees, plus court costs, incurred by Landlord.
16.16 Landlord's Access. Landlord and Landlord's agents shall have the
right to enter the Premises at reasonable times, upon reasonable notice to
Tenant, for the purpose of inspecting the Premises, showing the Premises to
prospective purchasers, tenants, or lenders, and making such alterations,
repairs, improvements or additions to the Premises or to the building of which
they are a part as Landlord may deem necessary or desirable. Anything to the
contrary in this Lease notwithstanding, Landlord acknowledges that portions of
Tenant's business is of a classified nature, and that certain areas at certain
times may be "off limits" and no admittance will be given to that area. Upon
request by Landlord, Tenant will inform Landlord if and where these areas may
exist at the time of proposed entry. Landlord may at any time place on or about
the Premises any ordinary "For Sale" signs and Landlord may at any time during
the last 120 days of the term of this Lease place on or about the Premises any
ordinary "For Sale or Lease" signs, all without rebate of rent or liability to
Tenant.
16.17 Auctions. Tenant shall not place any auction signs upon the Premises
or conduct any auction upon the Premises without Landlord's prior written
consent.
16.18 Merger. The voluntary or other surrender of this Lease by Tenant, or
a mutual cancellation of same, shall not work a merger, and shall, at the option
of Landlord, terminate all or any existing subtenancies or may, at the option of
Landlord, operate as an assignment to Landlord or any or all of such
subtenancies.
16.19 Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the Bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
16.20 Landlord's Liability. If Landlord is a limited partnership, the
liability of the partners of the Landlord pursuant to this Lease shall be
limited to the assets of the partnership; and Tenant, its successors and assigns
hereby waive all rights to proceed against any of the partners, or the officers,
shareholders, or directors of any corporate partner of Landlord except
9
to the extent of their interest in the partnership. The term Landlord, as used
in this Article, shall have the meaning set forth in Article 16.2. It is
understood and agreed by Tenant that Landlord may be acting as an agent for an
undisclosed principal owner (the "Owner") of the Premises. Any thing to the
contrary in this Lease notwithstanding, any and all covenants, undertakings,
agreements, representations, and warranties made in this Lease on the part of
Landlord are made and intended not as personal covenants, undertakings,
agreements, representations and warranties for the purpose of binding Landlord
or Owner personally or the assets of Landlord or Owner, except only Landlord's
or Owner's interests in the Premises. Except for breach of any obligation of
Landlord to repair or restore the Premises, if any, contained in this Lease, ,
no personal liability or proceeds actually received by Landlord or Owner, no
personal liability or personal responsibility is assumed by, nor shall the same
at any time be asserted or enforced against, Landlord, Owner, or their agents,
beneficiaries, partners, officers, directors, trustees in bankruptcy, or their
respective heirs, legal representatives, successors, or assigns, on account of
this Lease or account of any covenant, undertaking, agreement, obligation,
representation, or warranty of Landlord contained in this Lease, all such
personal liability being specifically waived by the Tenant; but instead, said
covenants, agreements, undertakings, obligations, representations, and
warranties are for the purpose of binding only the fee simple estate which
Landlord or Owner owns in the Premises. This clause shall not limit or deny any
remedies which Tenant may have in the event of default by Landlord under this
Lease, which remedies do not involve the personal liability of Landlord or
Owner, except Landlord's or Owner's interests in the Premises. Landlord or Owner
may relieve themselves of all liability whatsoever, without limitation of any
sort, under or arising out of this Lease (other than liability for failure to
apply insurance proceeds as set forth above) by conveying their estate in the
Premises to Tenant.
16.21 Liens. Tenant shall keep the Premises free from any liens arising out
of any work performed, materials furnished, or obligations incurred by or on
behalf of Tenant.
16.22 Independent Covenants. Except as provided in Article 9 and Article 15
of this Lease, Tenant shall not, for any reason, withhold or reduce Tenant's
payment of rent, additional rent or other charges as provided in this Lease, it
being agreed that the obligations of Landlord under this Lease, are independent
of Tenant's obligations for making these payments.
16.23 Hazardous Waste. Tenant hereby represents and warrants to Landlord as
follows:
(a) The location, occupancy, operations, and use of the Premises throughout
the term of this Lease by Tenant do not violate any applicable law, statute,
ordinance, rule, regulation, order or determination of any governmental
authority or any board of fire underwriters (or other body exercising similar
functions), including, without limitation, all applicable zoning ordinances and
building codes, flood disaster laws, and health and environmental laws and
regulations (sometimes collectively called "Applicable Laws").
(b) Without limitation of (a) above, Tenant's use and occupancy of the
Premises throughout the term of this Lease is not in violation of or subject to
any existing, pending, or threatened investigation or inquiry by any
governmental authority or to any remedial obligations under any Applicable Laws
pertaining to health or the environment (sometimes collectively called
"Applicable Environmental Laws"), including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
("CERCLA"), the Resource Conservation and Recovery Act of 1976 ("RCRA"), the
Texas Water Code and the Texas Solid Waste Disposal Act, and this representation
and warranty would continue to be true and correct following disclosure to the
applicable governmental authorities of all relevant facts, conditions and
circumstances, if any, pertaining to the use and occupancy by Tenant of the
Premises. In addition, Tenant has not obtained and is not required to obtain any
permits, licenses, or similar authorizations to construct, occupy, operate or
use any buildings, improvements, fixtures, and equipment forming a part of the
Premises by reason of any Applicable Environmental Laws.
(c) Tenant hereby indemnifies Landlord from and against any loss,
liability, claim, or expense, including, without limitation, cleanup,
engineering, and attorneys' fees and expenses that Landlord may incur by reason
of any of the above representations and warranties being false or by reason of
any investigation or claim of any governmental agency in connection with any
matters so represented above in this paragraph.
16.24 Lock-Out. Subject to Section 16.16 of this Lease, in the event
Landlord elects in its sole discretion upon an event of default by Tenant to
change the locks and lock Tenant out, Landlord may place written notice on
Tenant's front door stating the name and address or telephone number of the
individual or company from which a new key may be obtained. Landlord shall have
no obligation or duty to provide the new key, or to let Tenant into the
Premises, until such time as Tenant pays to Landlord, by cash or cashier's
check, the total amount of all past-due rents, additional rents, interest, late
charge, and fees, incurred in connection with the lock-out, including, without
limitation, reasonable attorneys' fees. This provision is intended to comply
with the Texas Property Code, as amended, governing such procedure. Pursuit of
this remedy by Landlord shall not preclude pursuit of any other remedy provided
in this lease or by law.
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16.25 Force Majeure. In the event performance by Landlord and/or Tenant of
any term, condition, or covenant in this Lease is delayed or prevented by an Act
of God, strike, lock-out, shortage of material or labor, restriction by any
governmental authority, civil riot, flood, and any other cause not within the
control of Landlord and/or Tenant, as the case may be, the period for
performance of such term, condition, or covenant shall be extended to a period
equal to the period Landlord and/or Tenant, as the case may be, is so delayed or
hindered.
16.26 Entire Agreement and Limitation of Warranties. It expressly agreed by
Tenant, as a material consideration for the execution of this Lease, that this
Lease is the entire agreement of the Parties and that there are and were no
verbal representations, warranties, understandings, stipulations, agreements, or
promises pertaining to this Lease not incorporated in this Lease. It is likewise
agreed that this Lease may not be altered, waived, amended, or extended except
by an instrument in writing signed by both Landlord and Tenant. Landlord and
Tenant expressly agree that there are and shall be no implied warranties of
merchantability of fitness, suitability, habitability, or of any other kind
arising out of this Lease and that Tenant's acceptance of the Premises shall be
"as is". In this regard, Tenant represents to Landlord that Tenant's acceptance
of the Premises shall conclusively evidence Tenant's determination that the
Premises are suitable in every way for Tenant's intended use. Not in limitation
upon the preceding, Landlord agrees that to the extent assignable, all
warranties, if any shall exist, from contractors or suppliers with respect to
the improvements to the Premises are hereby assigned to Tenant.
17. PERFORMANCE BOND
At any time Tenant desires to or is required to make any repairs,
alterations, additions, improvements, or utility installation on the Premises,
Landlord may at its sole option require Tenant, at Tenant's sole cost and
expense, to obtain and provide to Landlord a lien and completion bond in an
amount equal to one and one-half times the estimated cost of such improvements,
to insure Landlord against liability for mechanics' and materialmen's liens and
to insure completion of the work.
18. BROKERS
The parties to this Lease acknowledge that 5% of the gross lease amount to
be paid to Peyco Southwest Realty at signing from Landlord and on all future
renewals and expansions and they were the real estate brokers who represented
the parties in this Lease, and that no other commissions are due to any brokers
in connection with this Lease, other than the brokers named above. The
commissions shall be paid based upon the terms of this Lease by Landlord. Tenant
agrees to indemnify and hold Landlord harmless from and against any and all
claims which may be made by broker for commissions based upon the terms and
provisions which are not contained in this Lease. IF ANY SALES TRANSACTION IS
MADE DURING THIS LEASE, PEYCO SOUTHWEST REALTY WILL RECEIVE 5% OF THE TOTAL
SALES PRICE FROM SELLER, LESS ANY COMMISSIONS ALREADY PAID ON THIS 3-YEAR LEASE
AGREEMENT.
19. NOTICES
Whenever the terms of this Lease provide for any demand,
notice or declaration of any kind, or where it is deemed desirable or necessary
by either party to give or serve any such notice, demand or declaration to the
other party, it shall be in writing and served either personally or sent by
United States mail, certified mail, return receipt requested, postage prepaid,
addressed at the addresses set forth below:
To Landlord at: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
To Tenant at: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If sent by certified mail, notice shall be effective upon the date same is
deposited in the United States mail.
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20. LANDLORD'S LIEN
LANDLORD SHALL HAVE A LIEN ON TENANT'S PROPERTY IN THE PREMISES AS PROVIDED BY
AND SUBJECT TO
SECTION 54.021, et. seq., OF THE TEXAS PROPERTY CODE.
21. TAXES
21.1 Real Property Taxes.
(a) Landlord shall pay all real property taxes applicable to
the Premises; provided, however, that Tenant shall pay, in addition to rent, the
amount, if any, by which real property taxes applicable to the Premises increase
over the first fiscal tax year after the commencement of the term of this Lease.
Such payment shall be made by Tenant within 30 days after receipt of Landlord's
written statement setting forth the amount of such increase and the computation
of same. If the term of this Lease shall not expire concurrently with the
expiration of the fiscal tax year, Tenant's liability for increased taxes for
the last partial lease year shall be prorated on an annual basis.
(b) As used in this Lease, the term "real property tax" shall
include any form of assessment, license fee, rent tax, levy, penalty, or tax
(other than inheritance or estates taxes), imposed by any authority having the
direct or indirect power to tax, including any city, county, state, or federal
government, or any school, agricultural, lighting, drainage or other improvement
district. Tenant shall pay any and all charges and fees which may be imposed by
the U.S. Environmental Protection Agency or other similar regulatory body, but
only if and to the extent such imposition occurs as a result of Tenant's
improvements to the premises or the conduct of Tenant's business on the
Premises.
(c) If the Premises are not separately assessed, Tenant's
liability shall be an equitable proportion of the real property taxes for all of
the land and improvements included within the tax parcel assessed, such
proportion to be determined by Landlord from the respective valuations assigned
in the assessor's work sheets or such other information as may be reasonably
available. Landlord's reasonable determination of Tenant's liability, in good
faith, shall be conclusive.
21.2 Personal Property Taxes.
(a) Tenant shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment, and all other
personal property of Tenant contained in the Premises or elsewhere. Tenant shall
cause said trade fixtures, furnishings, equipment, and all other personal
property to be assessed and billed separately from the real property of
Landlord.
(b) If any of Tenant's said personal property shall be
assessed with Landlord's real property, Tenant shall pay Landlord the taxes
attributable to Tenant within ten days after receipt of a written statement
setting forth the taxes applicable to Tenant's property.
21.3 Notwithstanding Article 21.l of this Lease, Tenant shall
pay any increase in "real property taxes" resulting from any and all
improvements of any kind placed on or in the Premises for the benefit of or at
the request of Tenant regardless of whether said improvements were installed or
constructed either by Landlord or Tenant.
22. INSURANCE
22.1 Liability Insurance. Tenant shall, at Tenant's expense,
obtain and keep in force during the term of this Lease a policy of comprehensive
public liability insurance insuring Landlord and Tenant against any liability
arising out of the ownership, use, occupancy or maintenance of the Premises and
all areas appurtenant to the Premises. Such insurance shall be in an amount of
not less than $1,000,000.00 for injury to or death of one person in any one
accident or occurrence and in an amount of not less than $2,000,000.00
aggregate. The limits of said insurance shall not, however, limit the liability
of Tenant under this Lease. Said insurance shall name the Landlord as an
additional insured. If Tenant shall fail to procure and maintain said insurance,
Landlord may, but shall not be required to, procure and maintain the same, but
at the expense of Tenant.
22.2 Property Insurance. Landlord shall obtain and keep in
force during the term of this Lease a policy or policies of insurance covering
loss or damage to the Premises, in the amount of the full replacement value of
same, providing
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protection against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, and special extended perils
(all risk). Tenant shall pay during the term of this Lease, in addition to rent,
premiums for insurance required under this Paragraph and the amount of any
increase in premiums for the insurance required under this Paragraph, and
whether such premium increase shall be the result of the nature of Tenant's
occupancy, any act or omission of Tenant, requirement of the holder of a
mortgage or deed of trust covering the Premises, or increased valuation of the
Premises. Tenant shall pay any such premium and increases to Landlord within ten
business days after receipt by Tenant of a copy of the premium statement or
other satisfactory evidence of the amount due. If the insurance policies
maintained under this Lease cover other improvements in addition to the
Premises, Landlord shall also deliver to Tenant a statement of the amount of
such increase attributable to the Premises and showing in reasonable detail the
manner in which such amount was computed. If the term of this Lease shall not
expire concurrently with the expiration of the period covered by such insurance,
Tenant's liability for premium increases shall be prorated on an annual basis.
The proceeds of any such insurance shall be paid to Landlord.
22.3 Insurance Policies. Insurance required under this Lease
shall be in companies rated A+, AAA, or better in "Best's Insurance Guide".
Tenant shall deliver to Landlord, within 30 days of obtaining a certificate of
occupancy for the Premises, copies of policies of liability insurance required
under this Lease or certificates evidencing the existence and amounts of such
insurance with loss payable clauses satisfactory to Landlord. No such policy
shall be cancelable or subject to reduction of coverage or other modification
except after thirty (30) days prior written notice to Landlord. Tenant shall,
within thirty (30) days prior to the expiration of such policies, furnish
Landlord with renewals of same, or Landlord may order such insurance and charge
the cost of same to Tenant, which amount shall be payable by Tenant upon demand.
Tenant shall not do or permit to be done anything which shall invalidate the
insurance policies referred to in this Lease.
22.4 Waiver of Subrogation. Tenant and Landlord each waives
any and all rights of recovery against the other, or against the officers,
employees, agents, and representatives of the other, for loss of or damage to
such waiving party or its property or the property of others under its control,
where such loss or damage is insured against under any insurance policy in force
at the time of such loss or damage. Tenant and Landlord shall, upon obtaining
the policies of insurance required under this Lease, give notice to the
insurance carriers that the foregoing mutual waiver of subrogation is contained
in this Lease.
SPECIAL PROVISIONS:
See Exhibits "A" Rules and Regulations
Tenant to receive one (1) free month of rent only from May 1, 2003 to May 31,
2003.
Tenant has an irrevocable option to purchase the Premises until March 31, 2004
at $950,000. Notwithstanding the foregoing, if Landlord receives a written bona
fide offer by an unaffiliated third party to purchase the Premises for $950,000
or more during this time period, and after Tenant receives a copy of such
written bona fide offer, Tenant shall have 7business days to submit a written
offer to purchase the Premises for $950,000, which Landlord shall be bound to
accept, or Tenant's option will expire. If and to the extent Tenant fails to
duly exercise said option, and no sale of the Premises is consummated with such
unaffiliated third party, Tenant's option as stated above shall continue until
March 31, 2004, with the same rules applying. Peyco Southwest Realty will
receive a 5% commission payable by Landlord on the total sales price of any sale
to Tenant or any entity associated with Tenant less the commission earned in
connection with this Lease.
If Tenant exercises said option, sale of the Premises to Tenant will be closed
at Commonwealth Land Title office at ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ and this Lease will terminate in it's entirety.
[SIGNATURES FOLLOW]
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The parties to this Lease have executed this Lease at the place and on the
dates specified immediately adjacent to their respective signatures.
EXECUTED at __________________________________________________, on the
_____________ day of __________________, 2003.
LANDLORD:
▇▇▇▇ ▇▇▇▇▇▇ Property, Inc.
by:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EXECUTED at __________________________________________________, on the
_____________ day of __________________, 2003.
TENANT: US Global Aerospace, Inc.
by:
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary
14
EXHIBIT " A "
RULES AND REGULATIONS
DEMISED PREMISES AND ADDRESS: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------
1. APPLICATION. The following standards shall affect and shall be observed by
Tenant, Tenant's employees and invitees, for the mutual safety, cleanliness,
care, protection, comfort and convenience of all tenants and occupants of the
Property, and shall be applicable to the building(s), to the common areas,
driveways, parking lots, and to the Demised Premises, including the land
situated beneath and any appurtenances thereto.
2. CONSENT REQUIRED. Any exception to these Rules and Regulations must first be
approved in writing by Landlord. For purposes of these Rules and Regulations,
the term "Landlord" includes the building manager, the building manager's
employees, and any other agent or designee authorized by Landlord to manage or
operate the Property.
3. RULES AND REGULATIONS:
A. Tenant may not conduct any auction, "flea market" or "garage sale" on
the Demised Premises nor store any goods or merchandise on the Property except
for Tenant's own business use. Food may not be prepared in the Demised Premises
except in small amounts for consumption by Tenant.. The Demised Premises may not
be used or occupied as sleeping quarters or for lodging purposes. Animals may
not be kept in or about the Property.
B. Tenant shall not obstruct sidewalks, driveways, loading areas, parking
areas, corridors, hallways, vestibules, stairs and other similar areas
designated for the collective use of tenants, or use such areas for Tenant's
storage, temporary or otherwise, or for any purpose other than ingress and
egress to and from the Demised Premises. Tenant shall comply with parking rules
and guidelines as may be posted on the Property from time to time.
C. Tenant may not bring any hazardous materials onto the Property.
D. Installation of security systems, telephone, television and other
communication cables, fixtures and equipment must comply with Section 7 of the
Lease, except that routine installation and construction of normal communication
devices which do not require any holes in the roof or exterior walls of the
Property do not require the written approval of Landlord.
E. Tenant shall be responsible for and shall pay all costs to repair
damages to the premises caused by the movement of materials by Tenant.
F. Requests by Tenant for building services, maintenance and repair
must be made in writing to the office of the building manager designated by
Landlord and must be dated. Tenant shall give prompt written notice to Landlord
of any significant damage to or defects in the Demised Premises or the Property,
especially including plumbing, electrical and mechanical systems, heating,
ventilating and air conditioning systems, roofs, windows, doors, foundation and
structural components, regardless of whose responsibility it is to repair such
damage. If Landlord is not notified of roof leaks upon discovery by Tenant,
Tenant assumes all responsibilities for damages caused by roof leaks.
G. Tenant shall not change locks or install additional locks on doors
without the prior written consent of the Landlord. If Tenant changes locks or
installs additional locks on the Property, Tenant shall within five days
thereafter provide Landlord with a copy of each separate key to each lock. Upon
termination of Tenant's occupancy of the Demised Premises, Tenant must surrender
all keys to the Demised Premises and to the Property to Landlord.
H. Harmful liquids, toxic wastes, bulky objects, insoluble substances and
other materials which may cause clogging, stains or damage to plumbing fixtures
or systems must not be placed in the lavatories, water closets, sinks, or
drains. Tenant must pay the cost to repair and replace drains, plumbing fixtures
and piping which is required because of damage caused by Tenant.
I. Tenant shall cooperate with Landlord and other occupants of the Property
in keeping the Property and the Demised Premises neat and clean. Nothing may be
swept, thrown or left in the corridors, stairways, elevator shafts, lobbies,
loading areas, parking lots or any other common areas of the Property. All trash
and debris must be properly placed in receptacles provided by Tenant.
J. Tenant agrees to cooperate with and assist Landlord in the prevention of
peddling, canvassing and soliciting on the Property.
K. Tenant accepts any and all liability for damages and injuries to persons
and property resulting from the serving and sales of alcoholic beverages on or
from the Property.
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4. REVISIONS. Landlord reserves the right to revise and/or rescind any of these
Rules and Regulations and to make additional rules which Landlord may determine
are reasonably necessary from time to time for the safety, care, cleanliness,
protection, comfort and convenience of the tenants and occupants of the Property
and for the care, protection and cleanliness of the building. Revisions and
additions will be binding upon the Tenant as if they had been originally
prescribed herein when furnished in writing by Landlord to Tenant, provided the
additions and revisions apply equally to all tenants occupying the Property.
5. ENFORCEMENT. Any failure or delay by Landlord in enforcing these Rules and
Regulations will not prevent Landlord from enforcing these Rules and Regulations
in the future. If any of these Rules and Regulations is determined to be
unenforceable, it shall be severed from this Lease without affecting the
remainder of these Rules and Regulations.
Initials: Landlord ______________ Tenant _______________
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