LEASE AGREEMENT
Made this 1st day of June, 2003, by and between:
LANDLORD: RIVERBEND PROPERTIES
And
TENANT: ESSXSPORT CORP.
1. PREMISES. Witnesseth: That the Landlord in consideration of the covenants and
agreements set forth in this lease agreement (this "Lease") to be performed by
Tenant and upon the terms and conditions hereinafter stated does hereby lease,
demise and let unto Tenant the following described premises.
Approximately 3,000 square feet of office/warehouse space located and described
as 0000 Xxxxxx Xxxxx, Xxxxxxxx 00 (the "Premises") being a portion of the
Riverbend Properties, Xxxx Xxxxx, Xxxxx 00000 (the "Project").
For a term (the "Lease Term") of 36 months, commencing on the 1st day of June,
2003 (the "Lease Commencement Date"), and ending on the 31st day of May, 2006
(the "Lease Expiration Date").
2. USE. The Premises shall be used for office / warehouse for light assembly of
fiber glass tubing and other related items (the "Permitted Use") and for no
other purpose. Tenant and its employees or agents shall not perform any acts or
carry on any practices which may injure the building or be a nuisance or menace
to other tenants in the building, or use the Premises for any business or
purpose which is unlawful or violates any public or municipal ordinances.
3. RENT. In consideration of this Lease, Tenant agrees to pay Landlord, without
deduction or offset, the basic rent for the Premises, at the rate of $(see
paragraph 37) per month, due and payable in advance on or before the first day
of each calendar month during the term of this Lease. Tenant has deposited with
the Landlord a sum of N/A to be applied to first month's rent. Rent for any
fractional month has been or shall be prorated. All sums payable hereunder by
Tenant shall be made to Landlord at the address designated in Paragraph 34 or to
such other party or address as Landlord may designate.
4. ADDITIONAL RENT. In addition to the basic rent payable under Paragraph 3
above, Tenant shall pay to Landlord, in the manner and at the times set forth
below, additional rent equal to Tenant's Proportionate Share of any increase in
Operating Expenses. In the event that during the Lease Term, the total Operating
Expenses for any calendar year divided by the total square footage of the
rentable area of the Project exceed the Base Expense Rate, Tenant shall pay to
Landlord Tenant's Proportionate Share of such increase for the calendar year in
question. If the first and last years during the Lease Term are less than full
calendar years, then Tenant's Proportionate Share of any increase in Operating
Expenses shall be prorated based on the number of months in such calendar year
included within the Lease Term. As used herein, the following terms shall have
the meanings respectively indicated:
(a) "Operating Expenses" means all expenses, costs, charges and
disbursements of every kind which Landlord shall pay or incur in connection with
the ownership, operation and maintenance of the Project (including such
additional facilities hereafter placed in operation as Landlord may consider
necessary or beneficial for the operation of the Project), including, without
limitation, the following: (i) wages, salaries and fees (including management
fees) of all personnel or entities engaged in the management, operation and
maintenance of the Project; (ii) all costs of operating, maintaining and
repairing the Common Areas; (iii) all supplies, tools, equipment and materials
used in the operation and maintenance of the Project; (iv) all maintenance,
janitorial and service agreements for the Project and the equipment therein; (v)
all insurance related to the Project; (vi) all taxes, assessments and other
governmental charges assessed against or attributable to the Project or its
operation, exclusive of any income or profit taxes which may be assessed against
Landlord; (vii) all repairs and general maintenance on or of the Project; (viii)
all utilities for the Project; (ix) all costs incurred by Landlord in connection
with any change of any company providing electricity service, including, without
limitation, maintenance, repair, installation and service costs associated
therewith; and (x) amortization of capital items which in Landlord's reasonable
judgment will reduce Operating Expenses or enhance the Project or which may be
required by any governmental authority.
(b) The "Base Expense Rate" means $1.21 per square foot.
(c) "Tenant's Proportionate Share" means a fraction, the numerator of which
is the square footage of the Premises and the denominator of which is the total
rentable area of the Project.
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At any time and from time to time during the Lease Term, Landlord may, by giving
notice to Tenant, increase the basic rent per month payable by Tenant under
Paragraph 3 above to include Tenant's Proportionate Share of Operating Expenses
in excess of the Base Expense Rate, as estimated by Landlord in its reasonable
judgment. Tenant shall begin paying the estimated amount together with the next
monthly payment of basic rent due after receipt by Tenant of Landlord's notice.
On or before April 1 of each year, Landlord will prepare and deliver to Tenant a
statement including (i) the previous calendar year's Operating Expenses, (ii)
Tenant's Proportionate Share of any increase in Operating Expenses over the Base
Expense Rate for the prior calendar year, and (iii) the net amount due Landlord
or, if Tenant has made estimated payments of additional rent pursuant to the
preceding paragraph, any amount due to be reimbursed to Tenant or credited
against the next rental or other payments due from Tenant. Within thirty (30)
days after receipt of such statement, Tenant shall pay to Landlord any
additional rent payable by Tenant as reflected therein.
If the Lease Term expires or this Lease terminates before a final determination
of Tenant's actual Proportionate Share of Operating Expenses has been made, then
the amount of any increase in Operating Expenses over the Base Expense Rate
payable for the preceding calendar year or the final partial year of the Lease
Term will be estimated by Landlord based on the best data available to Landlord
at the time of the estimate. Prior to the Lease Expiration Date, or as soon as
possible after an earlier termination date, an adjustment will be made between
Landlord and Tenant regarding any additional rent payable by Tenant under this
Lease. All obligations set forth in this Paragraph 4 shall survive expiration or
earlier termination of this Lease.
5. POSSESSION. Tenant acknowledges that Tenant has fully inspected the Premises,
and on the basis of such inspection, Tenant hereby accepts the Premises, and the
buildings and improvements situated thereon, as suitable for the purpose for
which they are leased in their present condition with such changes therein as
may be caused by reasonable deterioration between the date hereof and the Lease
Commencement Date; provided that in the event any presently installed plumbing,
plumbing fixtures, electrical wiring, lighting fixtures, or air conditioning and
heating equipment are not in good working condition on the Lease Commencement
Date, Landlord agrees to repair promptly any such defects of which Tenant
delivers written notice to Landlord within thirty (30) days after the Lease
Commencement Date.
6. PRIOR TENANCY. To the extent Tenant has been a prior tenant of the Project,
execution of this Lease creates a new tenancy relationship between Landlord and
Tenant and shall not be considered or interpreted to be a renewal of any prior
contracts, leases or agreements between Tenant and Landlord or Landlord's
predecessors-in-interest. As additional consideration for entering into this
Lease, Tenant hereby waives any and all claims which Tenant has or may have
against Landlord or Landlord's predecessors-in-interest arising out of any prior
contracts, leases or agreements or resulting from any tenancy of the Project
under any such prior contracts, leases or agreements.
7. MAINTENANCE.
7.1 LANDLORD'S MAINTENANCE OBLIGATIONS. Landlord shall at all times keep
the roof, foundation, exterior walls (excluding all windows and doors) and
underground pipes and all other outside plumbing connections of the improvements
situated on the Premises in good repair. Landlord shall not be obligated to make
any repairs under this Paragraph 7.1 until a reasonable time after receipt of
written notice from Tenant of the need of such repairs. Landlord's liability
hereunder shall be limited to the cost of such repairs or corrections. Tenant
waives the benefit of any present or future law, which might give Tenant the
right to repair the Premises at Landlord's expense or to terminate the Lease
because of the condition of the Premises. Landlord and Tenant expressly agree
that repair, maintenance and other services to be performed by Landlord or
Landlord's agents exclusively consists of the exercise of professional judgment
by such service providers, and Tenant expressly waives any claims for breach of
warranty arising from the performance of such services.
7.2 TENANT'S MAINTENANCE OBLIGATIONS. Tenant shall keep the building and
other improvements located on the Premises in good condition and shall make all
necessary repairs (except those expressly required to be made by the Landlord)
including but not limited to repairs to all glass windows, doors, plumbing work,
pipes and fixtures, the interior of the building, paved areas exclusively used
by Tenant and other exterior improvements. Tenant shall also be responsible for
the maintenance of air conditioning, plumbing fixtures and heating equipment or
components thereof and insect/animal eradication located on or serves the
Premises. Tenant will also be obligated to regularly maintain, service and
repair air conditioning and heating equipment. Tenant shall promptly repair any
damage caused by Tenant's negligence or default thereunder, or negligence of
Tenant's invitees, employees or customers. In the event Tenant should fail to
maintain the Premises as herein required, Landlord shall have the right to cause
repairs or corrections to be made and any reasonable costs therefore shall be
payable by Tenant as additional rental on the next rental installment date.
7.3 HVAC WARRANTY AND MAINTENANCE. Landlord agrees to warrant and repair
the heating, ventilating, and air conditioning (HVAC) units during the initial
six (6) months of the Lease Term, provided:
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(a) Tenant must contract with a qualified and properly insured HVAC
contractor to have the HVAC units serviced at a minimum of one (1) time every
three (3) months. Such service shall include, but not be limited to, cleaning of
the coil and condenser of each unit, checking the electrical connections, oil or
refrigerant leaks, safety devices, blower belt wear, tension and alignment,
expansion valve and coil temperature, and condensate drain, and the lubrication
and addition of freon. Tenant must change filter(s) on a monthly basis. Failure
by Tenant to properly maintain HVAC units including monthly filter changes will
void Landlord's warranty.
(b) Tenant shall provide a copy of such service contract before the
expiration of Landlord's warranty period described above and on each anniversary
date of the Lease thereafter.
7.4 CONDITION UPON TERMINATION. Upon the termination of this Lease, Tenant
shall surrender the Premises to Landlord, broom clean and in the same condition
as received, except for ordinary wear and tear which Tenant was not otherwise
obligated to remedy under any provision of this Lease. Upon termination, Tenant
shall deliver to Landlord all keys to the Premises. The costs of any repairs
necessary to restore the Premises to the condition in which the Premises are
required to be surrendered to Landlord shall be borne solely by Tenant. All
alterations, additions or improvements made in or upon the Premises either by
Landlord or Tenant, shall be Landlord's property on termination of this Lease
and shall remain on the Premises. All furniture, movable trade fixtures and
equipment installed by Tenant may be removed by Tenant at the termination of
this Lease, provided Tenant is not in default under this Lease at the time of
such removal, and shall be so removed if required by Landlord. All such removals
and restoration shall be accomplished in a good workmanlike manner so as not to
damage the primary structure or structural qualities of the building and other
improvements situated on the Premises.
8. UTILITIES
8.1 GENERAL. Landlord covenants that the Premises are served by water,
sewer, electrical and gas utilities but Tenant shall pay all utility use and
connection charges, if any, and all charges incurred for any utilities used on
the Premises. Landlord may, at Landlord's sole discretion, provide one or more
utility services to the Premises, in which case Tenant agrees to pay to Landlord
its pro rata share of the costs of such utilities services. Tenant shall furnish
all electrical light bulbs and tubes. Landlord's failure to any extent to
furnish or any stoppage or interruption of these utilities resulting from any
cause shall not render Landlord liable in any respect for damages to either
person or property nor relieve Tenant from the fulfillment of any covenant or
agreement hereof.
8.2 TRASH REMOVAL. Tenant shall provide for removal of Tenant's waste and
trash in a commercially reasonable manner and shall provide all trash
receptacles and dumpsters in sufficient amount and capacity to handle Tenant's
waste, trash and disposals. If Tenant fails to have Tenant's waste and trash
removed in a commercially reasonable manner, Landlord after forty-eight (48)
hours written notice to Tenant, may cause said waste and trash to be removed. If
Landlord causes Tenant's waste and trash to be removed from the Property, Tenant
shall pay a trash fee, for each such incident, in an amount which shall be the
greater of Fifty Dollars ($50.00) or the Landlord's cost of having any such
trash collected and removed from the Property. If the trash fee is not paid
within five (5) days following delivery of an invoice to Tenant for such trash
removal or if Tenant fails to provide adequate trash receptacles for its
Premises, Tenant shall be deemed in default of the terms of this Lease.
8.3 UTILITY DEREGULATION. Landlord has advised Tenant that presently Texas
Utilities ("Electric Service Provider") is the utility company selected by
Landlord to provide electricity service for the Project. Notwithstanding the
foregoing, if permitted by applicable law, Landlord shall have the right at any
time and from time to time during the Lease Term to either contract for service
from a different company or companies providing electricity service (each such
company shall hereinafter be referred to as an "Alternate Service Provider") or
continue to contract for service from the Electric Service Provider. Tenant
shall cooperate with Landlord, the Electric Service Provider, and any Alternate
Service Provider at all times and, as reasonably necessary, shall allow
Landlord, Electric Service Provider, and any Alternate Service Provider
reasonable access to the Project's electric lines, feeders, risers, wiring, and
any other machinery within the Premises. Landlord shall in no way be liable or
responsible for any loss, damage, or expense that Tenant may sustain or incur by
reason of any change, failure, interference, disruption, or defect in the supply
or character of the electric energy furnished to the Premises, or if the
quantity or character of the electric energy supplied by the Electric Service
Provider or any Alternative Service Provider is no longer available or suitable
for Tenant's requirements, and no such change, failure, defect, unavailability,
or unsuitability shall constitute an actual or constructive eviction, in whole
or in part, or entitle Tenant to any abatement or diminution of rent, or relieve
Tenant from any of its obligations under this Lease.
9. LEASEHOLD IMPROVEMENTS. Landlord agrees to install at Landlord's cost and
expense the improvements described in Exhibit "A" attached hereto. Except as
expressly set forth in Exhibit "A" attached hereto, and except for Landlord's
agreement to repair the items described in Paragraph 7.1 above, the Premises are
delivered to Tenant and are being leased "AS IS" and "WITH ALL FAULTS," and
Landlord makes no representation or warranty of any kind, expressed or implied,
with respect to the condition of the Premises. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, LANDLORD HEREBY DISCLAIMS, AND TENANT WAIVES THE BENEFIT OF,
ANY AND ALL IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF HABITABILITY,
FITNESS OR SUITABILITY FOR PURPOSE, OR THAT THE BUILDING OR THE IMPROVEMENTS ON
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THE PREMISES HAVE BEEN CONSTRUCTED IN A GOOD AND WORKMANLIKE MANNER. TENANT
EXPRESSLY ACKNOWLEDGES THAT LANDLORD DID NOT CONSTRUCT OR APPROVE THE QUALITY OF
CONSTRUCTION OF THE BUILDING.
10. SIGNS. Tenant shall have the right to install signs upon the exterior of
said building only when first approved in writing by Landlord in its sole
discretion and subject also to any applicable governmental laws, ordinances,
regulations, requirements and in accordance with Exhibit "C", Sign
Specifications. Tenant shall remove all signs at the termination of this Lease.
Such installations and removals shall be made in such manner as to avoid injury,
defacement of the building or other improvements. The cost of repair of any
damage to the Premises or building caused by the installation or removal of
signs shall be borne by Tenant.
11. ALTERATIONS. Tenant will not make or allow to be made any alterations or
physical additions in or to the Premises without the prior written consent of
Landlord, which consent shall not be unreasonably withheld as to non-structural
alterations. Tenant shall fully comply with all applicable governmental laws,
ordinances, codes, and regulations with respect to any alterations or additions
made by Tenant.
Neither Tenant nor anyone holding possession of the Premises through Tenant, has
authority, express or implied, to create or place any lien or encumbrance of any
kind or nature whatsoever upon, or in any manner to bind the interest of
Landlord in the Premises, including those who may furnish materials or perform
labor for any construction or repairs at the request of Tenant. Tenant covenants
and agrees that it will pay or cause to be paid all sums legally performed on
the Premises and that it will save and hold harmless Landlord from any and all
loss, cost or expense based on or arising out of asserted claims or liens
against the Premises or against the right, title and interest of Landlord
therein. Tenant shall immediately provide Landlord with written notice of the
placing of any lien or encumbrance against the Premises. If a mechanics lien or
other similar lien is recorded against the Premises or the Project as a result
of Tenant's failure to pay for any work provided to Tenant at the Property,
Tenant shall within ten (10) days following recordation of any such lien cause
that lien be removed from the Property, regardless of the merits of any disputes
between Tenant and lienholder.
12. DAMAGE TO PREMISES. In case of damage by fire or other insured casualty to
the Premises, Tenant shall give immediate notice to the Landlord who shall
thereupon cause the damage to be repaired forthwith, and allow the Tenant a fair
abatement of diminution of rental in proportion to the extent to which the
Premises are untenable; but if the Premises or the building of which the
Premises are a part, shall be deemed by Landlord, in Landlord's sole opinion, to
be so damaged as to be unfit for occupancy, or if the Landlord shall decide to
not rebuild, this Lease shall terminate and Tenant shall only be liable for rent
and other monetary obligations under this Lease to the time of the fire or the
casualty. Notwithstanding the foregoing, if the damage to the Premises or any
portion of the Project shall be caused by the willful or negligent acts of
Tenant, or its employees, agents or invitees, Tenant shall not be entitled to
any rent abatement or other relief and shall immediately cause all such damage
to be repaired forthwith at Tenant's sole expense.
13. INDEMNITY. Landlord shall not be liable to Tenant or to Tenant's employees,
customers, invitees or visitors, for any injury or damage to person or property
caused by any act, omission or neglect of Tenant or Tenant's employees,
customers, invitees or visitors or any other tenant of the Project (or caused by
the building and improvements located on the Premises becoming out of repair) or
due to any other cause whatsoever, other than as a result of Landlord's
negligence or willful misconduct and Tenant agrees to indemnify and hold
Landlord free and harmless from any loss, expense or claims arising out of such
injury or damage to any person or property caused by Tenant, customers,
invitees, visitors.
14. COMMON AREAS. The use and occupation by Tenant of the Premises shall include
the use, in common with others entitled thereto, of the common areas, parking
areas, access roads, service roads, loading facilities, sidewalks, and other
facilities as may be designated from time to time by Landlord, subject, however,
to the terms and conditions of this Lease and to reasonable rules and
regulations for the use thereof as prescribed from time to time by Landlord.
All common areas described above shall at all times be subject to the exclusive
control and management of Landlord, and Landlord shall have the right from time
to time to establish, modify and enforce reasonable rules and regulations with
respect to the Common Areas. Attached hereto as Exhibit "B" are the Rules and
Regulations effective as of the date of this Lease.
15. INSURANCE. Landlord shall, at all times during the term of this Lease
maintain a policy or policies of insurance issued by and binding upon an
insurance company, insuring the building of which the Premises are a part
against loss or damage by fire or other hazards and contingencies as Landlord
determines in its sole opinion or as Landlord's mortgagees may require. Tenant
shall not keep anything upon the Premises or do anything in or about the
Premises, which will increase the rates for fire and standard extended coverage
insurance upon the Project or any portion thereof. Tenant agrees to pay on
demand any increase in insurance premiums caused by or attributable to Tenant's
tenancy at the Premises.
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Tenant shall procure and maintain throughout the term of this Lease a policy of
insurance, at its sole cost and expense, insuring Landlord (Halawa View Apts.,
GP dba Riverbend Properties), Landlord's mortgagee (GE Capital Corp.), Xxxx
Xxxxx XxXxxxxx Management, Inc. ("managing agent") and Tenant against all
claims, demands or actions arising out of or in connection with Tenant's use or
occupancy of the Premises, or by the condition of the Premises, the limits of
such policy or policies to be in an amount not less than $1,000,000 in respect
to injuries to or death of any person, and in an amount not less than $1,000,000
in respect to property damaged or destroyed, and to be written by insurance
companies satisfactory to Landlord. Tenant shall obtain a written obligation on
the part of each insurance company to notify Landlord at least thirty (30) days
prior to cancellation of such insurance. Tenant shall also maintain its own
insurance on Tenant's merchandise, equipment, and possessions in or about the
Premises. Any insurance coverage maintained by Landlord shall insure Landlord's
property only and will not insure Tenant's property, trade fixtures, or
merchandise on the Premises in the event of damage however caused.
16. TAXES.
16.1 REAL ESTATE TAXES. Landlord shall pay all real estate taxes assessed
against the Premises and the Project during the Lease Term.
16.2 PERSONAL PROPERTY TAXES. Tenant shall pay all taxes assessed against
trade fixtures, furnishings, equipment, or any other personal property belonging
to Tenant. Tenant shall use reasonable efforts to have its personal property
taxed separately from the Premises, but if any of Tenant's personal property is
taxed with the Premises, Tenant shall pay the taxes for the personal property
within fifteen (15) days after Tenant receives a written statement for such
personal property taxes.
17. RELOCATION OF TENANT. Landlord retains the right to relocate Tenant into
such other space, on any floor within the Building, as Landlord may deem
advisable or necessary provided that such space is of similar size to the Lease
Premises. Such relocation shall be completed within sixty (60) days from
Landlord's written notification to Tenant. If such a relocation is made
hereunder, Tenant agrees to execute, upon the request of Landlord, any amendment
to the Lease redescribing the Leases Premises, but all other terms, covenants
and conditions of this Lease shall remain in full force and effect. Landlord
shall pay all reasonable moving costs incurred by Tenant in connection with such
move.
18. WAIVER OF SUBROGATION. The parties release each other, and their respective
authorized representatives, from any claims for damage to any person or to the
Premises and the Project, and to the fixtures, personal property, tenant
improvements, and alterations of either Landlord or Tenant in or upon the
Premises and the Project which are caused by or result from any of the perils to
be insured against as required by Paragraph 15 of this Lease as long as such
policies of insurance are in force at the time of any such damage or afford
coverage for such damages, but only to the extent that such loss or damage is
recoverable under such insurance policies. Each party hereby agrees immediately
to give to each of its insurance companies which have issued policies required
under this Lease written notice of the terms of such mutual waivers and to cause
such insurance policy to be properly endorsed, if necessary, to prevent the
invalidation of such insurance coverages by reason of such waivers.
19. ASSIGNMENT. Tenant shall not assign this Lease and shall not sublet or
underlet the Premises, or any part thereof, without the prior written consent of
Landlord, which consent Landlord agrees will not be unreasonably withheld.
Notwithstanding the foregoing, no assignment or subletting, whether consented to
or not, shall release Tenant from any obligations or liability hereunder. If an
event of default occurs and the Premises or any part thereof are assigned or
sublet, then Landlord, in addition to any other remedies herein provided, or
provided by law, may collect directly from any such sublessee or assignee all
rents payable to Tenant and apply such rent against any sums due Landlord under
this Lease. No such collection shall be construed to constitute a novation or a
release of Tenant from the further performance of Tenant's obligations
hereunder. Landlord's consent to any one sublease or assignment shall not be
deemed approval of any other sublease or assignment. If Tenant is not a natural
person and there occurs a change in ownership of a majority of the ownership
interest of Tenant, then such change in ownership interest shall be deemed an
assignment of this Lease by Tenant and therefore subject in all respects to this
Paragraph 18; provided, however, this provision shall not apply if at the time
of the execution of this Lease such ownership interests of Tenant are listed on
a recognized security exchange or over-the-counter market.
20. DEFAULT OF TENANT. Each of the following events shall be an event of default
under this Lease:
(a) Failure of Tenant to pay any installment of rent or other sum payable
to Landlord hereunder on the date that same is due and such failure shall
continue for a period of ten (10) days;
(b) Failure of Tenant to comply with any term, condition or covenant of
this Lease, other than the payment of rent or other sum of money, and such
failure shall not be cured within twenty (20) days after written notice thereof
to Tenant;
(c) Tenant or any guarantor of Tenant's obligations hereunder shall
commence any case, proceeding or other action seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it or its
debts under any law relating to
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bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property;
(d) Any case, proceeding or other action against Tenant or any guarantor of
Tenant's obligations hereunder shall be commenced seeking to have an order for
relief entered against it as debtor, or seeking reorganization, arrangement,
adjustment, liquidation, dissolution or composition of it or its debts under any
law relating to bankruptcy, insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property, and Tenant (i) fails
to obtain a dismissal of such case, proceeding, or other action within sixty
(60) days of its commencement; or (ii) converts the case from one chapter of the
Federal Bankruptcy Code to another chapter; or (iii) is the subject of an order
of relief which is not fully stayed within seven (7) business days after the
entry thereof; and
(e) Abandonment by Tenant of any substantial portion of the Premises or
cessation of the use of the Premises for the purpose leased.
21. LANDLORD'S REMEDIES. Upon the occurrence of any of the events of default
listed in Xxxxxxxxx 00, Xxxxxxxx shall have the option to pursue any one or more
of the following remedies without any prior notice or demand whatsoever:
(a) Terminate this Lease, in which event Tenant shall immediately surrender
the Premises to Landlord. If Tenant fails to so surrender the Premises, Landlord
may, without prejudice to any other remedy which it may have for possession of
the Premises or arrearages in rent, enter upon and take possession of the
Premises and expel or remove Tenant and any other person who may be occupying
the Premises or any part thereof without being liable for prosecution or any
claim for damages therefor. Tenant shall pay to Landlord on demand the amount of
all loss and damage which Landlord may suffer by reason of such termination,
whether through inability to relet the Premises on satisfactory terms or
otherwise.
(b) Enter upon and take possession of the Premises, without terminating
this Lease and without being liable for prosecution or for any claim for damages
therefor, and expel or remove Tenant and any other person who may be occupying
the Premises or any part thereof. Landlord may relet the Premises and receive
the rent therefor. Tenant agrees to pay to Landlord monthly or on demand from
time to time any deficiency that may arise by reason of any such reletting. In
determining the amount of such deficiency, leasing commissions, attorneys' fees,
remodeling expenses and other costs of reletting shall be subtracted from the
amount of rent received under such reletting.
(c) Enter upon the Premises, without terminating this Lease and without
being liable for prosecution or for any claim for damages therefor, and do
whatever Tenant is obligated to do under the terms of this Lease. Tenant agrees
to pay Landlord on demand for expenses which Landlord may incur in thus
effecting compliance with Tenant's obligations under this Lease, together with
interest thereon at the rate of twelve percent (12%) per annum from the date
expended until paid. Landlord shall not be liable for any damages resulting to
Tenant from such action, whether caused by negligence of Landlord or otherwise.
(d) In addition to the foregoing remedies, Landlord shall have the right to
change or modify the locks on the Premises in the event Tenant fails to pay any
rent when due hereunder. Landlord shall not be obligated to provide another key
to Tenant or allow Tenant to regain entry to the Premises unless and until
Tenant pays Landlord all rent which is delinquent. Tenant agrees that Landlord
shall not be liable for any damages resulting to Tenant from the lockout.
(e) No re-entry or taking possession of the Premises by Landlord shall be
construed as an election to terminate this Lease, unless a written notice of
such intention is given to Tenant. Notwithstanding any such reletting or
re-entry or taking possession, Landlord may, at any time thereafter, elect to
terminate this Lease for a previous default. Pursuit of any of the foregoing
remedies shall not preclude pursuit of any of the other remedies provided by
law, nor shall pursuit of any remedy herein provided constitute a forfeiture or
waiver of any monthly installment of rent due to Landlord hereunder or of any
damages accruing to Landlord by reason of the violation of any of the terms,
provisions and covenants herein contained. Forbearance by Landlord to enforce
one or more of the remedies herein provided upon an event of default shall not
be deemed or construed to constitute a waiver of any other violation or default.
The loss or damage that Landlord may suffer by reason of termination of this
Lease or the deficiency from any reletting as provided for above shall include
the expense of repossession and any repairs or remodeling undertaken by Landlord
following possession. Should Landlord terminate this Lease at any time for any
default, in addition to any other remedy Landlord may have, Landlord may recover
from Tenant all damages Landlord may incur by reason of such default, including
the cost of recovering the Premises and the cost of the rental then remaining
unpaid.
22. TENANT'S REMEDIES/LIMITATION OF LIABILITY. Landlord shall not be in default
hereunder and Tenant shall not have any remedy or cause of action unless
Landlord fails to perform any of its obligations hereunder within thirty (30)
days after written notice from Tenant specifying such failure (unless such
performance will, due to the nature of the obligation, require a period of time
in excess of thirty (30) days, then after such period of time as is reasonably
necessary). All obligations of Landlord hereunder shall be construed as
covenants, not conditions; and, except as may be otherwise expressly provided in
this Lease, Tenant may not terminate this Lease
6
for breach of Landlord's obligations hereunder. All obligations of Landlord
under this Lease will be binding upon Landlord only during Landlord's period of
ownership of the Premises and not thereafter. The term "Landlord" in this Lease
shall mean only the owner, for the time being of the Premises, and in the event
of the transfer by such owner of its interest in the Premises, such owner shall
thereupon be released and discharged for all obligations of Landlord thereafter
accruing, but such obligations shall be binding during the Lease Term upon each
new owner for the duration of such owner's ownership. Any liability of Landlord
under this Lease shall be limited solely to its interest in the Project, and in
no event shall any personal liability be asserted against Landlord in connection
with this Lease nor shall any recourse be to any other property or assets of
Landlord.
23. LANDLORD'S LIEN. In addition to the statutory landlord's lien, Landlord
shall have at all times a valid security interest to secure payment of all rent
and other sums of money becoming due hereunder from Tenant, and to secure
payment of any damages or loss which Landlord may suffer by reason of the breach
by Tenant of any covenant, agreement or condition contained herein, upon all
goods, wares, equipment, fixtures, furniture, improvements and other personal
property of Tenant presently, or which may hereafter be, situated on the
Premises, and all proceeds therefrom, and such property shall not be removed
therefrom without the consent of Landlord until all arrearages in rent as well
as any and all other sums of money then due to Landlord hereunder shall first
have been paid and discharged and all the covenants, agreements and conditions
hereof have been fully complied with and performed by Tenant. Upon the
occurrence of an event of default by Tenant, Landlord may in addition to any
other remedies provided herein or under the Uniform Commercial Code as adopted
by the state in which the Premises are located (including without limitation
Texas section 9.505(b) or its equivalent), enter upon the Premises and take
possession of any and all goods, wares, equipment, fixtures, furniture,
improvements and other personal property of Tenant situated on the Premises,
without liability for trespass or conversion, and sell the same at public or
private sale, with or without having such property at the sale, after giving
Tenant reasonable notice of the time and place of any public sale or of the time
after which any private sale is to be made, at which sale the Landlord or its
assigns may purchase unless otherwise prohibited by law. Unless otherwise
provided by law, and without intending to exclude any other manner of giving
Tenant reasonable notice, the requirement of reasonable notice shall be met if
such notice is given in the manner prescribed in this Lease at least ten (10)
days before the time of sale. Any sale made pursuant to the provisions of this
paragraph shall be deemed to have been a public sale conducted in a commercially
reasonable manner if held in the above described Premises or where the property
is located after the time, place and method of sale and a general description of
the types of property to be sold have been advertised in a daily newspaper
published in the county in which the Premises are located for five consecutive
days before the date of the sale. The proceeds from any such disposition, less
any and all expenses connected with the taking of possession, holding and
selling of the property (including reasonable attorney's fees and legal
expenses), shall be applied as a credit against the indebtedness secured by the
security granted in this paragraph. Any surplus shall be paid to Tenant or as
otherwise required by law. The Tenant shall pay any deficiencies forthwith upon
request or demand by Landlord. Tenant agrees to execute and deliver to Landlord
a financing statement in form sufficient to perfect the security interest of
Landlord in the aforementioned property and proceeds thereof under the
provisions of the Uniform Commercial Code in force in the state in which the
Premises are located. The statutory lien for rent is not hereby waived, the
security interest herein granted being in addition and supplementary thereto.
24. CONDEMNATION
24.1 INTEREST OF PARTIES. If all or a substantial part of the Premises are
taken for any public or quasi-public use under governmental law, ordinance or
regulations, or by right of eminent domain, or by purchase in lieu thereof, and
the taking prevents or materially interferes with the use of the Premises for
the purpose of which they were leased to Tenant, this Lease shall terminate and
the rent shall be abated during the unexpired portion of this Lease, effective
on the date of such taking. If less than a substantial part of the Premises are
taken for any public or quasi-public use under governmental law, ordinance or
regulations, or by right of eminent domain, or by purchase in lieu thereof, this
Lease shall not terminate, but the rent payable hereunder during the unexpired
portion of this Lease shall be reduced to such extent as may be fair and
reasonable under all of the circumstances. All compensation awarded in
connection with or as a result of any of the foregoing proceedings shall be the
property of Landlord and Tenant hereby assigns any interest in such award to
Landlord; provided however, Landlord shall have no interest in any specific
award to Tenant for loss of business or goodwill or for the taking of Tenant's
fixtures and improvements, if a separate award for such items is made to Tenant.
24.2 VOLUNTARY CONVEYANCE. Nothing in Paragraph 23.1 above prohibits
Landlord from voluntarily conveying all or part of the Premises to a public
utility, agency or authority under threat of a taking under the power of eminent
domain. Any such voluntary conveyance shall be treated as a taking within the
meaning of this Article.
25. HOLDING OVER. In the event Tenant holds over after the expiration of this
Lease, it shall be deemed to be occupying said Premises as a tenant from
month-to-month, subject to all of the conditions, provisions, and obligations of
this Lease insofar as the same are applicable to a month-to-month tenancy except
that monthly rental shall be 150% of the last monthly rental payment due before
the ending date of this Lease. This provision shall not be construed as an
extension of this Lease but is to define any holding over, with or without the
consent of the Landlord.
26. ACCESS. Landlord or its representatives shall have the right to enter into
and upon the Premises at reasonable hours to inspect, clean, make repairs or
alterations as Landlord may deem necessary.
7
27. OUTSIDE STORAGE. No outside storage shall be permitted except by written
agreement between Tenant and Landlord.
28. LATE PAYMENTS. A penalty charge shall be applied to all monthly rental
payments which have not been received by Landlord on or before the 10th of each
month. If paying by check, a $25.00 return check fee will be charged after the
first check is returned. If this occurs more than two (2) times, Tenant must
make monthly rental payments for the remainder of the Lease term by cashier's
check or money order.
29. BROKERS. Landlord or its assignees agree to pay NAI Stoneleigh Xxxx Xxxxx
XxXxxxxx ("Broker") for negotiating this Lease, the leasing fee that has been
previously negotiated. Landlord and Tenant acknowledge Broker may share such
leasing fee with Xxxx Xxxxxx, NAI Stoneleigh Xxxx Xxxxx XxXxxxxx ("Co-Broker").
Except for Broker and Co-Broker, no other agents or brokers are involved. Except
for commissions payable to the brokers identified above, Landlord and Tenant
hereby indemnify each other, and shall hold each other harmless from and
against, all liabilities arising from any claim for a broker's or leasing
agent's commission.
30. SECURITY DEPOSIT. Upon execution hereof, Tenant shall deposit with Landlord
the amount of $ 1,125.00 to be held by Landlord, without interest, as a security
deposit. In the event Tenant has performed all of the terms and conditions of
this Lease throughout the term, upon Tenant vacating the Premises, the security
deposit shall be returned to Tenant after deducting any sums which might be
owing to Landlord. Landlord may apply all or part of the security deposit to any
unpaid rent or other charges due from Tenant or to cure any other defaults of
Tenant. Landlord shall not be required to keep the security deposit separate
from its other accounts and no trust relationship is created with respect to the
security deposit. If Tenant is in default of this Lease more than two (2) times
within any twelve-month period, irrespective of whether or not such default is
cured, then, without limiting Landlord's other rights and remedies provided for
in this Lease or at law or equity, the security deposit shall automatically be
increased by an amount equal to the greater of (a) three (3) times the original
security deposit, or (b) three (3) months' basic rent (as set forth in Paragraph
3 hereof), which shall be paid by Tenant to Landlord forthwith on demand.
31. COMPLIANCE WITH LAWS. Tenant, at its expense, shall comply with all
environmental, air quality, zoning, planning, building, health, labor,
discrimination, fire, safety and other governmental or regulatory laws,
ordinances, codes and other requirements applicable to the Premises or
pertaining to Tenant's use of and activities on the Premises, including, without
limitation, the Americans with Disabilities Act of 1990 (collectively, the
"Building Laws"). Prior to occupancy, Tenant shall obtain certificates as may be
required or customary evidencing compliance with all building codes and permits
and approval of full occupancy of the Premises and of all installations therein.
Tenant shall cause the Premises to be continuously in compliance with all
Building Laws (as they may be amended from time to time).
Tenant agrees to defend, indemnify, and hold Landlord harmless from and against
all liability threatened against or suffered by Landlord due to a breach by
Tenant of its obligations and covenants set forth in the preceding paragraph.
The foregoing indemnity shall include the cost of all alterations to the
Premises, all fines, fees, and penalties, and all legal and other expenses
(including reasonable attorneys' fees) incurred by Landlord because of Tenant's
breach of such obligations and covenants.
32. HAZARDOUS MATERIAL. Tenant shall not cause or permit any Hazardous Material
to be brought upon, kept or used in or about the Premises or the Project by
Tenant, its agents, employees, contractors or invitees without the express
written consent of Landlord. If the presence of Hazardous Material on the
Premises or the Project caused or permitted by Tenant results in contamination
of the Premises or the Project, or if contamination of the Premises or the
Project by Hazardous Material otherwise occurs for which Tenant is responsible,
Tenant shall indemnify, defend and hold Landlord harmless from any and all
claims, judgments, damages, penalties, fines, costs, liabilities or losses
(including, without limitation, diminution in value of the Project, damages for
the loss or restriction of use of rentable or usable space or any amenity of the
Project or damages arising from any adverse impact on the marketing of space,
and sums paid in settlement of claims, attorney's fees, consultant fees and
expert fees) which arise during or after the Lease Term as a result of such
contamination.
This indemnification includes, without limitation, costs incurred in connection
with any investigation of on-site conditions or any clean up, remedial, removal
or restoration work required by any federal, state or local government agency or
political subdivision because of Hazardous Material present in the soil or
ground water on or under the Project. Without limiting the foregoing, if the
presence of any Hazardous Material on the Project caused or permitted by Tenant
results in any contamination of the Project, Tenant shall promptly take all
actions at its sole expense as are necessary to return the Project to the
condition existing prior to the introduction of any such Hazardous Material to
the Project, provided that Landlord's approval of such action shall first be
obtained with respect to actions required by Tenant, Landlord's approval not to
be unreasonably withheld. The foregoing indemnity shall survive the expiration
or earlier termination of the Lease.
8
As used herein, "Hazardous Material" means any element, compound, mixture,
solution, particle or substance which presents danger or potential danger for
damage or injury to health, welfare or to the environment and shall include, but
shall not be limited to any pollutant, toxic substance, hazardous waste,
hazardous material, hazardous substance, or oil as defined in or pursuant to:
(a) the Resource Conservation and Recovery Act, as amended; (b) the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, the Federal Clean Water Act, as amended; (c) any other chemical,
material or substance (i) which is regulated as a "toxic substance" (as defined
by the Toxic Substance Control Act, 15 U.S.C. Sec. 2601 et seq., as amended); or
(ii) which is a "hazardous waste" (as defined by the Resource Conservation and
Recovery Act, 42 U.S.C. Sec. 6901 et seq., as amended); or (iii) which is a
"hazardous substance" (as defined by the Comprehensive Environment Response,
Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Sec. 9601 et seq.,
as amended); (d) those substances which are inherently or potentially
radioactive, explosive, ignitable, corrosive, reactive, carcinogenic or toxic;
(e) those substances which have been recognized as dangerous or potentially
dangerous to health, welfare or to the environment by any federal, state,
municipal, county or other governmental or quasi-governmental authority and/or
any department or agency thereof or which are the subject of any other federal,
state or local environmental law, regulation, ordinance, rule or bylaw, whether
existing as of the date hereof, previously enforced or subsequently enacted,
including but not limited to: (i) polychlorinated byphenyls ("PCBs") or "PCB
items" (as defined in 40 C.F.R. Sec. 761.3) or any equipment which contains
PCBs; (ii) any asbestos or asbestos-containing materials; (iii) stored, leaked
or spill petroleum products; or (iv) exposure to which is prohibited, limited or
regulated by any federal, state, county, regional, local or other governmental
statute, regulation, ordinance or authority of which, even if not so regulated,
may or could pose a hazard to the health and safety of the Tenant, Landlord and
the occupants of or invitees to the Premises.
33. SUBORDINATION. Tenant accepts this Lease subject and subordinate to any
mortgage, deed of trust or other lien presently existing or hereafter arising
upon the Premises, or upon the Project and to any renewals, refinancing and
extensions thereof. Tenant agrees that any such mortgagee shall have the right
at any time to subordinate such mortgage, deed of trust or other lien of this
Lease on such term and subject to such conditions as such mortgagee may deem
appropriate in its discretion. Landlord is hereby irrevocably vested with full
power and authority to subordinate this Lease to any mortgage, deed of trust or
other lien now existing or hereafter placed upon the Premises, or the Project as
a whole and Tenant agrees upon demand to execute such further instruments
subordinating this Lease or attorning to the holder of any such liens as
Landlord may request. The terms of this Lease are subject to approval by the
Landlord's lender(s), and such approval is a condition precedent to Landlord's
obligations hereunder. In the event that Tenant should fail to execute any
subordination or other agreement required by this paragraph, promptly as
requested, Tenant hereby irrevocably constitutes Landlord as its attorney in
fact to execute such instrument in Tenant's name, place and stead, it being
agreed that such power is not coupled with an interest. Tenant agrees that it
will from time to time upon request by Landlord execute and deliver to such
persons as Landlord shall request a statement in recordable form certifying that
this Lease is unmodified (or if modified, the terms of such modification) and in
full force and effect, stating the dates to which rent and other charges payable
under this Lease have been paid, stating that Landlord is not in default
hereunder (or, if Landlord is claimed to be in default, stating why) and further
state such other matters as Landlord shall reasonably require.
34. NOTICES. All rents and any notices required to be delivered hereunder shall
be mailed to the following addresses (rent shall be delivered to Landlord's
first address below):
LANDLORD: Riverbend Properties
0000 Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxx 00000
TENANT: Essxsport Corp.
______________________
______________________
35. MISCELLANEOUS
35.1 NO AGENCY OR PARTNERSHIP RELATIONSHIP. Nothing herein contained shall
be deemed or construed by the parties hereto, nor by any third party, as
creating the relationship of principal and agent or of partnership or of joint
venture between the parties hereto, it being understood and agreed that neither
the method of computation of Rent, nor any other provision contained herein, nor
any acts of the parties hereto, shall be deemed to create any relationship
between the parties hereto other than the relationship of Landlord and Tenant.
Whenever herein the singular number is used, the same shall include the plural,
and words of any gender shall include each other gender.
35.2 CAPTIONS. The captions used herein are for convenience only and do not
limit or amplify the provisions hereof.
35.3 WAIVERS. One or more waivers of any covenant, term or condition of
this Lease by either party shall not be construed as a waiver of a subsequent
breach of the same covenant, term or condition. The consent or approval by
either party to or of any act by the other party requiring such consent or
approval shall not be deemed to waive or render unnecessary consent to or
approval of any subsequent similar act.
9
35.4 REASONABLE DELAYS BEYOND CONTROL. Except for the payment of Rent by
Tenant, whenever a period of time is herein prescribed for action to be taken by
Tenant or Landlord, Landlord or Tenant shall not be liable or responsible for,
and there shall be excluded from the computation of any such period of time, any
delays due to strikes, riots, acts of God, shortages of labor or materials, war,
government laws, regulations or restrictions or any other causes of any kind
whatsoever which are beyond the reasonable control of Landlord or Tenant.
35.5 QUIET ENJOYMENT AND POSSESSION. Landlord agrees that if Tenant shall
perform all of the covenants and agreements herein required to be performed by
Tenant, Tenant shall, subject to the terms of this Lease, at all times during
the continuance of this Lease have the peaceable and quiet enjoyment and
possession of the Premises.
35.6 ENTIRE AGREEMENT OF PARTIES. This Lease and those documents set forth
in Paragraph 35 of this Lease contain the entire agreement between the parties,
and no agreement shall be effective to change, modify or terminate this Lease in
whole or in part unless such agreement is in writing and duly signed by the
party against whom enforcement of such change, modification or termination is
sought.
35.7 APPLICABLE LAW. The laws of the State of Texas shall govern the
interpretation, validity, performance and enforcement of this Lease.
35.8 INVALID TERMS NOT TO AFFECT REMAINDER. If any provision of this Lease
should be held to be invalid or unenforceable, the validity and enforceability
of the remaining provisions of this Lease shall not be affected thereby.
35.9 TERMS BINDING. The terms, provisions and covenants contained in this
Lease shall apply to, inure to the benefit of and be binding upon the parties
hereto and their respective heirs, successors in interest and legal
representatives except as otherwise herein expressly provided.
36. TENANT MUST PROVIDE FIRST MONTHS RENT, SECURITY DEPOSIT AND A CERTIFICATE OF
INSURANCE TO LANDLORD PRIOR TO TAKING POSSESSION OF THE PREMISES. THE
CERTIFICATE OF OCCUPANCY WILL NOT BE APPLIED FOR UNTIL ALL OF THESE REQUIREMENTS
HAVE BEEN MET.
37. RENTAL SCHEDULE.
June 1, 2003 - May 1, 2004: $1,125.00 per month ($4.50 psf)
June 1, 2004 - May 31, 2005: $1,162.50 per month ($4.65 psf)
June 1, 2004 - May 31, 2006: $1,200.00 per month ($4.75 psf)
38. OTHER DOCUMENTS
The following Exhibits are attached hereto and incorporated herein.
Exhibit "A" - Tenant Improvements
Exhibit "B" - Rules and Regulations
Exhibit "C" - Sign Specifications
Exhibit "D" - Lease Guaranty
Exhibit "E" - Hazardous Material Statement
TENANT:
ESSXSPORT CORP.
By: _____________________________________
Name: Xxxxx Caldwell_____________________
Title: ______________________________
LANDLORD:
HALAWA VIEW APTS G.P., DBA RIVERBEND PROPERTIES
By:______________________________________
Xxxxxx X. Xxxxxxx, Trustee
Xxxxxx X. Xxxxxxx 1981 Revocable Trust, General Partner
Executed on the day of , 200__.
10
EXHIBIT "A"
RIVERBEND PROPERTIES
TENANT IMPROVEMENTS
Except for the refurbishing, modification and additions indicated below, Tenant
accepts the Premises in "AS IS" condition and acknowledges that no other
improvements or alterations will be made to the Premises by Landlord.
Landlord will provide an amount of $220.00 towards carpet installation. The
$220.00 will be used toward the installation of carpet, cove base and padding
that tenant chooses from Landlord's selection of carpets provided by Xxxx
Carpet. Landlord will submit payment of $220.00 directly to Xxxx Carpet and any
amounts exceeding the $220.00 will be at Tenant's expense.
[GRAPHIC OF FLOOR PLAN]
EXHIBIT "B"
RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways and similar areas
shall not be obstructed by Tenants or their officers, agents, servants, and
employees, or used for any purpose other than ingress and egress to and from the
Premises and for going from one part of the Building to another part of the
Building.
2. Landlord agrees to furnish Tenant two keys for each lock existing upon
the entrance doors when Tenant assumes possession. Additional keys will be
furnished at a nominal charge. No additional locks or bolts of any kind shall be
placed upon any of the entrance doors, nor shall any changes be made to existing
locks or the mechanism thereof.
3. Plumbing fixtures and appliances shall be used only for the purpose for
which constructed, and no sweepings, rubbish, rags or other unsuitable material
shall be thrown or placed therein. Any stoppage or damage resulting to any such
fixtures or appliances from misuse on the part of a Tenant's officers, agents,
servants, and employees shall be paid by such Tenant.
4. No signs, posters, advertisements, or notices shall be painted or
affixed on any of the windows or doors, or other parts of the Building, except
of such color, size and style and in such places, as shall be first approved in
writing by Landlord. No nails, hooks or screws shall be driven into or inserted
in any part of the Building, except by building maintenance personnel or as
directed by Landlord.
5. Tenant shall not at any time occupy any part of the Premises or Project
as sleeping or lodging quarters.
6. Landlord will not be responsible for lost or stolen property, equipment,
money or jewelry from the Premises or the Project.
7. Tenant shall not do anything, or permit anything to be done, in or about
the Building, or bring or keep anything therein, that will in any way increase
the possibility of fire or other casualty or obstruct or interfere with the
rights of, or otherwise injure or annoy, other tenants, or do anything in
conflict with the valid pertinent laws, rules and regulations of any
governmental authority.
8. Tenant and its employees, agents and invitees shall park their vehicles,
i.e. cars, trucks, semi-trailers, only in those parking areas designated by
Landlord. Tenant shall not leave any vehicle in a state of disrepair on the
Premises or Project. If Tenant or its employees, agents or invitees park their
vehicles in areas other than the designated parking areas or leave any vehicle
in a state of disrepair, Landlord, after posting written notice on the vehicle
of such violation, shall have the right to remove such vehicles at vehicle
owner's expense. Specific parking spaces allocated for any one Tenant shall be
limited to those spaces situated directly in front of that Tenant's Premises.
Unless otherwise designated by Landlord, all other parking spaces not directly
in front of a lease space shall be common parking and available on a first come,
first served basis. Each parking space is limited to one vehicle. These parking
regulations are intended to be self-enforcing and each Tenant shall post written
notice of these regulations on its Premises and shall ensure compliance
therewith by all of Tenant's employees. Landlord reserves the right to limit the
number of parking spaces available to any Tenant that fails to abide by these
regulations.
9. Landlord shall have the power to prescribe the weight and position of
heavy items, which may over stress any portion of the floor, parking or access
areas. All damage done to the Building, parking or access areas, by the improper
placing of heavy items which over stress the floor, parking or access areas will
be repaired at the sole expense of Tenant.
10. Each Tenant shall cooperate with Building employees in keeping Premises
neat and clean.
11. No birds, animals or reptiles, or any other creatures, shall be brought
into or kept in or about the Building.
12. Tenant shall keep all its equipment, materials, products or any other
items inside the Premises and there shall be no outside storage of any type
without the written approval of Landlord.
13. Should a Tenant require telegraphic, telephone, annunciator or any
other communication service, Landlord will direct the electricians and
installers where and how the wires are to be introduced and placed, and none
shall be introduced or placed except as Landlord shall direct.
14. No access to Roof. Tenant shall have no right of access or penetration
to the roof of the Premises or the Building and shall not install, repair, place
or replace any serial fan, air conditioner or other device on the roof of the
Premises or the Building without the prior written consent of Landlord. Any
serial fan, air conditioner or device installed without such written consent
shall be subject to removal, at Tenant's expense, without notice, at any time.
15. Tenant shall not make or permit any improper noises in the Building, or
otherwise interfere in any way with other Tenants, or persons having business
with them.
16. No equipment of any kind shall be operated on the Premises that could
in any way annoy any other Tenants in the Building without the written consent
of Landlord.
17. Tenant shall not use or keep in the Building any inflammable or
explosive fluid or substance, or any illuminating material, unless it is battery
powered, UL approved.
18. Landlord has the right to evacuate the Building in event of emergency
or catastrophe.
19. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular Tenant or Tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of any
other Tenant or Tenants nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all Tenants in the Project.
20. Landlord reserves the right to rescind any of these Rules and make such
other and further Rules and Regulations as in the judgment of Landlord shall
from time to time be needed for the safety, protection, care and cleanliness of
Project, the Premises or the Building, the operation thereof, the preservation
of good order therein, and the protection and comfort of its Tenants, their
agents, employees and invitees, which rules when made and notice thereof given
to a Tenant shall be binding upon it in like manner as if originally herein
prescribed. In the event of any conflict, inconsistency, or other differences
between the terms and provisions of these Rules and Regulations, as now or
hereafter in effect, and the terms and provisions of any lease now or hereafter
in effect between Landlord and any Tenant in the Building, Landlord shall have
the right to rely on the term or provision in either such lease or such Rules
and Regulations which is most restrictive on such Tenant and most favorable to
Landlord.
EXHIBIT "C"
RIVERBEND PROPERTIES
SIGN SPECIFICATION
1. Sign Copy Permitted: Sign copy shall be limited to the name under which
Tenant is doing business. One (1) sign will be allowed per Tenant, except for
spaces with double frontage. Landlord will pay $146 directly to Xxxxxxx Sign
Company for the panel and installation of such sign. Tenant will be responsible
for payment of the balance of the cost of manufacture and/or installation of
such sign.
2. When Tenant has a logo or trademark which is used in conjunction with
Tenant's name, Tenant may seek Landlord's approval for the use of the logo in
conjunction with their sign, provided logo meets size and specifications under
the criteria (no product logos are permitted).
3. Color: All signs shall have a white background with address in dark
xxxxx vinyl lettering with 3/8" xxxxx inset border.
4. Style of Letters: Only standard bold condensed is permitted.
5. Illumination: Lighted signage is not permitted.
6. Size of Letters:
A. Face size of aluminum panels 1'-2"x 9'-10"x 1"
B. Sign to consist of white aluminum panel with xxxxx vinyl lettering.
C. Length: 1 panel 1'-2"x 9'-10"x 1". All signs shall be centered on
store front.
7. Letter Construction:
A. No plastic or wooden signs are permitted.
B. No channel-lume letters or lighted signs are permitted.
C. No logos and trademarks.
8. Installation: All panels will be individually mounted with aluminum
clips . NO glue to be used for mounting without prior written approval by
Landlord.
9. Permits: All required City of Fort Worth permits and approvals from
Landlord are required prior to sign fabrication.
10. Window Signs/Door Sign and Decals: Permanently painted window signs are
not permitted. Vinyl lettering door signs are permitted as follows:
A. Tenant name under which Tenant is conducting business:
(1) Size: 2" maximum height with 24" length.
(2) Color: White
(3) Style: Helvetica
(4) Placement: 8" above horizontal door bar.
B. Store Hours:
(1) Size: 1" maximum height and 24: length, centered 12" below
Tenant name
(2) Color: White
(3) Style: Helvetica
11. Service Door Signs: Copy shall be limited to Tenant name and address
only. Letters shall be white vinyl, Helvetica style and a maximum of 3" height.
The top letters spelling Tenant's name will be placed 5'-6' from the bottom of
the door and beginning 6" from the left edge of the door. Letters spelling
Tenant's address shall be placed beginning 2" beneath the lower edge of the
door.
12. Tenant Responsibilities: The removal of signs and necessary repair to
facade by the mounting of signs are the responsibility of the Tenant. Upon field
inspection, any sign company not conforming to approved sign specifications will
be required to bring signage into compliance with specifications at their own
expense.
13. Submittal for Approval: Two (2) sets of drawings showing complete sign
on store front with dimensions, construction and installation details must be
submitted to:
Riverbend Properties
0000 Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxx 00000
EXHIBIT "D"
LEASE GUARANTY
In order to induce Riverbend Properties (the "Landlord") to execute that
certain Lease Agreement (the "Lease") dated , 200__, between Landlord and
EssxSport Corp.("Tenant") for the lease of that real property referred to as
0000 Xxxxxx Xxxxx, Xxxx. 00 being a portion of the Riverbend Properties,
situated in the City of Fort Worth, State of Texas (the Premises), the
undersigned (hereinafter referred to individually and collectively as
"Guarantor", whether one or more) hereby jointly and severally guarantee unto
Landlord the payment and performance of (i) all of the rental and other sums or
charges which may ever become due and payable by Tenant under the Lease,
including, without limitation, rental that becomes due and payable by reason of
the exercise of any power to accelerate granted to Landlord under the Lease and
any damages or other sums that become payable on account of any default by
Tenant under the Lease, and (ii) all of the other obligations, liabilities and
duties of Tenant under the Lease (the rental, other sums and charges and other
obligations, liabilities and duties described in the foregoing clauses (i) and
(ii) being hereinafter collectively referred to as the "Obligations"). In the
event of default by Tenant in the payment or performance of any of the
Obligations, Guarantor shall on demand pay the amount due to Landlord and
perform all of the other Obligations of Tenant with respect to which Tenant is
then in default. For the purposes hereof, the term "Tenant" shall include any
assignee of Tenant and the term "Lease" shall include any amendment of the Lease
effected by Landlord and Tenant, with or without the consent or knowledge of
Guarantor.
Landlord shall not be required, before invoking the benefits of this
Guaranty, to institute suit against or exhaust its remedies with respect to
Tenant or any other person liable for the Obligations or to enforce its rights
with respect to any security which shall have ever been given to secure the
payment and performance of the Obligations; and the obligations of Guarantor
hereunder shall not be released or impaired in any way by any neglect, delay,
omission, failure or refusal of Landlord to take or prosecute any action for the
collection or enforcement of the Obligations, or any failure of Landlord to give
Guarantor any notice of any kind under any circumstances whatsoever with respect
to or in connection with the Obligations. Suit may be brought and maintained
against Guarantor without the xxxxxx of Tenant or any other person, and in the
event that there is more than one guarantor of the Obligations, Landlord may (i)
bring suit against all guarantors jointly and severally or against any one or
more of them, (ii) compound or settle with any one or more of such guarantors
for such consideration as Landlord may deem proper, and (iii) release one or
more of the guarantors from liability without impairing the liability of the
guarantors not so released, and no action brought by Landlord against any
guarantor of the Obligations shall impair the right of Landlord to bring suit
against any remaining guarantor or guarantors, including Guarantor hereunder.
The obligations of Guarantor shall be irrevocable and unconditional,
irrespective of the genuineness, validity, regularity or enforceability of the
Lease or any security given for the Obligations or any other circumstances which
might otherwise constitute a legal or equitable discharge of a surety or
guarantor, and Guarantor waives the benefit of all principles or provisions of
law, statutory or otherwise, which are or might be in conflict with the terms of
this Guaranty, and agrees that the obligations of Guarantor shall not be
affected by any circumstances, whether or not referred to in this Guaranty which
might otherwise constitute a legal or equitable discharge of a surety or a
guarantor. Specifically, Guarantor waives the benefits of any right of discharge
under Chapter 34 of the Texas Business and Commerce Code and any other rights of
sureties and guarantors thereunder. Without limiting the generality of the
foregoing, Guarantor agrees that Landlord may, in its sole and absolute
discretion, without notice to or consent by Guarantor, and without in any way
releasing or impairing any liability or obligation of Guarantor hereunder (i)
waive compliance by Tenant with any of its Obligations or covenants under the
Lease or waive any default thereunder, or grant any other indulgence with
respect to the Lease, (ii) modify, amend or change any provision of the Lease,
(iii) grant extensions or renewals of the Lease or the Obligations, or effect
any release, compromise or settlement in connection therewith, including any
release of the liability of Tenant or any guarantor or other person liable on
the Obligations or any part thereof, (iv) transfer its interest in the Premises
covered by the Lease or its rights under this Guaranty, (v) consent to the
assignment by Tenant of its rights under the Lease, and (vi) deal in all
respects with Tenant and the Obligations as if this Guaranty were not in effect.
Guarantor further waives (i) notices of acceptance of this Guaranty, (ii)
notices to Guarantor of any kind in any circumstances whatsoever, including,
without limitation, notice of dishonor and notice of any default by Tenant under
the Lease and all waivers or indulgences granted by Landlord to Tenant under the
Lease, and (iii) diligence, presentment and suit on the part of Landlord in the
enforcement of any of the Obligations.
This Guaranty shall be enforceable despite any exculpation from liability
granted to Tenant under the Lease, with the same force and effect as if no such
exculpation from liability had been granted to Tenant.
Guarantor agrees to pay the reasonable attorneys' fees and all other costs
and expenses incurred by Landlord in order to enforce its rights under this
Guaranty.
In the event any payment by Tenant to Landlord is held to constitute a
preference under the bankruptcy laws, or if for any other reason Landlord is
required to refund such payment or pay the amount thereof to any other party,
such payment by Tenant to Landlord shall not constitute a release of Guarantor
from any liability hereunder, but Guarantor agrees to pay such amount to
Landlord upon demand.
Until the Obligations have been paid in full, Guarantor shall not have any
right of subrogation unless such right is expressly granted in writing by
Landlord. Any indebtedness of Tenant held by Guarantor is hereby subordinated to
this Guaranty; and any such indebtedness of Tenant to Guarantor, if Landlord so
requests, shall be collected, enforced and received by Guarantor as trustee for
Landlord and shall be paid over to Landlord in order to satisfy the Obligations
guaranteed hereunder.
Landlord in its sole discretion may apply all payments received by it from
Tenant, Guarantor or any other guarantor under any other instrument, or realized
by it from any security in such manner and order or priority as Landlord sees
fit, to any of the Obligations of Tenant, whether or not any of the Obligations
to which any payment is applied are due at the time of such application.
If this Guaranty is signed by more than one person, then all the
obligations of Guarantor arising hereunder shall be jointly and severally
binding on each of the undersigned, and their respective heirs, executors,
administrators, successors, and assigns. The word "person" as used herein
includes natural persons and entities of all kinds.
This Guaranty shall be construed in accordance with and governed by the
laws of the State of Texas.
This Guaranty shall be binding upon Guarantor and the heirs, executors,
administrators, successors and assigns of each of the persons comprising
Guarantor, and shall inure to the benefit of Landlord and its successors and
assigns.
EXECUTED THIS _____________ DAY OF _____________, 200____.
GUARANTOR:
S/S/ ON File ______________________ ______________________
Name Social Security Number Drivers License Number
Home Address: __________________________________________________________________
Telephone Number: ______________________________________________________________
EXHIBIT "E"
HAZARDOUS SUBSTANCES STATEMENT
THIS HAZARDOUS SUBSTANCES STATEMENT is made as of the date of that certain Lease
by and between Riverbend Properties ("Landlord") and EssxSport Corp.("Tenant")
dated June 1st , 2003 (the "Lease").
A. The term "Hazardous Substance" as used in this Hazardous Substances
Statement shall have the same meaning as does "Hazardous Material" as set forth
in section 32 of the Lease.
B. Tenant represents and warrants to Landlord that at all times during the
term of this Lease and any extensions or renewals thereof, Tenant shall:
(i) Obtain Landlord's prior written consent, which consent shall be
granted or withheld in Landlord's sole discretion, to the manufacturing,
processing, distributing, using, producing, treating, storing (above or below
ground level), disposing of, or allowing to be present (the "Presence") of any
Hazardous Substance in or about the Premises. In connection with each such
consent requested by Tenant, Tenant shall submit to Landlord a description,
including the composition, quantity and all other information requested by
Landlord concerning the proposed Presence of any Hazardous Substance. Landlord's
consent to the Presence of any Hazardous Substance may be deemed given only by
inclusion of a description of the composition and quantity of the proposed
Hazardous Substance on Schedule A to this Addendum to Lease. Any Hazardous
Substance, which Landlord has agreed to the Presence thereof, shall be deemed to
be an Allowed Substance for purposes of this Article. Landlord's consent to the
Presence of any Hazardous Substance at any time during the lease term or renewal
thereof shall not waive the requirement of obtaining Landlord's consent to the
subsequent Presence of any other, or increased quantities of, Hazardous
Substance in or about the Premises. If Landlord subsequently consents to the
Presence of any other Hazardous Substance, or to increased quantities of any
Hazardous Substance, such consent shall be deemed given only by amendment of
Schedule A to this Hazardous Substances Statement.
(ii) refrain from (and prohibit others from) allowing the Presence of
any Hazardous Substance in or about the Premises which is not an Allowed
Substance;
(iii) promptly comply at Tenant's own cost an expense, with all laws,
orders, rules, regulations, certificates of occupancy, or other requirements, as
the same now exist or may hereafter be enacted, amended or promulgated, of any
federal, municipal, state, county or other governmental or quasi-governmental
authorities and/or any department or agency thereof relating to the Presence of
Hazardous Substances in or about the Premises, whether or not such substances
are Allowed Substances.
(iv) indemnify and hold Landlord, its agents and employees, harmless
from any and all demands, claims, causes of action, penalties, liabilities,
judgments, damages (including consequential damages) and expenses including,
without limitation, court costs and reasonable attorneys' fees incurred by
Landlord as a result of (a) Tenant's failure or delay in complying, to
Landlord's satisfaction, with the provisions of sections (B)(i) or (ii) above;
(b) Tenant's failure or delay in properly complying with such law, order, rule,
regulation, certificate of occupancy or other requirement referred to in section
(B)(iii) above; or (c) any adverse effect which results from the Presence of any
Hazardous Substance in or about the Premises, whether or not such Hazardous
Substance is an Allowed Substance. If any action or proceeding is brought
against Landlord, its agents or employees by reason of any such claim, Tenant,
upon notice from Landlord, will defend such claim at Tenant's expense with
counsel reasonably satisfactory to Landlord. This indemnification by Tenant of
Landlord shall survive the termination of the Lease.
(v) promptly disclose to Landlord by delivering, in the manner
prescribed for delivery of notice in the Lease, a copy of any forms,
submissions, notices, reports, or other written documentation (Communications)
relating to the Presence of any Hazardous Substance or Allowed Substance,
regardless of whether such Communications are delivered to Tenant or are
requested of Tenant by any federal, municipal, state, county or other government
or quasi-governmental authority and/or any department or agency thereof.
(vi) notwithstanding any other provisions of this Lease, allow
Landlord, and any authorized representative of Landlord, access and the right to
enter and inspect the Premises for the Presence of any Hazardous Substance,
whether or not such Hazardous Substance is an Allowed Substance, at any time
deemed reasonable by Landlord, without prior notice to Tenant.
C. Compliance by Tenant with any provision of this Addendum shall not be
deemed a waiver of any other provision. Without limiting the foregoing,
Landlord's consent to the Presence of any Allowed Substance shall not relieve
Tenant of its indemnity obligations under the terms of this Addendum.
Tenant: ESSXSPORT CORP.
Dated: 6/01/03
By: S/S Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: President and CEO
SCHEDULE A
ALLOWED SUBSTANCES
COMPOSITION OF ALLOWED SUBSTANCES QUANTITY OF ALLOWED SUBSTANCES
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