LEASE AGREEMENT
(8314 WHITE SETTLEMENT ROAD)
THIS LEASE AGREEMENT, made and entered into as of this 24th day of
January, 1997, by and between XXXXXXX X. XXXXX AND XXXXXXXX X. XXXXX,
hereinafter collectively referred to as "Landlord", and CARLYLE GOLF,
INC., a Colorado corporation, as "Tenant";
W I T N E S S E T H:
1. PREMISES AND TERM. In consideration of the obligation of Tenant
to pay rent as herein provided, and in consideration of other terms,
provisions and covenants hereof, Landlord hereby demises and leases to
Tenant, and Tenant hereby accepts and leases from Landlord certain
premises situated within the County of Tarrant, State of Texas, more
particularly described on EXHIBIT "A" attached hereto and incorporated
herein by reference (hereinafter referred to as the "premises").
TO HAVE AND TO HOLD the same for a term commencing on January 24,
1997 (the "Commencement Date"), and ending on May 31, 1997.
2. RENT.
A. Tenant agrees to pay to Landlord rent for the premises, in
advance, without demand, deduction or set off, for the entire term
hereof the monthly amount of $3,900. One such monthly installment
shall be due and payable on the Commencement Date and a like monthly
installment shall be due and payable on or before the first day of
each calendar month succeeding the Commencement Date during the term,
except that the rental payment for any fractional calendar month at
the commencement or end of the lease period shall be prorated.
B. In addition, Tenant agrees to pay maintenance and service
costs and expenses pursuant to Paragraph 4 below.
3. TAXES. Landlord agrees to pay before they become delinquent all
taxes, assessments and governmental charges of any kind and nature
whatsoever including without limitation assessments due to deed
restrictions and/or owner associations (collectively referred to herein as
"Taxes") which accrue against the Premises or any part thereof during the
term.
4. REPAIRS, MAINTENANCE AND SERVICES.
A. Landlord shall maintain in good repair the roof, foundation
and the structural soundness of the exterior walls of the building or
other improvements to be erected by Landlord on the premises. All
repairs, restorations and replacements shall be of quality and class
equal to the present or future installations and shall be done in a
good and workmanlike manner. In case of the neglect or of default of
Landlord making repairs and replacements, after twenty (20) days'
prior written notice to Landlord, Tenant may make such repairs and/or
replacements during the term hereof or after its expiration, and all
reasonable costs and expenses thereof with interest thereon at the
rate of twelve percent (12%) per annum from the date said sums are
expended shall be repaid by Landlord to Tenant as additional rent
upon demand. The receipted bills of the mechanics or contractors
employed by Tenant showing the payment by Tenant for the making of
such repairs, alterations or improvements shall be prima facia
evidence of such charges and that the same have been paid by Tenant.
B. Subject to the preceding paragraph 4A, following the
Commencement Date, Tenant shall, at its own cost and expense,
maintain all parts of the premises and any improvements erected or to
be erected thereon in the current condition, promptly making all
necessary repairs and replacements, ordinary wear and tear excepted.
Further, Tenant shall repair or replace any damage or injury to the
lease premises, or any part thereof, caused by Tenant or Tenant's
agents, employees, invitees, licensees, or visitors. If Tenant fails
to make such repairs or replacements promptly, Landlord may, at
Landlord's option, make such repairs or replacements, and Tenant
shall reimburse the cost thereof to Landlord on demand. All repairs,
restorations and replacements shall be of quality and class equal to
the present or future installations and shall be done in a good and
workmanlike manner. In case of the neglect or of default of Tenant
making repairs and replacements, after twenty (20) days' prior
written notice to Tenant, Landlord may make such repairs and/or
replacements during the term hereof or after its expiration, and all
reasonable costs and expenses thereof with interest thereon at the
rate of twelve percent (12%) per annum from the date said sums are
expended shall be repaid by Tenant to Landlord as additional rent
upon demand. The receipted bills of the mechanics or contractors
employed by Landlord showing the payment by Landlord for the making
of such repairs, alterations or improvements shall be prima facia
evidence of such charges and that the same have been paid by
Landlord.
C. Tenant shall not commit or allow any waste or damage to be
committed on any portion of the lease premises. At the termination
of this Lease, by lapsed time or otherwise, Tenant shall deliver said
lease premises to Landlord in as good condition as at date of
possession of Tenant, ordinary wear and tear excepted, and upon the
termination of this Lease, Landlord shall have the right to reenter
and resume possession of the lease premises. The cost and expense of
any repairs necessary to restore the condition of the lease premises
to said condition in which they are to be delivered to Landlord shall
be borne by Tenant.
5. COMPLIANCE WITH LAWS AND DEED RESTRICTIONS. Tenant shall comply
at its sole expense with all laws, ordinances, orders, rules and
regulations (state, federal, municipal and other agencies or bodies having
any jurisdiction thereof) related to Tenant's use of the lease premises.
Specifically, Tenant agrees to comply with all clean air and water quality
standards and regulations as required by any governmental agency having
competent jurisdiction over Tenant's use of the lease premises and with
all federal, state and local environmental laws and regulations affecting
the Tenant's use of the lease premises, and Landlord agrees to cooperate
with Tenant and perform any actions requested by Tenant in complying with
such matters.
6. ALTERATIONS. Tenant shall not make any alterations, additions
or improvements to the premises (including but not limited to roof and
wall penetrations) without the prior written consent of Landlord, not to
be unreasonably withheld. All alterations, additions, improvements and
partitions erected by Tenant shall be and remain the property of Tenant
during the term of this Lease and Tenant shall, unless Landlord otherwise
elects as hereinafter provided, remove all alterations, additions,
improvements and partitions erected by Tenant and restore the premises to
their original condition as of the Commencement Date (ordinary wear and
tear excepted) by the date of termination of this Lease or upon earlier
vacating of the premises; provided, however, that if Landlord so elects
prior to termination of this Lease or upon earlier vacating of the
premises, such alterations, additions, improvements and partitions shall
become the property of Landlord as of the date of termination of this
Lease or upon earlier vacating of the premises and shall be delivered up
to the Landlord with the premises. Equipment and furniture that do not
constitute fixtures which are installed by Tenant may be removed by Tenant
prior to the termination of this lease if Tenant so elects, provided no
default by Tenant hereunder shall then exist, and shall be removed by the
date of termination of this Lease or upon earlier vacating of the premises
if required by Landlord. Upon any such removal Tenant shall restore the
premises to their original condition as of the Commencement Date (ordinary
wear and tear excepted). 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 buildings and other improvements
to be situated on the premises.
7. SIGNS. Tenant may erect or install any signs, decorations or
advertising media of any type which can be viewed from the exterior of the
premises, provided that all signs, decorations or advertising media shall
be installed at Tenant's sole expense and shall comply with all deed
restrictions and applicable governmental regulations. Such materials
shall be kept in good condition and in proper operating order at all
times.
8. UTILITIES. Tenant shall pay all charges for water, heat,
electricity, gas, telephone and other utility services used by Tenant upon
the Premises. Landlord shall not be responsible for providing or
furnishing any electrical connection within the premises to any equipment
installed by Tenant.
9. FIRE AND CASUALTY DAMAGE.
A. From and after the Commencement Date, Landlord agrees to
maintain insurance covering the building situated upon or to be
erected on the premises in an amount not less than one hundred
percent (100%) of the replacement cost thereof, insuring against the
perils of Fire, Lightning, Extended Coverage, Vandalism and Malicious
Mischief extended by Special Extended Coverage Endorsement to insure
against all other Risks of Direct Physical Loss, such coverages and
endorsements to be as defined, provided and limited in the standard
forms prescribed by the Texas State Board of Insurance. Subject to
the provisions of subparagraph 9C below, such insurance shall be for
the sole benefit of Landlord and under its sole control.
B. If the buildings situated or to be erected upon the
premises should be totally destroyed by fire, tornado or other
casualty or if they should be so damaged thereby that rebuilding or
repairs cannot in Landlord's estimation be completed prior to the
earlier of (i) 180 days after the date of such damage, or (ii) the
end of the term of this Lease, this Lease shall terminate and the
rent shall be abated during the unexpired portion of this Lease,
effective upon the date of the occurrence of such damage.
C. If the buildings situated or to be erected upon the
premises should be damaged by any peril covered by the insurance to
be provided by Landlord under subparagraph 9(A) above, but only to
such extent that rebuilding or repairs can in Landlord's estimation
be completed prior to the earlier of (i) 180 days after the date of
such damage, or (ii) the end of the term of this Lease, this Lease
shall not terminate, and Landlord shall at its sole cost and expense
thereupon proceed with reasonable diligence to rebuild and repair
such buildings to substantially the condition in which they existed
prior to such damage, except that Landlord shall not be required to
rebuild, repair or replace any part of the partitions, fixtures,
additions and other improvements which may have been placed in, on or
about the premises by Tenant. In the event that Landlord should fail
to complete such repairs and rebuilding within 180 days after the
date of such damage, or in the event a substantial portion of the
improvements is damaged or destroyed within 365 days of the end of
the term of this Lease, Tenant may at its option terminate this Lease
by delivering written notice of termination to Landlord as Tenant's
exclusive remedy, whereupon all rights and obligations hereunder
shall cease and terminate without prejudice to the rights and
obligations of any party hereto which have accrued prior to the date
of termination which shall survive such termination.
D. Notwithstanding anything herein to the contrary, in the
event the holder of any indebtedness secured by a mortgage or deed of
trust covering the premises required that the insurance proceeds be
applied to such indebtedness, then Landlord shall have the right to
terminate this Lease by delivering written notice of termination to
Tenant within fifteen (15) days after such requirement is made by any
such holder, whereupon all rights and obligations hereunder shall
cease and terminate.
E. Each of Landlord and Tenant hereby releases the other from
any loss or damage to property caused by fire or any other perils
insured in policies of insurance covering such property, even if such
loss or damage shall have been caused by the fault or negligence of
the other party or anyone for whom such party may be responsible;
provided, however, that this release shall be applicable and in force
and effect only with respect to loss or damage occurring during such
times as the releasor's policies shall contain a clause or
endorsement to the effect that any such release shall not adversely
affect or impair said policies or prejudice the right of the releasor
to recover thereunder and then only to the extent of the insurance
proceeds payable under such policies. Each of the Landlord and
Tenant agrees that it will request its insurance carriers to include
in its policies such a clause or endorsement.
F. Tenant shall procure and maintain throughout the term of
this Lease, at Tenant's sole expense, fire and casualty insurance
with extended coverage insuring Tenant's property, including any
partitions, fixtures, additions or other improvements which may have
been placed in, on or about the premises by Tenant and any equipment,
furniture and other movables which may have been placed within or
upon the lease premises, in an amount equal to their full replacement
value. If the property of Tenant situated upon or to be situated upon
the lease premises shall be damaged or destroyed, Tenant shall, at
its option, at its sole cost thereupon proceed with reasonable
diligence to rebuild or replace such property of Tenant, to the
condition such property existed prior to such destruction or damage,
provided any improvements to the lease premises shall be made in
accordance with plans and specifications approved by Landlord.
G. All insurance policies to be procured by either party
hereunder shall be obtained from responsible insurance companies
satisfactory to the other party. Certified copies of such policies,
together with receipt evidencing payment of premiums therefor, shall
be delivered to the other party prior to the Commencement Date of
this Lease. Not less than fifteen (15) days prior to the expiration
date of any such policies, certified copies of the renewals thereof
(bearing notations evidencing the payment of renewal premiums) shall
be delivered to the other party. Such policies shall further provide
that not less than thirty (30) days written notice shall be given to
the other party before such policy may be canceled or changed to
reduce insurance provided thereby.
10. LIABILITY. LANDLORD SHALL NOT BE LIABLE TO TENANT OR TENANT'S
EMPLOYEES, AGENTS, PATRONS OR VISITORS, OR TO ANY OTHER PERSON WHOMSOEVER,
FOR ANY INJURY TO PERSON OR DAMAGE TO PROPERTY ON OR ABOUT THE PREMISES,
RESULTING FROM AND/OR CAUSED IN PART OR WHOLE BY THE NEGLIGENCE OR
MISCONDUCT OF TENANT, ITS AGENTS, SERVANTS OR EMPLOYEES OR OF ANY OTHER
PERSON ENTERING UPON THE PREMISES, OR CAUSED BY THE BUILDINGS AND
IMPROVEMENTS TO BE LOCATED ON THE PREMISES BECOMING OUT OF REPAIR AND FOR
WHICH TENANT IS RESPONSIBLE HEREUNDER, OR CAUSED BY LEAKAGE OF GAS, OIL,
WATER OR STEAM OR BY ELECTRICITY EMANATING FROM THE PREMISES RESULTING
FROM TENANT'S USE OF THE PREMISES, OR CAUSED BY ENVIRONMENTAL POLLUTANTS
RESULTING FROM TENANT'S USE OF THE PREMISES, OR DUE TO ANY CAUSE
WHATSOEVER RESULTING FROM TENANT'S USE OF THE PREMISES, AND TENANT HEREBY
COVENANTS AND AGREES THAT IT WILL AT ALL TIMES INDEMNIFY AND HOLD SAFE AND
HARMLESS THE PROPERTY, THE LANDLORD, LANDLORD'S AGENTS AND EMPLOYEES FROM
ANY LOSS, LIABILITY, CLAIMS, SUITS, COSTS, EXPENSES, INCLUDING, WITHOUT
LIMITATION, ATTORNEY'S FEES AND DAMAGES, BOTH REAL AND ALLEGED, ARISING
OUT OF ANY SUCH DAMAGE OR INJURY; EXCEPT INJURY TO PERSONS OR DAMAGE TO
PROPERTY THE SOLE CAUSE OF WHICH IS THE NEGLIGENCE OF LANDLORD OR THE
FAILURE OF LANDLORD TO REPAIR ANY PART OF THE PREMISES WHICH LANDLORD IS
OBLIGATED TO REPAIR AND MAINTAIN HEREUNDER WITHIN A REASONABLE TIME (BUT
NOT LESS THAN 90 DAYS, EXCEPT IN THE CASE OF AN EMERGENCY) AFTER THE
RECEIPT OF WRITTEN NOTICE FROM TENANT OF NEEDED REPAIRS. Tenant shall
procure and maintain throughout the term of this Lease a policy or
policies of insurance, at its sole cost and expense, insuring both
Landlord and Tenant against all claims, demands or actions arising out of
or in connection with: (i) Tenant's operations in and maintenance and use
of the premises; and (ii) Tenant's liability assumed under this Lease, the
limits of such policy or policies to be in the amount of not less than
$1,000,000.00 per occurrence in respect of injury to persons (including
death), and in the amount of not less than $2,000,000.00 per occurrence in
respect of property damage or destruction, including loss of use thereof.
11. USE. The demised premises shall be used only for the purpose of
receiving, storing, manufacturing, shipping and selling (other than
retail) products, materials and merchandise made and/or distributed by
Tenant and for such other lawful purposes as may be necessary in
conducting the business of Tenant. Except as currently being conducted,
outside storage, including without limitation, trucks and other vehicles,
is prohibited without Landlord's prior written consent, not to be
unreasonably withheld. Tenant shall at its own cost and expense obtain
any and all licenses and permits necessary for any such use. To the
extent known by Tenant, Tenant shall comply with all deed restrictions as
may affect the premises and all governmental laws, ordinances and
regulations applicable to the use of the premises, and, subject to
Tenant's right to reasonably contest same, shall promptly comply with all
governmental orders and directives for the correction, prevention and
abatement of nuisances in or upon, or connected with, the premises, all at
Tenant's sole expense. Tenant shall not permit any unlawful odors, smoke,
dust, gas, noise or vibrations to emanate from the premises, nor take any
other action which would constitute a legal nuisance. Without Landlord's
prior written consent, not to be unreasonably withheld, Tenant shall not
receive, store or otherwise handle any product, material or merchandise
which is explosive or highly inflammable, except as currently being
conducted. Tenant will not permit the premises to be used for any purpose
or in any manner (including without limitation any method of storage)
which would render the insurance thereon void or the insurance risk more
hazardous or cause the Texas State Board of Insurance or other insurance
authority to disallow any credits. If any increase in the fire and
extended coverage insurance premiums paid by Landlord is caused by
Tenant's use and occupancy of the premises, or if Tenant vacates the
premises and causes an increase in such premiums, then Tenant shall pay as
additional rental the amount of such increase to Landlord.
12. INSPECTION. Landlord and Landlord's agents and representatives
shall have the right to enter and inspect the premises at any reasonable
time during business hours, for the purpose of ascertaining the condition
of the premises or in order to make such repairs as may be required or
permitted to be made by Landlord under the terms of this Lease. During
the period that is six (6) months prior to the end of the term hereof,
Landlord and Landlord's agents and representatives shall have the right to
enter the premises at any reasonable time during business hours for the
purpose of showing the premises and shall have the right to erect on the
premises a suitable sign indicating the premises are available. Tenant
shall give written notice to Landlord at least thirty (30) days prior to
vacating the premises and shall arrange to meet with Landlord for a joint
inspection of the premises prior to vacating. In the event of Tenant's
failure to give such notice or arrange such joint inspection, Landlord's
inspection at or after Tenant's vacating the premises shall be
conclusively deemed correct for purposes of determining Tenant's
responsibility for repairs and restoration.
13. ASSIGNMENT AND SUBLETTING.
A. Tenant shall have the right to assign, sublet, transfer or
encumber this Lease, or any interest therein, by operation of law or
otherwise without the prior consent of Landlord. Any assignee,
sublessee or transferee of Tenant's interest in this Lease (all such
assignees, sublessees and transferees being hereinafter referred to
as "successors"), by assuming Tenant's obligations hereunder shall
assume liability to Landlord for all amounts paid to persons other
than Landlord by such successors in contravention of this Paragraph.
No assignment, subletting or other transfer shall relieve Tenant of
its liability hereunder. Upon the occurrence of an "event of
default" as hereinafter defined, if the premises or any part thereof
are then assigned or sublet, Landlord, in addition to any other
remedies herein provided, or provided by law, may at its option
collect directly from such assignee or subtenant all rents becoming
due to Tenant under such assignment or sublease and apply such rent
against any sums due to Landlord from Tenant hereunder, and no such
collection shall be construed to constitute a novation or a release
of Tenant from the further performance of Tenant's obligations
hereunder.
B. If this Lease is assigned to any person or entity pursuant
to the provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et seq.,
(the "Bankruptcy Code"), any and all monies or other considerations
payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and
remain the exclusive property of Landlord and shall not constitute
property of Tenant or of the estate of Tenant within the meaning of
the Bankruptcy Code. Any and all monies or other considerations
constituting Landlord's property under the preceding sentence not
paid or delivered to Landlord shall be held in trust for the benefit
of Landlord and be promptly paid or delivered to Landlord.
C. Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code, shall be deemed,
without further act or deed, to have assumed all of the obligations
arising under this Lease on and after the date of such assignment.
Any such assignee shall upon demand execute and deliver to Landlord
an instrument confirming such assumption.
14. CONDEMNATION.
A. If the whole or any substantial part as determined by
Landlord of the premises should be taken for any public or quasi-
public use under governmental law, ordinance or regulations, or by
right of eminent domain, or by private purchase in lieu thereof and
the taking would prevent or materially interfere with the use of the
premises for the purpose for which they are being used, as determined
by Landlord, this Lease shall terminate and the rent shall be abated
during the unexpired portion of this lease, effective when the
physical taking of said premises shall occur.
B. If part of the premises shall be taken for any public or
quasi-public use under any governmental law, ordinance or regulation,
or by right of eminent domain, or by private purchase in lieu
thereof, and this lease is not terminated as provided in the
subparagraph above, 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.
C. All compensation awarded for any taking (or the proceeds of
private sale in lieu thereof) of the premises, or any part thereof,
shall be the property of Landlord and Tenant hereby assigns its
interest in any such award to Landlord; provided, however, Landlord
shall have no interest in any award made to Tenant for loss of
business or for the taking of Tenant's fixtures and improvements if a
separate award for such items is made to Tenant.
15. HOLDING OVER. Tenant will, at the termination of this lease by
lapse of time or otherwise, yield up immediate possession to Landlord with
all repairs and maintenance required herein to be performed by Tenant
completed. If Landlord agrees in writing that Tenant may hold over after
the expiration or termination of this lease, unless the parties hereto
otherwise agree in writing on the terms of such holding over, the hold
over tenancy shall be subject to termination by Landlord at any time upon
not less than five (5) days advance written notice, or by Tenant at any
time upon not less than thirty (30) days advance written notice, and all
of the other terms and provisions of this lease shall be applicable during
that period, except that Tenant shall pay Landlord from time to time upon
demand, as rental for the period of any hold over, an amount equal to 150%
of the rent in effect on the termination date, computed on a daily basis
for each day of the hold over period. No holding over by Tenant, whether
with or without consent of Landlord shall operate to extend this lease
except as otherwise expressly provided. The preceding provisions of this
paragraph 15 shall not be construed consent for Tenant to hold over.
16. QUIET ENJOYMENT. Landlord covenants that it will acquire before
Tenant takes possession of the premises, good title to the premises, free
and clear of all liens and encumbrances, excepting only the lien for
current taxes not yet due, such mortgage or mortgages as are permitted by
the terms of this lease, zoning ordinances and other building and fire
ordinances and governmental regulations relating to the use of such
property, and easements, restrictions and other conditions of record as of
the Commencement Date. Landlord represents and warrants that it has full
rights and authority to enter into this lease and that Tenant, upon paying
the rental herein set forth and performing its other covenants and
agreements herein set forth, shall peaceably and quietly have, hold and
enjoy the premises for the term hereof without hindrance or molestation
from Landlord, subject to the terms and provisions of this lease.
17. EVENTS OF DEFAULT. The following events shall be deemed to be
events of default by Tenant under this lease:
A. Tenant shall fail to pay any installment of the rent herein
reserved when due, or any other payment or reimbursement to Landlord
required herein when due, and such failure shall continue for a
period of ten (10) days from the date of written notice to Tenant by
Landlord of such non-payment.
B. The Tenant shall generally not pay its debts as they become
due or shall admit in writing its inability to pay its debts or shall
make a general assignment for the benefit of creditors; or the Tenant
shall commence any case, proceeding or other action seeking to have
an order for relief entered on its behalf as a debtor or to
adjudicate it a bankrupt or insolvent, 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 of any substantial part of its property; or the Tenant shall
take any action to authorize or in contemplation of any of the
actions set forth above in this paragraph.
C. Any case, proceeding or other action against the Tenant
shall be commenced seeking to have an order for relief entered
against it as debtor or to adjudicate it a bankrupt or insolvent, 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 such case, proceeding or other action (i) results in
the entry if an order for relief against it which it is not fully
stayed within seven business days after the entry thereof or (ii)
shall remain undismissed for a period of 60 days.
D. A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant.
E. Tenant shall vacate for sixty (60) consecutive days all or
a substantial portion of the premises, whether or not Tenant is in
default of the rental payments due under this lease.
F. Tenant shall fail to discharge any lien placed upon the
premises in violation of Paragraph 20 hereof within twenty (20) days
after Tenant has notice that such lien or encumbrance is filed
against the premises.
G. Tenant shall fail to comply with any term, provision or
covenant of this lease (other than the foregoing in this Paragraph
17), and shall not cure such failure within thirty (30) days after
written notice thereof to Tenant, provided Tenant shall have longer
than thirty (30) days, if necessary, to cure such failure if Tenant
has commenced curing such failure during such thirty (30) day period
and continues to diligently pursue such cure, but in no event shall
such additional cure period exceed an additional thirty (30) days.
H. Tenant shall fail to continuously operate its business at
the premises for the permitted use set forth in Paragraph 11 for
sixty (60) consecutive days, whether or not Tenant is default of the
rental payments due under the Lease.
18. REMEDIES.
A. Upon the occurrence of any of such events of default
described in Paragraph 17 hereof, Landlord shall have the option to
pursue any one or more of the following remedies without any further
notice or demand whatsoever:
(1) Terminate this lease, in which event Tenant shall
immediately surrender the premises to Landlord, and if Tenant
fails so to do, Landlord may, without prejudice to any other
remedy which it may have for possession 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 such
premises or any part thereof, by force if necessary, without
being liable for prosecution or any claim of damages therefor.
(2) Enter upon and take possession of the premises and
expel or remove Tenant and any other person who may be occupying
such premises or any part thereof, without being liable for
prosecution or any claim for damages therefor, and relet the
premises and receive the rent therefor.
(3) Enter upon the premises, without being liable for
prosecution or any claim for damages therefor, and do whatever
Tenant is obligated to do under the terms of this lease; and
Tenant agrees to reimburse Landlord on demand for any expenses
which Landlord may incur in thus effecting compliance with
Tenant's obligations under this lease, and Tenant further agrees
that Landlord shall not be liable for any damages resulting to
the Tenant from such action, whether caused by the negligence of
Landlord or otherwise.
(4) Alter all locks and other security devices at the
premises without terminating this lease.
B. In the event Landlord may elect to regain possession of the
premises by a forcible detainer proceeding, Tenant hereby
specifically waives any statutory notice which may be required prior
to such proceeding, and agrees that Landlord's execution of this
lease is, in part, consideration for this waiver.
C. In the event Tenant fails to pay any installment of rent
hereunder within five (5) days after such installment is due, to help
defray the additional cost to Landlord for processing such late
payments Tenant shall pay to Landlord on demand a late charge in an
amount equal to one-half of one percent (.5%) of such installment;
and the failure to pay such amount within ten (10) days after demand
therefor shall be an event of default hereunder. The provision for
such late charge shall be in addition to all of Landlord's other
rights and remedies hereunder or at law and shall not be construed as
liquidated or as limiting Landlord's remedies in any manner.
D. Exercise by Landlord of any one or more remedies hereunder
granted or otherwise available shall not be deemed to be an
acceptance of surrender of the premises by Tenant, whether by
agreement or by operation of law, it being understood that such
surrender can be effected only by the written agreement of Landlord
and Tenant. No such alteration of locks or other security devices
and no removal or other exercise of dominion by Landlord over the
property of Tenant or others at the premises shall be deemed
unauthorized or constitute a conversion. Tenant hereby consenting,
after any event of default, to the aforesaid exercise of dominion
over Tenant's property within the premises. All claims for damages
by reason of such re-entry and/or repossession and/or alteration of
locks or other security devices are hereby waived, as are all claims
for damages by reason of any distress warrant, forcible detainer
proceedings, sequestration proceedings or other legal process.
Tenant agrees that any re-entry by Landlord may be pursuant to
judgment obtained in forcible detainer proceedings or other legal
proceedings or without the necessity for any legal proceedings, as
Landlord may elect, and Landlord shall not be liable in trespass or
otherwise.
E. In the event Landlord elects to terminate the lease by
reason of an event of default, then notwithstanding such termination,
Tenant shall be liable for and shall pay to Landlord, at the address
specified for notice to Landlord herein, the sum of all rental and
other indebtedness accrued to date of such termination, plus, as
damages, an amount equal to the then present value of the total
rental hereunder for the remaining portion of the lease term (had
such term not been terminated by Landlord prior to the date of
expiration stated in paragraph 1).
F. In the event that Landlord elects to repossess the premises
without terminating the lease, or in the event Landlord elects to
terminate the Lease, then Tenant, at Landlord's option shall be
liable for and shall pay to Landlord, at the address specified for
notice to Landlord herein, all rental and other indebtedness accrued
to the date of such repossession, plus rental required to be paid by
Tenant to Landlord during the remainder of the lease term until the
date of expiration of the term as stated in Paragraph 1 diminished by
any net sums thereafter received by Landlord through reletting the
premises during said period (after deducting expenses incurred by
Landlord as provided in subparagraph 18(G) below). In no event shall
Tenant be entitled to any excess of any rental obtained by reletting
over and above the rental herein reserved. Actions to collect amounts
due by Tenant to Landlord under this subparagraph may be brought from
time to time, on one or more occasions, without the necessity of
Landlord's waiting until expiration of the lease term.
G. In case of any event of default or breach by Tenant, or
threatened or anticipatory breach or default, Tenant shall also be
liable for and shall pay to Landlord, at the address specified for
notice to Landlord herein, in addition to any sum provided to be paid
above, brokers' fees (pro rated based on the unexpired portion of the
Term following Tenant's default) incurred by Landlord in connection
with reletting the whole or any part of the premises; the costs of
removing and storing Tenant's or other occupant's property; the costs
of repairing, altering, remodeling or otherwise putting the premises
into condition due to the Tenant's default hereunder in order to make
the premises acceptable to a new tenant or tenants; and all
reasonable expenses incurred by Landlord in enforcing or defending
Landlord's rights and/or remedies including reasonable attorney's
fees.
H. In the event of termination or repossession of the premises
for an event of default, Landlord shall not have any obligation to
relet or attempt to relet the premises, or any portion thereof, or to
collect rental after reletting; and in the event of reletting,
Landlord may relet the whole or any portion of the premises for any
period to any tenant and for any use and purpose.
I. If Tenant should fail to make any payment or cure any
default hereunder within the time herein permitted, and not cure such
failure within thirty (30) days after written notice thereof,
Landlord, without being under any obligation to do so and without
thereby waiving such default, may make such payment and/or remedy
such other default for the account of Tenant (and enter the premises
for such purpose), and thereupon Tenant shall be obligated to, and
hereby agrees, to pay Landlord, upon demand, all costs, expenses and
disbursements (including reasonable attorney's fees) incurred by
Landlord in taking such remedial action.
J. In the event of any default by Landlord, Tenant's exclusive
remedy shall be an action for damages (Tenant hereby waiving the
benefit of any laws granting it a lien upon the property of Landlord
and/or upon rent due), but prior to any such action Tenant will give
Landlord written notice specifying such default with particularity,
and Landlord shall thereupon have thirty (30) days in which to cure
any such default, except in the case of an emergency, in which case
Landlord shall have a reasonable time to cure such default. Unless
and until Landlord fails to so cure any default after such notice,
Tenant shall not have any remedy or cause of action by reason hereof.
All obligations of Landlord hereunder will be construed as covenants,
not conditions; and all such obligations will be binding upon
Landlord only during the period of its possession of the premises and
not thereafter. The term "Landlord" 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 from all covenants and
obligations of the Landlord thereafter accruing, but such covenants
and obligations shall be binding during the lease term upon each new
owner for the duration of such owner's ownership. Notwithstanding
any other provision hereof, Landlord shall not have any personal
liability hereunder. In the event of any breach or default by
Landlord in any term or provision of this lease, Tenant agrees to
look solely to the equity or interest then owned by Landlord in the
premises; however, in no event, shall any deficiency judgment or any
money judgment of any kind be sought or obtained against any party
Landlord.
K. In the event that Landlord shall have taken possession of
the premises pursuant to the authority herein granted, and provided
Tenant has not otherwise agreed with any third party lender or
supplier in a written security or leasing agreement, Landlord shall
have the right to keep in place and use all of the furniture,
fixtures and equipment at the premises. Subject to the preceding
sentence, Landlord shall also have the right to remove from the
premises (without the necessity of obtaining a distress warrant, writ
of sequestration or other legal process) all or any portion of such
furniture, fixtures, equipment and other property located thereon and
to place same in storage at any premises within the County in which
the premises is located; and in such event, Tenant shall be liable to
Landlord for costs incurred by Landlord in connection with such
removal and storage. Following reasonable written notice to Tenant,
Landlord shall also have the right to relinquish possession of all or
any portion of such furniture, fixtures, equipment and other property
to any person ("Claimant") claiming to be entitled to possession
thereof who presents to Landlord a copy of any instrument represented
to Landlord by Claimant to have been executed by Tenant (or any
predecessor of Tenant) granting Claimant the right under various
circumstances to take possession of such furniture, fixtures,
equipment or other property, without the necessity on the part of
Landlord to inquire into the authenticity of said instrument's copy
of Tenant's or Tenant's predecessor's signature thereon; and Tenant
agrees to indemnify and hold Landlord harmless from all cost,
expense, loss, damage and liability incident to Landlord's good faith
relinquishment of possession of all or any portion of such furniture,
fixtures, equipment or property to Claimant. The rights of Landlord
herein stated shall be in addition to any and all other rights which
Landlord has or may hereafter have at law or in equity; and Tenant
stipulates and agrees that the rights herein granted Landlord are
commercially reasonable.
L. Notwithstanding anything in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of Landlord under this
Lease, whether or not expressly denominated as rent, shall constitute
rent for the purposes of section 502(b)(7) of the Bankruptcy Code, 11
U.S.C. Section 502(b)(7).
M. This is a contract under which applicable law excuses
Landlord from accepting performance from (or rendering performance
to) any person or entity other than Tenant within the meaning of
sections 365(c) and 365(e)(2) of the Bankruptcy Code, 11 U.S.C. Section
365 (c), 365(e)(2).
N. If this Lease is assigned to any person or entity pursuant
to the provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et seq.,
("the Bankruptcy Code"), any and all monies or other considerations
payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and
remain the exclusive property of Landlord and shall not constitute
property of Tenant or of the estate of Tenant within the meaning of
the Bankruptcy Code. Any and all monies or other considerations
constituting Landlord's property under the preceding sentence not
paid or delivered to Landlord shall be held in trust for the benefit
of Landlord and be promptly paid or delivered to Landlord.
O. Any person or entity to which this lease is assigned
pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et
seq., shall be deemed, without further act or deed, to have assumed
all of the obligations arising under this Lease on and after the date
of such assignment. Any such assignee shall upon demand execute and
deliver to Landlord an instrument confirming such assumption.
19. MORTGAGES.
A. Tenant accepts this lease subject and subordinate to any
mortgage, deed of trust or other lien presently existing or hereafter
placed upon the Premises, and to any renewals and extensions thereof.
Tenant agrees that any mortgagee shall have the right at any time to
subordinate its mortgage, deed of trust or other lien to this lease;
provided, however, notwithstanding that this lease may be (or made to
be) superior to a mortgage, deed of trust or other lien, the
mortgagee shall not be liable for prepaid rentals, security deposits
and claims accruing during Landlord's ownership; further provided
that the provisions of a mortgage, deed of trust or other lien
relative to the rights of the mortgagee with respect to proceeds
arising from an eminent domain taking (including a voluntary
conveyance by Landlord) and provisions relative to proceeds arising
from insurance payable by reason of damage to or destruction of the
Leased Premises shall be prior and superior to any contrary
provisions contained in this instrument with respect to the payment
or usage thereof. Landlord is hereby irrevocably vested with full
power and authority to subordinate this lease to any mortgage, deed
of trust or other lien hereafter placed upon the premises and Tenant
agrees upon demand to execute such further instruments subordinating
this lease as Landlord may request; provided, however, that Landlord
shall, as a condition to this Lease, obtain from any such mortgagee a
written agreement that the rights of Tenant shall remain in full
force and effect during the term of this lease so long as Tenant
shall continue to recognize and perform all of the covenants and
conditions of this lease.
B. At any time when the holder of an outstanding mortgage,
deed of trust or other lien covering Landlord's interest in the
premises has given Tenant written notice of its interest in this
lease, Tenant may not exercise any remedies for default by Landlord
hereunder unless and until the holder of the indebtedness secured by
such mortgage, deed of trust or other lien shall have received
written notice of such default and a reasonable time (not less than
30 days) shall thereafter have lapsed without the default having been
cured.
C. Tenant agrees that it will from time to time but no more
often than semi-annually, upon request by Landlord execute and
deliver to Landlord a written statement addressed to Landlord (or to
a party designated by Landlord), which statement shall identify
Tenant and this lease, shall certify that this lease is unmodified
and in full force and effect (or if there have been modifications,
that the name is in full force and effect as so modified), shall
confirm that Landlord is not in default as to any obligations of
Landlord under this lease (or if Landlord is in default, specifying
any default), and shall confirm Tenant's agreements contained above
in this paragraph 19.
20. MECHANIC'S LIENS AND TENANT'S PERSONAL PROPERTY TAXES.1
A. Tenant shall have no 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
or Tenant in the premises or to charge the rentals payable hereunder
for any claim in favor of any person dealing with Tenant, including
those who may furnish materials or perform labor for any construction
or repairs. Subject to Tenant's right to reasonably contest same,
Tenant covenants and agrees that it will pay or cause to be paid all
sums legally due and payable by it on account of any labor performed
or materials furnished in connection with any work performed on the
premises on which any lien is or can be validly and legally asserted
against its leasehold interest in the premises or the improvements
thereon and that it will have and hold Landlord harmless from any and
all loss, cost or expense based on or arising out of asserted claims
or liens against the leasehold estate or against the right, title and
interest of the Landlord in the premises or under the terms of this
lease. Tenant and Landlord agree to give the other immediate written
notice of the placing of any lien or encumbrance against the
premises.
B. Tenant shall be liable for all taxes levied or assessed
against personal property, furniture or fixtures placed by Tenant in
the premises. If any such taxes for which Tenant is liable are
levied or assessed against Landlord or Landlord's property and if
Landlord elects to pay the same or if the assessed value of
Landlord's property is increased by inclusion of personal property,
furniture or placed by Tenant in the premises, and Landlord elects to
pay the taxes based on such increase following delivery of reasonable
prior written notice to Tenant, Tenant shall pay to Landlord upon
demand that part of such taxes.
21. MISCELLANEOUS.
A. Words of any gender used in this lease shall be held and
construed to include any other gender, and words in the singular
number shall be held to include the plural, unless the context
otherwise requires.
B. The terms, provisions and covenants and conditions
contained in this lease shall apply to, inure to the benefit of, and
be binding upon, the parties hereto and upon their respective heirs,
legal representatives, successors and permitted assigns, except as
otherwise herein expressly provided. Landlord shall have the right
to transfer and assign, in whole or in part, its rights and
obligations in the building and property that are the subject of this
lease.
C. Each party agrees to furnish to the other, promptly upon
demand, a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the due
authorization of such party to enter into this lease.
D. The captions inserted in this lease are for convenience
only and in no way define, limit or otherwise describe the scope or
intent of this lease, or any provision hereof, or in any way affect
the interpretation of this lease.
E. Tenant agrees from time to time, but no more often than
semi-annually, within ten (10) days after request of Landlord, to
deliver to Landlord, or Landlord's designee, an estoppel certificate
stating the Commencement Date of this Lease, that this lease is in
full force and effect, the date to which rent has been paid, the
unexpired term of this lease and such other matters pertaining to
this lease as may be requested by Landlord. It is understood and
agreed that Tenant's obligation to furnish such estoppel certificates
in a timely fashion is a material inducement for Landlord's execution
of this lease.
F. This lease may not be altered, changed or amended except by
an instrument in writing signed by both parties hereto.
G. All obligations of Tenant hereunder not fully performed as
of the expiration or earlier termination of the term of this lease
shall survive the expiration or earlier termination of the term
hereof, including without limitation payment of all obligations
concerning the condition of the premises. Upon the expiration or
earlier termination of the term hereof, and prior to Tenant vacating
the premises, Tenant shall pay to Landlord any amount reasonably
estimated by Landlord as necessary to put the premises, including
without limitation all heating and air conditioning systems and
equipment therein, in as good condition as of the Commencement Date,
ordinary wear and tear excepted. All such amounts shall be used and
held by Landlord for payment of such obligations of Tenant hereunder,
with Tenant being liable for any additional costs therefor upon
demand by Landlord, or with any excess to be returned to Tenant after
all such obligations have been determined and satisfied, as the case
may be.
H. If any clause or provision of this lease is illegal,
invalid or unenforceable under present or future laws affective
during the term of this lease, then and in that event, it is the
intention of the parties hereto that the remainder of this lease
shall not be affected thereby, and it is also the intention of the
parties to this lease that in lieu of each clause or provision of
this lease that is illegal, invalid or unenforceable, there be added
as a part of this lease contract a clause or provision as similar in
terms to such illegal, invalid or unenforceable clause or provision
as may be possible and be legal, valid and enforceable.
I. This lease shall not be valid or binding unless and until
accepted by Landlord in writing a fully executed copy delivered to
both parties hereto.
J. All references in this lease to "the date hereof" or
similar references shall be deemed to refer to the last date, in
point of time, on which all parties hereto have executed this lease.
K. Tenant and Landlord represent and warrant to the other that
it has dealt with no broker, agent or other person in connection with
this transaction, and Tenant and Landlord agree to indemnify and hold
the other harmless from and against any claims by any other broker,
agent or other person claiming a commission or other form of
compensation by virtue of having dealt with or Landlord Tenant with
regard to this leasing transaction.
L. If and when included within the term "Tenant", as used in
this instrument, there are more than one person, firm or corporation,
all shall jointly arrange among themselves for their joint execution
of such a notice specifying same individual at some specific address
within the continental United States for the receipt of notices and
payments to Tenant. All parties included within the terms "Landlord"
and "Tenant", respectively, shall be bound by notices given in
accordance with the provisions of Paragraph 22 hereof to the same
effect as each had received such notice.
22. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with
reference to the sending, mailing or delivery of any notice or the making
of any payment by Landlord to Tenant or with reference to the sending,
mailing or delivery or any notice or the making of any payment by Tenant
to Landlord shall be deemed to be complied with when and if the following
steps are taken:
(a) All rent and other payments required to be made by Tenant
to Landlord hereunder shall be payable to Landlord at the address for
Landlord hereinbelow set forth or at such other address as Landlord
may specify from time to time by written notice delivered in
accordance herewith. Tenant's obligation to pay rent and any other
amounts to Landlord under the terms of this lease shall not be deemed
satisfied until such rent and other amounts have been actually
delivered to Landlord.
(b) All payments required to be made by Landlord to Tenant
hereunder shall be payable to Tenant at the address hereinbelow set
forth, or at such other address within the continental United States
as Tenant may specify from time to time by written notice delivered
in accordance herewith.
(c) Any notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered whether actually
received or not when deposited in the United States Mail, postage
prepaid, Certified or Registered Mail, addressed to the parties
hereto at the respective addresses set out below, or at such other
address as they have theretofore specified by written notice
delivered in accordance herewith:
LANDLORD: TENANT:
XXXXXXX X. XXXXX XXXXXXX GOLF, INC.
XXXXXXXX X. XXXXX 00000 X. 00xx Xxxxxx
0000 Xxx Xxxxx Xxxxx Xxxxxx, Xxxxxxxx 00000
Xxxx Xxxxx, Xxxxx 00000 Attention: Xxxxxxx X. Xxxxxx
EXECUTED this 24th day of January, 1997.
LANDLORD:
/s/Xxxxxxx X. Xxxxx
XXXXXXX X. XXXXX
/s/Xxxxxxxx X. Xxxxx
XXXXXXXX X. XXXXX
TENANT:
CARLYLE GOLF, INC.,
a Colorado corporation
By:/s/Xxxxxx X. Xxxxx
Its: President
EXHIBIT "A"
Lots 12-A, 12-B and 00-X, Xxxxx 00, XXXXXX XXXXXXX, an Addition to the
City of White Settlement, Tarrant County, Texas, according to Plat
recorded in Volume 388-208, Page 97, Plat Records, Tarrant County, Texas.
