Exhibit 10.11
Aerospace/Defense, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (843) 747-4092
July 13, 2004
Technical Solutions Group, Inc. Force Protection, Inc. 0000 Xxxxxxx 00, Xxxxxxxx
Xx. 0 Xxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Mr. Xxxxxxx Xxxxx
Dear Xx. Xxxxx:
Reference is made to that certain Industrial Lease ("Lease") between
Aerospace/Defense, Inc., as Landlord, and Technical Solutions Group, Inc. and
Force Protection, Inc. (collectively as the "Tenant"), dated as of July 13, 2004
covering Building No. 2 at the Landlord's facility located in Ladson, South
Carolina. (Tenant currently leases Building No. 3 under a separate lease
agreement.)
Notwithstanding any term or provision contained in the Lease covering Building
No. 2, the parties to the Lease agree as follows:
1. The Landlord agrees to order four new radio controlled bridge
crane transmitter/receiver packages ("Packages") to replace the existing
Packages in connection with each of the four bridge cranes located in Building
No. 2. The Tenant agrees to pay one-half (1/2) of the total cost for the four
new Packages within fifteen (15) days of their delivery to the . Tenant,
together with delivery to the Tenant of copies of the invoices indicating the
purchase price of the Packages. It is acknowledged that the cost of the four new
Packages will be approximately $65,000.00. Upon receipt of the Packages by the
Tenant, the Tenant agrees to be responsible at its sole cost and expense for
installing in good workmanlike manner the Packages within thirty (30) days of
their delivery to the Tenant. The Packages are the property of the Landlord and
shall not be removed by the Tenant from Building No. 2. Once the Packages have
been installed by the Tenant, the Tenant shall be responsible for keeping the
Packages together with the bridge cranes in Building No. 2 in good condition and
repair throughout the term of this Lease pursuant to Section 9(b) of the Lease.
2. Tenant acknowledges that the Landlord has leased a portion of
Building No. 2 to Xxxx Xxxxxxxx, Inc. pursuant to Short-Term Vehicle Storage
Lease dated March 4, 2004, a copy of which is attached to this side-letter (the
"Storage Lease"). The Tenant understands that in order to terminate the Storage
Lease, at least thirty (30) days prior written notice to the Tenant is -
required. In the event the Tenant desires to continue the Short-Term Vehicle
Storage Lease with Xxxx Xxxxxxxx, Inc., the Landlord and Tenant agree to
cooperate in having the Lease assigned by the Landlord to the Tenant.
3. The Tenant acknowledges that the Landlord has leased a portion
of the facility for the storage of packaged office furniture; the Landlord
agrees to use commercial reasonable efforts to have the Lease covering the
office furniture terminated as soon as possible and the office furniture removed
from Building No. 2 within thirty (30) days of the date hereof.
4. The Tenant acknowledges that the Landlord has leased another
portion of Building No. 2 to 7,-Man Fishing Products, Inc. for the storage of
packaged fishing lures, equipment and other materials. The Tenant shall use
reasonable commercial efforts to have the Lease covering the storage of such
fishing lures, materials and other items terminated as soon as possible and have
the fishing lures, materials and other items removed from Building No. 2 within
thirty (30) days of the date hereof.
5. Until the current leases referenced in Paragraphs 2, 3 and 4 above are
terminated and the items covered by each such lease arc removed from Building
No. 2, the Tenant shall not damage or destroy any such items.
Please acknowledge your understanding and agreement to the above by signing
below. Yours very truly,
/s/ Xxxxx Xxxxxxxxx
M. Xxxxx Xxxxxxxxx
For and On Behalf of Aerospace/Defense, Inc.
We acknowledge and agree to the above:
/s/ Michaels Xxxxxx
Technical Solutions, Inc. Force Protection, Inc.
SHORT-TERM VEHICLE STORAGE LEASE
THIS SHORT-TERM VEHICLE STORAGE LEASE ("Lease") made and entered into as of
the 4th day of March 2004 by and between AEROSPACE/DEFENSE, INC., a South
Carolina corporation (hereinafter called "Landlord") and XXXX XXXXXXXX, INC., a
South Carolina corporation (hereinafter called "Tenant").
This Lease is made upon the terms and subject to the conditions hereinafter
set forth, all and every one of which Landlord and Tenant agree to keep and
perform.
1. Leased Premises
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The premises hereby leased to Tenant ("Leased Premises") is approximately
15,000 square feet of storage space near the southwest end of Building No. 2
(the "Building") [which is part of the industrial facility located at 0000
Xxxxxxx 00, Xxxxxx (Xxxxxxxxxx Xxxxxx), Xxxxx Xxxxxxxx (the "Facility")]; the
Leased Premises is the darkened area shown on Exhibit A.attached hereto. The
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Leased Premises is leased in its "As-Is" condition and without artificial heat,
light, sir-conditioning or water.
2. Term - Subject to 30-day Right to Terminate
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The term of this Lease shall begin on March 15, 2004 and shall be effective
for six (6) months until September 15, 2004, at which time this Lease shall
automatically terminate; provided, however, this Lease may be terminated during
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the term by either party providing to the other party at least thirty (30) days'
prior written notice of its desire to terminate this Lease. The term of this
Lease shall not be extended except by mutual agreement evidenced by written
amendment to this Lease signed by both parties.
3. Rent
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Tenant shall pay Landlord a fixed monthly rent of Two Thousand Seven
Hundred Fifty Dollars ($2,750.00) each month. The monthly payment for rent shall
be made in advance on or before the fifteenth of each month to Landlord's
offices located at 0000 Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxxxx, XX 00000, or at such
other address as Landlord may direct.
4. Insurance
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(a) Throughout the term of this Lease, Tenant shall carry (a)
Comprehensive General Liability Insurance, including, without limited to,
premises liability, blanket contractual liability, personal injury and property
damage [covering, in particular, the Facility (which includes the Leased
Premises) and all personal property and vehicles being stored by Tenant within
the Leased Premises in combined single limits of at least $3,000,000 per
occurrence, and (b) "All Risk" property insurance in an amount to cover the
replacement value of all vehicles and other items of personal property being
stored within the Leased Premises or delivered to the Facility. Landlord shall
be designated as an additional insured under the insurance required under this
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paragraph which insurance shall be primary to any insurance maintained by the
Landlord. Each policy of insurance maintained by Tenant pursuant to this Section
4 shall contain a waiver of any rights of subrogation which the insurer may have
against the Landlord and those persons for whom the Landlord is in law
responsible whether the damage is caused by the act, omission or negligence of
the Landlord or such other persons. Certificates of Insurance evidencing the
coverage required in this paragraph shall be delivered prior to the commencement
of the term of this Lease. All personal property and vehicles (especially
including, without limitation, the very expensive vehicles being stored upon the
Leased Premises by the Tenant) (collectively, "Personal Property") placed or
moved onto the Leased Premises by or on behalf of the Tenant shall be at the
risk of the Tenant - - it being understood that the Landlord, (as owner of the
Facility) and the Landlord's employees, officers and representatives shall not
be liable for any damages, loss or theft of said Personal Property from any
cause whatsoever and without restricting the generality of the foregoing, the
Landlord shall not be liable for any damage to the Personal Property resulting
from fire, explosion, gas, electricity, water, rain or snow or leaks from any
part of any building situated on the Facility or resulting from materials
falling from pipes, piping, cranes, appliances, the roof, or from any other
place, or resulting from dampness, or from/by any cause of whatsoever nature.
(b) The Tenant hereby releases the Landlord, its agents, officers,
employees and any other person for whom the Landlord is legally responsible for
any liability for loss, damages, expenses or fines to the extent of all
insurance proceeds paid under the policies of insurance maintained by the Tenant
or which would have been if the Tenant had maintained the insurance required
under this Lease and had diligently processed any claims thereunder.
5. Use of Premises
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(a) Tenant shall solely use and occupy the Leased Premises for the
storage of Personal Property and for no other purpose. For clarification
purposes, the Tenant shall not allow any repairs or maintenance of any vehicle
or other personal property stored by the Tenant on the Leased Premises. Tenant
agrees to take extra precaution to ensure that no spillage of any substance
(including, but not limited to, oil, grease, gasoline and similar substances
(collectively "Petroleum Products"))- It shall be the responsibility of the
Tenant to ensure that no spillage of Petroleum Products within the Leased
Premises or upon the Facility occurs. (If necessary, Tenant shall place a
protective plastic sheet barrier to prevent any leaking of Petroleum Products
from any vehicle stored.)
(b) Tenant shall at all times during the term of this Lease be in
full compliance with all governmental laws, rules, and regulations, including,
but not limited to OSHA, EPA, DHEC and the like which are or would be applicable
to the Tenant's use of the Leased Premises.
(c) Except as otherwise specifically agreed upon in writing by
Landlord, Tenant shall have the right to use during normal operating hours (8:00
A.M. to 4:00 P.M. Monday-Friday, except federal holidays) such portions of the
Facility and the property around and about the Leased Premises as is reasonably
necessary for the ingress and egress to and from the Leased Premises, provided
however, that the Tenant's use of such areas shall not hinder,impede, obstruct,
or otherwise unreasonably interfere with the businesses and activities in or
about the Facility of the landlord or other occupants of the Facility.
6. Rules and Regulations
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Landlord reserves the right at any time to make further rules and
regulations as in Landlord's reasonable judgment may be necessary for the
safety, care, appearance, and cleanliness of the premises and the preservation
of good order therein, and such other rules and regulations shall be binding
upon the parties hereto with the same force and effect as if they had been
contained herein at the time of execution hereof.
7. Maintenance and Repair
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(a) Tenant shall not damage the Landlord's Facility and shall leave
the Leased Premises in the same condition as upon commencement of the Lease,
ordinary wear and tear excluded. At the termination of its Lease, Tenant will
remove all of the Personal Property and any other property brought by or on
behalf of the Tenant upon the Facility.
(b) Tenant shall not commit or suffer to be committed any waste upon
or about the Leased Premises or any other party of the Facility; in the event
Tenant damages the Landlord's Facility due to the negligence or willful
misconduct of Tenant or its employees, invitees and agents, Tenant shall
promptly at its cost and expense, make all replacements, restorations, and
repairs as a result thereof (collectively "repairs"). All repairs shall, to the
extent possible, be at least equivalent in quality to the original work or the
property replaced, as the case may be, and shall be performed in a commercially
expeditious manner.
(c) Landlord shall not, under any circumstances, be required to make
any repairs of any nature or description to the Leased Premises or to any of the
Facility, or to inspect or maintain the Leased Premises in any way. Tenant has
inspected and accepts the Leased Premises in their "as-is" present condition.
8. Indemnity and Liability
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As inducements to Landlord to enter into this Lease, the Tenant agrees to
the following:
(a) Risk of loss by fire or other casualty to all Personal Property
brought by or on behalf of Tenant onto the Facility shall rest with Tenant which
shall procure and maintain "All Risk" insurance for its protection against loss
or damage to such Personal Property as required under Section 4. Tenant hereby
releases Landlord (and its employees and agents) from any liability or
responsibility to Tenant (or any person claiming by, through, or under Tenant by
way of subrogation or otherwise) for any damage to or loss of any of the
Personal Property from any cause whatsoever.
(b) Tenant agrees to assume and bear all risk of bodily injury or
death and property damage which may occur or result from (i) the Tenant's
performance under this Lease, (ii) conduct by Tenant and its employees, agents
and invitees, and (iii) the entry upon or use of the Facility by Tenant or any
its employees, invitees, contractors or agents and any person claiming through
any of them. Tenant will indemnify, defend and hold Landlord, its directors,
officers, employees and agents harmless from any and all loss, damage, claim,
injury, cost, fine or expense (including, without limitation, reasonable
attorneys' fees and costs) incurred (x) on account of bodily injury or death
(including, without limitation, personal injury or death of Tenant's employees)
and property damage arising from any negligence or willful misconduct of Tenant
and its employees, agents and invitees, or (y) to defend Landlord or any of its
employees, agents or representatives in any claim or action arising from the
Tenant or any of its employees, invitees, contractors or agents entering upon
the Facility or using the Leased Premises, or (z) to enforce one or more of the
Landlord's rights under this Lease.
9. Assignment or Sublease
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Tenant shall not have the right to assign this Lease or to sublet the
premises or any part thereof without the express prior written consent of
Landlord, which consent the Landlord may withhold in its sole and absolute
discretion.
10. Default
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If Tenant shall fail to pay the rent to Landlord when same is due and
payable under the terms of this Lease or if Tenant shall fail to perform any
other duty or obligation imposed upon it by this Lease, then and in any event
Landlord shall have the right to enter upon the Leased Premises and have,
repossess and enjoy the same as if this Lease had not been made, and thereupon
this Lease shall terminate without prejudice to the right of Landlord to recover
from Tenant all rents and amounts due and unpaid up to the time of such reentry.
In the event that Landlord retains the services of an attorney for the purpose
of assisting Landlord in enforcing any of its rights under this Lease in the
event of default by Tenant, the Landlord shall be entitled to collect from the
Tenant the reasonable costs and expenses of all such services.
11. Environmental Matters
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Tenant shall defend, indemnify, protect and hold Landlord harmless against
all demands, claims, actions, assessments, fines, losses, damages, liabilities,
costs and expenses of every nature including reasonable attorney's fees
resulting from or arising out of any environmental damage due to conditions,
events or circumstance caused by the Tenant, its agents, employees, invitees,
customers or affiliates during its use and occupancy of the Leased Premises or
any part of the Facility, including but not limited to the presence, release or
threat of release to the environment of any hazardous substance, hazardous
waste, hazardous material, petroleum hydrocarbons, asbestos, toxic or other
noxious substances- Tenant agrees to take extra precaution to prevent the
spillage of any hazardous, flammable, or petroleum substance onto the floors of
the Leased Premises or onto any part of the Facility. Tenant agrees not to bring
any hazardous or toxic substance onto the Facility.
12. Title of Equipment
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Title of the Personal Property is at all times and shall remain vested in
and with Tenant. Landlord hereby waives, releases and discharges any item lien
(statutory or otherwise), security interest, security agreement, charge,
encumbrance or claim of any load or nature that ins Landlord now has or
hereafter may lave as to any ri^it, title or interest in or to the Personal
Property.
13. Governing Law/Amendment
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This Lease constitutes the entire and complete agreement between the
parties, is executed feely and voluntarily and without reliance upon any
statement or representation by any party except as set forth herein, and
supersedes any diner communications, representations, or agreements with,
'respect to its subject matter. This Lease may only be modified by a writing
duly executed by authorized persons for both, parties. Any dispute concerning
any question of fact or law arising under this Lease or its performance which is
not disposed of by agreement between the parties shall be decided by a court of
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competent jurisdiction Sitting in the County of Charleston, State of South
Carolina, personal jurisdiction of such courts as to such matters being
consented to by bolt parties. This Lease shall be construed in accordance with
the laws of the Stats of South Carolina without reference to its choice of law
principles. This Lease has been actually negotiated by the parties and no rule
of construction shall he applied based upon the presumed drafter Or author of
this Lease.
IN WITNESS WHEREOF, tie parties have hereunto set their hands and seals the
day and year first above written. WITNESS:
AEROSPACE/DEFENSE, INC.
/s/
Xxxxx-Xxxxxxxxxx/' Xxxxx Xxxxxxxx 00000 Telephone: (843)^44-5174 Facsimile;
(000) 000-0000 XXXX XXXXXXXX, INC.
/s/
INDUSTRIAL LEASE
THIS INDUSTRIAL LEASE ("Lease") is entered into as of the^ciay of July,
2004, by and between AEROSPACE/DEFENSE, INC., a South Carolina corporation
("Landlord"), and TECHNICAL SOLUTIONS GROUP, INC., a Nevada corporation and
FORCE PROTECTION, INC. (f/k/a SONIC JET PERFORMANCE, INC.), a Colorado
corporation (collectively, the "Tenant").
Upon the terms and subject to the conditions hereinafter set forth, the
Landlord leases to the Tenant and the Tenant leases from Landlord, the property
hereinafter described:
1 THE PREMISES.
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(a) The property hereby leased to the Tenant is a portion of industrial
development located in Ladson, Charleston County, South Carolina ("Project").
The term "Premises" means the land outlined on Exhibit A attached hereto and
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made a part hereof ("Land") together with (i) a portion of the building
designated as "Building No. 2," the leased portion consisting of approximately
142,500 square feet, (situated on the Land outlined on Exhibit A), with the
portion of Building No. 2 leased to the Tenant more particularly shown and
delineated on Exhibit A-l. (ii) all fixtures located therein, including, without
limitation, the cranes located in Building No. 2, which cranes are listed on
Exhibit B. and (iii) subject to Paragraph 5(b)(xi) hereof, the right to use in
common with the Landlord and other lessees and occupants of the Project, the
"Common Areas" (hereinafter defined) shown on Exhibit A (collectively,
"Premises").
(b) Tenant accepts the Premises in its present condition, AS IS, WHERE IS.
2 TERM.
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(a) The term of this Lease shall commence on July 15, 2004 and expire on
July 14, 2008 ("Initial Term"). The Initial Term and any extension thereof are
hereinafter referred to collectively as the "Term".
(b) For purposes of this Lease the term "Lease Year" shall refer to a
period of twelve (12) consecutive months. The first Lease Year shall commence on
July 15, 2004 ("Commencement Date") and end July 14, 2005. Each subsequent Lease
Year shall commence on the anniversary of the Commencement Date.
(c) Tenant shall have one (1) option to renew and extend the Term for a
five (5) year period ("Option Period"). Tenant may exercise the option by notice
in writing to Landlord served at least six (j) months and not more than twelve
(12) months prior to the end of the last year of the Initial Term hereunder. It
shall be a condition of the exercise of the option to renew that Tenant shall
not be in default in the performance of any terms, covenants, or conditions of
this Lease. All terms and conditions of this Lease shall be applicable to the
Option Period referred to in this Section 2(c).
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3. BASE RENT.
(a) Commencing on the date this Lease is executed by both parties and
Tenant is given access to the Premises, Tenant shall be responsible for all
reimbursements, costs and charges required to be paid by Tenant under this Lease
except "Base Rent" (hereinafter defined). Beginning on the sixty-first (61st)
day after the Commencement Date, and for the remainder of the first Lease Year,
Tenant agrees to pay to the Landlord, without previous demand therefore and,
without any set-off or deduction whatsoever, the following net rent ("Base
Rent"): the sum of Three Hundred Fifty-Six Thousand Two Hundred Fifty and No/100
Dollars ($356,250.00) (computed on the basis of ten (10) months of the remaining
first Lease Year times $36,625.00 per month), payable in ten (10) consecutive
monthly installments of Thirty-Six Thousand Six Hundred Twenty-Five and No/100
Dollars ($36,625.00) each. AH monthly Base Rent shall be due and payable on the
first day of each calendar month during the Term. Since the rent for the third
calendar month of the first Lease Year begins on the IS'*1 day of September,
2004, the September 2004 rent shall be pro-rated to cover the period between
September 15 and September 30, 2004.
(b) Commencing with the first day of the second Lease Year, to-wit: July
15, 2005 ("First Adjustment Date") and on the first day of each Lease Year
thereafter ("Subsequent Adjustment Date") during the Initial Term and Option
Period, the amount of the monthly Base Rent due under this Lease shall be
adjusted to an amount equal to the product of the then current monthly Base Rent
multiplied by a fraction having as its numerator the Consumer Price Index
(hereinafter defined) published most recently prior to applicable Adjustment
Date and as its denominator the Consumer Price Index published most recently
prior to Commencement Date. In the event the new Base Rent cannot be determined
as of the Adjustment Date, Tenant shall continue to pay the Base Rent due during
the prior Lease Year until Landlord notifies Tenant of the Base Rent, and,
within ten (10) days after delivery of such notice, Tenant shall reimburse
Landlord for any accrued but unpaid increase. In no event shall the monthly Base
Rent, as adjusted on any Adjustment Date, be less than three percent (3%) over
the Base Rent payable during the prior Lease Year, nor increase by more than
seven percent (7%) over the monthly Base Rent payable during the prior Lease
Year.
(c) As used herein, the term "Consumer Price Index" shall mean the
bi-monthly Consumer Price Index published by the Bureau of Labor Statistics of
the U.S. Department of Labor, using the index titled "Consumer Price Index-All
Items-All Urban Consumers (CPI-U) (1982-84 = 100)" for the Atlanta, Georgia
Standard Metropolitan Statistical Area. If the Consumer Price Index shall no
longer be published or cannot be adjusted, then another index generally
recognized as authoritative shall be substituted therefore by Landlord, and the
term "Consumer Price Index" shall refer to such substituted index. (d) All
monthly Base Rent payments and any other payments due Landlord under this Lease
shall be without any setoff or deduction whatsoever and shall be payable and
delivered to:
Aerospace/Defense, Inc. 0000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxxxxx, XX 00000
or to such other place as may be designated by notice in writing from Landlord
to Tenant. Base Rent payments received more than ten (10) days after the due
date of such payment shall be subjected to a late penalty of five percent (5%)
of the amount of such payment. No payment by Tenant or receipt by Landlord of
any lesser sum than the monthly Base Rent or the amount invoiced by Landlord to
the Tenant for utilities or Additional Rent stipulated in this Lease shall be
deemed to waive the right of Landlord to receive in a timely manner the full
amount due and payable to the Landlord.
4. UTILITIES.
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(a) Commencing on the date this Lease is fully executed by both parties,
Landlord shall supply gas, water, electricity, and sewer to the Premises for
Tenant's operation at the Premises. It is understood that utility services at
the Project of which the Premises is a part are supplied at one point of
delivery through one meter. Subject to Subsections 4(a)(i). (ii) and (jii)
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hereof, Tenant shall reimburse Landlord for Landlord's cost of providing utility
services to the Premises on the basis of Tenant's usage of same. With respect to
electricity, the amount for which Landlord will be reimbursed includes both the
consumption factor and so-called "demand" or "standby" factor, if the latter
factor is employed for billing purposes by the company providing electricity.
(i) Provided Tenant only consumes water for personal use and normal
maintenance and not for any manufacturing process, Tenant's pro rata portion of
the Project's water and sanitary sewer xxxx will be an amount equal to the
product of (1) the total water or sewer xxxx, as the case may be, for the entire
Project, multiplied by (2) a fraction having as its numerator the total number
of employees who work at the Premises and as its denominator the total number of
employees who work in all buildings in the Project.
(ii) Tenant's pro rata share of the county solid waste recycling fee
paid by the Project for solid waste hauled from the Project shall be an amount
equal to the product of (1) the total solid waste recycling fee paid by the
Project for the period in question, multiplied by (2) a fraction having as its
numerator the volume of all trash dumpsters at the Premises picked up during the
period in question and as its denominator the volume of all trash dumpsters at
all buildings in the Project picked up during the same time period. For purposes
of this paragraph, the volume of a trash dumpster picked during a billing period
will be determined by multiplying the capacity of the trash dumpster in cubic
yards by the number of times such trash dumpster is picked up during the billing
period, whether or not such trash dumpster was filled to capacity at the time it
was picked up. It is acknowledged by the parties that the Tenant shall provide
the Tenant's own trash dumpsters and shall pay for the hauling of trash
therefrom.
(iii) It is acknowledged by the parties that Tenant shall provide for
Tenant's own compressed air needs in the Premises.
(b) Except to the extent such utilities are in the future separately
metered and billed to the Tenant directly, Landlord shall xxxx Tenant as soon as
practicable the monthly charges for the utilities. All monthly utility charges
paid more than thirty (30) days after receipt of an invoice from the Landlord
shall be subject to a late penalty of five percent (5%) of the amount of such
payment.
(c) If the parties are unable to agree upon Tenant's usage of utilities,
Tenant shall have the option either (i) to install, at Tenant's expense,
separate meters or submeters, or (ii) to cause Landlord to employ (not more than
once each Lease Year) a mutually acceptable engineering firm, whose fees will be
equally shared by Landlord and Tenant, to determine Tenant's share of utilities
consumed in the Project by usage survey. Tenant will be responsible for the
maintenance of separate meters or sub-mctcrs. Until any such engineering firm
determines Tenant's share of any disputed utility charges, the Tenant agrees to
reimburse all amounts invoiced by the Landlord based on the Landlord's estimate
of Tenant's share of utility charges.
(d) Landlord will cause the lawns in the Project to be cut periodically.
Tenant will reimburse Landlord for the portion of the cost of cutting and
trimming all lawns in the Project attributable to the Premises. Tenant's pro
rata portion of the cost of cutting and trimming all lawns in the Project shall
be an amount equal to the product of the total cost of cutting and trimming all
lawns in the Project multiplied by a fraction having as its numerator the square
footage of Building 2 (to wit: 142,500 sq. ft.) and as its denominator the
square footage of all buildings in the Project (to-wit: 480,000 square feet);
provided, however, the Tenant's proportionate share of such cost of cutting and
trimming during any Lease Year will not increase by more than twenty (20%)
percent over the prior Lease Year.
5. ADDITIONALRENT/TAXESANDFEES.
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(a) If the Premises are not a separate tax parcel, Landlord shall pay,
prior to delinquency, all "Impositions" (hereinafter defined) which are levied,
imposed, or assessed upon or against the Premises and Project. Tenant covenants
to pay to Landlord, as additional rent, on or before the later to occur of (a)
thirty (30) days after receipt of an invoice therefore or (b) thirty (30) days
before the day a fine, penalty, interest or cost may be added thereto for the
non-payment thereof, Tenant's pro rata share determined by multiplying all the
Impositions for the project by a fraction having as its numerator the square
footage of the Premises and as its denominator the total square footage of all
buildings in the Project (such pro rata share being 29.69% as of the date of
this Lease). (i) If the Premises is separately assessed and billed, such
Impositions shall be paid prior to delinquency by the Tenant directly to the
taxing authorities. Tenant shall furnish to Landlord, promptly after payment of
any impositions paid directly to taxing authorities, official receipts or other
satisfactory proof evidencing payment of such Imposition.
(ii) As used herein, the term "Impositions" shall include any form of real
estate tax or assessment, general, special, ordinary or extraordinary, and any
license fee, or commercial rental tax based on the gross rents paid hereunder,
improvement bond or bonds issued after Commencement Date of this Lease and not
associated with improvements necessary for the initial construction of the
Premises, levy or tax imposed on the Premises by any authority having the direct
or indirect power to tax, including any city, state or federal government, or
any school, agricultural, sanitary, fire, street, drainage or to the improvement
district thereof, as against any legal or equitable interest of Landlord in the
Premises or in the real property of which the Premises is a part, as against
Landlord's right to rent therefrom (provided such'tax is assessed on gross rents
payable hereunder), and as against Landlord's business of leasing the Premises
(provided such tax is assessed on gross rents payable hereunder). With respect
to any assessment which under the laws then in force may be paid in
installments, there will be included within the meaning of the term
"Impositions" for any tax fiscal year only the current annual payment.
Impositions will not include (i) any franchise, gift, estate, inheritance,
conveyance, transfer, or other tax assessed against Landlord or Landlord's
heirs, successors or assigns, or (ii) any income, excess profit or other tax,
assessment, charge, or levy on the net rent payable by Tenant under this Lease.
(iii) Tenant shall pay prior to delinquency all taxes assessed against and
levied upon trade fixtures, furnishings, equipment, inventory and all other
personal property of Tenant contained in the Premises or elsewhere. When
possible, Tenant shall cause such trade fixtures, furnishings, equipment and
other personal property to be assessed and billed separately from the real
property of Landlord. If any of Tenant's personal property shall be assessed
with Landlord's real property, Tenant shall pay Landlord the taxes attributable
to Tenant within thirty (30) days after receipt of a written statement setting
forth the taxes applicable to Tenant's property, together with a copy of the
taxing authority's billing to Landlord.
(iv) All Impositions for the partial tax fiscal years falling within
the Term will be prorated by multiplying the amount of Impositions for the
partial tax fiscal year falling within the Term by a fraction having as its
numerator the number of days in such tax fiscal year falling within the Term and
having as its denominator the number "365".
(v) Tenant will have the right to contest the amount or validity of
Impositions by appropriate administrative and legal proceedings brought either
in Tenant's name, Landlord's name or jointly with Landlord, as Tenant may deem
appropriate, by counsel selected and engaged by Tenant. Landlord will execute
and deliver to Tenant whatever documents may be reasonable, necessary and proper
to permit Tenant to contest Impositions or which may be reasonably necessary to
secure payment of any refund which may result from any such proceedings. Tenant
agrees to reimburse Landlord for any expenses or additional costs assessed to,
or incurred by, Landlord in the event Tenant contests the amount or validity of
Impositions. Any refund resulting from a proceeding brought either by Tenant or
Landlord or by them jointly will be applied first to reimburse the party or
parties who brought the proceeding for the costs incurred with the proceeding
(including any reimbursement by Tenant to Landlord described above), with the
remainder being distributed, to Tenant if the Premises is a separate tax parcel
or on a pro-rata basis (determined in the manner described in Subsection 5(a1
---------------
above), to each of tenants in the Project, if the Premises is not a separate tax
parcel.
(b) Tenant shall, in addition to the monthly Base Rent and pro rata portion
of Impositions referred to above, also be responsible for Tenant's pro rata
portion of all expenses incurred by Landlord for (i) grounds maintenance
(landscaping) and (ii) other Common Area maintenance and utility charges such as
lighting and maintenance for internal streets and parking facilities
(collectively, "Common Area Charges"). Tenant's pro rata portion of Common Area
Charges shall be an amount equal to the product of the total Common Area Charges
for the Project multiplied by a fraction having as its numerator the square
footage of the Premises and as its denominator the square footage of all
buildings in the Project.
(i) Common Area Charges will not include Impositions (unless
thePremises is a separate tax parcel), cost of capital improvements or repairs
(provided such repairs cannot be attributed to Tenant), including, without
limitation, repainting of buildings and total repaying of the parking areas,
cost of roof repairs, cost of repairs covered by insurance, cost of constructing
leasehold improvements for any other lessee of Project, legal or brokerage fees
associated with any lease for space in Project, cost of advertising by Landlord,
management fees, whether payable to Landlord or third parties, so-called
"administrative charges" or other add-ons to the total of Common Area Charges,
principal or interest on debt or amortization payments on any mortgages or deeds
of trust or any other debt for borrowed money and amortization of improvements,
depreciation of Landlord's original investment in Project, amounts paid by
Landlord to affiliates of Landlord for services in connection with the Common
Areas, but only to the extent that any such fees are in excess of the ordinary
and reasonable fees paid in arms' length transactions, amounts expended in
remediation of Hazardous Substance contamination in the Common Areas, provided
the contamination cannot be attributed to Tenant or another occupant of the
Project, or the cost of compliance in the Common Areas with the Americans with
Disabilities Act, .provided compliance is not related to the use and occupancy
of Tenant or another occupant of the Project,
(ii) Tenant's pro rata share of Common Area Charges (on an annualized
basis) will not increase in any one calendar year after the first full calendar
year of the Term by more than six percent (6%) of Tenant's pro rata share of
Common Area Charges for the previous fell calendar year.
(iii) Tenant's accountants will have the right to inspect, at reasonable
times and in a reasonable manner, such of Landlord's books of account and
records as pertain to Common Area Charges.
(iv) Once each calendar year, Landlord will deliver a statement ("CAM
Statement") to Tenant showing: the amount of actual Common Area Charges for the
preceding calendar year, with a breakdown of amounts by major categories of
Common Area Charges and Tenant's pro rata share and the detail for determining
same. Tenant agrees to pay Tenant's pro rata share of Common Area Charges to
Landlord within thirty (30) days after Tenant receives the CAM Statement.
(v) If the Term commences other than on January 1, or ends other
thanon December 31, Tenant's obligations to pay amounts toward Common Area
Charges for such partial calendar years will be prorated on the basis of the
portion of such calendar years included in the Term, Such proration shall be
made by multiplying the total Common Area Charges for the partial calendar year
in question by a fraction having as its numerator the number of days of the Term
within the partial calendar year, and as its denominator "365".
(vi) The term "Common Areas" as used in this Lease means thoseparts of
the Project marked "Common Areas" on Exhibit A or any portions of the Project
---------
substituted therefore.
(vii) Landlord hereby grants to Tenant and Tenant's customers,
inviteesand employees for the entire Term, an irrevocable and unrestricted
easement to use, in common with Landlord, Landlord's invitees and employees and
with the other lessees and occupants of Project and their respective customers,
invitees and employees, the Common Areas for their intended purposes, subject to
reasonable, uniformly enforced rules and regulations ("Rules and Regulations")
to be promulgated by Landlord for the well-being of all of the lessees of the
Project. Landlord will have the right to make reasonable modifications and
additions to the Rules and Regulations from time to time, provided written
notice of such modifications and additions is delivered to all lessees of the
Project.
(viii) At all times during the Term, Landlord will maintain the Common
Areas in good order and will keep the Common Areas clean and free from rubbish.
(ix) Landlord shall provide twenty-four (24) hour controlled vehicular
access to the Project with on-site personnel. Each automobile and truck entering
the Project (except those cats with special permits described below) may be
required to sign in with Landlord's security guard. Landlord may issue parking
stickers to those persons who are permitted to park inside the Project so that
their vehicles may be readily identified. Tenant shall pay to Landlord monthly
Tenant's share of the cost of such controlled access. Tenant's share shall be
determined by multiplying the monthly cost of the security guard service by a
fraction having as its numerator the square footage of buildings within the
Premises and as its denominator the square footage of all buildings in the
Project.
(x) Landlord acknowledges that Tenant will require that all of
Tenant's employees (with the possible exception of administrators, visitors, and
handicapped employees) park in the parking areas shown on Exhibit A. that such
employees will have access to the Premises only by passage through the
northernmost gate ("Employee Gate"). Landlord and Tenant will develop a mutually
acceptable method for controlling access through the Employee Gate; provided,
however, the Landlord shall have the right to assign specific (on an exclusive
or non-exclusive basis at the option of the Landlord) parking areas (within one
or both of the parking areas marked "Parking" on Exhibit A) to the Tenant and
its employees arid invitees, and require such employees and invitees to gain
entrance to the gated portion of the Project through either the Employee Gate or
the gate adjacent the Security Building No. 4 (the "Security Gate"), Landlord
and Tenant will endeavor to develop a mutually acceptable method for controlling
access through the Employee Gate or the Security Gate, as the case may be.
(xi) Landlord shall have the right, at Landlord's sole cost and expense, to
relocate, change, or alter the Common Areas, so long as 24-hour pedestrian and
vehicular (including railroad) ingress to and egress from the Premises is not
disturbed, and provided: (1) any replacement parking lot is the comparable
distance to the Premises, and (2) any replacement or relocation of roads to the
Premises shall provide vehicular access (to accommodate trailer trucks) to the
Premises.
6. SIGNAGE.
Tenant shall receive space of approximately equal size with other lessees
of the Project on the existing sign (but not the larger top space on such sign)
for the Project on State Highway 78 which is designated on Exhibit A. Landlord
shall remove all trees, bushes, and other plants which interfere with the
visibility of such sign from State Highway 78. Tenant will have the option to
construct, at Tenant's cost, a sign at a location near the entrance drive at
U.S. Highway 78, subject to the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed. Any sign constructed by Tenant
must be of a size and at a location which will not detract from the image and
unity of the Project,
7. USE.
----
(a) Tenant shall use the Premises for the purpose of manufacturing,
storage, distribution, sales, delivery, warehouse and related office uses. The
Premises shall not be used for any other purposes without the expressed prior
written approval of the Landlord, which approval shall not be unreasonably
withheld.
(b) Tenant shall not commit or suffer to be committed any waste upon or
about the Premises.
8. COMPLIANCE WITHLAWSAND GOVERNMENTAL REGULATIONS.
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(a) Tenant shall at all times during the Term be in foil compliance with
any and all federal, state and local governmental rules and regulations,
ordinances and similar provisions having the force and effect of law
(collectively, "Laws") which are or would be applicable to the business being
conducted in the Premises, as distinguished from the physical facilities in
which such business is being conducted.
(b) Landlord shall be responsible for any alteration or improvements or
repairs to the Common Areas ordered by any governmental authority, provided,
however, Tenant shall be obligated to make any alterations, repairs or
improvements to the Common Areas that are necessary because they relate
primarily to the occupancy or use of Tenant or Tenant's business in the
Premises,
9. MAINTENANCEAND REPAIR.
-----------------------
(a) Landlord shall repair and maintain in good order and condition the
exterior and structure of Building No. 2, including the roof, exterior walls and
supporting members of the Building No, 2. Tenant shall promptly report to the
Landlord any damages to the Premises.
(b) Except as provided in Section 9(a) Section 13. and Section 14 hereof,
Tenant shall promptly throughout the Term at Tenant's cost and expense, take
good care of and maintain the Premises (including, in particular, without
limitation, Building No. 1 and the cranes located in Building No. 2) in good
order and repair and in neat, clean and safe condition. Ill meeting its
obligations pursuant to this Section 9(b) Tenant may repair (rather than
replace) any component of the Premises which Tenant is required to maintain
unless such component cannot be repaired, in which event replacement shall be
required. Tenant shall promptly, at Tenant's cost and expense, make all
necessary replacements, restorations, renewals and repairs to portions of the
Premises Tenant is required to maintain. Repairs, restorations, renewals and
replacements shall, to the extent possible, be at least equivalent in quality of
the original work or the property replaced, as the case may be.
10. CHANGES, ALTERATIONS ANDNEWCONSTRUCTION BY THE
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TENANT.
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(a) Tenant shall make no structural alterations, changes, additions or
improvements (collectively "Alterations") in or to the Premises without
Landlord's prior written consent, which consent shall not be unreasonably
withheld. In the event of Landlord's consent, any such Alteration(s) shall be
subject to the following:
(i) Any Alteration shall be at the cost and expense of Tenant and shall
be made promptly, in a good workmanlike manner, and in full compliance with all
applicable permits, authorizations, building and zoning laws, and any other
applicable statute, rule or regulation of any governmental agency or authority
having jurisdiction there over.
(ii) Any Such Alteration shall at the expiration of Term become the
property of the Landlord.
(b) It is understood that Tenant intends to install equipment and machinery
within the Premises, which Tenant shall remove at the termination of this Lease.
Tenant shall
At the commencement of the Lease, the parties have inspected the Premises and
found the following: _
The Tenant shall not be responsible for the existing condition of these specific
items during the terra of and at the expiration of this Lease, but Tenant shall
not commit waste upon these items. repair any damage to the Premises caused by
the installation and/or removal of Tenant's machinery, fixtures and movables.
(c) At all times during the Term, Tenant will not, directly or indirectly,
create, incur, assume or suffer to exist any lien on or with respect to the
Premises or any portion of Project. Tenant will promptly, at Tenant's own
expense, take such action as may be necessary to duly discharge, bond or
eliminate any such lien in a manner satisfactory to Landlord.
11. INDEMNIFICATION.
----------------
Tenant agrees, to the extent not expressly prohibited by law, to pay, and
to protect, defend, indemnify and save harmless Landlord from and against all
liabilities, damages, costs, expenses (including reasonable attorneys' fees and
expenses), causes of action, suits, claims, demands or judgments (collectively,
"Liabilities") of any nature whatsoever which may be imposed upon or incurred by
or asserted against Landlord by reason of (i) any accident, injury to or illness
or death of any person, or any damage to property occurring on the Premises
during the Term or while Tenant, Tenant's agents, employees, invitees or
contractors or parties claiming through Tenant are in possession of or
conducting any activities on the Premises (except to the extent caused by the
negligence or willful misconduct of Landlord), (ii) any accident, injury to,
illness or death of any person, or any damage to property (excluding property
covered by Landlord's property insurance policies) arising out of the negligence
or willful misconduct of Tenant or Tenant's agents, employees, invitees or
contractors in any portion of the Project outside the Premises during the Term,
and (iii) any failure by Tenant to perform or comply with any of the terms of
this Lease or of any contracts, agreements, restriction, or laws affecting the
Premises or any part thereof.
12. INSURANCE.
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(a) Throughout the Term, Landlord will keep Building No. 2 insured under a
property (all risks) insurance policy in the amount of one hundred percent
(100%) of the replacement cost.
(b) Tenant will also maintain from and after the date of this Lease and
throughout the Term, comprehensive general liability insurance against claims on
account of bodily injury, death or property damage incurred upon any part of the
Premises. Such insurance policy will have limits of not less than Three Million
and No/100 Dollars ($3,000,000) per occurrence in respect to bodily injury or
death and not less than One Million and No/100 Dollars $1,000,000) per
occurrence in respect to property damage and provide contractual coverage of
Landlord's liability to Tenant assumed under the indemnification provisions of
this Lease. Landlord shall be named as an additional insured under the insurance
required under this Section 12(b) and the Tenant shall deliver to Landlord a
certificate evidencing such insurance within ten (10) days of the execution of
this Lease and thereafter upon reasonable request.
(c) All insurance required of the Tenant hereunder shall be primary and not
excess with any insurance, coinsurance or self insurance maintained by Landlord.
(d) Each party hereto expressly waives any and every claim which arises or may
arise in such party's favor against the other party and such party's
shareholders, partners, officers, and employees during the Term for any and all
loss of or damage to any of such party's property, located within or upon or
constituting a part of, the Premises or Project, which loss or damage is caused
by a peril required by this Lease to be covered by the insurance of the party
incurring the loss. Inasmuch as the mutual waivers in this Section will preclude
the assignment of any claim by way of subrogation (or otherwise) to an insurance
company (or any other party), each party hereby agrees to give immediately to
each insurance company which has issued to such party policies of property
insurance, written notice of the terms of the mutual waivers of subrogation and
to have such insurance policies properly endorsed, if necessary, to prevent the
invalidation of the insurance coverages by reason of such waivers.
(e) If, by reason of any act or omission of Tenant, the rate of any
insurance maintained by Landlord with respect to the Common Areas or the
Premises shall be increased, Tenant shall reimburse Landlord for that portion of
the premiums to be paid by Landlord due to such act or omission as additional
rent due hereunder. If, due to the manner of Tenant's use or occupancy of the
Premises, any such insurance shall be canceled or if cancellation thereof shall
be threatened, Landlord shall give prompt notice thereof to Tenant and, provided
such manner of use shall not have been made of the Premises by Landlord prior to
the date hereof, then Tenant shall indemnify Landlord against any liability that
would have been covered by such canceled insurance.
(f) Tenant will pay to Landlord, as additional rent, the premiums for the
property insurance maintained by Landlord pursuant to Section 12fa) hereof, on
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the same time schedule as such premiums are paid by Landlord to the insurance
company (i.e., if premiums are paid annually, Tenant will be entitled to pay
annually on the later to occur of thirty (30) days after receipt of an invoice
therefore or thirty (30) days before such premium is due).
13. DAMAGE AND DESTRUCTION.
-------------------------
(a) In case of any material damage to or destruction of any portion of the
Premises, Tenant shall promptly give written notice thereof to Landlord. If any
portion of the Premises shall be partially damaged by fire or other casualty,
then Landlord, except as otherwise provided herein, shall proceed promptly and
with due diligence to repair and restore the damaged portion to substantially
the same condition and quality as prior to such damage. If any part of the
Premises shall be damaged, but not such a substantial portion thereof as to
impair Tenant's ability to conduct Tenant's business in Tenant's normal course,
then such portion thereof as has been rendered untenantable by reason of such
damage shall be repaired by Landlord and until such repairs are completed, the
Base Rent payable hereunder shall be abated to the extent that such Base Rent
for such portion relates to the total space for the period from the date of such
damage to the date when such portion shall have been made tenantable. Tenant
understands that Landlord will not carry insurance of any kind on Tenant's
property, to wit; Tenant's goods, inventory, furniture or furnishings or any
fixtures, equipment, or improvements, and that Landlord shall not be obligated
to repair any damage thereto or replace the same. (b) In the event the Premises
is totally destroyed or such portion thereof is damaged as will prevent Tenant
from conducting Tenant's business in Tenant's normal course, Landlord, at
Landlord's sole expense, shall promptly and with due diligence repair and
restore the Premises or the damaged portion thereof to substantially the same
condition and quality as prior to such damage.
(i) If in the reasonable opinion of a licensed architect retained by
Landlord, the Premises cannot be substantially repaired or restored within one
hundred (100) days from the date of damage or destruction, the Lease and the
leasehold interest herein granted may be terminated by either party by written
notice delivered to the other party within thirty (30) days after the date of
receipt of notice from Landlord's architect setting forth the projected repair
period. Notice of termination by either party to the other party will specify a
date, not less than ten (10) days after the date of such notice, for such
termination. In the event of giving of such notice of termination, this Lease
shall expire as of the date specified in such notice with the same effect as if
such date where the date hereinbefore specified for the expiration of the Term,
and the Base Rent payable hereunder shall be apportioned as of such date of such
fire or other casualty, subject to abatement, if any, as and to the extent
provided in Section 13(a) hereof.
--------------
(ii) Notwithstanding the provisions of this Section 13fa). in the event the
Premises is destroyed or damaged to the extent of thirty-three percent (33%) or
more of the replacement value thereof during the last two (2) years of the Term
or during the last two (2) years of any Option Period of the Lease, then either
Tenant or Landlord may elect to terminate this Lease as of the date of such
damage or destruction by giving written notice to the other within sixty (60)
days of such damage or destruction except Tenant can negate Landlord's
termination if Tenant exercises the renewal option. If this Lease is terminated
as herein provided, then all prepaid rent and other charges paid in advance by
Tenant shall be refunded by Landlord to Tenant.
14. CONDEMNATION.
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(a) In the event that at any time during the Term, title to the whole or
materially all of the Premises shall be taken by the exercise of the right of
condemnation or .eminent domain or by agreement between the Landlord and those
authorized to exercise such right, this Lease shall terminate and expire on the
date of such taking and the rent provided to be paid by the Tenant shall be
apportioned and paid to the date of such taking.
(b) Tenant, at Tenant's cost and expense, shall be entitled to separately
claim, in any condemnation proceeding, any damages payable for movable trade
fixtures and leasehold improvements paid for and installed by Tenant without any
contribution or reimbursement therefore by Landlord, and for Tenant's loss of
business, and for Tenant's relocation costs; provided Landlord's award is not
reduced or otherwise adversely affected thereby.
15. SUBORDINATION: NONPISTURBANCE.
-------------------------------
(a) Upon Landlord's written request, Tenant will execute and deliver to
Landlord an agreement in recordable form subordinating Tenant's rights to the
lien of any mortgage hereafter encumbering the Premises. Tenant, however, will
not be required to subordinate Tenant's rights hereunder to any mortgage unless
and until the holder of such mortgage executes and delivers to Tenant a written
agreement providing in substance (i) that so long as Tenant faithfully
discharges Tenant's obligations under this Lease, Tenant's right of possession
to the Premises and other rights under this Lease will not be affected by any
default by Landlord under any instrument creating or secured by such mortgage,
and (ii) that in the event of foreclosure or any other enforcement of such
mortgage, the rights of Tenant hereunder will expressly survive and this Lease
will continue in foil force and effect. If any mortgage, trustee or ground
lessor shall elect to have this Lease prior to the lien of its mortgage, deed of
trust or ground lease, and shall give written notice thereof to Tenant, this
Lease shall be deemed prior to such mortgage, deed of trust, or ground lease,
whether this Lease is dated prior or subsequent to the date of said mortgage,
deed of trust or ground lease or the date of recording thereof.
(b) Landlord represents and warrants that no lieu encumbers the Premises on
the date of this Lease.
16. NONWAIVER.
----------
Neither a failure by either party to exercise any of its options hereunder,
nor failure to enforce its rights or seek its remedies upon any default, nor the
acceptance by the Landlord of any rent accruing before or after any default,
shall effect or constitute a waiver of such party's right to exercise such
option, to enforce such right, or to seek such remedy with respect to that
default or to any prior or subsequent default.
17. QUIET ENJOYMENT.
-----------------
If Tenant pays the rent Tenant is obligated hereunder to pay, and observes
all other terms, covenants and conditions hereof, Tenant may peaceably and
quietly have, hold and enjoy the Premises during the Term, subject, however, to
all the terms of this Lease.
18. ASSIGNMENT AND SUBLETTING.
----------------------------
(a) Tenant shall not sublet the Premises, nor any part thereof, nor assign,
or otherwise dispose of this Lease or any interest therein, or any part thereof,
without Landlord's prior written consent in each of the foregoing cases, which
consent shall not be unreasonably withheld or delayed. Landlord's disapproval of
a proposed assignee or sublessee will be considered reasonable if the proposed
assignee or sublessee is not of a generally comparable quality with Tenant or if
the proposed use of the Premises is not compatible with the Premises.
(b) Notwithstanding the provisions of Section 18(a) hereof, Tenant may
assign or sublet the Premises, or any portion thereof, without Landlord's
consent, to any corporation thatcontrols, is controlled by or is under common
control with Tenant, or to any corporation resulting from the merger or
consolidation with Tenant, or to any person or entity that acquires all the
assets of Tenant as a going concern of the business that is being conducted on
the Premises. Tenant and any guarantor of the obligations of Tenant under this
Lease shall remain liable despite any assignment or sublease of this Lease by
Tenant pursuant to this Section 18.
------------
19. ENTRY.
------
Landlord, and any mortgagee, and their respective duly authorized
representatives shall have the right to enter the Premises at all reasonable
times for the purposes of inspecting the conditions of same, and making such
repairs, alterations, additions, or improvements thereto as may be necessary or
desirable if Tenant fails to do so as required hereunder (but the Landlord shall
have no duty whatsoever to make any such inspections, repairs, alterations,
additions, or improvements).
20. DEFAULT.
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(a) The following shall be defined and deemed as an "Event of Default" by
Tenant: (i) if Tenant shall default in the payment of the Base Rent or any
additional rent, utility charges (referenced in Section 4), and charges
referenced in Section 5, and in any other section of this Lease, and if Tenant
shall fail to cure said default within fifteen (15) days after receipt of notice
of such default from Landlord; or, (ii) if Tenant shall default in the
performance or observance of any other term, covenant or condition to be
performed or observed by Tenant under this Lease and if Tenant shall fail to
cure said default within thirty (30) days after receipt of notice of said
default from Landlord or if such default is of a nature which cannot be
corrected in thirty (30) days, if Tenant shall fail to commence to cure same
within thirty (30) days and thereafter diligently pursue such cure to
completion.
(i) In case of any Event of Default hereinbefore provided the Landlord
shall have the immediate right of reentry and may remove all persons and
property from the Premises by summary proceedings, force or otherwise. No such
reentry or taking possession of the Premises by Landlord shall be construed as
an election on Landlord's part to terminate this Lease unless a written notice
of such intention to be given to Tenant or unless the termination thereof be
decreed by a court of competent jurisdiction.
(ii) Tn addition, in the event of any Event of Default (whether or not
Landlord shall elect to re-enter or to take possession pursuant to legal
proceedings or pursuant to any notice provided for by laws), Landlord shall have
the right, at Landlord's option,
1) to terminate this Lease on not less than two (2) days' noticeto
Tenant and upon the giving of said notice, this Lease and the term hereof shall
cease and expire on the date set forth in said notice as if said date where the
expiration originally set forth herein, or
2) to relet the Premises or any part(s) thereof for such term or terms
(which may extend beyond the Term) and at such rental(s) and upon such other
terms and conditions as Landlord in Landlord's sole discretion may deem
advisable. Landlord shall have the right from time to time to make such
alterations and repairs as may be reasonably necessary in order to relet the
Premises. Upon each such reletting all rentals received by the Landlord from
such reletting shall be applied, first, to the payment of any indebtedness
(other than rents due hereunder) of Tenant to Landlord, second, to the payment
of any costs and expenses of such reletting, including, without limitation,
reasonable attorneys' fees and of the cost of such alterations and repairs,
third, to the payment of rents due and unpaid hereunder; and the residue, if
any, shall be held by Landlord and applied in payment of future rents and other
payments required to be made by Tenant hereunder as the same may become due and
payable hereunder, with the right reserved to Landlord to bring such action(s)
or proceeding(s) for the recovery of any deficits remaining unpaid without being
obliged to await the end of the term for a final determination of Tenant's
account, and the commencement or maintenance of any one or more actions for
further accruals pursuant to the provisions of this Section. If such rentals to
be paid during that month by Tenant hereunder, Tenant shall pay any such
deficiency to Landlord. Such deficiency shall be calculated and paid monthly
subject to Landlord's right of action(s) or proceeding(s) as aforesaid.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for such previous breach.
(iii) Should Landlord at any time terminate this Lease for any breach, in
addition to any other remedies Landlord may have, Landlord may recover from
Tenant all damages Landlord may incur by reason of such breach as damages for
loss of the bargain and not as a penalty, including the cost of recovering the
Premises, reasonable attorneys' fees, and including the present value determined
by using a discount rate of eight percent (8%), at the time of such termination,
of the excess if any, of the amount of rental and charges equivalent to rental
reserved in this Lease for the remainder of the Term, over the aggregate rental
value of the Premises for the remainder of such term, all of which shall be
immediately due and payable from Tenant to Landlord. If any laws shall validly
limit the amount of the damages provided for in the immediately preceding
sentence to less than the amount above agreed upon, Landlord shall be entitled
to the maximum amount allowable under such laws.
(iv) Landlord shall use reasonable efforts to mitigate its damages after a
default by Tenant.
(b) Landlord shall not be in default unless Landlord fails to perform
obligations required of Landlord 'within a reasonable time, but in no event
later than thirty (30) days after written notice by Tenant to Landlord and to
the holder of any first mortgage or deed of trust covering the Premises whose
name and address shall have theretofore been furnished to Tenant in writing,
specifying wherein Landlord has failed to perform such obligation; provided,
however, that if the nature of Landlord's obligation is such that more than
thirty (30) days are required of performance then Landlord shall not be in
default if Landlord commences performance within such 30-day period and
thereafter diligently prosecutes the same to completion. In the event Landlord
fails to discharge any obligation set forth in this Lease on or before the date
such obligation or payment is due, Tenant may, at Tenant's option, discharge
suchobligation. Tenant shall use reasonable efforts to mitigate its damages
after a default by the Landlord. In the event Tenant elects to discharge
Landlord's obligation(s), Landlord agrees to reimburse Tenant on demand for the
amount of expenses incurred by Tenant.
21. ENVIRONMENTAL PROVISIONS.
--------------------------
(a) For the purposes of this Section 21. the following shall have the
-----------
respective meanings set forth below:
(i) "Hazardous Material" means any substance, material or waste which is
regulated by any applicable governmental authority of the United States or the
State of South Carolina, including without limitation, any material, substance
or waste which is defined as "hazardous", "hazardous waste", "hazardous
material", "hazardous substance", "extremely hazardous waste", "restricted
hazardous waste", "pollutant", "contaminant", "toxic substance" or "toxic waste"
under any provision of any applicable Environmental Law, and includes, but is
not limited to, petroleum, petroleum products, asbestos, urea formaldehyde and
polychlorinated biphenyls.
(ii) "Hazardous Materials Contamination" means any
disposal, transportation, storage, arranging of disposal, spillage, discharge,
emission, leakage, release or threatened release of any Hazardous Materials at,
in, on, under, from, about, or affecting the soil, air, water, fixtures,
personal property, animals or buildings.
(iii) "Environmental Condition" means any unlawful environmental condition,
event or circumstance.
(iv) "Damages" means all demands, claims, actions, assessments, losses,
damages, liabilities, costs and expenses of every nature (including, without
limitation, reasonable attorneys' fees, fines, penalties and costs of
settlements of any kind), known or unknown, foreseen or unforeseen, contingent
or otherwise.
(v) "Landlord-Related Party" means an employee, agent, contractor,
licensee, customer, invitee or affiliate of Landlord, but specifically excludes
Tenant and any other lessee or tenant of tie Project. "Tenant-Related Party"
means an employee, agent, contractor, licensee, customer, invitee or affiliate
of Tenant but specifically excludes Landlord.
(b) Landlord shall defend, indemnify, protect and hold Tenant harmless
against Damages resulting from or arising out of the following Hazardous
Materials Contamination or Environmental Conditions: (i) existing or occurring
within the Premises on or before Tenant takes occupancy of the Premises or after
the expiration or early termination of the Lease Term but only to the extent not
caused by Tenant or a Tenant-Related Party; or (ii) existing or occurring
within the Premises or any other portion of the Project and caused by Landlord
or a Landlord-Related Party.
(c) Tenant shall defend, indemnify, protect and hold Landlord harmless
against all Damages resulting from or arising out of Hazardous Materials
Contamination or Environmental Conditions existing or occurring within the
Premises or any other portion of the Project and caused by Tenant or a
Tenant-Related Party, but only to the extent not caused by Landlord or a
Landlord-Related Party.
(d) The Tenant shall store and handle Hazardous Materials at the Premises
or at the Project in strict compliance with applicable laws, rules and
regulations, and shall indemnify, defend and save harmless the Landlord from all
Damages arising out of or in any way connected with Tenant or Tenant-Related
Party's storage or handling of Hazardous Materials. In no event shall Tenant's
handling or storage of Hazardous Materials in compliance with applicable laws
make Tenant liable for Hazardous Materials Contamination or Environmental
Conditions in existence or occurring on or before Tenant takes occupancy of the
Premises.
(e) The obligations and liabilities of both parties under this Section 21
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shall survive the Term of this Lease.
(f) The failure by either party to abide by the terms of this Section 21
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shall be restrainable by injunction.
22. SURRENDER OFTENANT.
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(a) Tenant will surrender possession of the Premises and remove all goods
and production equipment and other personal property owned by Tenant at the end
of the Term, or at such other time as Landlord may be entitled to re-enter and
take possession of the Premises pursuant to any provision of this Lease, and
Tenant shall leave the Premises broom clean and in good order and condition,
ordinary wear and, tear excepted, except in the event of termination due to fire
..or other casualty pursuant to Section\3 or termination, due to condemnation
---------
pursuant to Section 14. Tenant shall deliver to Landlord all keys, locks and
------------
other fixtures connected with the Premises (such fixtures shall include, but are
not limited to: cranes, HVAC systems, roof fans, bus ducts and lights) in good
repair, order and condition. In default of such surrender of possession and
removal of goods and chattels at the time aforesaid, Tenant will pay to Landlord
the rent set forth in this Lease for such period as Tenant either holds over
possession of the Premises or allows Tenant's goods and production equipment or
other personal property at such time to remain in the Premises, and in addition
thereto, statutory penalties and all other damages which Landlord shall suffer
by reason of Tenant's holding over in violation of the terms and provisions of
this Lease, including, without limitation, all reasonable claims for damages
made by any succeeding tenant or purchase of the Premises against Landlord which
may be founded upon delay by Landlord in giving possession of the Premises to
such succeeding tenant or purchaser, so far as such damages are occasioned by
the unlawful holding over of Tenant.
(b) Tenant shall have the absolute right to remove all of Tenant's goods,
production equipment, and other personal property from the Premises at any time
during the Term.
(c) Tenant shall be responsible for the clean-up and removal of all raw
materials, packaging, solid waste, unused and used lubricants, oils, solvents
and any hazardous wastes placed, abandoned or located on the Premises, and the
area surrounding the Premises by Tenant (or any of Tenant's employees, agent,
invitees or subcontractors) during the term hereof.
(d) The liability and the obligations of Tenant under this Section shall
survive the termination of this Lease.
23. FORCE MAJEURE.
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In the event that Landlord or Tenant shall be delayed or hindered in or
prevented from the performance or any act (other than cither party's monetary
obligations), by reason of strikes, lockouts, unavailability of materials,
failure of power, restrictive governmental laws or regulations, riots,
insurrections, war or other reason beyond its reasonable control, then
performance of such act shall be excused for the period of the delay and the
period for the performance of such act shall be extended for a period equivalent
to the actual period of such delay. Notwithstanding the foregoing, lack of funds
shall not be deemed to be a cause beyond the reasonable control of either party.
24. SECURITY DEPOSIT.
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Upon execution of this Lease by the Tenant, the Tenant shall pay to Landlord a
Security Deposit in the amount of One Hundred Thousand ($100,000,00), Dollars.
The Security Deposit shall be retained as security (interest free) for the
faithful performance by Tenant of all terms, covenants and conditions herein.
Landlord .is given .permission to .commingle said Security Deposit, and the
Landlord, at Landlord's sole discretion, may at any time apply said Security
Deposit or any part thereof against any default by Tenant of any of the terms,
covenants and conditions of this Lease. In such event, Tenant shall upon demand
deposit with Landlord the amount so applied so that Landlord shall have the full
amount of the Security Deposit on hand at all times during the Term of this
Lease. Upon the expiration of this Lease, the Tenant shall surrender possession
of the Premises as required in Paragraph 22 herein. Landlord is given permission
to deduct from said Security Deposit the cost of any cleaning or repairs to the
Premises, upon vacating of Tenant. The Security Deposit or any remaining portion
will be returned within 30 days after the termination of this tenancy or
completion of the repairs necessitated by Tenant's misuse of the Premises or any
default in the faithful performance by Tenant of any terms, covenants and
conditions of this Lease. In the event the Security Deposit is not sufficient to
pay all charges due, Tenant shall pay said charges within three (3) days after
receiving written notice from the Landlord. Provided Tenant is not in default
under this Lease at the end of the first Lease Year, the Landlord shall return
to the Tenant Twenty-Five Thousand ($25,000.00) Dollars of the Security Deposit.
Provided Tenant is not in default under this Lease at the end of the second
--------
Lease Year, the Landlord shall return to the Tenant an additional Twenty-Five
----
Thousand ($25,000.00) Dollars of the Security Deposit leaving the balance of
--
Fifty Thousand ($50,000.00) Dollars to secure the faithful performance by Tenant
--
of all terms, covenants and conditions of this Lease for the remainder of the
Term.
25. COMMISSIONS.
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Tenant acknowledges that no real estate broker has been engaged by the Tenant
with respect to this Lease and the negotiations thereof. Tenant agrees to hold
the Landlord harmless from any claims for commissions which Tenant has incurred
arising out of this Lease. Landlord shall be responsible to Xxxx Corporation
("Xxxx") for a lease commission pursuant to terms under a separate listing
agreement and agrees to hold Tenant harmless from any claims for commissions
arising out of such agreement between the Landlord and Xxxx or between Landlord
and any third party real estate broker
26. ESTOPPEL CERTIFICATEAt any time and from time to time Landlord and Tenant
----------------------
each agree, upon request in writing from the other, promptly to execute,
acknowledge and deliver to the other or to any person designated by the other a
statement in writing certifying that this Lease is unmodified and is in full
force and effect, or if there have been modifications, that the same is in full
force and effect as modified (stating the modifications), that the other party
is not in default in the performance of its covenants hereunder, or if there
have been such defaults, specifying the same, the dates to which the Rent and
other charges have been paid, and such other matters may be reasonably
requested.
27.
MISCELLANEOUS PROVISIONS.(a) All notices under this Lease shall be in writing
--------------------------
and shall be deemed given if delivered personally or by overnight courier or if
--
sent by confirmed facsimile transmitted during the regular business hours of the
recipient, or when mailed, postage prepaid, by. registered or certified mail,
return receipt requested, addressed to the parties :at their addresses as set
forth below (or at such other address as a party may from time to time designate
by written notice given in accordance with this Section): TO TENANT:
Technical Solutions Group, Inc. 0000 Xxxxxxx 00, Xxxxxxxx Xx. 0 Xxxxxx, XX 00000
ATTN: Xxxxxxx Xxxxx Fax No: (000) 000-0000
TO LANDLORD:
Aerospace/Defense, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx, XX 00000
ATTN: Xxxxx Xxxxxx or Xxxxx Xxxxxxxxx
Fax No: (000) 000-0000
Force Protection, Inc. (f/k/a Sonic Jet Performance, Inc.) 0000 Xxxxxxx 00,
Xxxxxxxx Xx. 0 Xxxxxx, XX 00000 Attn: Xxxxxxx Xxxxx Fax No: (000) 000-0000
(b) It is the intention of the parties hereto to create the relationship of
Landlord and Tenant, and no other relationship whatsoever, and unless expressly
otherwise provided herein nothing herein shall be construed to make the parties
hereto liable for any of the debts, liabilities or obligations of the other
party.
(c) This Lease shall be governed exclusively the provisions hereof and by
the laws of the State of South Carolina. Each of the parties (i) irrevocably
consent to the exclusive jurisdiction of any state or federal court located
within Charleston County, South Carolina, and (ii) waives trial by a jury. This
Lease has been mutually negotiated by the parties and no rule of construction
shall be applied based upon the presumed drafter or author of this Lease.
(d) If any term or provision of this Lease or the application thereof to
any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by law.
(e) Failure on the part of either party to complain of any action or
non-action on the part of the other party, no matter how long the same may
continue, shall never be deemed to be a waiver by either party of any of its
rights hereunder. Acceptance by Landlord of the Base Rent, additional-rent or
any changes paid by Tenant hereunder shall not be or be deemed to be a waiver by
Landlord of. any default by Tenant, whether or not Landlord knows of such
default. No waiver at any time of any of the provisions :hereof by either party
shall be .construed as a waiver of any of the other provisions hereunder and a
waiver at any time of any of the provisions hereof shall not be construed as a
waiver at any subsequent time of the same provisions.
(i) Tenant acknowledges and agrees that the submission of this Lease to
Tenant for its review and consideration shall not and does not constitute an
offer to lease the Premises. Tenant and Landlord understand and agree that there
can be no agreement for the lease of the Premises until all parties hereto have
signed, delivered and accepted this Lease and the Security Deposit referenced in
Paragraph 24 has been delivered and accepted.
(g) The captions of the several Sections and Subsections of this Lease and
table of contents are not a part of the context hereof and shall be ignored in
construing this Lease. They are intended only as aids in locating various
provisions hereof.
(h) Except as may be expressly otherwise provided herein, the terms, covenants
and conditions hereof shall inure to the benefit of and shall be binding upon
Landlord and Landlord's successors and assigns and the terms, covenants and
indentures hereof shall inure to the benefit of and shall be binding upon Tenant
and Tenant's successors, legal representatives, and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have duly executed this instrument
under seal as of the day and year first above written
Landlord: AEROSPACE/DEFENSE, INC.
Tenant:
TECHNICAL SOLUTIONS GROUP, INC.
Bv:
Name:
Title
FORCE PROTECTION, INC. (f/k/a SONIC JET PERFORMANCE, INC.
