EXHIBIT 10.18
REAL ESTATE LEASE
AND OPTION AGREEMENT
--------------------
THIS REAL ESTATE AND OPTION AGREEMENT (this "Lease") is made as of
November ___, 2001, by and between Redhawk Industries, L.L.C., an Oklahoma
limited liability company (the "Lessor") and Excalibur Services, Inc., an
Oklahoma corporation (the "Lessee").
RECITALS
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1. Lessor is the owner of certain property located in Tulsa, Oklahoma
more fully described on EXHIBIT "A" (such tract of real property, together with
all buildings and improvements thereon, situated in Tulsa, Oklahoma, is
hereinafter referred to as the "Leased Premises").
2. The Lessor and Excalibur Holdings, Inc., a Texas corporation
("Holdings") have executed that certain Asset Purchase Agreement (the "Purchase
Agreement").
3. Lessor desires to lease the Leased Premises to Lessee and Lessee
desires to lease the Leased Premises from the Lessor.
NOW, THEREFORE, in consideration of the mutual promises, conditions and
covenants herein contained, and other good and valuable consideration, receipt
of which is hereby acknowledged, Lessor and Lessee agree as follows:
SECTION 1
LEASED PREMISES
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1.01. LEASED PREMISES. In consideration of the rents, covenants and
agreements hereinafter reserved and contained on the part of Lessee to be
observed and performed, Lessor leases to Lessee, and Lessee rents from the
Lessor the Leased Premises.
SECTION 2
TERM
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2.01. COMMENCEMENT AND ENDING DATE OF LEASE TERM. The term of this
Lease ("Lease Term") shall commence on November ____, 2001, and shall continue
until November ______, 2002. However, Lessee may terminate this Lease by giving
Lessor at least thirty (30) days written notice of termination, and provided,
further, that (i) the Lease Term shall end automatically upon the occurrence of
the closing under the Purchase Option (hereinafter defined), and (ii) the Lease
Term shall end if the Lease is otherwise terminated as herein permitted. Lessor
shall have the right to access the Leased Premises for up to thirty (30) days
following commencement of the Lease Term in order to remove personal property
and other items belonging to Lessor.
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SECTION 3
RENT
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Lessee agrees to pay to Lessor at the office of Lessor, or at such
other place designated in writing by Lessor, Rent, in the amount of $6,000 per
month, payable in advance, during each month of the Lease Term of this Lease.
The first month's Rent shall be payable on the execution hereof. Each month's
rent thereafter shall be due on the fifteenth (15th) day of each month. For any
month in which the Lease is terminated, the Rent shall be prorated based upon
the number of days elapsed in such month.
SECTION 4
FIXTURES, ALTERATIONS
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4.01. INSTALLATION BY LESSEE. Lessee shall not make or cause to be made
any material alterations, additions or improvements to the Leased Premises or
install or cause to be installed any substantial trade fixture, exterior signs,
floor covering, interior or exterior lighting, plumbing fixtures, or make any
substantial changes to the Leased Premises, electrical system, or other building
systems without first obtaining Lessor's written consent, which shall not be
unreasonably withheld, conditioned or delayed. Additionally, Lessee may make
interior, nonstructural alterations to the Leased Premises without Lessor's
prior consent, provided the same will not affect the exterior, structural
integrity, or soundness of the Leased Premises.
4.02. REMOVAL BY LESSEE. Any installations, alterations, decorations,
additions or improvements made to the Leased Premises by the Lessee shall be
removed from the Leased Premises at to the end of the Lease Term hereof,
provided such removal does not cause substantial damages to the Leased Premises.
SECTION 5
MAINTENANCE AND REPAIRS OF LEASED PREMISES
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5.01. OBLIGATIONS FOR MAINTENANCE AND REPAIRS.
(a) Lessor shall keep and maintain the foundation, exterior
walls and roof of the buildings in which the Leased Premises are located and the
structural portions of the Leased Premises in at least the same state of repair
as currently exists. Except as set forth in Section 4.01 above, Lessee shall not
make substantial repairs thereto without the prior written consent of Lessor.
(b) Lessee shall keep and maintain all portions of the Leased
Premises OTHER THAN those portions constituting Lessor's repair obligation as
set forth in Section 5.01, and any and all appurtenances thereto wherever
located, including, but without limitation, the exterior and interior portion of
all doors, door checks, windows, plate glass, all plumbing and sewage facilities
within the Leased Premises including free flow to the main sewer line, fixtures,
heating and air conditioning and electrical systems, walls, floors and ceilings
in the same condition as currently exists, reasonable wear and tear excepted.
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(c) Lessee shall keep and maintain the Leased Premises in a
clean, sanitary and safe condition and in accordance with all directions, rules
and regulations of the proper officials of the governmental agencies having
jurisdiction, at the sole cost and expense of Lessee, and Lessee shall comply
with all requirements of law, by statutes, ordinance or otherwise, affecting the
Leased Premises and all appurtenances thereto. However, Lessee shall not be
required to make any repairs or alterations to the roof, foundation, exterior
walls, or any other structural portions of the Leased Premises in order to
comply with any such requirements of law, statute, ordinance or other
governmental authorities, nor shall Lessee be required to correct or to make any
repairs or improvements to any portion of the Leased Premises in order to bring
into compliance with applicable law any such portion of the Leased Premises that
is not in compliance with any such applicable requirements of law, statute,
ordinance or other governmental authorities in effect as of the date of this
Lease.
(d) Except as set forth in this Lease, Lessor shall not be
required by Lessee to make any alterations, rebuilding, replacements, changes,
additions, or improvements to the Leased Premises. However, notwithstanding the
foregoing, Lessor shall, at its sole cost, be required to correct and to make
any repairs and improvements to the Leased Premises necessary to bring into
compliance with applicable law any portion of the Leased Premises that is not in
compliance with any applicable requirements of law, statute, ordinance or other
governmental authorities in effect as of the date of this Lease. Lessor further
represents and warrants to Lessee that all improvements constituting part of the
Leased Premises are in compliance with all applicable requirements of law,
statute, ordinance or other governmental authorities in effect as of the date of
this Lease.
5.02. SURRENDER OF LEASED PREMISES. Upon the termination of this Lease,
Lessee shall surrender the Leased Premises in the same condition as the Leased
Premises were on the date this Lease was executed, reasonable wear and tear
excepted. Lessee, may remove any and all of its trade fixtures, equipment, and
other property, provided that such occurs by the end of the Lease Term, as
aforesaid and shall promptly repair any damages to the Leased Premises caused
thereby.
5.03. ENVIRONMENTAL LIABILITY Lessee shall indemnify, defend, and hold
Lessor, its employees, agents, officers, and directors, harmless from and
against any claim, action, suit, proceeding, loss, cost, damage, liability,
deficiency, fine, penalty, punitive damage or expense (including, without
limitation, attorneys' and consultant fees), directly or indirectly resulting
from, arising out of or based upon the presence, release, use, manufacture,
generation, discharge, storage or disposal of any Hazardous Materials on, under,
in, or about, or the transportation of any Hazardous Materials to or from the
Leased Premises AFTER the date of this Lease that result from the acts or
omissions of Lessee, or its employees, or agents.
Lessor agrees to indemnify, defend and hold Lessee, its employees,
agents, officers, and directors, harmless from and against any claim, action,
suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty,
punitive damage or expense (including, without limitation, attorneys' and
consultant fees), directly or indirectly resulting from, arising out of or based
upon the release, use, manufacture, generation, discharge, storage or disposal
of any Hazardous Materials on, under, in, or about, or the transportation of any
Hazardous Materials to or from the Leased Premises prior to the date of this
Lease, or a violation of any Hazardous Materials Law affecting the Leased
Premises which violation is in existence as of the date of this Lease.
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Lessor warrants, represents, covenants and agrees that, to the best
knowledge of Lessor, as of the date of this Lease: (i) there are no Hazardous
Materials on, under or in the Leased Premises, and (ii) there is no asbestos or
asbestos-containing material on the Leased Premises.
"Hazardous Materials Law" for the purposes of this Lease shall include,
but not be limited to, all Federal, State, or local laws, rules, regulations,
ordinances, administrative rulings court decisions, and the like pertaining to
health, safety or the environment, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
the Hazardous Materials Transportation Act, the Resource Conservation and
Recovery Act, the Solid Waste Disposal Act, the Clean Water Act, the Clean Air
Act, and any amendments to these laws or enactments or other laws occurring
after the date hereof.
"Hazardous Materials" for the purposes of this Lease includes flammable
explosives, radioactive materials, polychlorinated biphenyls, asbestos in any
form which is or could become friable, petroleum products, hazardous wastes,
toxic substances or other related material, whether in the form of a chemical,
element, compound, solution, mixture, or otherwise including, but not limited
to, those materials defined as "hazardous substances," "hazardous materials,"
"toxic substances," "air pollutants," "toxic pollutants," "hazardous waste,"
"extremely hazardous waste," or "restrictive hazardous waste" by Hazardous
Materials Law.
5.04. NO WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS LEASE, THE
LESSOR HEREBY DISCLAIMS ANY AND ALL WARRANTIES RESPECTING THE LEASED PREMISES,
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. LESSEE REPRESENTS THAT IT HAS EXAMINED THE LEASED
PREMISES, AND HAS MADE ITS OWN JUDGMENT AS TO THE USE OF THE LEASED PREMISES.
SECTION 6
TAXES: OBLIGATION OF LESSEE
---------------------------
6.01. TAXES. Lessee shall reimburse Lessor for any and all real
property ad valorem taxes, business personal property taxes and other business
taxes (including but not limited to assessments and special assessments and
hereinafter referred to as "Taxes") which may be levied or assessed, during the
Lease Term, against the land, buildings and improvements, comprising the Leased
Premises. Taxes levied will be prorated based on the period that the Lessee
occupied the Leased Premises. Lessor agrees to indemnify, defend and hold
Lessee, its employees, agents, officers, and directors, harmless from and
against any claim, action, suit, proceeding, loss, cost, damage, liability,
deficiency, fine, penalty, punitive damage or expense (including, without
limitation, attorneys' fees) for any such Taxes accruing or relating to periods
taking place prior to the date of this Lease.
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SECTION 7
INSURANCE
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7.01. INSURANCE COMPANIES. All policies of insurance to be kept and
maintained in force by the respective parties hereto shall be issued by
insurance companies authorized to do business in the State of Oklahoma and
approved by both parties hereto.
7.02. LESSEE TO OBTAIN LIABILITY INSURANCE. Lessee shall, at its sole
expense, at all times during the Lease Term, maintain in full force a policy or
policies of insurance, which will insure Lessor against property and personal
liability for injury to or death of persons or loss or damage to property
occurring in or about the Leased Premises, in an amount not less than
$1,000,000.00 in the aggregate.
7.03. LESSOR TO OBTAIN FIRE INSURANCE ON LEASED PREMISES. Lessor shall,
at Lessee's cost and expense, maintain in force, at all times during the Lease
Term, a policy or policies of fire and extended coverage casualty insurance to
the extent of the full replacement cost of the Leased Premises, including,
without limitation, all improvements and fixtures thereon, but such insurance
shall not ever be less than amounts reasonably required by Lessee and Lessee's
lender. Any insurance policy or policies maintained shall name as beneficiaries,
Lessor, Lessee and any mortgage holder under a standard mortgage clause as their
interests may appear.
7.04. CERTIFICATE OF INSURANCE. Each of Lessor and Lessee agrees to
submit to the other a copy of the certificate or certificates of or other
evidence of the renewal or extension of any insurance coverage required in this
Section. All such certificates will reflect a minimum of thirty (30) days
written notice of cancellation to be given to the other party.
7.05. MUTUAL WAIVER OF SUBROGATION. If either Lessor or Lessee sustains
a loss by reason of fire or other casualty which is a loss of the type within
the coverage of the type of insurance policy or policies actually carried or
required to be carried by Lessor or Lessee pursuant to this Lease, and such fire
or casualty is caused in whole or in part by the acts or omissions of the other
party or its agents, servants, contractors, or employees, then it is agreed that
each party does hereby waive and release any and all claims, demands and causes
of action which such party might otherwise have against the other regardless of
the cause of origin thereof (including the negligence of Lessor or Lessee and
their agents, servants, contractors, or employees) for damage to or loss of any
part of the Leased Premises, or any of the fixtures, equipment, merchandise,
alterations or other property therein belonging to either party, and the party
incurring such loss agrees to look solely to the proceeds (if any) of its
previously mentioned policy or policies of insurance, and such party shall have
no right of recovery against the other party to this Lease or the agents,
servants, or employees of such other party, and, in all events, no party shall
have any right by way of assignment or subrogation; and, that all policies of
insurance written to insure such buildings, improvements and contents shall
provide for a waiver of rights of subrogation against Lessor and Lessee on the
part of the insurance carrier.
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SECTION 8
SERVICES AND UTILITIES
----------------------
Lessee shall be solely responsible for and promptly pay or reimburse
Lessor for all charges within thirty (30) days of receipt of invoices for water,
electricity, telephone, chilled water for air conditioning purposes, sanitary
sewer, gas, and/or other utilities used or consumed in or on the Leased Premises
during the term hereof. Lessee shall further have the right during the Lease
Term to place all such utilities in Lessee's name.
SECTION 9
ASSIGNMENT AND SUBLETTING
-------------------------
Lessee may not assign or sublet this Lease or the Purchase Option
(hereinafter defined) except to an affiliate of Lessee, in whole or in part,
without the prior written consent of Lessor, which consent will not be
unreasonably withheld, conditioned or delayed.
SECTION 10
GOVERNMENTAL REGULATIONS
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Except as expressly set forth in Section 5.01, Lessee shall, at
Lessee's sole cost and expense, comply with and abide by all of the laws,
requirements and regulations of all county, municipal, state, federal and other
applicable governmental authorities, now in force, or which may hereafter be in
force, pertaining to the use of the Leased Premises or the operation of Lessee's
business thereon. However, Lessor represents and warrants to Lessee that, as of
the date of this Lease, to the best of its knowledge, the Leased Premises are in
compliance with all applicable laws, requirements and regulations of all county,
municipal, state, federal and other applicable governmental authorities now in
force.
SECTION 11
DESTRUCTION OF LEASED PREMISES
------------------------------
In the event the Leased Premises are destroyed or damaged by fire,
explosion or any other casualty with or without the fault or neglect of Lessee,
either party may give the other written notice that such party is terminating
the lease. Lessee's rent hereunder shall be prorated for any time during which
the Leased Premises cannot be occupied due to such event. Lessee shall have no
claim to the Lessor's insurance proceeds. Neither party shall have any
obligation to make any repairs to the Leased Premises arising out of damage by
fire, explosion, or other casualty.
SECTION 12
ADDITIONAL OBLIGATIONS
----------------------
In the event that Lessee fails to pay any taxes, utilities, insurance
or other amounts it is obligated to pay hereunder, Lessor shall have the right
(but no obligation) to pay such unpaid amounts and Lessee shall immediately
reimburse Lessor for any amounts so expended.
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SECTION 13
DEFAULT OF THE LESSEE OR LESSOR
-------------------------------
13.01. RIGHT TO RE-ENTER. In the event (1) Lessee fails to pay any rent
when due, which failure has not been cured within ten (10) business days after
receipt by Lessee of written notice of such failure from Lessor, or (2) Lessee
fails to pay any taxes, insurance premiums, and utilities as herein required,
which failure has not been cured within ten (10) business days after receipt by
Lessee of written notice of such failure from Lessor, or (3) of any failure by
Lessee to perform any of the other terms, conditions or covenants of this Lease
to be observed or performed by Lessee for more than thirty (30) days after
written notice of such default shall have been given to Lessee (provided that if
the nature of such default is such that it cannot reasonably be cured within a
thirty (30) day period, then Lessee shall not be in default so long as Lessee
commences the cure of such failure within such thirty (30) day period and is
diligently prosecuting such cure to completion), or (4) if Lessee shall become
bankrupt or insolvent, or file any debtor proceedings or take or have taken
against Lessee in any court pursuant to any statute either of the United States
or of any State a petition in bankruptcy or insolvency or for reorganization or
for the appointment of a receiver or trustee of all or a portion of Lessee's
property, or (5) if Lessee makes an assignment for the benefit of creditors, or
if Lessee shall abandon the Leased Premises, or (6) Lessee allows this Lease to
be taken under any writ of execution, then Lessor, in addition to other rights
or remedies it may have by law or in equity, shall have:
(a) the right to treat said Lease granted herein as
terminated; and/or
(b) the right to re-enter the Leased Premises and remove all
persons and property form said Leases Premises; and/or
(c) the right to remove and store all such personal property
of Lessee in a public warehouse, or elsewhere, at the cost of, and for the
account of Lessee.
13.02. DEFAULT BY LESSOR. If Lessor shall fail to perform any of its
obligations under this Lease, which failure has not been cured within fifteen
(15) days after receipt by Lessor of Lessee' written notice of such failure
(except when the nature of Landlord's obligation is such that more than fifteen
(15) days are required for its cure, then Landlord shall not be deemed in
default if it commences such cure within such fifteen (15) day period and
thereafter diligently pursues the cure to completion), then Lessee, in addition
to other rights or remedies it may have by law or in equity, shall have the
right (but shall not be obligated to) to cure such failure for the account and
at the expense of Lessor and render a xxxx to Lessor for the actual and
reasonable expense thereof. If Lessor fails to pay such xxxx within fifteen (15)
days after such xxxx is rendered, Lessee shall have the right to deduct such
expense from Lessee's payments of Rent payable hereunder. However, in connection
with such cure by Lessee, Lessee shall not, in any one (1) calendar month,
expend any amounts in excess of one (1) month's Rent without Landlord's prior
written consent.
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13.03. LEGAL EXPENSES. If suit shall be successfully brought for
recovery of possession of the Leased Premises, for the recovery of rent or any
other amount due under the provisions of this Lease, or because of the breach of
any other covenant herein contained on the part of Lessee or Lessor to be kept
or performed, then the losing party shall pay to the prevailing party all
expenses incurred therefor, including, without limitation, the Lessor's
reasonable attorney's fee.
SECTION 14
SUCCESSORS
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All rights and liabilities herein given to, or imposed upon, the
respective parties hereto shall extend to and bind the several respective
successors and permitted assigns of the said parties.
SECTION 15
QUIET ENJOYMENT AND
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OTHER COVENANTS AND AGREEMENTS
------------------------------
15.01. LESSOR'S COVENANT. Upon payment by the Lessee of the rents
herein provided, and upon the observance and performance of all the material
covenants, terms and conditions on Lessee's part to be observed and performed,
Lessee shall peaceably and quietly hold and enjoy the Leased Premises for the
Lease Term without hindrance or interruption by Lessor or any other person or
persons lawfully or equitably claiming by, through or under the Lessor, subject,
nevertheless, to the terms and conditions of this Lease.
15.02. NO LIENS. Lessee shall not create or permit to be created or
exist any liens, claims, mortgages, hypothecations or other encumbrances upon
the Leased Premises or any portion thereof.
SECTION 16
RESTRICTIONS
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Lessee shall not use the Leased Premises for any unlawful purpose.
SECTION 17
PURCHASE OPTION
---------------
17.01. OPTION TO PURCHASE LEASED PREMISES. Lessee shall have the
exclusive right and option at any time during the Lease Term to purchase fee
simple title to the Leased Premises (the "PURCHASE OPTION").
17.02. MANNER OF EXERCISE OF OPTION. To exercise the Purchase Option,
Lessee shall deliver written notice of its interest (the "Election Notice") in
exercising such Purchase Option to Lessor at any time prior to the expiration or
termination of the Lease Term (e.g., Lessee may exercise the Purchase Option at
any time prior to the expiration or termination of the Lease Term, even if
Lessee has provided written notice to the other of its election to terminate
this Lease pursuant to Section 2.01).
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17.03. PURCHASE PRICE. The purchase price for the Leased Premises (the
"Purchase Price") shall be (i) the sum of FIVE HUNDRED THOUSAND AND NO/100THS
DOLLARS ($500,000.00), subject to adjustment as hereinafter provided, payable in
the form of a promissory note in the form attached to this Lease as Exhibit "B"
(the "Note"), bearing interest at the rate of two percent (2%) in excess of the
Prime Rate (hereinafter defined) then in effect; with the principal balance of
the Note being amortized over ten (10) years, commencing with the Closing Date
(hereinafter defined), and which Note shall be finally due and payable at the
end of five (5) years after the Closing Date; and (ii) ONE HUNDRED THOUSAND
(100,000) shares of the common stock of Holdings, which is the parent of Lessee
(the "Stock"). The term "PRIME RATE" shall mean the prime rate (or base rate) in
effect as of the date of determination detailed by The Wall Street Journal,
Money Rates column, Southwest Edition, published from time to time. If the Wall
Street Journal, Southwest Edition, ceases publication of the prime rate for
whatever reason, then the prime rate to be used shall be that interest rate then
in effect, which, from time to time, in the good-faith judgment of the payee,
most effectively approximates the initial definition of prime rate. If the Wall
Street Journal: (i) publishes more than one prime rate, the higher or highest of
such rates shall apply, or (ii) publishes a retraction or correction of such
rate, the rate reported in such retraction or correction shall apply. In
addition to the Note, Holdings shall execute a Guaranty in form and substance
satisfactory to Lessor guaranteeing all obligations of Lessee under the Note.
17.04. TERMS AND PROVISIONS OF THE SALE. If Lessee delivers the
Election Notice, then the following shall apply:
(a) Lessee shall deliver to a local title company designated by Lessee
(the "Title Company") the sum of $5,000 ("Xxxxxxx Money") within twenty (20)
days after delivery of the Election Notice, which Xxxxxxx Money shall be
released to Lessor as liquidated damages in the event of a breach by Lessee of
its obligation to purchase the Leased Premises.
(b) Within ten (10) days after written request from Lessee, from time
to time (whether before or after the delivery of the Election Notice), Lessor
shall deliver to Lessee any and all of the following items: (i) All available
architectural, structural, mechanical, and electrical "as-built" plans and
specifications for the improvements constituting part of the Leased Premises,
together with copies of the building permit and certificate of occupancy
relating to the Leased Premises (ii) a commitment for title insurance issued by
the Title Company together with all instruments referred to in such commitment,
together with a copy of the Seller's existing title policy; (iii) a copy of all
existing surveys of the Leased Premises; (iv) all soil reports, environmental
reports, and engineering reports pertaining to the Leased Premises in Lessor's
possession; (v) copies of all debt instruments, if any, affecting the Leased
Premises; (vi) copies of all tax bills applicable to the Leased Premises for the
immediately preceding three (3) years; and (vii) copies of all contracts
affecting the Leased Premises (including, without limitation, contracts relating
to security, maintenance, repairs, cleaning, etc.) (the foregoing referred to as
the "Required Materials"). Lessee may elect, in its discretion, to update or
re-certify any of Lessor's environmental or other reports regarding the Leased
Premises at the cost of Lessee.
(c) Within twenty (20) days after the delivery of the Election Notice,
Lessor, at Lessor's expense, shall obtain and deliver to Lessee a survey,
(hereinafter called the "Survey") of the Leased Premises to be made by an
engineer or a surveyor acceptable to Lessee and the Title Company prepared in
accordance with the current survey standards adopted by the American Land Title
Association ("ALTA") and the American Congress of Surveying and Mapping
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("ACSM"), sufficient to enable the Title Company to issue an ALTA "extended
coverage" owner's policy of title insurance, and to delete any standard printed
survey exception in the owner's title policy to be delivered at closing, and
containing such items, features and descriptions as Lessee or the Title Company
shall require (all at Lessor's expense).
(d) Lessee shall have a period of sixty (60) days after the later to
occur of (i) the delivery of the Election Notice; (ii) receipt of the last of
the Required Materials; and (iii) receipt of the Survey to (the "Information
Review Period") within which to review such materials and to make the physical
inspection of the Leased Premises, and decide, in Lessee's sole discretion,
whether the Leased Premises are satisfactory to Lessee so as to proceed with the
closing of the sale, as referred to herein. If, in the exercise of its sole
discretion, Lessee decides not to proceed, as aforesaid, then prior to the
expiration of the Information Review Period, Lessee will deliver to Lessor
written notice of such decision (hereinafter called the "Termination Notice"),
and upon the giving of the Termination Notice, this Lease (including the
Purchase Option) shall be deemed terminated, and the Xxxxxxx Money shall be
immediately returned to Lessee.
(e) The closing of such transaction shall take place on a date
("Closing Date") to be designated by Lessee, which date shall be no later than
ninety (90) days after the delivery by Lessee of the Election Notice. The
closing of this transaction will take place on the Closing Date at the offices
of the Title Company, or such other place as Lessor and Lessee may agree.
(f) At closing, Lessor shall execute and deliver a special warranty
deed conveying the Leased Premises to Lessee, subject only to: (i) exceptions to
title disclosed by the title commitment issued by the Title Company AND existing
at the commencement of this Lease; (ii) taxes and standby fees for the year of
the closing, and (iii) any restrictions, covenants, easements, mineral
reservations, or other matters of record which Lessee may have consented to or
requested Lessor to create prior to delivery of the Election Notice (it being
agreed that no liens for monetary amounts shall be permitted to remain
outstanding after such purchase, and title shall be conveyed free of all such
liens).
(g) At closing, Lessee shall execute and deliver (or cause to be
executed and delivered) to Lessor: (i) the Note; (ii) a certificate or
certificates (issued in the name of Lessor) representing the Stock; and (iii) a
deed of trust or mortgage, in form and substance satisfactory to the parties,
encumbering the Leased Premises, and securing payment of the Note.
(h) In addition to the above documents, Lessor and Lessee shall also
execute any other documents that may be necessary, required, or reasonably
requested by the other party or by the Title Company to convey the Leased
Premises to Lessee. At closing, the Title Company shall deliver to Lessee, at
Lessee's expense, an ALTA "extended coverage" owner's title policy issued by the
Title Company in the amount of the Purchase Price insuring that Lessee owns fee
simple title to the Leased Premises, subject to no exceptions other than the
exceptions described herein, and containing such endorsements and other matters
as Lessee shall desire (the cost of which shall be borne by Lessee). All other
costs of closing shall be payable in accordance with local custom for the
closing of similar transactions in Tulsa, Oklahoma.
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(i) If, following Lessee's delivery of the Election Notice, the
conveyance of the Leased Premises is not consummated in whole or in part, by
reason of Lessor's default or failure to act, then in addition to its other
rights and remedies available at law or in equity, Lessee shall be entitled to
fulfill Lessor's obligations, or xxx Xxxxxx for damages equal to the
expenditures incurred by Lessee (including those incurred to remove any
unauthorized liens or encumbrances) and/or be entitled to enforce specific
performance.
(j) Lessor shall also execute a subscription agreement for the Shares
in form and substance reasonably satisfactory to Lessor and Lessee, but which,
at a minimum, shall contain a restatement of the representations and warranties
by Lessor in Section 17.04(k) below
(k) Lessor hereby makes the following representations and warranties
regarding the Shares:
(i) The Shares will not be registered under the Securities Act
of 1933, or under the securities laws of any state (the "Securities Laws"). The
Shares are not being so registered in reliance upon exemptions from the
Securities Act and the Securities Laws which are predicated, in part, on the
representations, warranties and agreements of Lessor contained herein. Lessor
represents and warrants that (i) it has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of an investment in the Shares and the suitability thereof as an
investment for them, (ii) Lessor is an "accredited investor" within the meaning
of Regulation D promulgated by the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Act, (iii) the Shares to be acquired by
Lessor in connection with the sale of the Leased Premises will be acquired
solely for investment and not with a view toward resale or redistribution in
violation of the Securities Laws, (iv) its residence and domicile is in the
State of Oklahoma, and (v) in connection with the transactions contemplated
hereby, no assurances have been made concerning the future results of Holdings
or as to the value of the Shares. Lessor understands that Holdings is not under
any obligation to file a registration statement or to take any other action
under the securities laws with respect to the Shares.
(ii) Lessor has consulted with its own counsel in regard to
the Securities Laws and is fully aware: (i) of the circumstances under which it
is required to hold the Shares, (ii) of the limitations on the transfer or
disposition of the Shares, (iii) that the Shares must be held indefinitely
unless the transfer thereof is registered under the Securities Laws or an
exemption from registration is available, and (iv) that no exemption from
registration is likely to become available for at least one (1) year from the
date of acquisition of the Shares. Lessor has been advised by its counsel as to
the provisions of Rules 144 and 145 as promulgated by the Commission under the
Securities Act and has been advised of the applicable limitations thereof.
Lessor acknowledges that Holdings and Lessee will be relying upon the truth and
accuracy of the representations and warranties made by Lessor herein in
consummating the transactions contemplated by the Purchase Option (if it is
exercised and consummated in accordance with the above provisions).
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(iii) Lessor and Holdings have made available to Lessor the
opportunity to ask questions and receive answers concerning the terms and
conditions of the transactions contemplated by the Purchase Option and to obtain
any additional information which they possess or could reasonably acquire for
the purpose of verifying the accuracy of information furnished to Lessor as set
forth herein or for the purpose of considering the transactions contemplated
hereby. Lessor agrees that the certificates representing the Shares will be
imprinted with the following legend, the terms of which are specifically agreed
to:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, IN
RELIANCE UPON EXEMPTIONS FROM REGISTRATION REQUIREMENTS.
WITHOUT SUCH REGISTRATION, SUCH SHARES MAY NOT BE SOLD,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED, EXCEPT UPON
DELIVERY TO STEEL OF AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE CORPORATION THAT REGISTRATION IS NOT
REQUIRED FOR SUCH SALE, PLEDGE, HYPOTHECATION OR TRANSFER OR
THE SUBMISSION TO STEEL OF SUCH OTHER EVIDENCE AS MAY BE
SATISFACTORY TO STEEL TO THE EFFECT THAT SUCH SALE, PLEDGE,
HYPOTHECATION OR TRANSFER SHALL NOT BE IN VIOLATION OF THE
SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS OR
ANY RULE OR REGULATION PROMULGATED THEREUNDER. ADDITIONALLY,
THE ARTICLES OF INCORPORATION, AS AMENDED, WHICH ARE ON FILE
IN THE XXXXXX XX XXX XXXXXXXXX XX XXXXX XX XXX XXXXX XX XXXXX
AND A COPY OF WHICH THE CORPORATION WILL FURNISH ANY
SHAREHOLDER WITHOUT CHARGE UPON WRITTEN REQUEST, DENY
PRE-EMPTIVE RIGHTS OF SHAREHOLDERS AND THE RIGHT OF
SHAREHOLDERS TO CUMULATE VOTES IN THE ELECTION OF DIRECTORS,
AND SET FORTH THE DESIGNATIONS, PREFERENCES, LIMITATIONS, AND
RELATIVE RIGHTS OF EACH CLASS OF STOCK THE CORPORATION IS
AUTHORIZED TO ISSUE. FURTHER, NOTICE IS HEREBY GIVEN THAT THE
SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS UNDER CERTAIN CIRCUMSTANCES AS PROVIDED BY THE
BYLAWS OF THE CORPORATION WHICH ARE ON FILE AT THE PRINCIPAL
OFFICE OF THE CORPORATION. A COPY OF THE BYLAWS WILL BE
FURNISHED WITHOUT CHARGE UPON REQUEST BY THE HOLDER OF THIS
CERTIFICATE TO THE CORPORATION AT ITS PRINCIPAL OFFICE OR
REGISTERED OFFICE.
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17.05. RECORDATION OF OPTION AGREEMENT. Lessor and Lessee agree to
execute a recordable memorandum outlining the relevant terms of the Purchase
Option, which memorandum shall be filed in the Official Public Records of Real
Property in Tulsa County, Oklahoma.
SECTION 18
MISCELLANEOUS
-------------
18.01. WAIVER. The waiver by either party of any breach of any term,
covenant or condition herein contained shall not be deemed to be a waiver of
such term, covenant or condition or any subsequent breach of the same or any
other term, covenant or condition herein contained. No covenant, term or
conditions of this Lease shall be deemed to have been waived by either party,
unless such waiver be in writing by said party.
18.02. ENTIRE AGREEMENT. This Lease sets forth all the covenants,
promises, agreements, conditions and understandings between Lessor and Lessee
concerning the subject matter hereof and there are no covenants, promises,
agreements, conditions or understandings, either oral or written, between them
other than as are herein set forth. Except as herein otherwise provided, no
subsequent alteration, amendment, change or addition to this Lease shall be
binding upon Lessor or Lessee unless reduced to writing and signed by them.
18.03. NOTICES. Any notice, demand, request or other instrument which
may be or are required to be given under this Lease shall be delivered
personally or sent by United States certified mail postage prepaid and shall be
addressed (a) if to Lessor, at the address provided below or at such other
address as Lessor may designate by written notice, and (b) if to Lessee, at the
address provided below or at such other address as Lessee shall designate by
written notice:
(a) To Lessor:
Redhawk Industries, L.L.C.
0000 X. 00xx X. Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
With a copy (which shall not constitute notice) to:
Pray, Walker, Jackman, Xxxxxxxxxx & Xxxxxx
000 Xxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attention: C. Xxxxxxx Xxxxx
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(b) To Lessee:
Excalibur Services, Inc.
000 Xxxx Xxxxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X.X. Xxxxxx
With a copy (which shall not constitute notice) to:
Xxxxxx and Xxxxx, L.L.P.
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. XxXxxxxxx
18.04. CAPTIONS AND SECTION NUMBERS. The captions, section numbers and
article numbers appearing in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe, or describe the scope or
intent of such sections or articles of this Lease nor in any way affect this
Lease.
18.05. PARTIAL INVALIDITY. If any term, covenant or condition 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, covenant or condition to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby and each term, covenant or condition of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
18.06. APPLICABLE LAW. The laws of the State of Oklahoma shall govern
the validity, performance and enforcement of this Lease.
18.07. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument. In making proof of this
Agreement, it shall not be necessary to produce or account for more than one
such counterpart. A telecopied facsimile of an executed counterpart of this
Agreement shall be sufficient to evidence the binding agreement of each party to
the terms hereof. However, each party agrees to promptly deliver to the other
parties an original, duly executed counterpart of this Agreement.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Lease to
be executed on its behalf as of the date first above written.
LESSOR:
REDHAWK INDUSTRIES, L.L.C., an Oklahoma
limited liability company
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
LESSEE:
EXCALIBUR SERVICES, INC., an Oklahoma
corporation
By: /S/ Xxxxxxx X.X. Xxxxxx
-------------------------------------------
Xxxxxxx X.X. Xxxxxx
President and Chief Executive Officer
STATE OF ____________ )
) ss.
COUNTY OF ___________ )
Before me, the undersigned, a Notary Public in and for said
county and state, on this __________ day of __________________, 2001, personally
appeared __________________________, to me known to be the identical person who
subscribed the name of Redhawk Industries, L.L.C. to the within and foregoing
instrument as its _______ President, and acknowledged to me that he executed the
same as his free and voluntary act and deed and as the free and voluntary act
and deed of such corporation for the uses and purposes therein set forth.
Given under my hand and seal the day and year last above written.
-----------------------------------
Notary Public
My Commission Expires:
---------------------
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STATE OF TEXAS )
) ss.
COUNTY OF XXXXXX )
Before me, the undersigned, a Notary Public in and for said county and
state, on this _____ day of November, 2001, personally appeared Xxxxxxx X.X.
Xxxxxx, to me known to be the identical person who subscribed the name of
EXCALIBUR SERVICES, INC. to the within and foregoing instrument as its President
and Chief Executive Officer, and acknowledged to me that he executed the same as
his free and voluntary act and deed and as the free and voluntary act and deed
of such corporation for the uses and purposes therein set forth.
Given under my hand and seal the day and year last above written.
-------------------------------
Notary Public
My Commission Expires:
----------------------
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