LEASE AGREEMENT WITH OPTION TO PURCHASE
THIS LEASE AGREEMENT WITH OPTION TO PURCHASE is made and entered into
as of the 28th day of February, 2002, by and between OKLAHOMA FACILITIES,
LIMITED LIABILITY COMPANY, an Oklahoma limited liability company ("Landlord"),
and XXXX'X TECHNOLOGY, INC., an Oklahoma corporation ("Tenant").
W I T N E S S E T H:
In consideration of the mutual covenants herein contained, Landlord and
Tenant hereby agree as follows:
ARTICLE I
DEMISED PROPERTY
1.01 Real Property. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the real property situated in Xxxxxxxx County, Oklahoma,
and described on Exhibit "A" attached hereto and made a part hereof, together
with all improvements and fixtures thereon and therein and all appurtenances
thereunto belonging, upon and subject to the terms and conditions expressed
below.
1.02 Demised Property. The real property, improvements, fixtures and
appurtenances described in Section 1.01 above are collectively referred to
herein as the "Demised Property."
ARTICLE II
TERM
2.01 Base Term. The term of this lease shall begin on March 1, 2002,
and, unless earlier terminated or extended, shall end on February 28, 2004 (the
"Base Lease Term").
2.02 Extended Term. Unless terminated by mutual agreement of Landlord
and Tenant or unless Tenant has acquired the Demised Property under its purchase
rights in Article XVII, the term of this lease shall automatically renew for an
additional period of eight years. Such renewal term shall be referred to herein
as the "Extended Lease Term." The terms of this lease during the Extended Lease
Term, including rent, shall be the same as those during the Base Lease Term or
as otherwise expressly provided in this lease. At the expiration of the Extended
Lease Term, in the event that this lease has not been earlier terminated and
Tenant is not in default hereunder,Tenant shall have the option to purchase the
Demised Property from Landlord for a purchase price of $420,000, by giving
written notice of its intent to purchase at or prior to the end of the Lease
Term. Such conveyance shall occur under the terms and conditions set forth in
Sections 17.04 through 17.09 of this lease, and under other such terms and
conditions as are usual and customary for similar transactions.
2.03 Lease Term. The Base Lease Term and the Extended Lease Term shall
sometimes be collectively referred to herein as the "Lease Term."
ARTICLE III
RENT
3.01 Payment of Rent. Tenant shall pay the rent, as defined below,
during the Lease Term, in the amounts and at the times prescribed below, in
lawful money of the United States of America, at Landlord's address for notice
hereunder or otherwise as Landlord may designate.
3.02 Rent During Lease Term. Tenant covenants and agrees to pay
Landlord as rent for the Demised Property during the Lease Term the following
sums (the "Rent") commencing on March 1, 2002, and continuing on the first day
of each succeeding calendar month through the expiration of the Lease Term or
sooner termination of this lease:
First 12 Months $14,500 per month
Next 24 Months $19,750 per month
Last 84 Months $18,000 per month
3.03 Rent During Extended Lease Term. The rent during the Extended Lease
Term shall be as set forth in Section 3.02 above.
3.04 Late Payments of Rent. Rent payments not paid by their respective
due dates shall bear interest at the per annum rate of 12.00% until paid,
as and for additional rent hereunder.
ARTICLE IV
USE OF PREMISES, OPERATION OF BUSINESS
AND COMPLIANCE WITH REQUIREMENTS
4.01 Use of Premises. Tenant shall use the Demised Property for the
operation of a business engaged in the manufacture, sales, service and rental of
equipment and other goods.
4.02 Operation of Business. During the Lease Term Tenant shall operate
a business as described in Section 4.01 above, as permitted by this agreement
and applicable laws and ordinances.
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4.03 Compliance. Tenant shall promptly fulfill and comply with all
valid laws, rules and regulations made by competent governmental authority which
are applicable to the occupancy or use of the Demised Property or for the
correction, prevention and abatement of nuisances in or about or connected with
the Demised Property because of Tenant's use thereof, all at Tenant's expense,
except that any requirement to replace or repair structural bearing parts, the
roof, or exterior walls and foundation shall be at Landlord's expense, subject
to the provisions of Section 7.02 herein.
4.04 Insurance Requirements. Tenant, at its expense, shall promptly
comply with the requirements of all public liability, fire and other types
of insurance policies at any time in force with respect to the Demised Property.
4.05 Nuisance. Tenant will not do any act or thing which constitutes a
public or private nuisance on the Demised Property or in connection with its
business located thereon.
ARTICLE V
COVENANTS AGAINST LIENS
5.01 Liens of Tenant. If, because of any act or omission of Tenant, any
mechanic's lien or other lien, charge or order for the payment of money is filed
against any portion of the Demised Property, Tenant shall, at its expense, cause
the lien or liens to be discharged of record or bonded within 90 days after they
receive written notice from Landlord of such filing, unless Tenant contests the
validity in good faith and establish reserves deemed by Landlord to be
appropriate therefor.
5.02 Liens of Landlord. If, because of any act or omission of Landlord,
any lien, charge or order for the payment of money is filed against the Demised
Property, Landlord shall, at its expense, cause the lien or liens to be
discharged of record or bonded within 90 days after it receives written notice
from Tenant of such filing, unless Landlord contests the validity in good faith
and establishes reserves deemed by Tenant to be appropriate therefor.
5.03 Removal of Liens. If either party fails to cause the liens which
have been filed against the property because of any act or omission of that
party (unless such party contests the validity of the lien as provided above) to
be discharged of record or bonded within the required 90-day period or to
satisfy such liens within 60 days after any final, non-appealable judgment in
favor of the lien holders, the other party may cause the lien to be discharged.
All payments made by a party whose act or omission did not cause the filing of
such lien shall be immediately due and payable to such party from the party
whose act or omission did cause the filing of such lien, with interest at the
rate of ten percent (10%) per annum from the date of payment until repaid in
full.
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ARTICLE VI
TRADE FIXTURES, EQUIPMENT AND SIGNAGE
6.01 Trade Fixtures and Equipment. All trade fixtures and signs
currently owned by Landlord and located in and around the real property are part
of the Demised Property. Should Tenant place additional trade fixtures, signs,
equipment, furniture or other personal property in or on the Demised Property,
such shall not become the property of Landlord or a part of the realty unless
such is affixed to the Demised Property in such a manner that it can not be
removed without material injury to the Demised Property. Any such property which
cannot be removed from the Demised Property without material injury shall, upon
the termination of this lease, become a part of the Demised Property and the
property of the Landlord.
6.02 Signage. Tenant shall have the right to install and operate on the
exterior and interior of the building located on the Demised Property electrical
signs or other signs as are necessary and reasonable in the conduct of the
Tenant's business thereon.
ARTICLE VII
MAINTENANCE, ALTERATIONS AND ADDITIONS
7.01 Maintenance by Tenant. Subject to Landlord's obligation to make
repairs as set forth in Section 7.02, Tenant shall be responsible for, and shall
promptly pay any expenses in connection with, all maintenance of the Demised
Property during the Lease Term and any subsequent extensions or holding over
under this lease. Tenant shall not cause or permit any waste, damage or injury
to the Demised Property. At the expiration of the Lease Term or any extension or
holding over thereunder, Tenant will move its goods and effects and will
peacefully yield to Landlord the Demised Property, and the interior thereof
shall be in as good order and repair as when delivered to Tenant, except for
ordinary wear and tear.
7.02 Repairs by Landlord. During the term of this Lease and any renewal
thereof, Landlord shall, at its sole cost and expense, make any repairs or
replacements to the structural bearing parts of the interior and exterior walls
and foundation of any building on the Demised Property, and roof repairs and
replacement, which are necessary to keep the Demised Property in good condition
and repair, ordinary wear and tear excepted. Landlord's obligations under this
Section are subject to Tenant's obligation to insure the Demised Property under
Article IX. Further, Landlord's obligations under this Section do not extend to
damages, conditions or repairs for which Tenant is liable under Section 10.01.
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7.03 Alterations and Additions. No alteration, addition or improvement
to the Demised Property shall be made by Tenant without the prior written
consent of Landlord, which consent shall not be unreasonably withheld. All
alterations, decorations, additions, improvements, lights, heating and air
conditioning equipment, partitions, paneling, railings and the like, except
trade fixtures removable pursuant to Section 6.01, and signs, shall become the
property of Landlord upon the expiration or sooner termination of this lease.
ARTICLE VIII
TAXES
8.01 Real Property Taxes and Special Assessments. Landlord shall be
liable for, pay and hold Tenant harmless from liability with respect to all real
property taxes and special assessments assessed against the Demised Property
during the Lease Term and any subsequent extensions or holding over under this
lease.
8.02 Personal Property Taxes. Tenant shall be liable for, pay and hold
Landlord harmless from liability with respect to all personal property taxes
assessed against the personal property of Tenant located in and on the Demised
Property during the Lease Term and any subsequent extensions or holding over
under this lease.
8.03 Other Taxes. Except as provided in Section 8.01, Tenant shall be
liable for, pay and hold Landlord harmless from liability with respect to all
other taxes levied upon Tenant or in connection with its operations upon the
Demised Property during the Lease Term and any subsequent extensions or holding
over under this lease.
ARTICLE IX
INSURANCE
9.01 Coverage by Tenant. Tenant shall maintain with insurers authorized
to do business in the State of Oklahoma and which are approved by Landlord,
acting reasonably and in good faith, the following:
(a) Fire and extended coverage insurance, insuring the improvements
located upon the Demised Property, in an amount equal to or greater
than $1,400,000.
(b) Comprehensive general public liability insurance against claims for
bodily injury, death or property damage arising out of the use or
occupancy of the Demised Property by the Tenant, in a limit of not less
than $500,000.00 for each person, $1,000,000.00 for each occurrence and
$100,000.00 for property damage.
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(c) Workmen's compensation insurance against claims for bodily injury
or death by employees of Tenant, with limits in at least the minimum
amounts required by law.
9.02 Policy Terms and Conditions. All insurance policies that Tenant
must maintain under this Article shall name Landlord (as an additional insured)
and Tenant as the insured parties, as their respective interests may appear. The
policies may be carried under blanket policies maintained by Tenant if they
comply with the provisions of this Section. All such policies of insurance shall
provide for the benefit of the holder or holders, that thirty (30) days prior
written notice of cancellation, termination, modification or lapse of coverage
shall be given to and must be received by Landlord and Tenant, and such policies
shall not contain a provision relieving the insurer thereunder of liability for
any loss by reason of the existence of other insurance policies covering the
Demised Property against the perils involved, regardless of collectibility.
9.03 Insurance Certificates. Tenant shall deliver to Landlord, promptly
after this lease commences, insurance certificates evidencing all insurance that
Tenant must maintain under this lease, and, within thirty (30) days before any
insurance expires, other certificates evidencing its renewal.
ARTICLE X
INDEMNIFICATION AND EXONERATION
10.01 Indemnification. Tenant shall indemnify and hold Landlord
harmless against all claims, liabilities, fines, penalties, damages, expenses
and judgments by reason of any default by Tenant hereunder, any act or
negligence of Tenant or its officers, agents, contractors, employees, licensees
or invitees, or any injury or claim of injury to person or property, of any
nature, arising out of the use, occupation and control of the Demised Property,
or the adjacent streets, alleys and sidewalks, by Tenant at any time during the
Lease Term, including those resulting from any work in connection with any
alterations, changes, new construction or demolition at the Demised Property
requested by Tenant or contracted for by Tenant; provided, however, that
Landlord shall not be entitled to indemnity hereunder to the extent that any
such losses, claims, liabilities and expenses are caused by the negligence,
gross negligence, recklessness or willful misconduct of Landlord or its agents.
Tenant is hereby subrogated to any rights of Landlord against any other parties
whomsoever in connection therewith. Landlord shall promptly notify Tenant of any
claim asserted against Landlord on account of any such injury or claimed injury
to persons or property and shall promptly deliver to Tenant the original or a
true copy of any summons or other process, pleading or notice issued in any suit
or other proceeding to assert or enforce any such claim. Tenant shall have the
right to defend any such suit with attorneys of their own selection. Landlord
shall have the right, if it sees fit, to participate in such defense at its own
expense.
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10.02 Exoneration. Landlord shall not be liable for any claims,
liabilities, fines, penalties, damages, judgments or other expenses (including
attorney's fees), including but not limited to any personal injury or property
damage to Tenant or to its officers, agents, contractors, employees, licensees
or invitees, or to any other occupant of any part of the Demised Property,
except such that may be caused by the intentional, negligent or grossly
negligent acts or omissions of Landlord.
ARTICLE XI
CASUALTY DAMAGES
11.01 Destruction or Condemnation of Demised Property. If the Demised
Property is totally destroyed or totally condemned or otherwise taken by
governmental authority exercising its power of eminent domain, or if the Demised
Property is partially destroyed, condemned or taken, in a manner that prevents
Tenant's use of the Demised Property in a normal manner, and if, in the case of
partial destruction or taking, the damage is not reasonably repairable within
thirty (30) days after the occurrence of the destruction or taking, as
applicable, Tenant shall have the right to terminate this lease upon notice to
Landlord. If Tenant does not elect to terminate this Lease, then Landlord shall
utilize the insurance proceeds available to Landlord under the insurance policy
or policies maintained by Tenant hereunder to repair the Demised Property, and
the lease payments accruing during the period of damage and repair shall xxxxx
in proportion to the extent to which such damage renders the Demised Property
unsuitable for Tenant's normal use.
11.02 Insurance Awards. Tenant hereby assigns to Landlord any award or
payment on account of any damage or destruction with respect to the Demised
Property. However, Tenant shall be entitled to that portion of the net award
representing payment of its leasehold interest, trade fixtures, moving expenses,
business interruption or loss of profits.
11.03 Notice. If there is any damage to or destruction of the Demised
Property or if any proceedings or negotiations are instituted which do or may
result in a taking, each party will promptly give notice thereof to the other,
describing its nature and extent.
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ARTICLE XII
UTILITIES
12.01 Payment and Indemnification. Tenant shall pay or cause to be paid
all charges for air conditioning, heat, water, gas, electricity, light,
telephone or any other communication or utility service used in or rendered or
supplied to the Demised Property during the Lease Term and any subsequent
extensions or holding over under this lease.
ARTICLE XIII
ACCESS TO LANDLORD
13.01 Access to Landlord. Landlord and its representatives may enter
the Demised Property at any reasonable time and upon reasonable advance notice
to Tenant, for the purpose of inspecting the Demised Property, performing any
work which Landlord elects to undertake made necessary by reason of Tenant's
default hereunder, exhibiting the Demised Property for sale or lease, or posting
notices of non-responsibility under any mechanic's lien law or other law. As
permitted under law, in the case of an emergency Landlord may enter the Demised
Property without Tenant's consent.
ARTICLE XIV
ASSIGNMENT AND SUBLETTING
14.01 Assignment and Sublease. Tenant may not mortgage, pledge or
otherwise encumber its interest in this lease. Tenant may not assign or sublet
the Demised Property without the prior written consent of Landlord, which shall
not be unreasonably withheld; provided, however, that Tenant may assign or
sublease this lease or the Demised Property to an affiliate of Tenant without
the consent of Landlord; provided further, however, that in the event of such an
assignment to an affiliate of the Tenant, the Tenant shall nevertheless remain
liable under the terms of this lease.
14.02 Tenant's Obligations. Any sublease or assignment permitted by
Landlord shall be expressly subject to the provisions of this lease and shall
not affect or reduce Tenant's obligations hereunder, which continue in full
effect as the obligations of a principal and not as a guarantor or surety, to
the same extent as though no assignment or sublease had been made.
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ARTICLE XV
EVENTS OF DEFAULT AND REMEDIES
15.01 Default. Any of the following occurrences, conditions or acts
shall constitute an event of default under this lease:
(a) If Tenant defaults in making payment when due of any Rent and such
default continues for twenty (20) days following the due date.
(b) If Tenant defaults in the observance or performance of any other
provision of this lease and the default continues for thirty (30) days
after Landlord gives written notice to Tenant specifying the default
and demanding that it be cured.
(c) If the Demised Property is abandoned by Tenant.
(d) If Tenant files a petition in bankruptcy, for reorganization or for
an arrangement under the bankruptcy law or any similar federal or state
law, is adjudicated bankrupt or becomes insolvent, is unable to meet
Tenant's obligations as they become due, or takes any action in
furtherance of any of the foregoing.
(e) If a receiver, trustee or liquidator (or other similar official) is
appointed for Tenant or of all or substantially all of their business
or assets, or of the estate or interest of Tenant in the Demised
Property, or if Tenant consents to or acquiesce in such appointment.
(f) If Tenant's estate or interest in the Demised Property is levied
upon or attached in any proceeding and the process is not vacated or
discharged within thirty (30) days after such levy or attachment.
15.02 Remedies. Upon the occurrence of any event of default which is
not cured under the time frame provided for in Section 15.01 above, the
following shall occur:
(a) The Rent shall immediately become due and be paid up to the
time of reentry, expiration and/or dispossession.
(b) Landlord may relet the Demised Property or any part or parts of it,
either in Landlord's name or otherwise, for a term or terms which may,
at Landlord's option, be less than or exceed the then remaining term of
this lease.
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(c) Tenant shall also pay to Landlord, as liquidated damages for
Tenant's failure to observe and perform their covenants under this
lease, any deficiency between the Rent hereby reserved and agreed to be
paid and the net amount, if any, of the rents collected on account of
the Demised Property lease or leases for each month of the period which
would otherwise have constituted the balance of the term of this lease.
In computing the liquidated damages, there shall be added to the
deficiency all reasonable expenses that Landlord may incur in
connection with re-letting, such as brokerage and preparation for
reletting. Landlord may make all alterations, repairs, replacements and
decorations in the Demised Property that it, in its sole judgment,
considers advisable and necessary for the purpose of reletting the
premises. Such action by Landlord shall not operate or be construed to
release Tenant from its liability under this lease. Landlord shall use
its best efforts to mitigate all damages and to relet the Demised
Property if there is any event of default by Tenant.
15.03 Waiver of Default. The waiver by Landlord 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
condition of this lease shall be deemed to have been waived by Landlord unless
such waiver be in writing by Landlord.
15.04 Cure of Default. Tenant shall have the periods of time provided
for in this Lease Agreement to cure any default, as well as any other periods of
time to cure which are subsequently granted by Landlord in writing. No other
rights to cure defaults shall be granted or implied.
ARTICLE XVI
SURRENDER AND REENTRY
16.01 Surrender. Upon the expiration or earlier termination of this
lease, Tenant shall surrender the Demised Property to Landlord in good order and
condition, except for ordinary wear and tear and the results of any damage,
destruction or taking. Tenant shall remove from the Demised Property on or prior
to the expiration or earlier termination all of its moveable property and
removable trade fixtures situated thereon and shall repair any damage caused by
such removal. Property not so removed shall become the property of Landlord.
16.02 Reentry. Should Tenant default in the terms and conditions of
this lease and not cure such default within the periods granted herein or
subsequently in writing, then Landlord, besides any other rights or remedies it
may have, shall have the immediate right of reentry without the necessity of any
further demand whatsoever, and may at its option, remove all persons and
property from the Demised Property and declare this agreement terminated.
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ARTICLE XVII
OPTION AND RIGHT OF FIRST REFUSAL TO PURCHASE
17.01 Option During Base Lease Term. So long as Tenant is not in
default hereunder, at any time during the Base Lease Term, Tenant shall have a
one-time, exclusive option to purchase the Demised Property for a purchase price
of $1,400,000. In the event that Tenant elects to exercise its purchase option
under this paragraph, Tenant shall give written notice thereof to Landlord
before the end of the Base Lease Term, and Landlord and Tenant shall cause the
closing to occur as soon as practicable thereafter in accordance with the terms
of Sections 17.04 through 17.09 of this lease, and such other terms and
conditions as usual and customary in similar transactions.
17.02 Option During Extended Lease Term. So long as Tenant is not in
default hereunder, Tenant shall have the exclusive option at any time during the
Extended Lease Term to purchase the Demised Property for such sum as may be
mutually agreed upon at that time by Landlord and Tenant, or, failing such
agreed price, at the greater of $1,400,000 or eighty percent (80%) of the
appraised fair market value of the Demised Property as determined by a qualified
and experienced independent appraiser selected by the mutual agreement of
Landlord and Tenant or, in the absence of such an agreement within 30 days of
the request by the Tenant that an appraiser be appointed, by the American
Arbitration Association. All appraisal fees hereunder shall be shared equally by
Landlord and Tenant. In order to exercise the purchase option, Tenant must
deliver written notice to Landlord of Tenant's intent to exercise such option
prior to the expiration of the Extended Lease Term, and Landlord and Tenant
shall cause the closing to occur as soon as practicable thereafter in accordance
with the terms of Sections 17.04 through 17.09 of this lease, and such other
terms and conditions as usual and customary in similar transactions.
17.03 Right of First Refusal During Lease Term. If Tenant does not
exercise either of the purchase options described in Sections 17.01 and 17.02
above, then Tenant shall have the exclusive right of first refusal during the
Lease Term to purchase the Demised Property. If Landlord proposes the sale of
the Demised Property to a bona-fide third-party purchaser, then Landlord shall
give written notice to Tenant of all of the terms of such proposed sale and a
copy of any offer or proposal received by Landlord from the prospective
third-party purchaser. Tenant shall be allowed thirty (30) days following
receipt of the notice to elect in writing to exercise its right of first
refusal, which shall thereafter be accomplished by Tenant and Landlord using
their respective best efforts to close the sale under, in order of priority, (i)
the provisions of Sections 17.04 through 17.09 of this lease, (ii) to the extent
standard terms and conditions are not addressed therein, the terms and
conditions contained in the third-party proposal or offer, (iii) to the extent
standard terms and conditions are not addressed therein, terms and conditions
that are usual and customary in similar transactions, or (iv) such other terms
and conditions as otherwise agreed by Tenant and Landlord.
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17.04 Title. If either the purchase option or the right of first
refusal described above is exercised by Tenant, then within ten (10) days after
the date of Tenant's notification thereof to Landlord, Landlord shall furnish an
abstract of title to the Demised Property to Tenant extended to no more than
thirty (30) days before the closing date, showing a marketable record title,
according to the standards adopted by the Oklahoma Bar Association, where
applicable, in Landlord. Tenant shall have ten (10) days to have the title
examined and furnish title objections, in writing, to Landlord, and Landlord
shall have not more than ten (10) days from receipt of written title objections
to correct title objections, unless such time is further extended by agreement,
by Tenant in writing, or Tenant waives said objections.
17.05 Conveyance. If either the purchase option or the right of first
refusal described above is exercised by Tenant, then the conveyance of the real
property shall be by general warranty deed properly executed and conveying the
real property, free and clear from all encumbrances except easements of record,
prior reservations of record for oil, gas and other mineral rights, and oil and
gas leases of record.
17.06 Expenses. If either the purchase option or the right of first
refusal described above is exercised by Tenant, then Landlord shall pay all
general taxes and special assessments during the year of closing. Landlord shall
pay the costs of extending the abstract to within thirty (30) days of the
closing date, the documentary stamps, the filing fees for recording any releases
of mortgages given by Landlord, and other costs and expenses required to correct
title objections under Section 17.04, and its attorney's fees. Tenant shall pay
any and all fees in connection with its mortgage loan, abstract examination
fees, recording fees, and its attorney's fees.
17.07 Closing. If either the purchase option or the right of first
refusal described above is exercised by Tenant, the transaction shall be closed
at a time and place mutually agreeable to both parties, no more than sixty (60)
days after said notification is received by Landlord of Tenant's intention to
exercise the purchase option or the right of first refusal, as the case may be,
unless such closing is extended by agreement in writing between Landlord and
Tenant.
17.08 Risk of Loss. If either the purchase option or the right of first
refusal described above is exercised by Tenant, then the risk of casualty loss
to the Demised Property prior to closing shall be borne by Landlord, subject to
the other provisions of this agreement concerning Tenant's responsibility for
any such casualty loss.
17.09 Default. If either the purchase option or the right of first
refusal described above is exercised by Tenant, then upon default by either
party the other party may exercise any and all rights afforded to such party
under the laws of the State of Oklahoma. If it is necessary in that event for
either party to retain legal counsel to enforce the terms and provisions of this
agreement, the non-prevailing party shall pay the prevailing party's reasonable
attorney's fees and expenses.
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17.10 Purchase Price Adjustment for Discount Rent. In the event that
Tenant purchases the Demised Property under its purchase options set forth in
this Article XVII within the first 36 months of the Lease Term, the purchase
price shall be increased by the amount determined by subtracting the actual
total rent paid by Tenant during the Lease Term through the date of purchase
from the product of ($18,000 times the number of months elapsed in the Lease
Term through the date of purchase).
ARTICLE XVIII
MISCELLANEOUS
18.01 Relationship of Landlord/Tenant. Nothing herein shall be deemed
or construed by the parties hereto nor by any third party as creating the
relationship of principal and agent, or of a partnership or a joint venture,
between the parties hereto, it being understood and agreed that neither the
method of computation of rent nor any provisions contained herein, nor any acts
of the parties hereto, shall be deemed to create any relationship other than
that of landlord and tenant.
18.02 Amendments. This lease may not be orally amended, modified or
terminated, nor may any obligation hereunder be waived orally. No amendment,
modification, termination or waiver shall be effective for any purpose unless it
is in writing and signed by the party against whom enforcement thereof is
sought.
18.03 Notices. All notices, demands, requests, consents, approvals,
offers, statements and other instruments or communications required or permitted
to be given hereunder shall be in writing and be deemed to have been given when
delivered or when mailed by first-class certified mail, return receipt
requested, as follows:
(a) If to Landlord, to Oklahoma Facilities, LLC, 0000 Xxxxx 00xx
Xxxxxx, Xxxxxx, XX 00000.
(b) If to Tenant, to Xxxx'x Technology, Inc., X.X. Xxx 0000,
Xxxxxx, XX 00000-0000.
18.04 Counterparts. This lease may be simultaneously executed in two
(2) or more counterparts, each of which shall be deemed a fully enforceable
original but all of which together shall constitute but one and the same
instrument. This lease may be executed and delivered by facsimile.
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18.05 Headings. The Article and Section headings herein are for
convenience and reference only and shall not be used to limit or otherwise
affect the meaning of any provision hereof.
18.06 Broker's Commissions. Neither Landlord nor Tenant has retained
the services of any realtors or other agents concerning this lease and option to
purchase, nor shall either of them be responsible for any expenses or
commissions of any such realtors or agents engaged by the other party with
respect to this lease or to the subsequent exercise of the purchase option by
Tenant.
18.07 Attorney's Fees. If it is subsequently necessary for either party
to retain legal counsel to enforce the terms and provisions of this agreement,
the losing party shall pay the prevailing party's reasonable attorney's fees and
expenses.
18.08 Advice of Counsel. Both parties have been represented by counsel,
or by signing this agreement waive such right, with respect to the negotiation
and review of this agreement. No coercion, duress, undue influence or improper
conduct of any kind has been practiced by either party hereto. The decision of
each party to enter into this agreement has been a free and voluntary decision
made after full opportunity to consult with counsel and other representatives as
deemed appropriate by each party.
18.09 Governing Law. This agreement has been executed in and shall
be construed in accordance with the laws of the State of Oklahoma.
18.10 Severability. If any provision of this agreement shall be held
invalid by any court of competent jurisdiction, that provision shall be severed
herefrom and the remaining provisions hereof shall remain in full force and
effect.
18.11 Entire Agreement. Other than a Xxxx of Sale, Assignment and
Assumption Agreement of even date herewith, this agreement shall constitute the
entire agreement between Landlord and Tenant with respect to the subject matter
hereof. No representations, warranties, promises or agreements, either oral or
written, have been made by either party other than those incorporated in this
agreement. This agreement shall not be modified except in writing signed by all
of the parties hereto.
18.12 Binding Effect. This agreement shall be binding upon the parties
hereto, their successors and assigns, when, as and if executed by both parties
hereto.
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18.13 Consent to Duncan Sublease. Landlord hereby consents to
the sublease by Tenant to Duncan Equipment Co. of the approximate square
footage occupied by Duncan Equipment Co. in the Demised Property on the date
hereof.
IN WITNESS WHEREOF, the parties have executed this Lease Agreement With
Option to Purchase effective as of the date first written above.
OKLAHOMA FACILITIES,
LIMITED LIABILITY COMPANY,
an Oklahoma limited liability company
By: /s/ Xxxxx X. Xxxxx
-----------------------
XXXXX X. XXXXX, Manager
LANDLORD
XXXX'X TECHNOLOGY, INC.,
an Oklahoma corporation
By: /s/ Xxxxx X. Xxxxx, Xx.
---------------------------
XXXXX X. XXXXX, XX.
Chief Executive Officer
TENANT
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EXHIBIT "A" TO LEASE AGREEMENT WITH OPTION TO PURCHASE BY AND BETWEEN OKLAHOMA
FACILITIES, LIMITED LIABILITY COMPANY, LANDLORD, AND XXXX'X TECHNOLOGY, INC.,
TENANT
SURFACE AND SURFACE RIGHTS ONLY in and to:
A tract of land beginning at the NW/Corner of the SW/4 SW/4 of Section
17, Township 1 South, Range 7 West, I.M., Xxxxxxxx County, Oklahoma:
thence East a distance of 660 feet to a point; thence South a distance
of 1,320 feet to a point on the South line of said Section 17; thence
West a distance of 190 feet to a point; thence North a distance of 810
feet to a point; thence West a distance of 470 feet to a point on the
West line of said Section 17; thence North a distance 510 feet to the
point of beginning (formerly described as Blocks 1, 2, 4, 5, 6 and 7 of
Airport Heights Addition to the City of Xxxxxx, Xxxxxxxx County,
Oklahoma, and all streets, alley, easements and ways abutting and
running through said property).
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