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Exhibit 10.2
Execution Copy
LEASE AGREEMENT
AGREEMENT OF LEASE made as of the 23rd day of February, 2000, between
LR REAL PROPERTY, LLC, with an address at 00000 Xxxxxx Xxxxx, Xxxxxxx, Xxxxx
00000 (Attn: X.X. Xxxxxxxx) ("Landlord") and TBM Acquisition I, Inc. (d/b/a LONG
REACH HOLDINGS, INC.), a Delaware corporation with an address at 000 Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("Tenant").
W I T N E S S E T H
Terms not otherwise defined herein shall have the meaning given to them
in the Amended and Restated Merger Agreement, dated as of February 4, 2000,
among TBM Holdings, Inc., TBM Acquisition I, Inc. and Long Reach Holdings, Inc.,
among others (the "Merger Agreement"). Landlord and Tenant, for themselves and
their respective successors and assigns, hereby covenant and agree as follows:
ARTICLE 1
Demise; Premises; Term; Use
1.01 Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord, upon and subject to the covenants, agreements, terms, provisions and
conditions of this Lease, the "Demised Premises" (as hereinafter defined),
subject to an easement hereby reserved in favor of Landlord in, over and through
the Demised Premises for access purposes and in connection with Landlord's
rights and obligations under this Lease, use of such easement not to
unreasonably interfere with Tenant's operations. The Demised Premises consist of
the land described in Exhibit A attached to this Lease and incorporated herein
("Land"), and the building and improvements on the Land (collectively,
"Building"), located at 0000 Xxx Xxxxxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx.
1.02 The term of this Lease shall commence on the Effective Time of the
Merger Agreement ("Commencement Date"), and shall terminate on the day
immediately preceding the second anniversary of the Commencement Date
("Expiration Date"), or shall end on such earlier date upon which said term may
expire or be canceled or terminated pursuant to any of the provisions of this
Lease or pursuant to law. Notwithstanding anything to the contrary contained
herein, provided Tenant is not in default under this Lease, Tenant may terminate
this Lease at any time upon 120 days' prior written notice. All rent under this
Lease shall be apportioned as of the Expiration Date.
1.03 Tenant shall use and occupy the Demised Premises solely for the
manufacture of construction and excavation equipment and machinery substantially
similar to that being manufactured at the Demised Premises on the date hereof,
and for no
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other purpose, without first obtaining Landlord's prior written consent (which
consent shall not be unreasonably withheld or delayed).
1.04 Tenant shall not suffer or permit the Demised Premises or any part
thereof to be used in any manner, or anything to be done therein, which would in
any way (a) violate any laws, ordinances or requirements of public authorities
or any covenants or agreement to which the Demised Premises are subject, (b)
make void or voidable any fire or liability or other insurance policy then in
force with respect to the Demised Premises, (c) make unobtainable from reputable
insurance companies authorized to do business in the State of Arkansas at
standard rates any casualty insurance or liability, boiler or other insurance
that Landlord or Tenant may carry, (d) constitute a public or private nuisance,
or (e) constitute a breach or Event of Default (as hereinafter defined) under
this Lease.
1.05 Tenant shall not at any time use or occupy, or suffer or permit
anyone to use or occupy the Demised Premises, or do or permit anything to be
done in the Demised Premises, in violation of the Certificate of Occupancy for
the Demised Premises and/or Building. Tenant shall conduct its business at the
Demised Premises at all times in a professional and businesslike manner
consistent with all reputable business standards and practices.
1.06 Tenant's use of the systems and equipment in the Building
(including, without limitation, the electrical, HVAC, plumbing and heating
systems) shall not exceed the recommended mechanical or electrical loads of such
Building equipment or systems.
1.07 Tenant acknowledges that it has inspected the Demised Premises and
accepts them in their "AS IS" condition on the Commencement Date. Tenant
acknowledges that neither Landlord nor any agent of Landlord has made any
promises or representations regarding the Demised Premises or the use or
occupancy thereof upon which Tenant is relying in entering into this Lease.
Tenant acknowledges that there are no agreements, representations,
understandings or obligations on the part of Landlord to perform any
alterations, repairs or improvements with respect to the Demised Premises except
as specifically provided for in this Lease.
ARTICLE 2
Rent
2.01 For the first eighteen months of this Lease, Tenant shall pay to
Landlord as rent for the Demised Premises ("Net Rent") the aggregate amount of
ONE and 50/100 Dollars ($1.50), and thereafter for the remaining six months of
the term at the rate of TEN THOUSAND and 00/100 DOLLARS ($10,000) per month. The
Net Rent shall be paid in advance, without demand, on the first day of each
calendar month, as applicable, and shall be paid at Landlord's address set forth
above or at such other address as Landlord may designate by notice.
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2.02 In addition to Net Rent, all other amounts which Tenant is or
becomes obligated to pay Landlord hereunder shall be deemed additional rent and,
unless otherwise provided herein, shall be paid within ten days after demand by
Landlord. All amounts payable by Tenant to Landlord pursuant to this Lease shall
be paid without any deduction, recoupment, set-off or counterclaim.
2.03 If Tenant shall fail to pay any Net Rent or additional rent within
fifteen days after the due date thereof, the late payment shall be subject to a
late charge of three percent (3%) of the overdue amount.
2.04 It is the purpose and intent of Landlord and Tenant that the Net
Rent shall be absolutely net to Landlord so that this Lease shall yield, net to
Landlord, the Net Rent specified herein in each year during the term of this
Lease, and that all operating costs, expenses and obligations of every kind and
nature whatsoever, relating to the Demised Premises which may arise or become
due during or out of the term of this Lease shall be paid by Tenant, except as
otherwise set forth in this Lease.
ARTICLE 3
Insurance; Nonliability; Indemnity
3.01 (a) During the term of this Lease, Tenant, at its sole cost and
expense, shall keep the Demised Premises insured for the benefit of Landlord and
any mortgagee of Landlord against loss or damage by (i) fire and other risks set
forth in insurance policies of "all risk of physical loss" insurance, including
difference in conditions insurance (inclusive of earthquake and flood coverage,
to the extent same is in effect on the date hereof), and (ii) boiler and
machinery insurance with "comprehensive" coverage, which policies of insurance
shall be in an amount at least equal to one hundred percent (100%) of the
current replacement cost of the Demised Premises (per loss, exclusively
available to the Demised Premises), which replacement cost shall be determined
annually by Tenant's insurer and which as of the Commencement Date be no less
than $5,000,000.
(b) The insurance required in (a) above shall: (i) be on a
"replacement cost" claim recovery basis; (ii) include "contingent liability"
coverage for the value of the undamaged building portion, actual demolition
costs and increased costs of construction in the event of a governmentally
mandated demolition following a casualty; (iii) permit a waiver of subrogation
as contained in this Lease, the existence of which will not affect otherwise
available insurance recovery; (iv) not contain a deductible provision without
Landlord's prior written consent; and (v) satisfy any coinsurance requirements
under the applicable policy.
3.02 Tenant, at its sole cost and expense, but for the mutual benefit
of Landlord and Tenant and such other party or parties as may be designated by
Landlord as named insureds as their interests may appear, shall maintain: (a)
standard Comprehensive General Commercial Liability Insurance covering the
Demised Premises on an occurrence basis with minimum limits of liability in an
amount of not less than
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$2,000,000 combined single limit, with a contractual liability endorsement
covering Tenant's indemnity obligations under this Lease, and with respect to
damage to property including water damage and sprinkler leakage legal liability
arising out of any one occurrence, which insurance shall contain
products/completed operations coverage and which insurance shall be primary (and
any insurance maintained by Landlord or any other additional insureds hereunder
shall be excess and noncontributory); (b) rent insurance against loss of rent
due to any risk included in the policies required to be maintained under
Subsection 3.01(a), for the Net Rent and additional rent payable under this
Lease, with respect to each loss; (c) workers' compensation insurance as
required by statute, and employer's liability insurance in the amount of at
least $500,000 per occurrence; and (d) such other insurance, and in such greater
amounts as may from time to time be reasonably required by Landlord against the
same and/or other insurable hazards which at the time are commonly insured
against in the case of premises similarly situated and utilized.
3.03 All insurance provided for in this Article shall be effected under
valid and enforceable policies issued by insurers of recognized responsibility
which are licensed to do business in the State of Arkansas, are well rated by
national rating organizations, and have been approved in writing by Landlord,
which approval shall not be unreasonably withheld. On or before the occupancy of
any part of the Demised Premises, and thereafter not less than 30 days prior to
the expiration dates of the expiring policies theretofore furnished pursuant to
this Article, or any other Article of this Lease, originals of the policies
bearing notations evidencing the payment of premiums or accompanied by other
evidence reasonably satisfactory to Landlord of such payments, shall be
delivered by Tenant to Landlord and certificates showing Landlord and others
designated by Landlord as additional insureds (and similarly with respect to
leasehold improvements). All such policies shall contain a provision to the
effect that the same will be nonalterable and noncancellable except upon 30 days
written notice to Landlord and the holder of any mortgage on the Demised
Premises. Landlord and Tenant waive their right to recover damages against each
other for any reason whatsoever to the extent the damaged party recovers
indemnity from its insurance carrier and waive all rights of subrogation of
their respective insurers. Any insurance policy procured by a party with respect
to the Demised Premises or its property therein which does not name the other
party as an additional insured shall contain a waiver of subrogation as
contained in this Lease, the existence of which will not affect otherwise
available insurance recovery. All public liability and property damage policies
shall contain a severability of interest clause.
3.04 If at any time during the term of this Lease, Landlord shall
request that the amount of insurance provided by Tenant, as required by this
Article, be increased on the ground that such coverage is inadequate properly to
protect the interest of Landlord, or if Landlord shall require other insurance
pursuant to subsection 3.02(c), and Tenant shall refuse to comply with any such
request or requirement, the dispute shall be submitted to arbitration as
provided in Article 18 hereof. Tenant shall thereafter carry the amount, and
such kind, of insurance as determined by such arbitration to be adequate and
required, but in no event shall the amount of insurance be less than the amount
specified in Sections 3.01 and 3.02.
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3.05 Landlord shall have the right, at its expense, to maintain any
additional insurance with respect to the Demised Premises not required under
this Article.
3.06 Tenant waives all claims against Landlord or its employees or
agents for any injury or damage to persons or property resulting from any
occurrence in or about the Demised Premises, including, without limitation,
fire, explosion, falling debris, steam, gas, electricity, water, rain or snow or
any other casualty, or leaks from any part of the Demised Premises, or from the
pipes, appliances or plumbing works or from the roof, street or subsurface or
from any other place or by dampness or by any other cause of any nature
whatsoever, unless arising out of the gross negligence of Landlord or its
agents, employees or contractors. Tenant agrees to look solely to and seek
recovery only from its insurance carriers in the event of any such losses; for
purposes hereof, any deductible amount shall be treated as though it were
recoverable under such policies.
3.07 Tenant will indemnify against, and hold Landlord and Landlord's
employees and agents harmless from, any and all demands, claims, causes of
action, proceedings, fines, penalties, damages, losses, liabilities, judgments,
orders, decrees, costs and expenses (including, without limitation, court costs
and reasonable attorneys' fees and disbursements) incurred in connection with or
arising materially from: (a) the use or occupancy of the Demised Premises by
Tenant or any person claiming under Tenant; (b) any activity, work or thing
done, or permitted or suffered by Tenant on or about the Demised Premises; (c)
any acts, omissions, or negligence of Tenant or any person claiming under
Tenant, or the contractors, agents, employees, invitees, customers or visitors
of Tenant or any such person; (d) any breach, violation or nonperformance by
Tenant or any person claiming under Tenant or the employees, agents,
contractors, invitees, customers or visitors of Tenant or any such person of any
term, covenant or provision of this Lease or of law or any legal requirements or
requirements of governmental authorities; or (e) (except for loss of use of all
or any portion of the Demised Premises or Tenant's property located within the
Demised Premises which is proximately caused by or results proximately from the
gross negligence of Landlord or Landlord's employees or agents), any injury or
damage to the person, property or business of Tenant, its employees, agents,
contractors, invitees, customers, visitors or any other person entering upon or
about the Demised Premises. If any action or proceeding is brought against
Landlord or Landlord's employees or agents by reason of any such claim, Tenant,
upon notice from Landlord, will defend the claim at Tenant's expense with
counsel reasonably satisfactory to Landlord. Without limiting the generality of
the foregoing, Tenant specifically acknowledges that the indemnity undertaking
herein shall apply to claims in connection with or arising out of the
transportation, use, storage, maintenance, generation, manufacturing, handling,
disposal, release or discharge of any "Hazardous Material" as described in
ARTICLE 20 (whether or not such matters shall have been theretofore approved by
Landlord) by Tenant or any person claiming under Tenant, or the contractors,
agents, employees, invitees, customers or visitors of Tenant or any such person.
Landlord acknowledges that it or its Affiliates (as defined in the Merger
Agreement) remains liable for the transportation, use, storage, maintenance,
generation,
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manufacturing, handling, disposal, release or discharge of any "Hazardous
Material" arising at or with respect to the Demised Premises at all times prior
to the date hereof.
3.08 Tenant shall give Landlord notice in case of fire or accidents in
the Demised Premises, which notice shall be given promptly after Tenant becomes
aware of any such event.
3.09 Tenant agrees to look solely to Landlord's estate and interest in
the Demised Premises for the satisfaction of any right or remedy of Tenant or
for the collection of a judgment (or other judicial process) requiring the
payment of money by Landlord, in the event of any liability by Landlord under
this Lease, and no other property or assets of Landlord shall be subject to
levy, execution, attachment or other enforcement procedure for the satisfaction
of Tenant's remedies under or with respect to this Lease, the relationship of
Landlord and Tenant hereunder, or Tenant's use and occupancy of the Demised
Premises, or any other liability of Landlord to Tenant hereunder.
3.10 In any litigation between the parties regarding this Lease, the
losing party shall pay to the prevailing party all reasonable expenses and court
costs including attorneys' fees incurred by the prevailing party. A party shall
be considered the prevailing party if:
(a) it initiated the litigation and substantially obtains
the relief it sought, either through a judgment or
the losing party's voluntary action before
arbitration (after it is scheduled), trial, or
judgment;
(b) the other party withdraws its action without
substantially obtaining the relief it sought; or
(c) it did not initiate the litigation and judgment is
entered for either party, but without substantially
granting the relief sought.
ARTICLE 4
Maintenance; Repairs; Services
4.01 Throughout the term of this Lease, Tenant, at its sole cost and
expense, will take good care of the Demised Premises and will keep the same in
good working order, repair and condition (which condition shall also be safe,
clean and sanitary and generally will be maintained in the condition as of the
date hereof, ordinary wear and tear excepted), and make all necessary repairs
thereto (which repairs shall include necessary replacements and capital
expenditures and compliance with laws). Landlord, at its expense, shall make all
necessary repairs to the (a) roof, exterior walls, foundation and other
structural elements of the Building; (b) parking areas, driveways and sidewalks
on the Land; and (c) to the pipes, conduits and utilities serving the Building
up to the perimeter of the Building, provided the cost of such repairs is fully
covered by insurance
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proceeds from coverage maintained by Tenant as contemplated by ARTICLE 3 hereof.
Landlord shall make such repairs promptly after receiving reasonable notice from
Tenant of the necessity for such repairs, provided that any damage shall not
have been caused as a result of ordinary wear and tear or by any act or omission
of, or violation of this lease by, Tenant or any other occupant of the Demised
Premises, or any of their employees, agents, invitees or contractors (in which
cases Tenant shall be obligated to make the necessary repairs in accordance with
the first sentence of this Section 4.01). When used in this Article 4, the term
"repairs" shall include all necessary replacements, renewals, alterations,
additions and betterments. No repairs will be required to be made by Landlord or
Tenant to a standard higher than pertains with respect to the Demised Premises
as of the Commencement Date (after reasonable allowance for ordinary wear and
tear) or as required by law.
4.02 The necessity for and adequacy of repairs to the Demised Premises
pursuant to Section 4.01 hereof shall be measured by the standard which is
appropriate for buildings of similar construction and class and use, provided
that neither Landlord nor Tenant shall have an obligation to repair or maintain
the Demised Premises in any condition superior to that which pertains with
respect to the Demised Premises as of the Commencement Date (after reasonable
allowance for ordinary wear and tear) or as required by law.
4.03 Tenant shall put, keep and maintain all portions of the Demised
Premises and the sidewalks, curbs, parking areas and passageways adjoining the
same in a clean and orderly condition, free of dirt, rubbish, snow, ice and
unlawful obstructions.
4.04 Landlord shall not be required to furnish any services or
facilities or to make any repairs or alterations in or to the Demised Premises,
except as set forth above. Tenant shall pay all charges for electricity
(including, without limitation, for HVAC), gas, fuel oil, water, telephones,
sanitary sewer and any other utilities used by it in connection with the Demised
Premises. Tenant, at its expense, shall supply its own requirements for heat,
hot water, air-conditioning, cleaning, refuse removal and any other services
required with respect to the Demised Premises.
4.05 With respect to the maintenance and operation of the Demised
Premises, Tenant shall comply with all applicable governmental laws, ordinances,
rules and regulations.
4.06 In case any dispute shall arise at any time between Landlord and
Tenant as to the standard of care and maintenance of the Demised Premises, such
dispute shall be determined by arbitration as provided in Article 18 hereof.
4.07 If Tenant shall fail to make repairs in accordance with its
obligations hereunder, Landlord shall have the right, at its option, after
Landlord shall have given to Tenant ten days' notice (except in case of an
emergency), to make such repairs on behalf and for the account of Tenant, to
enter upon the Demised Premises for such purposes, and
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Tenant shall pay the cost thereof as additional rent within ten days after
demand by Landlord.
ARTICLE 5
Changes and Alterations; Ownership of Improvements
5.01 Tenant shall have the right at any time and from time to time
during the term of this Lease, whether at the commencement of the term hereof or
at any time thereafter, to make, at its sole cost and expense, changes and
alterations in or of the Demised Premises, subject, however, in all cases to the
following:
(a) No change or alteration which is (i) non-interior, (ii)
structural, (iii) affects the mechanical, electrical, plumbing or HVAC systems
of the Demised Premises, or (iv) involves an estimated cost of more than
$25,000, shall be made without the prior written consent of Landlord (which
approval shall not be unreasonably withheld or delayed).
(b) Landlord reserves the right to impose reasonable
requirements as a condition of any such consent, including, without limitation,
payment by Tenant of Landlord's reasonable costs and expenses in connection with
evaluating, monitoring or otherwise responding to any such request by or on
behalf of Tenant.
(c) No change or alteration shall be undertaken until Tenant
shall have procured and paid for, so far as the same may be required from time
to time, all permits and authorizations of all municipal departments and
governmental subdivisions having jurisdiction. Landlord shall join in the
application for such permits or authorizations whenever such action is
necessary.
(d) Any change or alteration requiring Landlord's consent
under subsection (a) above shall be conducted under the supervision of an
architect and/or engineer selected by Tenant and approved in writing by Landlord
(which approval shall not be unreasonably withheld), and no such change or
alteration shall be made except in accordance with detailed plans and
specifications and cost estimates prepared and approved in writing by Landlord
(which approval shall not be unreasonably withheld).
(e) Any change or alteration shall, when completed, be of such
a character as not to reduce the value of the Demised Premises below its value
immediately before such change or alteration.
(f) Any change or alteration shall be made promptly
(unavoidable delays excepted) and in a good and workmanlike manner, with
materials that are new, high quality and free of material defects, and in
compliance with all applicable permits and authorizations and building and
zoning laws and ordinances and with all other laws, ordinances, orders, rules,
regulations and requirements of all federal, state and municipal governments,
departments, commissions, boards and officers, any national or local Board
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of Fire Underwriters, or any other body hereafter exercising functions similar
to those of any of the foregoing, and strictly in compliance with the detailed
plans and specifications approved by Landlord.
(g) The cost of any such change or alteration shall be paid in
cash or its equivalent, so that the Demised Premises shall at all times be free
of liens for labor and materials supplied or claimed to have been supplied to
Tenant.
(h) Worker's compensation insurance in statutory limits
covering all persons employed in connection with the work and with respect to
whom death or bodily injury claims could be asserted against Landlord, Tenant or
the Demised Premises, and general liability insurance for the mutual benefit of
Tenant and Landlord in such limits as Landlord may reasonably require, shall be
maintained by Tenant at Tenant's sole cost and expense at all times when any
work is in process in connection with any change or alteration. All such
insurance shall be in a company or companies of recognized responsibility, and
all policies or certificates therefor issued by the respective insurers, bearing
notations evidencing the payment of premiums or accompanied by other evidence
satisfactory to Landlord of such payment, shall be delivered to Landlord.
5.02 All alterations, installations, additions or improvements upon the
Demised Premises made by any party prior to or during the term of this Lease
shall, at the expiration of the term hereof, become the property of Landlord and
be surrendered with said premises as part thereof at the end of the term, unless
Landlord shall give Tenant notice to remove any of same, in which event Tenant
shall remove same prior to the expiration of the term.
5.03 At or before the Expiration Date, or the date of any earlier
termination of this Lease, Tenant at its expense, shall remove from the Demised
Premises all of Tenant's property and shall repair any damage to the Demised
Premises resulting from such removal. Any other items of Tenant's property which
shall remain in the Demised Premises after the Expiration Date or after a period
of 15 days following an earlier termination date, may, at the option of
Landlord, be deemed to have been abandoned, and in such case either may be
retained as Landlord as its property or may be disposed of, without
accountability, in such manner as Landlord may see fit at Tenant's expense.
5.04 (a) Tenant, at its expense, shall procure promptly the
cancellation or discharge of all notices of violation arising from or otherwise
connected with Tenant's work which shall be issued by any public authority
having or asserting jurisdiction. Tenant shall defend, indemnify and save
harmless Landlord against any and all mechanic's and other liens in connection
with Tenant's work, repairs or installations, including but not limited to the
liens of any conditional sale of, or chattel mortgages upon, any materials,
fixtures, or articles so installed in and constituting part of the Demised
Premises and against all cost, attorneys' fees, fines, expenses and liabilities
reasonably incurred in connection with any such lien, conditional sale or
chattel mortgage
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or any action or proceeding brought thereon. Tenant shall pay in full for all
materials, fixtures, equipment and other articles prior to installation in the
Demised Premises.
(b) Tenant, at its expense, shall procure the satisfaction or
discharge, by bonding or otherwise, of all such liens within 30 days of the
filing of such lien against the Demised Premises. If Tenant shall fail to cause
such lien to be discharged within the period aforesaid, then in addition to any
other right or remedy, Landlord may, but shall not be obligated to, discharge
the same either by paying the amount claimed to be due or by procuring the
discharge of such lien, by deposit or by bonding proceedings, and in any such
event Landlord shall be entitled, if Landlord so elects, to compel the
prosecution of an action for the foreclosure of such lien by the lienor and to
pay the amount of the judgment in favor of the lienor with interest, costs and
allowances. Any amount so paid by Landlord and all costs and expenses incurred
by Landlord in connection therewith, together with Interest thereon from the
respective dates of Landlord's making of the payment or incurring the cost and
expenses shall constitute additional rent payable by Tenant under this Lease and
shall be paid by Tenant on demand.
ARTICLE 6
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ARTICLE 7
Assignment and Subletting
Except with respect to any security interest required by the Senior
Debt, neither this Lease, nor the term and estate hereby granted, nor any part
hereof or thereof, nor the interest of Tenant in any sublease or the rentals
thereunder, shall be assigned, mortgaged, pledged, encumbered, hypothecated, or
otherwise transferred by Tenant, Tenant's legal representative or successors in
interest by operation of law or otherwise, and neither the Demised Premises, nor
any part thereof, shall be encumbered in any manner by reason of any act or
omission on the part of Tenant or anyone claiming under or through Tenant, or
shall be sublet or be used or occupied or permitted to be used or occupied by
anyone other than Tenant (all of the foregoing are hereinafter collectively
referred to as "Transfers" and any party to whom or which any Transfer is made
or sought to be made is hereinafter referred to as a "Transferee"), or for any
purpose other than as permitted by this Lease without the prior written consent
of Landlord in each case, which consent may be withheld, conditioned or delayed
in Landlord's sole discretion; provided, however, no consent shall be required
for a Transfer to an Affiliate. Any Transfer made without complying with this
ARTICLE shall, at Landlord's option, be null, void and of no effect (which shall
not be in limitation of Landlord's other remedies).
For purposes of this Lease, the term "Transfer" shall also include each
of the following, whether accomplished directly or indirectly: (i) the
dissolution, merger, consolidation or other reorganization of Tenant; (ii) the
sale or other transfer of more than a cumulative aggregate of 50% of the voting
shares of Tenant or the effective transfer of
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the power to direct the policies and management of Tenant; and (iii) the sale,
mortgage, hypothecation or pledge of more than a cumulative aggregate of 50% of
Tenant's net assets.
ARTICLE 8
Damage and Destruction
8.01 If the Demised Premises shall be partially or totally damaged or
destroyed by fire or other casualty, Landlord shall, subject to Section 8.03
hereof and any requirements of any mortgagee(s) and such mortgagee(s)' right to
control, apply or withhold the applicable insurance proceeds, if any, repair the
damage and restore and rebuild the Demised Premises as nearly as may be
reasonably practicable to its condition and character immediately prior to such
damage or destruction, with reasonable diligence, after notice to it of the
damage or destruction; provided that Landlord shall not be obligated to expend
upon such repair or restoration any amount in excess of the net insurance
proceeds received by Landlord pursuant to insurance maintained under Article 3
and provided that Landlord's obligations shall be subject to then applicable
zoning and planning regulations and no part of such proceeds shall be applied to
restore or repair Tenant's property. Landlord shall not be liable in any way for
any inconvenience or annoyance to Tenant or its visitors, or injury to Tenant's
business or property resulting in any way from such casualty, damage or the
repair thereof.
8.02 If the Demised Premises and/or access thereto shall be partially
or totally damaged or destroyed by fire or other casualty, the rents payable
hereunder shall be abated to the extent that the Demised Premises shall have
been rendered untenantable, from the date of such damage or destruction to the
date the damage shall be substantially repaired or restored. Should Tenant
reoccupy a portion of the Demised Premises during the period that the repair or
restoration is in progress and prior to the date that the same are made
completely tenantable, rents allocable to such portion shall be payable by
Tenant from the date of such occupancy to the date the Demised Premises are made
tenantable.
8.03 Landlord and Tenant shall each have the option of terminating this
Lease and the term and estate hereby granted upon the occurrence of either of
the following events: (1) if Landlord estimates that renovation of the Demised
Premises shall exceed the shorter of (a) 180 days (60 days in the event of a
casualty within the last six months of the term) from the date of the damage, or
(b) the unexpired term of this Lease, or (2) the Building is rendered
untenantable by fire or other casualty and Landlord elects not to repair or
restore the same. Either party shall exercise such termination option by
notifying the other party in writing of such termination within 45 days of the
date of the damage. Tenant agrees that Landlord's obligation to restore, and the
abatement of rent provided for hereunder, shall be Tenant's sole recourse in the
event of such damage, and waives any other rights Tenant may have under any
applicable law to terminate this Lease by reason of such damage except as
provided herein.
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8.04 In the event that a notice of termination shall be given pursuant
to Section 8.03, this Lease and the term and estate hereby granted shall expire
as of the date of such termination with the same effect as if that were the date
hereinbefore set for the expiration of the term of this Lease, and the rent due
and to become due hereunder shall be apportioned as of such date if not earlier
abated pursuant to Section 8.01.
8.05 No damages, compensation or claim shall be payable by Landlord for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Demised Premises pursuant to this Article
Landlord shall use diligent efforts to effect any required repair or restoration
promptly and in such manner as not to unreasonably interfere with Tenant's use
and occupancy.
8.06 Landlord shall not carry insurance of any kind on Tenant's
property, and shall not be obligated to repair any damage thereto or replace the
same.
8.07 The provisions of this Article shall be considered an express
agreement governing any case of damage or destruction of the Demised Premises by
fire or other casualty, and any law to the contrary, now or hereafter in force,
shall have no application in such case.
8.08 Notwithstanding any of the foregoing provisions of this Article,
if Landlord or the holder of any superior mortgage shall be unable to collect
all of the insurance proceeds (including rent insurance proceeds) applicable to
damage or destruction of the Demised Premises by fire or other cause, by reason
of some action or inaction on the part of the Tenant or any of its employees,
agents or contractors, then, without prejudice to any other remedies which may
be available against Tenant, the abatement of Tenant's rents provided for in
this Article shall not be effective to the extent of the uncollected insurance
proceeds.
ARTICLE 9
EMINENT DOMAIN
9.01 In the event that the Demised Premises or any part thereof shall
be taken in condemnation proceedings or by the exercise of any right of eminent
domain or by agreement between Landlord on the one hand and any governmental
authority authorized to exercise such right on the other hand for a period in
excess of the shorter of (i) one year, and (ii) the balance of the term
remaining under this Lease, Landlord shall be entitled to collect from any
condemnor the entire award or awards that may be made in any such proceeding
without deduction therefrom for any estate hereby vested in or owned by Tenant,
to be paid out as in this Article provided and except as provided in Section
9.04 hereof. Tenant hereby expressly assigns to Landlord all of its right, title
and interest in or to every such award and also agrees to execute any and all
further documents that may be required in order to facilitate the collection
thereof by Landlord.
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9.02 (a) At any time during the term of this Lease if title to 20% or
more of the Land shall be taken in condemnation proceedings or by the exercise
of any right to eminent domain or by agreement between Landlord on the one hand
and any governmental authority authorized to exercise such right on the other
hand, Landlord or Tenant shall have the right to terminate this Lease by written
notice to the other party within 30 days after the taking. In the event a notice
of termination shall be given pursuant to the immediately-preceding sentence,
this Lease shall terminate and expire on the date of such taking, and the Net
Rent and additional rent provided to be paid by Tenant shall be apportioned and
paid to the date of such taking.
(b) At any time during the term of this Lease if title to the
Building or 40% or more of the Land shall be taken in condemnation proceedings
or by the exercise of any right to eminent domain or by agreement between
Landlord on the one hand and any governmental authority authorized to exercise
such right on the other hand, this Lease shall terminate and expire on the date
of such taking and the Net Rent and additional rent provided to be paid by
Tenant shall be apportioned and paid to the date of such taking.
9.03 If this Lease does not terminate under Section 9.02, this Lease
shall continue in full force and effect, and the Net Rent apportioned to the
part taken shall be prorated and adjusted as of the date of taking, and from
such date the Net Rent and additional rent shall be reduced to the amount
apportioned to the remainder of the Demised Premises.
9.04 Notwithstanding the foregoing provisions of this Article and
subject to the interest of any mortgagee of Landlord, Tenant shall be entitled
separately to appear, claim, prove and receive in the proceedings relating to
any such taking such portion of each award made therein as represents the then
value of Tenant's property, if any, and/or the costs of relocating, if any are
granted, provided any such award is separately payable to Tenant and the same
does not reduce Landlord's or any mortgagee's award.
9.05 In the event of any such taking which does not result in a
termination of this Lease, Landlord, at its expense, shall proceed with
reasonable diligence to repair, alter and restore the remaining part of the
Demised Premises to substantially the same condition as it was in immediately
prior to such taking to the extent that the same may be feasible, so as to
constitute a tenantable Demised Premises, provided that Landlord's liability
under this Section shall be limited to the net amount received by Landlord from
the award arising out of such taking.
ARTICLE 10
Access to Premises
Landlord and its authorized representatives shall have the right to
enter upon the Demised Premised during all regular business hours for the
purpose of inspecting the same or exhibiting the same to prospective purchasers,
mortgagees and tenants. Landlord and its authorized representatives shall also
have the right to enter upon the Demised Premises during all regular business
hours (and in emergencies at all times) for the
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purpose of making any repairs thereto as Landlord may deem necessary; and in
connection therewith, Landlord shall have the right to bring and store
materials, tools and equipment, without the same constituting an actual or
constructive eviction of Tenant from the Demised Premises or any part thereof.
All entries by Landlord and its representatives (except in case of emergency)
shall be upon reasonable prior notice to Tenant, which notice may be by means of
personal or telephonic communication or by ordinary mail. Any such entry by
Landlord shall be conducted in a manner designed to minimize interference with
the conduct of Tenant's business.
ARTICLE 11
Subordination; Attornment; Estoppel Certificate
11.01 Provided Tenant receives a so-called non-disturbance agreement
from the Lender (and further provided that furnishing such non-disturbance
agreement shall not be a condition to Tenant's subordination if Tenant is in
default hereunder), this Lease and all of Tenant's rights hereunder are and
shall be subject and subordinate at all times to all mortgages, deeds of trust,
ground leases or any other method of financing or refinancing, in any amount,
and all advances thereon, which may now or hereafter be placed against or affect
any or all of the Demised Premises by Landlord, and to all renewals,
modifications, consolidations, replacements and extensions thereof. The
aforesaid provisions shall be self operative and no further instrument of
subordination shall be necessary unless required by any such mortgagee or other
lender, in which case Tenant shall execute, acknowledge and deliver any
requested subordination agreement within 10 days after request. If any
foreclosure or power of sale proceedings are initiated by any mortgagee(s) or a
deed in lieu is granted, Tenant agrees, upon written request of any such
mortgagee(s) or any purchaser at such sale, to attorn and pay Net Rent and other
amounts payable hereunder to such party and to execute and deliver any
instruments necessary or appropriate to effectuate such attornment. Tenant
agrees to give any mortgagee(s) by certified mail, return receipt requested, a
copy of any notice of default served by Tenant upon Landlord, provided that
prior to such notice Tenant has been notified in writing of the name and address
of any such mortgagee(s). Tenant further agrees that if Landlord has failed to
cure any such default within the time permitted Landlord for cure under this
Lease, any such mortgagee(s) whose address has been so provided to Tenant shall
have an additional period of thirty days in which to cure (or such additional
time as may be required due to causes beyond such mortgagee's control, including
time to obtain possession of the Demised Premises by power of sale or judicial
action).
11.02 Within ten days after request, Tenant shall execute and deliver to
Landlord or to any party designated by Landlord a so-called "estoppel
certificate", in the form submitted by Landlord to Tenant, whereby Tenant
represents and certifies as to such various facts and matters relating to this
Lease as Landlord may reasonably request.
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ARTICLE 12
Default
12.01 The following are "Events of Default": (a) Tenant fails to pay
when due any Net Rent; or Tenant fails to pay when due any additional rent or
other sums or charges reserved hereunder and such default continues for five
days after written notice from Landlord;
(b) Tenant vacates or abandons the Demised Premises;
(c) This Lease or the Demised Premises or any part of the
Demised Premises are taken upon execution or by other process of law directed
against Tenant, or are taken upon or subjected to any attachment by any creditor
of Tenant or claimant against Tenant, and such attachment is not discharged
within 30 days after its levy;
(d) Tenant files a petition in bankruptcy or insolvency or for
reorganization or arrangement under the bankruptcy laws of the United States or
under any insolvency act of any state, or is dissolved, or makes an assignment
for the benefit of creditors;
(e) Involuntary proceedings under any such bankruptcy laws or
insolvency act or for the dissolution of Tenant are instituted against Tenant,
or a receiver or trustee is appointed for all or substantially all of Tenant's
property, and such proceeding is not dismissed or such receivership or
trusteeship is not vacated within 90 days after such institution or appoint;
(f) Tenant admits its insolvency or its inability to pay its
debts as they come due; or
(g) Tenant fails to observe or perform any term or condition of
this :Lease (other than the payment of amounts as described in clause (a) above)
unless such failure is cured, if susceptible to cure, within the time specified
herein or within a reasonable time (and in any event no later than forty-five
(45) days after written notice thereof is given by Landlord to Tenant).
Failure by Tenant to comply with the same term or condition of
this Lease on three occasions during any twelve month period shall, at
Landlord's discretion, constitute an incurable Event of Default.
12.02 If any one or more Events of Default set forth in Section
12.01 above occurs, then Landlord may elect the alternatives set forth in
subsections (a) or (b) below as follows (which remedies are distinct, separate
and cumulative with and in addition to any other right or remedy allowed under
any law or other provision of this Lease):
(a) Give Tenant written notice of its intention to terminate all
of Tenant's rights under this Lease on the date of such notice or on any later
date specified in such notice, and, on the date specified in such notice,
Tenant's right to possession of the
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Demised Premises will cease and this Lease will be terminated (except as to
Tenant's obligations under the Lease which shall continue), as if the expiration
of the term fixed in such notice were the end of the term of this Lease. In such
event, Landlord may recover from Tenant (i) any unpaid Net Rent and other
amounts payable hereunder, (ii) the amount by which any unpaid Net Rent and
other amounts payable hereunder which would have accrued after the termination
date during the balance of the term of this Lease exceeds the reasonable rental
value of the Demised Premises under substantially equivalent terms to those of
this Lease (after deduction of all reasonable costs of reletting), and (iii) any
other amounts necessary to compensate Landlord for all damages proximately
caused by Tenant's failure to perform its obligations under this Lease. Landlord
will be entitled to collect such damages from Tenant monthly on the days on
which the rent and other amounts would have been payable under this Lease if
this Lease had not been terminated and Landlord will be entitled to receive such
damages from Tenant on each such day; or
(b) (1) Without demand or notice, re-enter and take possession
of the Demised Premises or any part of the Demised Premises; and repossess the
Demised Premises as of Landlord's former estate; and expel Tenant from the
Demised Premises and those claiming through or under Tenant; and remove the
effects of both or either, without being deemed guilty of any manner of trespass
and without prejudice to any remedies for arrears of rent or preceding breach of
covenants or conditions (and if applicable law permits, and Landlord shall not
have expressly terminated this Lease in writing, any such action shall be deemed
a termination of Tenant's right of possession only). If Landlord elects to
re-enter, as provided in this subsection (b) or if Landlord takes possession of
the Demised Premises pursuant to legal proceedings or pursuant to any notice
provided by law, Landlord may, from time to time, without terminating this
Lease, re-let the Demised Premises or any part of the Demised Premises, in
Landlord's or Tenant's name but for the account of Tenant, for such term or
terms (which may be greater or less than the period which would otherwise have
constituted the balance of the term of this Lease) and on such terms and
conditions (which may include, without limitation, concessions of free rent, and
the alteration and repair of the Demised Premises) as Landlord, in its
reasonable discretion, may determine. Landlord reserves the right following any
such re-entry or re-letting, or both, to exercise its right to terminate this
Lease by giving Tenant such written notice, and, in that event the Lease will
terminate as specified in such notice. (2) If Landlord elects to take possession
of the Demised Premises according to this subsection (b) without terminating the
Lease, Tenant will pay Landlord (i) the rent and other sums which would be
payable under this Lease if such repossession had not occurred, less (ii) the
net proceeds, if any, of any re-letting of the Demised Premises after deducting
all of Landlord's reasonable expenses incurred in connection with such
re-letting, including, without limitation, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, expenses of employees, alteration,
remodeling, repair costs, and expenses of preparation for such re-letting. If,
in connection with any reletting, the new lease term extends beyond the existing
term or the Demised Premises covered by such re-letting include areas which are
not part of the Demised Premises, a fair apportionment of the rent received from
such re-letting and the
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expenses incurred in connection with such re-letting will be made in determining
the net proceeds received from such re-letting. In addition, in determining the
net proceeds from such re-letting, any rent concessions will be apportioned over
the term of the new lease. Tenant will pay such amounts to Landlord monthly on
the days on which the rent and all other amounts owing under this Lease would
have been payable if possession had not been retaken and Landlord will be
entitled to receive the rent and other amounts from Tenant on each such day.
12.03 Landlord shall at all times have the right without prior demand or
notice except as required by applicable law to: (i) seek any declaratory,
injunctive or other equitable relief, and specifically enforce this Lease or
restrain or enjoin a violation of any provision hereof, and Tenant hereby waives
any right to require that Landlord post a bond in connection therewith, and (ii)
xxx for and collect any unpaid Net Rent or other amounts payable hereunder which
has accrued. Notwithstanding anything to the contrary contained in this Lease,
to the extent not expressly prohibited by applicable law, upon the occurrence of
any Event of Default, Landlord may terminate this Lease or Tenant's right to
possession of the Demised Premises and accelerate and declare that all Net Rent
and other amounts payable hereunder reserved for the remainder of the term of
this :Lease shall be immediately due and payable, provided that such amounts
shall be discounted to the then present value at 6% per annum in accordance with
accepted financial practice, and Landlord, after receiving payment of same from
Tenant, shall be obligated to turn over to Tenant any actual net reletting
proceeds thereafter received during the remainder of the term of this Lease, up
to the amount so received from Tenant pursuant to this provision. Any failure by
Landlord to mitigate its damages shall only reduce the amounts otherwise payable
by Tenant to Landlord hereunder and shall not give rise to a claim by Tenant
against Landlord for damages.
12.04 The parties waive trial by jury in any action, proceeding or
counterclaim brought by either party against the other on any matter whatsoever
arising out of or in any way connected with this Lease, the relationship of
landlord and tenant created hereby, Tenant's use or occupancy of the Demised
Premises, or any claim for injury or damage. Tenant hereby irrevocably waives
any right otherwise available under any applicable law to redeem or reinstate
this Lease or Tenant's right to possession after this Lease or Tenant's right to
possession is terminated based on an Event of Default.
12.05 Tenant shall pay, as additional rent, a service charge of $200
for bookkeeping and administrative expenses, if any portion of rent is not
received when due. Any amounts payable hereunder not paid when due shall accrue
interest from the due date at the rate of 12% per annum until payment is
received by Landlord. If Tenant fails to perform any obligation under this
Lease, Landlord shall have the right (but not the duty) to perform such
obligation on behalf and for the account of Tenant. In such event, Tenant shall
reimburse Landlord upon demand, as additional rent, for all expenses incurred by
Landlord in performing such obligation together with interest thereon at 12% per
annum from the date such expenses were incurred.
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ARTICLE 13
Quiet Enjoyment
Tenant, upon performing and observing all of the terms, covenants and
condition of this Lease on Tenant's part to be performed and observed, shall
peaceably and quietly have and enjoy the Demised Premises during the term of
this Lease, free of interference from Landlord or any party claiming through or
under Landlord.
ARTICLE 14
Surrender of Premises
Upon the expiration or sooner termination of the term of this Lease,
Tenant shall quit and surrender the Demised Premises, broom clean, in as good
condition and repair as Tenant is required to maintain the same throughout the
term of this Lease, together with all keys. All leasehold improvements and other
fixtures, whether installed by Tenant or Landlord, shall be Landlord's property
and shall remain, all without compensation, allowance or credit to Tenant and as
though conclusively conveyed by Tenant to Landlord as if by xxxx of sale,
including, without limitation, all electrical, mechanical, HVAC, plumbing and
other utility systems, connections and appliances and all installed cranes,
except those cranes which Tenant re-installs and uses at another location owned
by Tenant. If Tenant shall fail to remove any of Tenant's property at the
Demised Premises, such property shall, at the option of Landlord, either be
deemed abandoned and become the exclusive property of Landlord, or Landlord
shall have the right to remove and dispose of such property in accordance with
ARTICLE 5, at the expense of Tenant, and hold Tenant responsible for any and all
net charges and expenses incurred by Landlord therefor.
ARTICLE 15
Holding Over
Should Tenant remain in possession of the Demised Premises after the
expiration of the term hereof without the execution of a new lease, such holding
over, in the absence of a written agreement to the contrary, shall be deemed to
have created and be construed to be a tenancy at sufferance terminable
immediately at any time by Landlord, at a monthly Net Rent equal to $20,000,
subject to all the other terms, covenants and conditions of this Lease, and
Landlord shall have such other remedies for holdover as may be available to
Landlord under other provisions of this Lease or applicable laws.
ARTICLE 16
No Waiver
The failure of Landlord or Tenant to insist upon the strict performance
of any provision of this Lease, or the failure of Landlord or Tenant to exercise
any right, option or remedy hereby reserved shall not be construed as a waiver
for the future of any such provision, right, option or remedy or as a waiver of
a subsequent breach thereof. The
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consent or approval by Landlord of any act by Tenant requiring Landlord's
consent or approval shall not be construed to waive or render unnecessary the
requirement for Landlord's consent or approval of any subsequent similar act by
Tenant. The receipt by Landlord of rent or other charges or sums with knowledge
of a breach of any provision of this Lease shall not be deemed a waiver of such
breach. No provision of this Lease shall be deemed to have been waived unless
such waiver shall be in writing signed by the party to be charged. No payment by
Tenant or receipt by Landlord of a lesser amount than the rents, charges and
other sums hereby reserved shall be deemed to be other than on account of the
earliest rents, charges and other sums then unpaid, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment by Tenant
be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rents, charges and other sums due, or Landlord may pursue any other remedy in
this Lease provided or by law permitted.
ARTICLE 17
Notices
Except as otherwise provided in this Lease, every notice, demand,
consent, approval, request or other communication which may be or is required to
be given under this Lease or by law shall be in writing and shall be sent either
by United States Certified Mail, postage prepaid, return receipt requested, or
by Federal Express or another nationally recognized overnight courier service,
and shall be addressed or delivered, as set forth in the Merger Agreement. Every
notice or other communication hereunder shall be deemed to have been given as of
the second business day following the date of such mailing or dispatch by
courier or immediately if personally delivered.
ARTICLE 18
Arbitration
18.01 Landlord and Tenant shall not have been deemed to have agreed to
determination of any dispute arising out of this Lease by arbitration unless
determination in such manner shall have been specifically and unequivocally
provided for in this Lease and in no other case or cases.
18.02 Every dispute between the parties which is expressly provided in
this Lease to be determined by arbitration shall be resolved in the manner
provided in this Article.
18.03 The party requesting arbitration shall do so by giving notice to
that effect to the other party and shall simultaneously request the appointment
of a single arbitrator by the American Arbitration Association (or any successor
thereto) in accordance with its rules then prevailing, or, if the American
Arbitration Association (or such successor organization) shall fail to appoint
said arbitrator within sixty (60) days after such request is made, then either
party may apply, on notice to the other, to any court having jurisdiction for
the appointment of such arbitrator and the other party shall not raise any
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question as to such court's full power to entertain the application and make the
appointment. Each arbitrator appointed pursuant to this Section shall be a
disinterested person having at least ten years experience in the State of
Arkansas in a calling connected with the dispute.
18.04 The arbitrator shall render his or her decision and award within
30 days after the final hearing. Such decision and award shall be in writing and
counterpart copies thereof shall be delivered to each of the parties. In
rendering such decision and award, the arbitrator shall not add to, subtract
from or otherwise modify the provisions of this Lease. Judgment may be entered
on the determination and award made by the arbitrator in any court of competent
jurisdiction and may be enforced in accordance with the Laws of the State of
Arkansas.
18.05 If, for any reason whatsoever, the written decision and award of
the arbitrator shall not be rendered within the time limit set forth in Section
18.04, either party may apply to any court having jurisdiction, by action,
proceeding or otherwise (but not by a new arbitration proceeding) as may be
proper to determine the question in dispute consistently with the provisions of
this Lease.
18.06 The arbitrator shall determine the division, if any, between the
parties, of the expenses of the arbitration, including fees to the arbitrators,
counsel and witness fees.
ARTICLE 19
Taxes
19.01 The term "Taxes" shall mean the total of all taxes and special,
general, extraordinary or other assessments, sewer rents, water charges,
occupancy taxes, school taxes, and other taxes, fees, levies or other
impositions of every kind and nature, whether foreseen or unforeseen or charges
of any kind or nature levied, assessed, imposed or attributable at any time by
any governmental authority (including, without limitation, any town, city,
district, county, village, school district or public transportation authority)
upon or against or in connection with the Demised Premises, and also any tax,
assessment, or charge, levied, assessed or imposed at any time by any
governmental authority in connection with the receipt of income or rents from
the Demised Premises, and personal property taxes imposed upon the fixtures,
machinery, equipment, apparatus, systems, appurtenances, furniture and other
personal property used in connection with the Demised Premises. Notwithstanding
the foregoing, Taxes shall not include excess profits taxes, franchise taxes,
gift taxes, capital stock taxes, inheritance and succession taxes, estate taxes,
federal and State income taxes, and other taxes to the extent applicable to
Landlord's general or net income. If, due to a future change in the method of
taxation or in the taxing authority, or for any other reason, a franchise,
income, transit, profit or other tax or governmental imposition, however,
designated, shall be levied against Landlord in substitution in whole or in part
for the Taxes, then such franchise, income, transit, profit or other tax or
governmental imposition shall be deemed to be included within the definition of
"Taxes" for the purposes of this Article. As to special assessments which
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are payable over a period of time extending beyond the term of this Lease, only
a pro rata portion thereof, covering the portion of the term of this Lease
unexpired at the time of the imposition of such assessment, shall be included in
Taxes.
19.02 Tenant shall pay all Taxes directly to the taxing authority on or
before the due date of the required payments and shall simultaneously therewith
provide evidence thereof to Landlord. Any failure to pay any Taxes in a timely
manner shall be deemed a failure to pay rent under this Lease. If Tenant fails
to pay any Taxes on or before the due date thereof, Landlord may, but shall not
be obligated to, pay such Taxes and notify Tenant of the same. Tenant shall
reimburse Landlord for any such payment, as additional rent, within ten (10)
days after receipt of any such statement. Taxes payable by Tenant shall be
apportioned to the term of this Lease. Tenant shall pay increased Taxes whether
Taxes are increased as a result of increases in the assessment or valuation of
the Demised Premises (whether based on a sale, change in ownership or
refinancing of the Demised Premises or otherwise), increases in tax rates,
reduction or elimination of any rollbacks or other deductions available under
current law, scheduled reductions of any tax abatement, elimination, invalidity
or withdrawal of any tax abatement, or for any other cause whatsoever.
ARTICLE 20
Miscellaneous
20.01 This Lease, including the Exhibits and Schedules attached hereto,
sets forth the entire agreement between the parties with respect to the Demised
Premises. All prior conversations or writings between the parties hereto or
their representatives with respect to the Demised Premised are merged herein and
extinguished. Tenant has relied on Tenant's inspections, due diligence and
investigations in entering into this Lease and not on any representations or
warranties made by or on behalf of Landlord concerning the condition or
suitability of the Demised Premises for any particular purpose.
20.02 This Lease shall not be modified except by a writing signed by the
party to be charged. The Article captions appearing herein are inserted as a
matter of convenience and are not intended to define, construe or describe the
scope or intent of any provision of this Lease.
20.03 If any provision of this Lease or the application thereof to any
person or circumstance shall be held void or unenforceable, then the remainder
of this Lease or the application of such provision to persons or circumstances
other than those as to which it is held void or unenforceable shall not be
affected thereby.
20.04 Except as otherwise expressly provided in this Lease, all the
terms, covenants conditions and provisions of this Lease shall be binding upon
and shall inure to the benefit of the parties hereto and their respective heirs,
administrators, executors, successors and permitted assigns.
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20.05 The person or persons executing this Lease on behalf of Tenant
hereby covenant, represent and warrant that Tenant is a duly incorporated
corporation authorized to do business in Arkansas; and that the person or
persons executing this Lease on behalf of Tenant is an officer or are officers
of such Tenant, and that he or they as such officers are duly authorized to
execute, acknowledge and deliver this Lease to Landlord.
20.06 This Lease may be executed in several counterparts, each of which
shall be deemed an original, and all such counterparts shall together constitute
one and the same instrument.
20.07 This Lease shall be governed and controlled by the law of the
State of Arkansas.
20.08 IN THE INTEREST OF OBTAINING A SPEEDIER AND LESS COSTLY HEARING
AND RESOLUTION OF ANY DISPUTE, EACH OF LANDLORD AND TENANT HEREBY EXPRESSLY
WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER
PARTY AGAINST THE OTHER AND ANY RIGHTS TO A TRIAL BY JURY UNDER ANY STATUTE,
RULE OF LAW OR PUBLIC POLICY IN CONNECTION WITH ANY MATTER WHATSOEVER ARISING
OUT OF OR IN ANY WAY RELATING TO THIS LEASE.
20.09 Neither this Lease nor any memorandum of lease or short form lease
shall be recorded by Tenant in connection with the Demised Premises without the
prior written consent of Landlord (which consent shall not unreasonably be
withheld or delayed).
20.10 If Landlord shall fail to perform any obligation under this Lease
required to be performed by Landlord, Landlord shall not be deemed to be in
default hereunder nor subject to claims for damages of any kind, unless such
failure shall have continued for a period of thirty days after written notice
thereof by Tenant to Landlord or such additional time as may be required due to
force majeure. Except in case of emergency, Tenant shall have no right of
self-help to perform repairs or any other obligation of Landlord, and shall have
no right to withhold, set off, or xxxxx any amount otherwise payable hereunder.
20.11 In case Landlord or any successor owner of the Demised Premises
shall convey or otherwise dispose of any portion thereof to another party (and
nothing herein shall be construed to restrict or prevent such conveyance or
disposition), such other party shall thereupon be and become landlord hereunder
and shall be deemed to have fully assumed and be liable for all obligations of
this Lease to be performed by Landlord. Tenant shall attorn to such party, and
Landlord or such successor owner shall, from and after the date of conveyance ,
be free of all liabilities and obligations hereunder.
20.12 Tenant shall be responsible for compliance with all requirements
of the Americans With Disabilities Act of 1990 (42 U.S.C. Section12101 et seq.)
and the regulations and guidelines promulgated thereunder.
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20.13 For purposes hereof, "Hazardous Material" means any chemical,
substance, material or waste or component thereof which is now or hereafter
listed, defined or regulated as a hazardous or toxic chemical, substance,
material or waste or component thereof by any federal, State or local governing
or regulatory body having jurisdiction, or which would trigger any employee or
community "right-to-know" requirements adopted by any such body, or for which
any such body has adopted any requirements for the preparation or distribution
of a material safety data sheet issued by the manufacturer thereof. All actions
relating in any manner whatsoever (except in case of emergency) to Hazardous
Material in connection with the Demised Premises shall require and be subject to
delivery of prior written notice to Landlord. If any Hazardous Material is
released, discharged or disposed of by Tenant or any other occupant of the
Demised Premises, or their employees, agents or contractors, on or about the
Demised Premises, Tenant shall immediately inform Landlord and shall be
responsible for all remediation thereof in compliance with applicable law at
Tenant's expense.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Lease to be executed as of the day and year first above written.
Landlord:
LR REAL PROPERTY, LLC
/s/ X. X. Xxxxxxxx
By: ______________________________
Name: X. X. Xxxxxxxx
Title: President
Tenant:
TBM ACQUISITION I, INC.
/s/ Xxxxxxx X. Xxxxxxxx
By: ______________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
23
