Contract
Exhibit
10.4
ARTICLE I. PREMISES
AGREEMENT
WHEREAS, Port Partnership, LLP
(“the Partnership”) and LMI FINISHING, INC. (“Lessee”) are parties to (i) that
certain Lease Agreement dated as of the 6th day of
September, 2002 ( the “Existing Lease”) and (ii) that certain Lease Agreement
dated May 2, 2006 ( the “2006 Lease Agreement”), and
WHEREAS, the Partnership and
Lessee desire that Lessee enter into a Lease Agreement with Port Partnership-I,
LLP, (“Lessor”) for the Lease of a Building on Land hereafter
described,
NOW THEREFORE, the
Partnership, Lessor and Lessee for good and valuable consideration do hereby
agree:
1. Lessor
and Lessee shall contemporaneously herewith, execute the attached Lease
Agreement.
2. That
the 2006 Lease Agreement shall terminate upon satisfaction of all the conditions
precedent identified in Article II, paragraph 1. (a), (b) and (c) and Article
II, paragraph 2 of the attached Lease and all rentals, security deposits and
other sums paid to the Partnership by Lessee pursuant thereto shall be returned
to Lessee within ten (10) days thereafter.
3. That
upon the Commencement Date of the attached Lease Agreement, the Existing Lease
shall terminate and (i) Lessee shall be entitled to a refund of Rent paid under
the Existing Lease, pro rata, for the period from said Commencement Date to the
last day of the month in which said Commencement Date occurs and (ii) the
security deposit paid by Lessee under the Existing Lease shall be returned to
Lessee in accordance with the terms thereof.
4. If
the attached Lease Agreement terminates pursuant to the terms of Article II,
paragraph 1.(d) or Article II, paragraph 2 thereof, the May 2, 2006 Lease
Agreement shall continue in full force and effect and be modified as provided in
Article II, paragraph 1.(d) of the attached Lease Agreement by a separate
amendment executed by the Partnership and Lessee.
Dated
this ___ day of June, 2006
|
LESSEE:
LMI
FINISHING, INC.,
By:_____________________________
Xxxxxx
Xxxx, its President
|
[Signatures
continued on following page.]
|
LESSOR:
PORT
PARTNERSHIP-I, LLP, an Oklahoma limited liability partnership
_____________________________________
By:
___________________its ___________ Partner
|
|
THE
PARTNERSHIP:
PORT
PARTNERSHIP, LLP
______________________________________
By:
___________________its ___________ Partner
|
LEASE
AGREEMENT
THIS
LEASE AGREEMENT, entered into as of the ____ day of June, 2006, between PORT
PARTNERSHIP-I, LLP, an Oklahoma limited liability partnership, hereinafter
referred to as "Lessor," and LMI FINISHING, INC., an Oklahoma corporation,
hereinafter referred to as "Lessee."
ARTICLE
I
RECITALS
A. Lessor
intends to lease a certain parcel of unimproved real property located in Xxxxxx
County, Oklahoma and described on Exhibit “B” attached hereto (said real
property is hereinafter referred to as the “Land” and the lease agreement to be
entered into between Lessor and the owner of the Land is hereinafter referred to
as the "Ground Lease").
B. As
of the date hereof, pursuant to that certain Lease Agreement dated as of the 6th
day of September, 2002 (hereinafter referred to as the “Existing Lease”), Lessee
leased from Port Partnership, LLP approximately 40,000 square feet in a building
located at the Port of Catoosa, Oklahoma
X. Xxxxxx
and Lessee desire to enter into this Lease Agreement to (i) provide the terms
and conditions for the construction by Lessor of an approximately 80,000 square
foot Building and other related improvements including, without limitation, a
parking area serving said Building on the Land (said Building and other related
improvements are hereinafter referred to collectively as the “Building
Improvements”) and (ii) provide the terms and conditions for the termination of
the Existing Lease upon Substantial Completion (as hereinafter defined) of the
Building Improvements.
D. That
for and in consideration of the mutual agreements herein contained, Lessor
leases and demises unto the Lessee, and Lessee accepts and leases from the
Lessor the Land and the Building Improvements (hereinafter collectively called
the "Demised Premises"). Except as otherwise expressly set forth in this Lease,
in no event shall Lessor be liable for any defect in the Demised Premises or any
part thereof, or for any limitations on its use; provided, however, Lessor does
hereby assign unto Lessee all warranties and guarantees it shall receive from
its contractor and contractor's supplier(s) with respect to the Demised
Premises. Notwithstanding the foregoing, if at any time
hereunder Lessee is unable to conduct its business in the Demised Premises (due
to any restriction imposed by the Ground Lease or by any public or quasi public
authority having jurisdiction over Lessor, Lessee or the Demised Premises, as
each may be reasonably determined by Lessee excluding, however, any restriction
imposed upon Lessee by any applicable law, rule, regulation or restriction
generally applicable to all Tenants at the Port of Catoosa), Lessee shall have
the right to terminate this Lease upon ninety (90) days written notice thereof
to Lessor, where upon any advance rental (and so much of any security deposit as
Lessee shall be entitled to hereunder) shall be returned to Lessee within three
(3) days of such termination, and thereafter neither party shall have any
further liability to the other, except as may be expressly provided for to the
contrary hereunder. This Lease is made upon the following covenants,
agreements, terms, provisions, conditions and limitations, all of which the
parties hereto mutually warrant and agree to perform and observe:
ARTICLE
II
CONDITIONS
PRECEDENT
1. The
obligations of the Lessor and the Lessee hereunder shall be conditioned upon the
following:
(a) The
receipt by the Lessor of a written commitment and the execution of loan
documents implementing said commitment in an amount, form and upon terms
satisfactory to Lessor from a lender or lenders obligating such lender(s)
(hereinafter called “Lessor’s Lender(s)”) to provide Lessor with funds to
construct the Building Improvements as hereinafter provided.
(b) The
consummation of the Ground Lease with the Port of Catoosa of the Land upon terms
and conditions acceptable to Lessor.
(c) Written
approval of this Lease by the City of Tulsa-Xxxxxx County Port Authority (the
"Port Authority") and Lessor’s Lender(s). Lessor shall use reasonable
efforts to obtain such approvals and shall keep Lessee reasonably advised of the
status thereof.
(d) Should
the foregoing events not have occurred on or before September 1, 2006, this
Lease shall terminate thirty (30) days thereafter, all rentals, security
deposits and other sums paid to Lessor by Lessee pursuant to this Lease shall be
returned to Lessee within ten (10) days thereafter, and neither party shall have
any further obligation or liability to the other under this Lease except as may
be expressly provided for to the contrary hereunder, and provided that the Lease
Agreement dated the 2nd day of May, 2006 (the “2006 Lease Agreement”) shall
continue in full force and effect without any effect thereon by the termination
of this Lease except that the date of July 1, 2006 appearing in
Article II, paragraph 1.(c) of the 2006 Lease Agreement shall be a date which is
sixty (60) days after termination of this Lease under this paragraph
(d).
(e) Upon
satisfaction of the conditions set forth in paragraphs (a) through (c) of this
paragraph 1 and paragraph 2 of this Article II, the 2006 Lease Agreement shall
terminate and all rentals, security deposits and other sums paid to the lessor
thereunder by Lessee pursuant thereto shall be returned to Lessee within ten
(10) days thereafter.
2. In
addition to the conditions to the obligations of Lessor and Lessee hereunder
contained in paragraph 1 of this Article II, the obligations of Lessee under
this Lease are expressly conditioned on Lessor, at Lessor’s sole cost and
expense, obtaining and delivering to Lessee, a Phase I Environmental Site
Assessment of the Demised Premises (the “Assessment”) acceptable to Lessee, in
Lessee's sole discretion. If the Assessment reveals any matter that
is unacceptable to Lessee, in its sole discretion, or if Lessor shall fail to
deliver the Assessment to Lessee within twenty-one (21) days from the date
hereof, Lessee shall have the right to terminate this Lease by written notice to
Lessor. Such notice of termination shall be delivered to Lessor the
earlier of five (5) business days after Lessee’s receipt thereof or twenty-five
(25) days from the date hereof. If no notice of termination is
received by Lessor, Lessee shall be deemed to have waived this condition
precedent. If Lessee elects to terminate this Lease, all rentals,
security deposits and other sums paid to Lessor by Lessee pursuant to this Lease
shall be returned to Lessee within ten (10) days thereafter, and neither party
shall have any further obligation or liability to the other under this Lease
except as may be expressly provided for to the contrary hereunder, and provided
that the 2006 Lease Agreement shall continue in full force and effect without
any effect thereon except as set forth in paragraph 1(d) of this Article
II.
ARTICLE
III
PROPERTY
DESCRIPTION, USE AND CONSTRUCTION OF BUILDING IMPROVEMENTS
1. Effective
as of the Commencement Date (as hereinafter defined), Lessor does hereby lease
to the Lessee the Demised Premises which shall consist of (i) the Land and (ii)
the Building Improvements.
2. The
Lessee shall use the Demised Premises for warehousing and manufacturing aircraft
components and all uses incidental thereto. The Demised Premises may be used by
the Lessee for any other legal purpose or purposes in conformity with all laws,
rules and regulations applicable to the Demised Premises, and the Ground Lease,
provided that prior to using the Demised Premises for any other such purpose or
purposes the Lessee shall obtain the prior written consent of Lessor (which will
not be unreasonably withheld, delayed or conditioned) and the Port
Authority.
3. The
Lessor, at Lessor’s sole cost and expense, shall cause to be constructed the
Building Improvements, which shall include a one-story 80,000 square foot
building to be constructed in substantial accordance with the plans and
specifications therefor approved by Lessor and Lessee, a copy of which plans and
specifications is attached to this Lease as Exhibit “A” (the “Approved Final
Building Improvements Plans").
4. Lessor
shall obtain all permits necessary for the construction and installation of the
Building Improvements. Subject to any delay resulting from Force
Majeure Events, Lessor shall cause the construction of the Building Improvements
to be performed diligently and to completion. The construction of the
Building Improvements shall be performed in a first-class and workmanlike
manner, using only new and good grades of materials and equipment, in accordance
with (i) all applicable zoning and other ordinances, building codes and
regulations, statutes, ordinances, codes, standards, regulations, rules, orders,
decisions and requirements of all federal, state and local authorities
including, without limitation, the Americans with Disabilities Act of 1990 and
all regulations thereto issued by the U.S. Attorney General or other authorized
agencies under the authority of the Americans with Disabilities Act of 1990,
then in effect, as interpreted and applied by state and local governmental
authorities having jurisdiction over the Premises, and (ii) the Approved Final
Building Improvements Plans.
ARTICLE
IV
THE
GROUND LEASE
1. A
copy of the Ground Lease (which term shall also include the Primary Lease
identified in the Ground Lease) is attached hereto and marked Exhibit
"C."
2. During
the term of this Lease, and so long as no event of default has occurred and is
continuing hereunder, the Lessor, except as otherwise provided in this Lease,
grants to the Lessee all the rights of the Lessor under the Ground Lease to use
the Land described in Exhibit "B" and all rights granted to the Lessor pursuant
to the Ground Lease. Such grant, as limited by this Lease, is a part of the
Demised Premises. This Lease is specifically made subject to all the terms and
conditions of the Ground Lease.
3. Lessee
agrees to undertake and perform each and every act required of the Lessor to be
performed by the terms of the Ground Lease, including but not limited to the
timely payment of all rental and other charges and fees thereunder, and not to
do or omit to do anything which will breach the terms thereof. Lessor
agrees not to do or omit to do anything which will breach the terms of the
Ground Lease, and further agrees not to agree to any change in the terms of the
Ground Lease or exercise or fail to exercise or waive or release any right,
power or duty under the Ground Lease which will diminish the Lessee's right or
increase its liability thereunder without the written consent of Lessee
(including without limitation, the timely exercise of renewal and/or term
extension rights). Lessor shall promptly provide Lessee with a copy (in
accordance with Article XXV and also by facsimile) of all notices and
correspondence relating to the Ground Lease which Lessor believes may adversely
affect the rights of the Lessee in the Ground Lease granted hereby.
4. Notwithstanding
the grant to the Lessee pursuant to Paragraph 2 of this Article IV of the rights
of the Lessor in the Ground Lease and subject to Lessor's covenants and
obligations under Paragraph 2 of this Article IV, the Lessor reserves unto
itself the following rights under the Ground Lease:
(a) The
right and power to cure any default under the Ground Lease, and Lessor shall
thereupon give notice of such cure to the Lessee;
(b) The
exclusive right to exercise any right to renew or terminate the Ground
Lease;
(c) The
exclusive right to assign, sell, transfer, convey, mortgage, encumber or
hypothecate any part or all of its right, title and interest in the Ground Lease
subject, however, to this Lease;
(d) The
exclusive right to amend, alter or modify in the manner provided in the Ground
Lease any of the terms and conditions of the Ground Lease; and
(e) The
exclusive right to waive or release any right granted to Lessor as Lessee under
the Ground Lease.
Provided
that so long as Lessee is not in default hereunder beyond the expiration of all
grace and/or cure periods applicable thereto under this Lease, the Lessor shall
not exercise any right granted in this Paragraph in a manner that would diminish
the Lessee's rights granted hereby or increase its obligations hereunder as
reasonably determined by Lessee.
5. Lessee
shall conduct itself and its use of the Demised Premises in a manner consistent
with that required of Lessor (as Lessee under the Ground Lease), and Lessee
shall indemnify and hold the Lessor harmless from and against any and all loss,
cost, expense or liability (including reasonable attorney's fees) that may arise
from or be connected with the failure of the Lessee to do so (but only to the
extent such failure does not arise due to the act or omission of
Lessor).
6. Each
party agrees to give immediate notice (together with a facsimile copy thereof)
to the other of any action taken or threatened by the Port Authority of which
either party obtains any actual knowledge, whether by written notice or
otherwise, which might terminate or purport to terminate the Ground
Lease.
7. If
the Lessee shall fail to timely perform and undertake any acts or duties or
shall fail to timely make any payments required of it to be done or paid under
the Ground Lease and any such failure continues beyond the expiration of all
grace and/or cure periods applicable thereto under the Ground Lease, the Lessor
may undertake and perform such acts or duties or make such payments, and the
reasonable cost thereof shall become additional rental due hereunder within
fifteen (15) days after Lessor invoices Lessee therefor.
8. If
Lessor fails to timely perform and undertake any acts or duties or fails to make
any payments required of it to be done or paid under the Ground Lease and any
such failure continues beyond the expiration of all grace and/or cure periods
applicable thereto under the Ground Lease, Lessee may, but shall not he
obligated to, perform such acts or duties or make such payments, and Lessee may
deduct the reasonable cost thereof from any future monetary obligation(s) of
Lessee accruing hereunder.
9. Lessor
shall indemnify and hold Lessee harmless from and against any default under
either the Ground Lease or the Primary Lease which: (A) precedes this Lease;
and/or (B) arises from the demise and/or occupancy of the Demised Premises prior
to the approval of the Port Authority (or the demising party under the Primary
Lease) of this Lease.
10. Notwithstanding
anything herein to the contrary, Lessee shall not be bound to the following
provisions of the Ground Lease: Article II (Lease Term); the obligation to make
any improvements and Lessee shall not be required to remove any improvements at
the end of the term hereof as contemplated in Section 4.2 (Improvements);
Section 5.8 (Insurance); and Article VI (Termination), except Lessee shall not
act or fail to act in any manner which would be a breach of the Ground
Lease.
11. Notwithstanding
anything to the contrary contained in this Lease, Lessor agrees
that:
(a) Lessor
shall indemnify and hold Lessee harmless from and against any and all loss,
cost, expense or liability (including reasonable attorneys’ fees) incurred by
Lessee that may arise from or be connected with any claim or demand made or
action taken against Lessee by the lessor under the Ground Lease as a result of
any act (including an act of negligence or willful misconduct) or omission of
Lessor, its employees, contractors, agents or invitees except to the extent any
such act or omission was occasioned in whole or
in part by any act or omission of Lessee.
(b) Lessee
shall not be liable for the remediation of, or any loss, cost, damage or expense
arising out of, any environmental condition existing at the Demised Premises
prior to the Commencement Date.
(c) Lessee
shall not be liable for any of the obligations and liabilities of the lessee
under the Ground Lease that arise under Sections 5.4, 5.5 or 5.7 of the Ground
Lease except to the extent (and only to the extent) any of such obligations or
liabilities arise out of Lessee’s use, occupancy, maintenance or repair of or
alterations to the Demised Premises and such use, occupancy, maintenance, repair
or alteration is in violation of applicable local, state or federal laws and
regulations including, without limitation, environmental laws and
regulations. Lessor shall indemnify and hold Lessee harmless from and
against any and all loss, cost, expense or liability (including reasonable
attorneys’ fees) incurred by Lessee that may arise from or be connected with any
claim or demand made or action taken against Lessee by the lessor under the
Ground Lease pursuant to any of said Sections 5.4, 5.5 and 5.7 when Lessee has
no liability under any of said Sections pursuant to the terms of this
subparagraph (c).
(d) Lessee
shall not be responsible for paying the cost of any Site Assessment requested by
the lessor under the Ground Lease pursuant to Section 5.6 of the Ground Lease
unless such Site Assessment determines that there are Hazardous Materials or
Hazardous Materials contamination (as said terms are used and defined in the
Ground Lease) on the Demised Premises in violation of any environmental laws and
regulations and the presence of such Hazardous Materials or Hazardous Materials
contamination in violation of any environmental laws and regulations was
occasioned by any act or omission of Lessee.
ARTICLE
V
CONDITION
OF DEMISED PREMISES
By taking
possession of the Demised Premises, Lessee shall be deemed to have inspected
same and to have accepted the Demised Premises in their "then" and "as is"
condition. Notwithstanding the foregoing, Lessor does hereby
assign unto Lessee all warranties and guarantees it shall receive from its
contractor and contractor's suppliers with respect to the Demised Premises and
the construction and installation of the Building Improvements.
ARTICLE
VI
TERM
OF LEASE, CANCELLATION OF EXISTING LEASE
1. Lessee
is to have and to hold the Demised Premises under the terms and conditions
herein stated for a period commencing with the Commencement Date (as hereinafter
defined) and continuing thereafter for eighty-four (84) months plus the number
of days between the Commencement Date and the first day of the month immediately
succeeding the Commencement Date (the "Primary Term"). "Commencement Date" shall
be 12:01 A.M. of the date immediately succeeding the date of Substantial
Completion. "Substantial Completion" shall be midnight of the date upon which
the contractor who undertakes the erection of the Building Improvements issues
to the Lessor its statement that the Building Improvements are substantially
complete in accordance with the Approved Final Expansion Improvement
Plans. The Building Improvements shall be deemed to be substantially
complete when (i) there are no details of construction, mechanical adjustments
or decoration, or other items that materially interfere with Lessee’s use of the
Demised Premises remaining to be done and (ii) Xxxxxx County, Oklahoma has
issued all certificates of occupancy or other permits, if any, required by
applicable law for Lessee to occupy the Building Improvements.
2. Upon
the Commencement Date, the Existing Lease shall terminate and (i) Lessee shall
be entitled to a refund of Rent paid under the Existing Lease, pro rata, for the
period from the Commencement Date to the last day of the month in which the
Commencement Date occurs and (ii) the security deposit paid by Lessee under the
Existing Lease shall be returned to Lessee in accordance with the terms
thereof.
ARTICLE
VII
RENTAL
1. Lessee
hereby covenants and agrees to pay to Lessor a net rental for the Primary Term
(herein called the "Base Rental") over and above the other and additional
payments to be made by Lessee as hereinafter provided. The total Base Rental for
the Primary Term shall be the sum of Two Million Eleven Thousand Seven Hundred
Thirty-Three and 00/100 Dollars ($2,011,733.00). Base Rental shall be paid in
advance in monthly installments commencing the first day of the third
calendar month immediately succeeding the date of Substantial Completion to be
paid in advance on or before the tenth (10th) day of each and every month
thereafter through the Primary Term. Should the date of Substantial Completion
be a date other than the first day of a month, then Lessee shall pay Lessor rent
for the period from the date of Substantial Completion through and including the
last day of the month in which Substantial Completion occurs in an amount equal
to the amount obtained by multiplying (i) $24,533.33 by (ii) a fraction, the
numerator of which is the number of days remaining in the month in which
Substantial Completion occurs and the denominator of which is the number of days
in the month in which Substantial Completion occurs. References herein to "Rent"
shall mean Base Rental and any additional rent required to be paid
hereunder.
2. Installments
of Base Rental shall be paid as follows:
(a) For
the two (2) calendar months commencing the first month immediately succeeding
the date of Substantial Completion, the sum of Zero Dollars ($00.00) per
month.
(b) For
eighty-two (82) months commencing the third calendar month immediately
succeeding the date of Substantial Completion, the sum of Twenty Four Thousand
Five Hundred Thirty-Three and 33/100 Dollars ($24,533.33) per
month.
Installments
of Rental for any month Lessee shall hold over after the expiration of the
Primary Term shall be the sum of Thirty Six Thousand Four Hundred and No/100
Dollars ($36,800.00) per month.
ARTICLE
VIII
PUBLIC
UTILITY CHARGES
Lessee
shall, at its sole cost and expense, pay, or cause to be paid, all charges for
utilities furnished to the Demised Premises or to Lessee with respect to its
operations thereon during the term of this Lease, and Lessee will indemnify
Lessor and hold it harmless against any liability or damages for any such
separately-metered charges incurred by Lessee.
ARTICLE
IX
MAINTENANCE
AND REPAIR OF THE DEMISED PREMISES
1. Throughout
the term of this Lease, the Lessee, at its sole cost and expense, will take good
care of (i) the interior of the portion of the Building comprising a portion of
the Demised Premises which shall expressly include, without limitation, windows,
doors, lighting, utilities and utility conduits, plumbing and sanitary systems
within said portion of the Demised Premises, HVAC systems and equipment serving
solely the Demised Premises, security systems and all other improvements located
in, on or about the Demised Premises, and the parking areas and the routes of
ingress and egress located on the Demised Premises, and will make all necessary
repairs thereto except as otherwise provided in Article XIX and condemnation
alone excepted. When used in this Article, the term "repairs" shall include all
necessary replacements and renewals, but shall in all cases, be exclusive of all
Structural Components (as hereinafter defined) of the Demised Premises and the
Building except to the extent damaged by the negligence or willful misconduct of
Lessee, its agents, servants, employees or invitees and only to the extent not
covered by insurance maintained by Lessee. Lessee shall perform any
lawn maintenance required with respect to any lawn area located on the Demised
Premises. As used in this Paragraph 1, the term “Structural
Components” shall mean and refer to the roof, exterior siding, foundation, slab,
vertical support columns and roof trusses of the
Building. Notwithstanding anything to the contrary contained in
this Xxxxxxxxx 0, Xxxxxx’s obligations under this Paragraph 1 shall not include
making (i) any repair or improvement necessitated by the negligence or willful
misconduct of Lessor, its agents, employees, servants or contractors; or (ii)
any repair or improvement caused by Lessor’s failure to perform its obligations
under this Lease. Lessor shall at its cost, perform all maintenance
and repairs and make all replacements, additions and improvements required in
order to keep and maintain in good condition, order and repair the Structural
Components. Except for the Structural Components, Lessor shall not be
required to maintain or repair any portion of the Demised Premises.
2. The
necessity for and adequacy of repairs to the Demised Premises and the portions
of the Building and other areas to be maintained by Lessor and Lessee pursuant
to this Lease shall be measured by the then-prevailing standard for improvements
of similar construction and class at the Port of Catoosa, and such repairs
shall conform to all applicable laws, rules, regulations and restrictions,
including the Ground Lease.
3. The
Lessee shall keep the Demised Premises in a clean and orderly condition, free of
dirt, unsightly vegetation, rubbish, snow, ice and unlawful
obstructions.
4. In
case any dispute shall arise at any time between the Lessor and the Lessee as to
the standard of care and maintenance of the Demised Premises, such dispute shall
be determined by arbitration under the Oklahoma Uniform Arbitration Act,
provided that if the requirement for making repairs or replacements is imposed
by: (i) any governmental authority; (ii) any restrictive or affirmative
covenants imposed upon the Land, or by or through the Ground Lease; or (iii) by
or through the holder of any mortgage to which this Lease is subordinate, then
such requirement for repairs or replacements as they relate to the portions of
the Demised Premises that Lessee is responsible for maintaining and repairing
under this Article IX shall be complied with by the Lessee as required by 1 - 3
above, and shall not be considered an arbitrable dispute as contemplated by
this Article. The Lessee, however, shall have the right to dispute or contest
the validity, application or reasonableness of any requirement pursuant to 1 - 3
above, provided such contest or dispute does not breach or violate any of the
terms of any such mortgage or the Ground Lease.
ARTICLE
X
PAYMENT
OF TAXES, ASSESSMENTS, ETC,
1. Lessee
shall pay all taxes, assessments, and other governmental charges of any kind or
nature (collectively, "Taxes") which at any time during the term of this Lease
may be assessed, levied or imposed by any governmental authority upon or with
respect to the Demised Premises. It is intended that the Taxes to be
paid by Lessee hereunder shall include any taxes assessed against the Lessor to
the extent that they are measured by the value of the Demised Premises or the
value of the interest of the Lessor in the Ground Lease. Lessor
shall send Lessee a copy of any xxxx for Taxes and any other information
accompanying such xxxx received by Lessor within ten (10) business days after
Lessor receives such xxxx. All other taxes and charges with respect
to the conduct of the Lessee's business therein or any use or occupancy of the
Demised Premises, or with respect to or arising from the lease of property
pursuant to the Ground Lease, without regard to the person, firm, corporation or
partnership against which any such taxes may be assessed shall be paid in full
by the Lessee.
2. Lessee
shall timely pay all other charges, fees or assessments of the Port Authority
(including Ground Rent and the Port Security charges) in respect of the Demised
Premises or the use thereof by the Lessee.
3. Lessee
shall have the right to contest in good faith the amount or validity of any
Taxes or assessments required of it to be paid hereunder and the validity of any
legislative or administrative action or rule requiring the payment thereof. If
such payment may legally be held in abeyance, Lessee may postpone payment
thereof until the final determination of any such proceedings, anything herein
to the contrary notwithstanding.
4. Nothing
contained in this Lease shall require a party hereto to pay any estate,
inheritance, succession, or transfer tax of the other party hereto, nor to pay
any taxes of any kind whatsoever which are based upon or measured by income of a
party hereto.
ARTICLE
XI
COMPLIANCE
WITH LAW
1. Lessee
shall, during the Primary Term of this Lease, at its sole cost and expense,
comply with all valid laws, ordinances, regulations, orders and requirements of
any governmental authority which may be applicable to the Demised Premises, or
the use, manner of use or occupancy thereof, and which are specifically
attributable to the particular business conducted within the Demises Premises by
Lessee whether or not the same involve only non-structural repairs, maintenance
or alterations.
2. Lessee
shall have the right, by appropriate legal proceedings in the name of the Lessee
or Lessor, or both, but at Lessee's sole cost and expense and without liability
to Lessor, to contest the validity of any law, ordinance, order, regulation or
requirement, which would impact Lessee's use or occupancy of the Demised
Premises. Lessee may postpone compliance until final determination under such
proceedings provided such postponement does not breach the Ground Lease or the
terms of any mortgage to which this Lease is subordinate.
ARTICLE
XII
INSURANCE
1. From
and after the Commencement Date of this Lease, Lessor shall maintain, at its
expense, with insurers of recognized responsibility licensed to do business in
the State of Oklahoma, a policy or policies of all risk extended coverage
insurance covering the Building and all improvements appurtenant thereto
providing coverage in such amount as Lessor, in its commercially reasonable
judgment, deems sufficient to permit the repair and restoration of the Leased
Premises to substantially the same condition as existed prior to the occurrence
of any loss covered under such policy and providing protection against loss or
damage by fire and such other risks of a similar or dissimilar nature, as are or
shall be customarily covered with respect to buildings similar in construction,
general location, use and occupancy to the Building, including, but not limiting
the generality of the foregoing, flood, windstorm, hail, earthquake, explosion,
vandalism, damage from vehicles, smoke damage and such other damage as may be
deemed reasonably necessary by Lessor. Lessee shall promptly
reimburse Lessor for the cost of such insurance upon submission by Lessor to
Lessee an invoice therefore.
2. The
Lessee shall, without diminishing any other obligation it may have under this
Lease, cause to be maintained, at no cost or expense to the Lessor, commercial
general liability and property damage insurance covering claims for personal
injury or property damage with respect to Tenant’s activities and property in,
on and about the Demised Premises. Such insurance shall have limits
of not less than Two Million Dollars ($2,000,000.00) general aggregate
annually. Lessor may request that the amount such insurance
maintained by Lessee be increased from time to time during the term provided,
however, that Lessor may not request such an increase any more frequently than
once every three (3) years.
3. All
insurance provided by Lessee shall be effected under enforceable policies issued
by insurers of recognized responsibility licensed to do business in the State of
Oklahoma. At least fifteen (15) days prior to the expiration date of
any policy, a certificate evidencing the continuation of coverage shall be
delivered by the Lessee to the Lessor.
4. All
policies of insurance contemplated by Paragraph 2 above, shall name the Lessor,
the Lessee and such persons and entities as the Ground Lease or the holder of
any mortgage on the Demised Premises may require as additional insureds or loss
payees as their respective interests may appear. At the request of the Lessor,
any insurance policy contemplated herein shall be made payable to the holders of
any mortgage to which this Lease is at any time subordinate, as the interest of
such holders may appear, pursuant to a standard clause for holders of
mortgages.
5. All
policies provided by Lessee shall contain an agreement by the
insurers:
(a) that
any loss shall be payable to the Lessor or the holders of any such mortgage,
notwithstanding any act or negligence of the Lessee which might otherwise result
in forfeiture of such insurance;
(b) that
such policies shall not be canceled except upon thirty (30) days' prior written
notice to the Lessor, to all other insureds, and to the holders of any mortgage
to whom loss may be payable; and
(c) that
the coverage afforded thereby shall not be affected by the performance of any
work in or about the Demised Premises.
6. If
the Lessee provides any insurance required by this Lease in the form of a
blanket policy, the Lessee shall furnish satisfactory proof that such blanket
policy complies in all respects with the provisions of this Lease, and that the
coverage thereunder is at least equal to the coverage which would be provided
under a separate policy covering only the Demised Premises.
7. Notwithstanding
anything herein to the contrary, Lessor and Lessee each hereby releases the
other, its officers, directors, partners, agents and employees, to the extent of
the releasing party’s coverage under its insurance policies, from any and all
liability for any loss or damage which may be inflicted upon the property of
such party, notwithstanding that such loss or damage shall have arisen out of
the negligence of the other party, its officers, directors, partners, agents or
employees; provided, however, that this release shall be effective only with
respect to occurrences occurring during such time as the appropriate policy of
insurance of the party so releasing shall contain a clause to the effect that
such release shall not affect the said policy or the right of the insured to
recover thereunder.
ARTICLE
XIII
INSTALLATION
OF EQUIPMENT AND FIXTURES
Lessee
shall have the right, at any time and from time to time during the term of this
Lease, to install in and upon the Demised Premises, fixtures, machinery and
equipment, and to make repairs thereto, replacements thereof, and additions
thereto. Any fixtures, machinery and equipment so added shall be removed by the
Lessee prior to the termination of this Lease. When such fixtures, machinery and
equipment are so removed, the Lessee shall restore the Demised Premises to the
same condition such premises were in prior to such installation. Lessor may, at
its option, relieve Lessee from the obligation to remove any such fixtures,
machinery or equipment, and any such fixtures, machinery and equipment not
removed by Lessee shall become the property of Lessor.
ARTICLE
XIV
ALTERATIONS
AND IMPROVEMENTS BY LESSEE
1. Lessee
shall have the right, at any time and from time to time during the term of this
Lease, to make at its sole cost and expense and without any right to receive
reimbursement from the Lessor in respect thereof, any alterations or
improvements or additions to the Demised Premises or any part thereof, subject,
however, to the following conditions:
(a) No
alterations, additions or improvements shall be undertaken until Lessee shall
have procured all permits, licenses and other authorizations required for the
lawful and proper undertaking thereof.
(b) Any
such alteration, addition or improvement shall be made in a good and workmanlike
manner and in compliance with all valid laws, governmental orders and building
ordinances and regulations pertaining thereto, and shall be of a class and
standard comparable to the class and standard of construction then utilized at
the Port of Catoosa, but not less than the original standard and class of
construction of the Demised Premises.
(c) Lessee
shall maintain, at its sole cost and expense, general public liability insurance
and workmen's compensation insurance covering all persons employed in connection
with such work and with respect to whom death or injury claims could be asserted
against Lessor, Lessee or the Demised Premises.
(d) All
alterations, additions or improvements when completed shall be of such a nature
as not to reduce or otherwise adversely affect the value of the Demised
Premises, nor to diminish the general utility or change the general character of
the Demised Premises, or which would violate any of the provisions of the Ground
Lease.
(e) No
alterations, additions or improvements are to be made by Lessee without first
submitting to the Lessor and the Port Authority the plans and specifications
thereof, and without the written approval of the Lessor and the Port Authority
of such plans and specifications. Lessor's approval of such plans and
specifications shall not be unreasonably withheld, delayed or conditioned, and
Lessor shall assist Lessee in obtaining the Port Authority's approval
thereof.
(f) All
such alterations, additions and improvements shall be undertaken and completed
in substantial conformity with the plans and specifications approved by the
Lessor and the Port Authority.
(g) All
such alterations and improvements shall become and be the properly of the Lessor
and shall be subject to all the terms and conditions of this Lease.
(h) Two
(2) copies of as built plans and specifications shall be delivered to Lessor
within thirty (30) days after completion of each such alteration or improvement
and such copies shall become the sole and exclusive property of
Lessor.
ARTICLE
XV
LIENS
Lessee
agrees that it shall not create, permit or suffer an imposition of any lien,
charge or encumbrance upon the Demised Premises, or upon any interest of the
Lessor and Lessee in the Ground Lease or any part thereof, except liens, charges
and encumbrances created by Lessor and the lien of any taxes and assessments not
delinquent. Should any such lien be asserted or filed, Lessee shall
bond against or discharge the same in accordance with the requirements of
Oklahoma Statutes Section 42-147.1 within thirty (30) days after written request
by Lessor. The provisions of this Article XV shall not apply to any
mechanic’s, materialmen’s or other lien against the Demised Premises and/or
Lessor’s interest therein for any labor, services, materials, supplies,
machinery, fixtures or equipment furnished to the Demised Premises in connection
with any work performed by or for Lessor, and Lessor does hereby agree to
indemnify and defend Lessee against and save Lessee, the Demised Premises, and
any portion thereof harmless from all losses, costs, damages, expenses,
liabilities and obligations, including, without limitation, reasonable
attorneys’ fees and expenses, resulting from the assertion, filing, foreclosure
or other legal proceedings with respect to any such lien.
ARTICLE
XVI
ASSIGNMENT,
TRANSFER OR MORTGAGE OF LESSEE'S INTEREST
1. Lessee
shall not, without prior written consent of Lessor, which shall not be
unreasonably withheld, delayed or conditioned, sublet all or a portion of the
Demised Premises, or assign, transfer or mortgage this Lease or any interest
therein. Lessee acknowledges that the Port Authority, pursuant to the Ground
Lease, must also approve such assignment. Should Lessee sublet or assign this
Lease, Lessee and its Guarantor shall nevertheless remain liable to the Lessor
for the full payment of the Rent and Lessee's other obligations under this
lease.
2. Anything
to the contrary contained herein notwithstanding, Lessee may transfer, assign,
sublet, or change ownership of this Lease or Lessee's interest in and to the
Demised Premises (a “Transfer”) without the prior written consent of Lessor
to:
(a) an
affiliate, subsidiary or parent entity;
(b) any
entity it controls, is controlled by, or is under common control
with;
(c) any
entity in which it has a majority interest or of which it is manager;
or
(d) any
entity that succeeds to or obtains all or substantially all of its assets,
whether by merger, consolidation, reorganization, sale or otherwise (each, a
"Permitted Transferee"). Lessee shall promptly provide Lessor notice of such
Transfer. Lessee shall be relieved of any obligations under the Lease arising
after Transfer to a Permitted Transferee. Lessee may collaterally assign its
leasehold interest as security to a reputable lender without the prior written
consent of Lessor.
ARTICLE
XVII
INDEMNIFICATION
OF LESSOR
1. Lessee
hereby releases and discharges Lessor from, and shall fully protect, indemnify
and keep, hold and save Lessor harmless from and against any and all costs,
charges, expenses, penalties, damages and liability imposed for or arising from
the violation of any law or regulations of the United States, the State of
Oklahoma, and local authorities, or any of such entities' agencies and
instrumentalities, occasioned by any act or omission of Lessee or its
representatives, assigns, agents, servants, employees, licensees, invitees, and
any other person or persons occupying the Demised Premises under Lessee; and
Lessee shall further protect, fully indemnify and save forever harmless Lessor
from and against any and all loss, liability, cost, damage and expense incident
to injury (including injury resulting in death) of persons or damage to or
destruction of properly incident to, arising out of the negligence or misconduct
of Lessee (or Lessee's contractors, agents or invitee's) in connection with
Lessee's use and occupancy or rights of use and occupancy of the Demised
Premises (whether by omission or commission and irrespective of exclusive or
non-exclusive rights therein) including, but not limited to, the operation of
Lessee's business, the construction, erection, installation, existence, repair,
maintenance, alteration and/or demolition of any improvements, facilities,
and/or equipment or the conduct of any other activities, and which would not
have arisen but for the exercise or pursuit by Lessee of the rights and
privileges accorded by this Lease or the failure on Lessee's part in any respect
to comply with the requirements of this Lease, except such loss caused by the
act or negligence of the Lessor or its employees, contractors, agents or
invitees, and further except such loss caused solely by the Port
Authority.
2. In
the event that any action or proceeding shall be brought against Lessor by
reason of any claim covered by this Article, Lessee, upon written notice from
Lessor, will, at Lessee's sole cost and expense, resist or defend the same by
counsel approved in writing by the Lessor, which approval shall not be withheld
unreasonably.
ARTICLE
XVIII
REMEDIES
OF LESSOR
1. The
occurrence of any of the following shall constitute an event of
default:
(a) Lessee
shall fail to pay any monies which are required to be paid by Lessee under this
Lease and such failure shall continue for three (3) business days after Lessee's
receipt of written notice thereof; or
(b) Lessee
shall default in the performance or compliance with any of the other terms or
provisions of this Lease or the Ground Lease, and such default shall continue
for a period of fifteen (15) days after Lessee's receipt of written notice
thereof from Lessor or, in the case of any such default which cannot with due
diligence be cured within fifteen (15) days, Lessee shall fail to proceed
promptly after Lessee's receipt of such notice and with due diligence to cure
such default and thereafter to prosecute the curing thereof with due diligence
(it being intended that as to a default not susceptible of being cured with due
diligence within fifteen (15) days, the time within which such default may be
cured shall be extended for such period as may be necessary to permit the same
to be cured with due diligence). Provided, however, no period herein granted to
cure a default shall extend beyond a date five (5) days prior to the date that
the Lessor under the Ground Lease or the holder of any mortgage or mortgages
secured by the Demised Premises declares the default hereunder a default under
such Ground Lease or mortgage and Lessor shall separately notify Lessee in
writing of such five (5) day deadline at least five (5) days, and not more than
thirty (30) days in advance of such five (5) day deadline; or
(c) Lessee
shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt
or insolvent, or shall file any petition or answer seeking any reorganization,
composition, readjustment or similar relief under any present or future
bankruptcy or other applicable law, or shall seek or consent to or acquiesce in
the appointment of any trustee, receiver or liquidator of Lessee, or of all or
any substantial part of its properties; or
If,
within thirty (30) days after the filing of an involuntary petition in
bankruptcy against Lessee or the commencement of any proceeding against Lessee
seeking any reorganization, composition, readjustment or similar relief under
any law, such proceeding shall not have been dismissed, or if within thirty (30)
days after the appointment without the consent or acquiescence of Lessee or any
trustee, receiver or liquidator of Lessee, or of all or any substantial part of
its properties, such appointment shall not have been vacated or stayed on appeal
or otherwise, or if within thirty (30) days after the expiration of any such
stay, such appointment shall not have been vacated. For the purposes of this
paragraph, in lieu of obtaining the dismissal, vacation or stay of any of the
foregoing, Lessee may provide a reasonable bond or other securitization in favor
of Lessor.
2. Upon
the occurrence of an event of default, the Lessor at any time thereafter may
give written notice to the Lessee specifying such event of default and stating
that this Lease shall expire on the date specified in such notice, which shall
be at least thirty (30) days after Lessee's receipt of such notice, and upon the
date specified in such notice, this Lease and all rights of the Lessee hereunder
shall terminate.
3. Upon
the expiration of this Lease pursuant to paragraph 2 of this Article XVIII, the
Lessee shall peacefully surrender the Demised Premises to Lessor, and the
Lessor, upon or at any time after any such expiration, may, without further
notice, re-enter the Demised Premises and repossess it by force, summary
proceedings, ejectment, or otherwise, and may dispossess the Lessee and remove
the Lessee and all other persons and property from the Demised Premises and may
have, hold, and enjoy the Demised Premises and the right to receive all rental
income therefrom.
4. At
any time after any such expiration, the Lessor may relet the Demised Premises or
any part thereof, in the name of Lessor or otherwise, for such term (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 conditions (which may include
concessions or free rent) as the Lessor, in its reasonable discretion, may
determine and may collect and receive the rents therefor. Lessor shall in no way
be responsible or liable for any failure to relet the Demised Premises or any
part thereof or for any failure despite its reasonable efforts to collect any
rent due upon any such reletting.
5. No
such expiration of this Lease shall relieve the Lessee of its liabilities and
obligations under this Lease, and such liability and obligations shall survive
any such expiration. In the event of any such expiration, whether or not the
Demised Premises or any part thereof shall have been relet, the Lessee shall pay
to the Lessor the Base Rent and the additional rent, charges and expenses
required to be paid by the Lessee up to the time of such expiration, and
thereafter the Lessee, until the end of what would have been the term of this
Lease in the absence of such expiration, shall be liable to the Lessor for, and
shall pay to Lessor, as and for liquidated and agreed current damages for the
Lessee's default:
(a) the
equivalent of the amount of the Base Rent, charges, expenses and additional rent
which would be payable under this Lease by the Lessee if this Lease were still
in effect, less
(b) the
net proceeds of any reletting effected pursuant to the provisions of Paragraph 4
of this Article XVIII, after deducting all the Lessor's expenses in connection
with such reletting, including, without limitation, all reasonable repossession
costs, advertising costs, brokerage commissions, legal expenses, attorney's
fees, alteration costs, and expenses of preparation for such
reletting.
The
Lessee shall pay such current damages, herein called deficiency, to the Lessor
monthly on the days on which the Base Rent, charges, expenses and additional
rent would have been payable under this Lease if this Lease were still in
effect, and the Lessor shall be entitled to recover from the Lessee each monthly
deficiency as such deficiency shall arise.
6. At
any time after any such expiration, whether or not the Lessor shall have
collected any monthly deficiency, the Lessor shall be entitled to recover from
the Lessee and the Lessee shall pay to the Lessor, on demand, as and for
liquidated and agreed final damages for the Lessee's default, an amount equal to
the difference between the Base Rent, charges, expenses and additional rent
reserved hereunder from the date of expiration for the unexpired portion of the
Lease term and the then fair and reasonable rental value of the Demised Premises
for the same period. In the computation of such damages, the difference between
any Base Rent, charges, and expenses becoming due hereunder after the date of
expiration and the fair and reasonable rental value of the Demised Premises for
the period for which such Base Rent, charges and expenses were payable shall be
discounted to the date of expiration at the rate of six percent (6%) per annum
and to such sum shall be added all costs of Lessor in recovery thereof
including, but not limited to, a reasonable attorney fee. If the Demised
Premises or any part thereof is relet by the Lessor for the unexpired term of
this Lease or any part thereof, before presentation of proof of such liquidated
and agreed damages to any court or tribunal, the amount of rent reserved upon
such reletting shall, at the option of the Lessor, be deemed prima facie to be
the fair and reasonable rental value for the part or the whole of the Demised
Premises so relet during the term of the reletting.
7. In
addition to any of the foregoing remedies available to the Lessor under this
Article XVIII, the Lessor may pursue any other remedy or remedies available to
Lessor at law or in equity, including, but not limited to, recovery of
reasonable attorney's fees incurred by Lessor due to Lessee's breach hereof and
its costs of any actions undertaken to enforce Lessor's rights hereunder. All
remedies available to the Lessor hereunder may be pursued by the Lessor in one
or more causes of action, and the Lessor shall not be required to elect the
remedy or remedies it desires to pursue but may submit all remedies to the trier
of fact for purposes of determining damage and recovery.
8. The
Lessee hereby expressly waives, so far as permitted by law, the service of any
notice of intention to re-enter provided for in any statute or of the
institution of legal proceedings to that end. The Lessee, for and on behalf of
itself and all persons claiming through or under the Lease, also waives any
right of redemption or re-entry or repossession or to restore the operation of
this Lease in case the Lessee shall be dispossessed by a judgment or by order of
any court or judge, or in case of re-entry or repossession by the Lessor, unless
the Demised Premises has not been re-let at such time.
ARTICLE
XIX
CASUALTY
1. No
destruction or damage to the Building or other improvements on the Demised
Premises by fire, windstorm or any other casualty or occurrence whatsoever which
materially adversely interferes with Lessee's conduct of its business within the
Demised Premises shall entitle the Lessee to surrender possession of the Demised
Premises, to terminate this Lease, to violate any of its provisions, or to cause
any rebate or abatement in rent, charges, or expenses then due or thereafter
becoming due under the terms hereof.
2. Lessor
shall promptly repair, at no cost to Lessee, any casualty contemplated by
Paragraph 1 which may occur to the Demised Premises. However, should there occur
any casualty which materially adversely interferes with Lessee's conduct of its
business (as described in Paragraph 1 of this Article), Lessor may, within
ninety (90) days after said casualty elect not to rebuild or repair the Demised
Premises. Should Lessor make such election, this Lease shall terminate as of the
expiration of said ninety (90) day period. Notwithstanding anything
to the contrary contained in this Article XIX, if Lessor does not elect to
terminate this Lease and thereafter Lessor shall not have repaired such damage
or destruction within one hundred twenty (120) days of such damage or
destruction, upon the expiration of said one hundred twenty (120) day period,
Lessee may give Lessor thirty (30) days’ notice that it elects to terminate this
Lease. Upon expiration of such thirty (30) day period, if Lessor has
not completed such repairs, this Lease shall terminate and the Lessee shall
receive a refund of the security deposit and an abatement of all rent and other
sums paid by Lessee to Lessor hereunder from the date of such casualty event
through the effectiveness of Lessee’s termination notice.
ARTICLE
XX
RIGHT
OF ENTRY
Lessor
and its representatives may, upon reasonable prior notice to Lessee (which may
be oral), enter the Demised Premises at any reasonable time during Lessee’s
normal business hours when a representative of Lessee may accompany Lessor
and/or its representatives, for the purpose of inspecting the Demised Premises,
performing any work contemplated by this Lease to be performed by Lessor or
which the Lessor elects to undertake made necessary by reason of the Lessee's
default under the terms of this Lease, exhibiting the Demised Premises for sale,
lease (provided that Lessor may only exhibit the Demised Premises for lease
during the last twelve (12) months of the Primary Term) or mortgage
financing, or posting notice of non-responsibility under any mechanic's lien
law.
ARTICLE
XXI
SUBORDINATION
TO GROUND LEASE AND MORTGAGE
This
Lease shall be subject and subordinate at all times to the Ground Lease, the
lien of any mortgage which may now or hereafter affect the Demised Premises, and
to all renewals, modifications, amendments, consolidations, replacements and
extensions thereof; provided, however, that with respect to any lease, lien,
mortgage or other encumbrance which arises subsequent to the Commencement Date,
the subordination of this Lease shall be expressly conditioned upon the prior
receipt of a non-disturbance agreement in favor of Lessee, in a form approved by
Lessee in Lessee's reasonable discretion. Subject to the foregoing, the Lessee
will execute and deliver any instrument which may be reasonably required by the
Lessor in confirmation of such subordination promptly upon the Lessor's
request.
ARTICLE
XXII
ESTOPPEL
CERTIFICATE
1. The
parties agree that at any time, upon the request of the other party or its
lender(s), the requesting party will execute and promptly deliver to the other,
or any person or entity designated by the requesting party, a statement in
writing stating and certifying in substance as follows:
(a) That
the Lessee is in possession of the Demised Premises, together with all rights
and obligations attendant thereto pursuant to this Lease;
(b) That
there has been no modification of the rights, duties and obligations set forth
in this Lease (unless there has been such modification, in which event a copy or
copies thereof shall be furnished by the other party contemporaneously with
furnishing said certificate);
(c) That
the other party has no knowledge of any default by either party of any of the
rights, duties and obligations set forth in this Lease (or if there has been
default, specifying each such default of which the other party shall have
knowledge);
(d) Such
other matters as may reasonably be requested by the requesting party or its
lender(s).
2. The
parties hereby warrant that any such statement as may be given hereunder may be
relied upon by any party to whom such certificate is addressed. The
parties further specifically acknowledge that after delivery of such certificate
that party will be estopped from asserting any claim or defense it may have
which was known to that party prior to the date thereof and not specifically set
forth therein, as against any person, firm, corporation, or other entity to whom
such certificate is addressed.
ARTICLE
XXIII
ENTIRETY
This
Lease Agreement constitutes the entire understanding and agreement by and
between the parties hereto and supersedes any and all prior negotiations,
written or oral agreements, understandings, representations, warranties or
statements at any time made or had by and between the parties hereto. Except as
specifically provided by the terms of this Lease Agreement, there are no
covenants, agreements, understandings, warranties, or representations by and
between the parties hereto affecting any of the subject matters hereof or
binding upon either of the parties hereto.
ARTICLE
XXIV
QUIET
ENJOYMENT SUBJECT TO
EASEMENTS,
RIGHTS-OF-WAY AND RIGHTS OF USER
Lessor
agrees that Lessee, upon paying all rental and all other charges herein provided
for, and observing and keeping the covenants, agreements, terms and conditions
of this Lease on its part 'to be performed, including compliance with the terms
and conditions of the Ground Lease, shall lawfully and quietly hold, occupy and
enjoy the Demised Premises during the term of this Lease, and subject to its
terms without hindrance or molestation by Lessor, or by any other person or
persons claiming under Lessor, except for the Ground Lease, the mortgagee under
any mortgage to which this Lease is subordinate, those easements, rights-of-way
and rights of users to which the Demised Premises, the Ground Lease and the
property covered by the Ground Lease, are subject.
ARTICLE
XXV
MISCELLANEOUS
1. Any
notices under this Lease shall be given by (i) mailing the same by registered or
certified mail; or (ii) by hand delivery; to Lessor or Lessee, as the case may
be, addressed as
|
(a)
|
In
the case of notice to Lessee:
|
LMI
FINISHING, INC.
0000
Xxxxxxx Xxxx
Xx.
Xxxxxxx, Xxxxxxxx 00000-0000
Attention:
Xxxxxx X. Xxxx
Facsimile:(000)
000-0000
|
|
with
a copy to:
|
Gallop, Xxxxxxx & Xxxxxx, X.X.
000
X. Xxxxxx, Xxxxx 0000
Xx.
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx
X. Xxxxxx
Facsimile: (000)
000-0000
|
|
(b)
|
In
the case of notice to Lessor:
|
PORT
PARTNERSHIP-I, LLP
P.
O. Xxx 0000
Xxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxx X. Xxxxx Facsimile: (000) 000-0000
|
|
with
copy to:
|
Xxxxx,
Xxxxx & Xxxxxxx, Inc.
2600 Mid Continent Tower
000 X. Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
|
Either
party may, from time to time, change the foregoing address for notice by giving
notice to the other party in the manner provided in this Paragraph 1. Notice
shall be deemed received as of 12:00 noon the third business day following the
day such notice was mailed (or upon delivery or refusal of delivery, if hand
delivered) as above provided. Upon any notice being issued, a copy thereof shall
be contemporaneously faxed to the parties at the numbers provided
above.
2. The
parties agree that if it should ever be held by a court of competent
jurisdiction that any one or more sections, clauses or provisions of this Lease
are invalid or ineffective for any reason, any such section, clause or provision
shall be deemed separate from the remainder of this Lease and shall not affect
the validity and enforceability of such remainder.
3. The
covenants, terms, conditions and obligations set forth and contained in this
Lease shall be binding upon and inure to the benefit of Lessor and Lessee and
their respective successors and assigns.
4. The
article headings and captions contained herein are included for convenience only
and shall not be considered a part hereof or affect in any manner the
construction or interpretation of this Lease.
5. The
parties understand and agree that this Lease, its terms and conditions and any
interpretations thereof, shall be governed by the laws of the State of
Oklahoma.
6. The
parties will, at any time at the request of either one, execute duplicate
originals of an instrument in recordable form which will constitute a short form
or memorandum of lease, setting forth a description of the Demised Premises, the
term of this Lease and any other portions hereof, except the rent provisions,
that either party may request or as the applicable recording law may
require.
7. Except
as otherwise specifically provided herein, all acts, duties or payments required
of the Lessee to be made or done under this Lease shall be "timely" made or done
if completed or made not less than five (5) days prior to the date the failure
to make or do same would be a default under the Ground Lease or otherwise be a
default or delinquency. Upon individual written request, satisfactory evidence
of the performance of such acts, duties or payments shall be delivered to Lessor
by Lessee contemporaneous with the performance thereof.
8. Except
as otherwise provided in Article XXII, Estoppel Certificate, waiver by any party
of any breach or default of this Lease shall not be deemed a waiver of similar
or other breaches or defaults, nor shall the failure of any party to take any
action by reason of any such breach of default deprive such party of the right
to take action at any time while such breach or default continues. The rights
and remedies created by this Lease shall be cumulative and nonexclusive of those
to which the parties may be entitled at law and equity. Right of exercise of all
such rights and remedies is hereby reserved. The use and availability of one
remedy shall not be taken to exclude or waive the right to use of another. In
order to entitle any party to exercise any remedy reserved to it in this Lease,
it shall not be necessary to give any notice, other than such notice as is
herein expressly required.
9. In
the event either party initiates formal legal action in connection with the
enforcement or interpretation of this Lease, the prevailing party in such action
shall be entitled to reimbursement of reasonable attorneys' fees, expenses and
costs of suit.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Lease as of the day
and year first above written.
|
"LESSOR"
PORT
PARTNERSHIP-I, LLP
an
Oklahoma limited liability partnership
By:_____________________________________
Its_________________________________
|
STATE
OF OKLAHOMA )
)ss.
COUNTY OF
TULSA )
THE ABOVE
AND FOREGOING instrument was acknowledged before me this ______ day of
_________________, 2006, by __________________________________, ______________ ,
an _____________________, on behalf of the ___________________.
(SEAL)
________________________________________
Notary
Public
My
commission expires:
[Signatures
continued on following page]
|
"LESSEE"
|
|||||
|
LMI FINISHING, INC. an
Oklahoma corporation
|
|||||
|
By:_______________________________________
|
|||||
|
Xxxxxx
X. Xxxx
|
|||||
|
Its:________________________________________
|
|||||
STATE
OF )
)ss.
COUNTY
OF )
THE ABOVE
AND FOREGOING instrument was acknowledged before me this ______ day of
_________________, 2006, by Xxxxxx X. Xxxx, ________, President of LMI
Finishing, Inc., an Oklahoma corporation, on behalf of the corporation.
(SEAL)
________________________________________
Notary
Public
My
commission expires:
The
performance of the obligations of the Lessee or any Permitted Transferee
hereunder is Guaranteed by Lessee’s parent corporation, LMI Aerospace,
Inc.
|
LMI
AEROSPACE, INC.
|
|
By:_______________________________________
|
|
Xxxxxxxx
X. Xxxxxxxxx
|
|
Its
Chief Financial Officer
|
Exhibit C
CONTRACT
NO. 24244
LEASE
AGREEMENT
BETWEEN
THE
CITY OF TULSA-XXXXXX COUNTY PORT AUTHORITY
PORT
PARTNERSHIP, L.L.P.
July
1, 2004
|
RECITALS
|
1
|
||
|
ARTICLE
I.
|
PREMISES
|
1
|
|
|
1.1
|
Leased
Premises
|
1
|
|
|
1.2
|
Use
of Premises
|
1
|
|
|
1.3
|
Building
and Development Regulations
|
1
|
|
|
1.4
|
Acceptance
of Leased Premises in Present Condition
|
2
|
|
|
1.5
|
Covenent
to Build
|
2
|
|
|
ARTICLE
II.
|
LEASE
TERM
|
2
|
|
|
2.1
|
Primary
Lease Term
|
2
|
|
|
2.2
|
Renewal
Terms
|
2
|
|
|
2.3
|
Assignment
of Lease
|
2
|
|
|
ARTICLE
III.
|
RENTALS
|
3
|
|
|
3.1
|
Primary
Term Rentals
|
3
|
|
|
3.2
|
Additional
Rentals
|
3
|
|
|
3.3
|
Renewal
Term(s) Rentals
|
4
|
|
|
ARTICLE
IV.
|
IMPROVEMENTS
|
5
|
|
|
4.1
|
Notice
and Submission of Plans
|
5
|
|
|
4.2
|
Improvements
|
5
|
|
|
4.3
|
Utilities
and Services
|
5
|
|
|
4.4
|
Easements
|
5
|
|
|
4.5
|
Access
|
6
|
|
|
4.6
|
Signs
|
6
|
|
|
4.7
|
Lien
Claims
|
7
|
|
|
4.8
|
Inspection
and/or Repair of Premises
|
7
|
|
|
ARTICLE
V.
|
OPERATIONS
|
7
|
|
|
5.1
|
Pollution
Control
|
7
|
|
|
5.2
|
Compliance
with Laws and Regulations
|
7
|
|
|
5.3
|
Maintenance
of Adjoining Grounds
|
8
|
|
|
5.4
|
Indemnification
|
8
|
|
|
5.5
|
Use
Prohibition and Duties (Environmental)
|
8
|
|
|
5.6
|
Site
Assessments
|
9
|
|
|
5.7
|
Environmental
Indemnification
|
10
|
|
|
5.8
|
Insurance
|
10
|
|
|
ARTICLE
VI.
|
TERMINATION
|
11
|
|
|
6.1
|
Termination
|
11
|
|
|
6.2
|
Events
of Default
|
11
|
|
|
6.3
|
Cancellation
|
12
|
|
|
6.4
|
Right
of Re-entry
|
12
|
|
|
6.5
|
Holding
Over
|
13
|
|
|
6.6
|
Waiver
of Breach or Default Cumulative Remedies
|
13
|
|
|
ARTICLE
VII
|
MISCELLANEOUS
|
13
|
|
|
7.1
|
Examination
of Lessee’s Records
|
13
|
|
|
7.2
|
Lessor’s
Leasehold Interest
|
13
|
|
|
7.3
|
Reimbursement
of Survey Expense
|
14
|
|
|
7.4
|
Quiet
Enjoyment
|
14
|
|
|
7.5
|
Notices
|
14
|
|
|
7.6
|
Nondiscrimination
|
14
|
|
|
7.7
|
Navigability
|
14
|
|
|
7.8
|
Substitution
of Performance
|
14
|
|
|
7.9
|
Exhibits
and Attachments
|
15
|
|
|
7.10
|
Authority
|
15
|
|
|
7.11
|
Entire
Agreement
|
15
|
|
|
7.12
|
Captions
|
15
|
|
|
7.13
|
Severability
|
15
|
|
|
7.14
|
Successors
and Assigns
|
15
|
|
|
7.15
|
Governing
Law
|
15
|
|
|
7.16
|
Counterparts
|
15
|
|
|
EXECUTION
BLANKS
|
16
|
||
|
ACKNOWLEDGEMENTS
|
17
|
||
|
EXHIBITS
|
|||
AMENDED
AND RESTATED
LEASE
AGREEMENT
This
Lease Agreement (“Lease”) is entered into
effective July 1, 2004, between THE CITY OF TULSA-XXXXXX COUNTY PORT
AUTHORITY, an agency of the State of Oklahoma (“Lessor”), with offices at 0000
Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000, and Port Partnership, L.L.P. an Oklahoma
limited liability partnership (“Lessee”). Lessor and Lessee
are collectively referred to herein as the “Parties”.
W
I T N E S S E T H:
A. Lessor
is the governing body for and the sole and principal operator of a water port
terminal and related industrial park located in Xxxxxx County, State of
Oklahoma, referred to herein as the “Tulsa Port of Catoosa”. Lessor
operates the Tulsa Port of Catoosa in part under a Master Lease Agreement with
the City of Tulsa, Oklahoma, a municipal corporation (“City”).
X. Xxxxxx
desires to lease certain lands and/or facilities, comprising a portion of the
Tulsa Port of Catoosa, to industries involved in moving raw materials and
finished products in water commerce and to such other industries as may be
engaged in industrial activities.
C. Lessee
desires to lease a portion of the industrial park premises for the use and
purposes set forth in this Lease.
NOW, THEREFORE, for and in
consideration of the terms, covenants and conditions hereinafter set forth and
contained, the Lessor and Lessee mutually contract and agree as
follows:
ARTICLE I. PREMISES
1.1 Leased
Premises. Lessor hereby leases, and lets unto Lessee and
Lessee hereby leases and lets from Lessor a certain parcel and tract of land,
together with certain easements, located at and within the Tulsa Port of
Catoosa, comprising approximately 7.7 acres, together with improvements located
thereon, all of which real and personal property is referred to collectively as
the “Leased Premises”
and is more fully described on Exhibit “A”, attached
hereto and by this reference made a part of this Lease.
1.2 Use of Premises. The
Leased Premises are to be occupied and used by Lessee for sublease to LMI
Finishing, Inc., for a warehouse and distribution operation and to Oklahoma
Installation Company for manufacturing of commercial and household surfaces and
fixtures and the operation of services and conduct of business activities
related and incident thereto. In the event Lessee for any reason desires
hereafter to modify and/or change its use of the Leased Premises, the nature and
terms of such modified use, if approved by Lessor, shall be reduced to a written
agreement of the Parties and made a part of this Lease. Lessor agrees that it
will not unreasonably withhold or delay its consent to any proposed compatible
change in use. (The term’s of Lessor’s consent to sublease for both sublessees
are hereby incorporated into this agreement and attached as Exhibit
“D”.)
1.3 Building and Development
Regulations. Lessee covenants that any, every and all uses of the Leased
Premises hereunder shall comply with Lessor’s Building and Development
Regulations and certain provisions of its Master Plan of Development
(collectively the “Building and
Development Regulations”), copies of which are attached hereto designated
Exhibit “B” and by this reference made a part of this Lease. The Parties
understand that the Building and Development Regulations may from time to time
be amended and/or otherwise modified by Lessor. Lessor and Lessee agree that the
Building and Development Regulations in effect on the date Lessee shall have
submitted its improvement or premises utilization plans for approval, pursuant
to the provisions of Section 4.1, shall control Lessee’s construction efforts
and utilization of the Leased Premises (so long as such utilization is
substantially similar to that initially approved in connection with this
Lease).
1.4 Acceptance of Leased
Premises in Present Condition. Lessee acknowledges that it has inspected
the Leased Premises and accepts the same in its present condition “as is” and
that all terms and conditions of this Lease are fully binding upon Lessee as if,
and to the same extent that, the existing improvements had been made by Lessee
as original lessee.
1.5 RESERVED
ARTICLE
II. LEASE TERM
2.1 Primary Lease Term.
The primary term of this Lease (“Primary Term”) shall be for a
period of 10 years from and after July 1, 2004 (“Commencement Date”), and
terminating on June 30, 2014 unless otherwise terminated, renewed or extended
pursuant to other terms of this Lease. The term of the Lease, which includes the
Primary Term and all effective renewals and extensions, shall for convenience be
referred to as the “Lease
Term.”
2.2 Renewal Terms.
Provided Lessee is not in default and this Lease is otherwise in full force and
effect, Lessee is granted the option to renew this Lease upon the same terms and
conditions (subject to adjustment of rentals as set forth in Section 3.3 and
subject to modifications required to conform this Lease to the terms of Lessor’s
then current form of lease agreement), for two (2) additional term(s) of ten
(10) years each: such option to be exercisable upon the giving of written notice
of intent to renew by Lessee to Lessor not earlier than 180 days and not later
than 120 days prior to the expiration date of the then current primary or option
term.
2.3 Assignment of Lease.
Lessee shall not sublet, mortgage or pledge this Lease or any interest herein or
in the Leased Premises or any part of the same or assign this Lease or any
interests herein or portion hereof, nor shall any assignment of any interest(s)
of Lessee herein by operation of law or by reason of Lessee’s bankruptcy become
effective, without the prior written consent of the Lessor, which consent shall
not be unreasonably withheld or delayed. No sublease or assignment arrangement
conditionally consented to by Lessor shall be or become effective unless and
until Lessee has delivered to Lessor a written assignment and assumption
agreement by the sublessee or assignee in a form approved by Lessor, together
with adequate assurance of sublessee’s or assignee’s ability to perform, accept,
observe and be bound by each and all of the terms, provisions and stipulations
of this Lease provided in a form acceptable to Lessor in the exercise of its
sole discretion; and provided further, that any subletting or transfer shall not
extend beyond the Primary Term or permitted extension(s) hereof, nor shall any
subletting or transfer release or relieve Lessee of any obligations to Lessor
hereunder. Written approval shall not be required with respect to any mortgages,
assignments or pledges respecting any improvements for facilities constructed,
erected, installed or maintained by Lessee upon the Leased Premises except as
now or hereafter otherwise provided herein.
ARTICLE
III. RENTALS
3.1 Primary Term Rentals.
Lessee shall pay to Lessor lease rental during the Primary Term as
follows:
(a) RESERVED
(b) Monthly Rentals.
Commencing July 1, 2004, and continuing thereafter on the first day of each
consecutive month of the Primary Term, Lessee shall pay to Lessor the sum of
$2,781.63. Monthly rentals shall be adjusted during and after the Primary Term
in accordance with the other provisions of the Lease.
(c) RESERVED
3.2 Additional Rentals.
In addition to the rentals provided in Section 3.1, and as additional rental
charges, Lessee shall pay to Lessor the following sums:
(a) Security. Lessor will
contract to provide cooperatively financed and administered security services at
Tulsa Port of Catoosa on behalf of its lessees, invitees, operators and users.
Lessee agrees to pay its pro rata share of the costs of such security services
based on a degree-of-risk formula established by Lessor for all of Lessor’s
lessees. The Parties agree that no representations as to the adequacy of the
security services are made by Lessor. Neither Lessor nor its officers,
directors, agents, servants, representatives or employees shall be directly or
indirectly liable to Lessee for any losses or damage to Lessee’s property or to
the property of others for which Lessee may be liable, attributable to the acts
of third parties. The agreed upon contributions to be paid by Lessee for
security services shall be $246.40 per month, commencing the first day of the
month next following the month in which Lessee physically occupies the Leased
Premises or July 1, 2004, whichever occurs first, unless the Parties agree in
writing for Lessee to commence security contributions at a later date. The
agreed upon security cost may be modified by Lessor if the cost of providing the
services either increases or decreases during the Lease Term.
(b) Barge and Rail
Charges. Lessor and Lessee recognize the importance of having reliable
barge and railcar moving services readily available. Lessor and Lessee agree
that this service is currently provided by Lessor and the initial barge or
railcar placement costs are included in the rate prescribed by the barge owner
or railroad. Lessor and Lessee agree, however, that charges for initial
placements, as appropriate, and for any subsequent moves or shifting of a barge
or railcar for the convenience of Lessee shall be paid by Lessee at the rates
and in the manner established by the Port’s Operational Circular and, if done
after established working periods, such moves or shifts shall be paid by Lessee
at overtime rates established therefor.
(c) Other Charges. Lessee
shall also pay to Lessor, on the same payment dates provided in Subsection
3.1(b), all other sums and charges approved from time to time with the written
concurrence of the Parties to be set forth and stated on Exhibit “C”, attached
hereto and by this reference made a part of this Lease. Exhibit “C” may be
amended and replaced from time to time by agreement of the Parties, evidenced by
the signatures of their authorized representatives thereon. Lessee covenants to
timely prepare and deliver to Lessor accurate and certified reports of events
giving rise to other charges properly includable on Exhibit “C.”
(d) Taxes. Lessee agrees
to cause to be paid all taxes, levies, imposts and assessments which may be
legally made upon or levied and/or assessed against the Leased Premises, any
interests therein, and/or any improvements or property located thereupon before
the same become delinquent. Lessee shall have the right, at its sole cost and
expense and after having given Lessor prior written notice of its intent to do
so, to contest by appropriate legal proceedings diligently conducted in good
faith, the validity, amount or application, in whole or in part of such taxes,
levies, imposts and/or assessments, provided (i) the proceedings will suspend
the collection of the tax, levy, impost or assessment, (ii) neither the Leased
Premises, nor any rent therefrom, nor any portion of either is in danger of
seizure, forfeiture, sale, loss or similar consequences, and (iii) Lessee shall
first furnish Lessor and the City with security which in Lessor’s opinion is
adequate, satisfactory and sufficient to protect against loss, penalty, interest
or costs incurred by reason of the contest.
3.3 Renewal Term(s)
Rentals. Lease rentals covering each renewal period shall be negotiated
by the Parties and reduced to writing as an addendum or addenda to this Lease at
least 120 days prior to the commencement of each renewal term. Renewal period
rentals shall be paid by Lessee to Lessor in accordance with the procedure for
payment and adjustments set forth in Section 3.1. In the event the Parties
hereto cannot agree upon the amount of the renewal term lease rentals, then at
least 120 days prior to the expiration of the then existing term, the Parties
shall make a bona fide effort to agree upon the then fair market value of the
Leased Premises, exclusive of the value of any improvements made by Lessee
thereon. If the Parties are unable to agree upon said value, then at least 105
days prior to the expiration of such term the following procedure for
determining rental shall be followed:
(a) A
Board of Appraisers shall be appointed consisting of 1 member appointed by each
of the Parties and a third member appointed by the first two
appointees.
(b) The
Board of Appraisers shall thereupon, at least 15 days prior to the expiration of
such term, determine the then fair market value of the Leased Premises,
exclusive of the value of any. improvements made by Lessee thereon, and the
valuation fixed by the Board of Appraisers shall be conclusive and bind the
Parties.
Based
upon the fair market value of the Leased Premises, whether determined by
agreement or by Board of Appraisers, Lessee agrees to pay Lessor as rent for the
next succeeding term hereof an amount equal to 8% per annum of such fair market
value during said term, payable in the same manner as the installments during
the Primary Term of this Lease and subject to the provision for future
adjustment set forth in Subsection 3.1(c). If the Board of Appraisers shall not
have determined the fair market value of the Leased Premises at the time of the
commencement of the succeeding renewal term, Lessee may nevertheless continue
this Lease in effect by paying provisional lease rentals equal to the lease
rentals required during the immediately preceding term until such time as the
Board of Appraisers makes its determination. Upon such determination Lessee
shall, in order to continue this Lease in effect for the renewal period, within
30 days after receipt of notice of the determination, pay to Lessor the amount
by which the rental calculation pursuant to the determination of the Board of
Appraisers exceeds the provisional rental paid by Lessee retroactive to the
first day of the renewal term. To the extent to which the provisional lease
rentals paid by Lessee to Lessor exceed the amount of the determination of the
Board of Appraisers, Lessee shall be entitled to credit the overpayment to the
rentals next due under the Lease. Costs and expenses incident to an appraisal
pursuant to this Section shall be borne equally by the Parties.
ARTICLE
IV. IMPROVEMENTS
4.1 Notice and Submission of
Plans. Prior to the commencement of any construction at or upon the
Leased Premises, Lessee shall first cause Lessor to be given written notice of
the nature and extent of any specific improvements and/or improvement projects
proposed to be undertaken. Lessee shall submit to Lessor for review and approval
all of its architectural plans and drawings of proposed facilities and/or
improvements, together with such additional specifications as Lessor may
reasonably request. Lessee may not commence to construct any proposed
improvements until it has secured Lessor’s written approval which shall not be
unreasonably withheld or delayed. Lessor’s approval shall be based on compliance
with Lessor’s Building and Development Regulations (except as otherwise provided
in Section 1.3), the terms of this Lease, and all other applicable rules and
regulations of Lessor in effect at the time construction is
commenced.
4.2 Improvements. Except
as may otherwise be specifically provided in this Lease, all improvements,
including structures, electric power and light, water, telephone, sanitary
facilities, interior roadways, railways, spur tracks, sidings, turnouts and
accessory structures from and to the Leased Premises, including all chattels,
goods, tools, equipment and personal property, will be constructed, erected,
installed and/or maintained as between the Parties, at the sole expense and risk
of Lessee. Within a period of 60 days following the date of Lease termination,
Lessee, at its sole cost and expense, shall remove all of the improvements it
has constructed, installed on or attached to the Leased Premises and the Leased
Premises shall be reasonably restored by Lessee to their original condition. At
the election of Lessor, any and all property of the Lessee not timely removed by
Lessee from the Leased Premises shall become the property of Lessor. Certain
improvements, including but not limited to roadways, roadway material, parking
areas, railways, rail switches and/or turnouts, rail and track material, shell,
slag, gravel or concrete used to stabilize the soil, pavement, and underground
utilities shall remain in place and become the property of Lessor and may not be
removed by Lessee.
4.3 Utilities and
Services. Except as may otherwise be specifically provided in this Lease,
Lessee shall at its sole cost and expense provide for servicing the Leased
Premises and all improvements thereon with water, sewer, gas, electricity,
telephone or other utility services as may be required for the use and operation
of the Leased Premises. Lessee shall be responsible for all costs and charges in
connection with its utility installation and service and shall pay the same
promptly as the charges accrue to protect, fully indemnify and hold Lessor
harmless from and against any and all liability for such costs or
charges.
4.4 Easements. Lessor
agrees to grant to Lessee, when required by Lessee, nonexclusive easements over,
across and through Lessor’s unleased property which it has the right to grant
and which are reasonably necessary for the operation of Lessee’s facilities on
the Leased Premises or reasonably required by Lessee, including but not limited
to, the following:
(a) Access
to railroad lines and spurs, if any, located within the Leased Premises,
together with the right to place railroad track switches or turnouts necessary
to accommodate Lessee’s use of railroad trackage constructed and used by Lessee
at or upon the Leased Premises. All tracks, lines, spurs, switches and
turnarounds to be utilized by Lessee shall be identified on Exhibit “A” to be
considered a part of the Leased Premises covered by this Lease. Lessee hereby
grants to Lessor an easement and right to use for switching and/or storage of
railcars any trackage constructed by Lessee, provided that such use by Lessor
shall not interfere with Lessee’s use of such trackage.
(b) Connection
of water and sanitary sewer facilities as approved by the City of Tulsa Public
Works Department along designated routes as shown on the Master Plan of
Development and/or other relevant documents of Lessor for the Tulsa Port of
Catoosa.
(c) Connection
of telephone, electric and gas lines, as approved by the appropriate utility
companies, to those installed at or upon the Leased Premises.
(d) Connection
of streets and/or roads for vehicular traffic to roads immediately adjacent or
near the Leased Premises, subject to Lessor’s prior approval of any proposed
curb cuts and roadway improvements for the Leased Premises.
(e) Location,
placement and maintenance of production and/or handling pipelines connecting the
Leased Premises to wharves and/or barge mooring dolphins, as may be necessary
for Lessee’s activities and/or operations, to the extent the same are permitted
and approved by Lessor and upon payment or arrangements for payment to Lessor of
appropriate fees therefor.
Lessor
shall have no obligation to furnish any easement which would in the exercise of
its sole discretion interfere with the orderly development and/or utilization of
Lessor’s Industrial Park and/or Terminal Area, in whole or in part, nor shall
any easement exceed the height, depth or width reasonably necessary to permit
the reasonable operation of Lessee’s facilities on the Leased Premises. Any and
all easements in which rights shall be granted hereunder shall be described on
and made a part of Exhibit “A” to this Lease to be included within the Leased
Premises and the privileges extended to Lessee under this Lease.
4.5 Access. Lessor
covenants that so long as Lessee is not in default under any of the terms and
conditions of this Lease, Lessee shall have and enjoy the right of ingress and
egress in and to the Leased Premises with a nonexclusive right to use any
railroad, road, roadway or areas used in common by Lessor and/or its other
lessees by, about or adjacent to the Leased Premises; subject, however, to the
following provisions:
(a) This
Lease does not grant any tenancy in railroad, road, roadway or common area by,
about or adjacent to the Leased Premises.
(b) Lessor
shall have the right to relocate any railroad, road, roadways or common areas or
any portion thereof so long as the relocation does not deprive Lessee of access
to the Leased Premises for railroad, vehicular, barge and/or utility facilities
as are contemplated herein to be constructed by Lessee. Lessor shall have no
liability to Lessee for any damage or loss incurred by Lessee as a result of any
relocation which is not occasioned by the destruction, removal or relocation of
any of Lessee’s facilitates or improvements.
(c) Lessee
shall not use the railroad, roads, roadways or common areas, or any portions
thereof, in any way which would interfere with the use of the same by Lessor or
any of its lessees, operators, invitees or users.
4.6 Signs. Lessee shall
be entitled to erect, install and maintain on the Leased Premises identification
and advertising signs appropriate to its business. All Lessee’s signs at all
times shall be subject to the prior written approval of Lessor’s Port Director
as to location, size, shape, color and content.
4.7 Lien Claims. Lessee
covenants to unconditionally indemnify Lessor and the City, as fee owner of the
Leased Premises, from and against and save them harmless from any and all lien
claims of any nature whatsoever arising out of or in any manner connected with
the construction, installation, erection, maintenance, repair, occupancy, use
and/or operation of any improvements, facilities and/or equipment erected by
Lessee or any third persons on or about the Leased Premises. Lessee further
agrees that it shall, in the event any liens are filed encumbering the Leased
Premises, effect their removal and/or satisfaction. Lessee shall have the right,
at its sole cost and expense and after having given Lessor prior written notice
of its intent to do so, to contest by appropriate legal proceedings diligently
conducted in good faith, the amount, validity or application, in whole or in
part, of any lien(s), provided (i) such proceedings shall suspend the collection
of the lien(s), (ii) neither the Leased Premises nor any rent therefrom, or any
portion of either, would be in danger of attachment, forfeiture, loss or similar
consequence, and (iii) that Lessee shall first furnish Lessor and the City with
the security which in Lessor’s opinion is adequate, satisfactory and sufficient
to protect Lessor and the City from any loss, penalty, interest, cost or injury
incurred by reason of the contest. Except as otherwise provided hereinabove, at
Lessor’s request Lessee shall furnish Lessor with written proof of payment of
any item which would or might constitute the basis for a lien on the Leased
Premises or upon its interest in this Lease if not paid.
4.8 Inspection and/or Repair of
Premises. Lessor shall at all reasonable times be permitted and allowed
to enter the. Leased Premises to inspect the condition of the Lease Premises and
Lessee’s operations and/or improvements to determine compliance with the terms
of this Lease, and further, Lessor shall be permitted to make repairs and/or
engage in maintenance necessary in respect to any facilities as it may have
installed upon or about the Leased Premises. If the obligation to make repairs
and/or to engage in maintenance is Lessee’s hereunder and Lessor elects to
undertake to perform the same, then Lessee shall reimburse Lessor for the cost
of charges therefor upon receipt of invoices therefor.
ARTICLE
V. OPERATIONS
5.1 Pollution Control.
Lessee agrees that it shall not pollute the air, water or ground at or upon the
Leased Premises and/or in the vicinity of its operations or activities, and/or
at or upon other premises as it may by these covenants have the right to use or
occupy, whether or not in connection with others, in violation of applicable
governmental statute, rule or regulation and/or in violation of standards and/or
requirements as Lessor may from time to time reasonably and uniformly adopt in
pursuit of governmental regulations. In this connection, Lessee shall obtain and
maintain current all required permits, local, state and federal, needed to
construct facilities and/or conduct the operations or activities contemplated
under this Lease.
5.2 Compliance with Laws and
Regulations. Lessee’s exercise of rights and/or privileges extended
hereunder shall at all times be in full compliance with all applicable laws,
rules and regulations, including safety regulations, of the State of Oklahoma,
the United States and other governmental authorities now or hereafter having
jurisdiction and/or any of their duly empowered agencies and/or
instrumentalities. Lessee further agrees to comply with all applicable rules and
regulations of Lessor pertaining to the Leased Premises and the Tulsa Port of
Catoosa now in existence and hereafter promulgated for the general safety and
convenience of Lessor, its various tenants, invitees, licensees and the general
public, provided such rules and regulations shall not materially conflict with
the provisions of this Lease. A copy of all Lessee’s building permits, Corps of
Engineers and Coast Guard permits, licenses and similar authorizing documents
shall be provided by Lessee to Lessor as and when reasonably requested by
Lessor.
5.3 Maintenance of Adjoining
Grounds. As part of the consideration for this Lease, Lessee agrees to
regularly perform all “grounds maintenance” of the area between the Leased
Premises and the pavement of any road, bed of any railroad or centerline of any
rights-of-way within the boundaries of and abutting the Leased Premises. “Grounds maintenance” will
include keeping areas clean, mowed, orderly and free from debris and waste
materials. Lessor retains full rights to utilize the areas concerned, including
the right to grant easements for utilities, installation of signs, etc., and
Lessee shall not be deemed as having any tenancy in these areas. Any activities
by Lessor in exercising its rights in such areas shall not provide a basis for
Lessee’s claim for reimbursement. Lessor shall have the right to withdraw all or
part of Lessee’s responsibility under this Section 5.3, if Lessor so desires and
so informs Lessee in writing. In any instance in which construction of roads or
railroads has been commenced but not completed within or adjacent to the Leased
Premises, Lessee shall be responsible for ground maintenance of the areas
between the Leased Premises and existing road and railroad improvements as have
been or are in the process of being constructed in the adjoining rights-of-way
therefor. If no road or railroad improvements shall exist, Lessee shall maintain
the areas from the Leased Premises to the centerline of future roads and
railroads as are shown on the Tulsa Port of Catoosa Master Development Plan, and
as may be reflected in Exhibit “A”. Notwithstanding the requirements of this
Section, Lessee shall not be required to undertake ground maintenance with
respect to any areas between the Leased Premises and any road or railroad
improvements or rights-of-way therefor in excess of a 50-foot distance from the
Leased Premises.
5.4 Indemnification.
Lessee hereby releases and discharges Lessor and the City from and shall fully
protect, indemnify and keep, hold and save Lessor and the City harmless from and
against any and all costs, including, but not limited to, clean-up costs,
charges, expenses, penalties, damages (including contamination) and consequences
imposed for or arising from the violation of any law or regulations of the
United States, the State of Oklahoma, any local authorities, or any of such
entities’ agencies and instrumentalities (collectively “Governmental Authorities”),
occasioned, in whole or in part, by any act or omission of Lessee or its
representatives, assigns, agents, servants, employees, licensees, invitees, and
any other person(s) occupying under Lessee (except to the extent that any such
costs are attributable to the negligent or willful act or omission of Lessor or
the City, or their agents, servants, employees, licensees or invitees). Lessee
shall further protect, fully indemnify and save forever harmless Lessor and the
City from and against any and all liability, cost, damage (including clean-up
costs and contamination) and expense, incident to injury (including injury
resulting in death) of third parties or damage to or destruction of their
property incident to, arising out of or in any way connected with Lessee’s use
and occupancy or rights of use and occupancy of the Leased Premises (whether by
omission or commission and irrespective of exclusive or nonexclusive rights
therein) including, but not limited to, the operation of Lessee’s business, the
construction, erection, installation, existence, repair, maintenance, alteration
and/or demolition of any improvements, facilities and/or equipment or the
conduct of any other activities, and which would not have arisen but for the
exercise or pursuit by Lessee of the rights and privileges accorded hereby or
the failure on Lessee’s part in any respect to comply with the requirements
hereof, except as a loss occasioned by the negligent or willful act or omission
of Lessor or the City or their representatives, agents, servants or
employees.
5.5 Use Prohibition and Duties
(Environmental). Lessee covenants and agrees that it will not use,
generate, manufacture, produce, store, release, discharge or dispose of on,
under or about the Leased Premises or transport to or from the Leased Property
any Hazardous Materials, except in strict compliance with all applicable laws.
“Hazardous Materials”
shall mean (i) any “hazardous waste” as defined by the Resource Conservation and
Recovery Act of 1976 (42 U.S.C. . 6901, et seq.), as amended from
time to time, and regulations promulgated thereunder; (ii) any “hazardous
substance” as defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. , 9601, et seq.) (“CERCLA”), as amended from time
to time, and regulations promulgated thereunder; (iii) asbestos; (iv)
polychlorinated biphenyls; (v) underground storage tanks, whether empty, filled
or partially filled with any substance; (vi) any substance the presence of which
on the Leased Premises is prohibited by any applicable governmental requirements
and regulations; and (vii) any other substance which by any governmental
requirements requires special handling or notification of any federal, state or
local governmental entity in its collection, storage, treatment or disposal.
Lessee will keep and maintain the Leased Premises in compliance with, and shall
not cause or permit the Leased Premises to be in violation of any governmental
requirements and will not allow any other person or entity to do so. Lessee
shall allow Lessor to join and participate in, as a party if it so elects, any
legal proceedings or actions initiated in connection with violation of any
governmental requirements and Lessee hereby agrees to pay any attorneys’ fees
incurred by Lessor in connection therewith. Without Lessor’s prior written
consent, which shall not be unreasonably withheld, Lessee shall not take any
remedial action in response to the presence of any Hazardous Materials on,
under, or about the Leased Premises, nor enter into any settlement, agreement,
consent, decree or other compromise in respect to any claims regarding the
presence of Hazardous Materials. Lessor’s consent may be withheld, without
limitation, if Lessor, in its reasonable judgment, determines that remedial
action, settlement, consent or compromise might impair the value of the Leased
Premises; provided, however, that Lessor’s prior consent shall not be necessary
in the event that the presence of Hazardous Materials in, on, under or about the
Leased Premises either poses an immediate threat to the health, safety, or
welfare of any individual or is of such a nature that an immediate remedial
response is necessary, and it is not possible to obtain Lessor’s consent before
taking such action. In such event Lessee shall notify Lessor as soon as
practicable of any action so taken. Lessee agrees to (a) give notice to Lessor
immediately upon its acquiring knowledge of the presence of any Hazardous
Materials on the Leased Premises or of any hazardous substance contamination
with a full description thereof, (b) promptly comply with any governmental
requirement of removal, treatment or disposal of Hazardous Materials or
hazardous substance contamination and provide Lessor with satisfactory evidence
of compliance; and (c) provide Lessor, within 30 days after demand by Lessor, a
bond, letter of credit or similar financial assurance evidencing to Lessor’s
satisfaction that the necessary funds are available to pay the cost of removing,
treating and disposing of Hazardous Materials or hazardous substance
contamination and discharging any assessments which may be established on the
Leased Premises as a result thereof.
5.6 Site Assessments. If
Lessor shall have an objective reason to believe that there are Hazardous
Materials or Hazardous Materials contamination, such reason being based upon a
visible, apparent or documented condition of the Leased Premises or any
contiguous Leased Premises, then Lessor (by its officers, employees and agents),
at any reasonable time and from time to time, may first provide Lessee with
notice of its concern and request that Lessee retain a qualified industrial
hygienist approved by Lessor (the “Site Reviewers”) to perform a
Phase I site assessment and a Phase II site assessment, as required or
recommended in the Phase I report, (“Site Assessments”). If Lessee
fails to deliver the requested Site Assessment to Lessor within a prompt, yet
reasonable, period of time, then Lessor may contract for the services of Site
Reviewers to perform Site Assessments. The Site Assessments on the Leased
Premises will be reasonable in scope and based upon the suspected condition for
the purpose of determining whether there exists on the Leased Premises any
environmental condition which could reasonably be expected to result in any
liability, cost or expense to the owner, occupier or operator of such Leased
Premises arising under any state, federal or local law, rule or regulation
relating to Hazardous Materials. The Site Assessments may be performed at any
time(s), upon reasonable notice, and under reasonable conditions established by
Lessee which do not impede the performance of the Site Assessments. Site
Reviewers are authorized to enter upon the Leased Premises for such purposes.
Site Reviewers are further authorized to perform both above and below the ground
testing for environmental damage or the presence of Hazardous Materials on the
Leased Premises and such other tests on the Leased Premises as may be necessary
to conduct the Site Assessments in the reasonable opinion of the Site Reviewers.
Lessee will supply to the Site Reviewers such historical and operational
information regarding the Leased Premises as may be reasonably requested by the
Site Reviewers to facilitate the Site Assessments and will make available for
meetings with the Site Reviewers appropriate personnel having knowledge of such
matters. On request, the results of any Site Assessments shall be made fully
available to Lessee and Lessor. The cost of performing Site Assessments shall be
paid by Lessee, and if incurred by Lessor shall be paid by Lessee to Lessor upon
its demand. This monetary obligation shall constitute additional rental due on
demand made by Lessor.
5.7 Environmental
Indemnification. Regardless of whether any Site Assessments are conducted
hereunder, Lessee shall defend, indemnify and hold harmless Lessor and the City
from any and all liabilities (including strict liability), actions, demands,
penalties, losses, costs or expenses (including without limitation attorneys’
fees and expenses, and remedial costs), suits, costs of any settlement or
judgment and claims of any and every kind. whatsoever which may now or in the
future (whether before or after the termination of this Lease) be paid, incurred
or suffered by or asserted against Lessor or the City by any person or entity or
governmental agency for, with respect to, or as a direct or indirect result of,
the presence on or under, or the escape, seepage, leakage, spillage, discharge,
emission, or release from the Leased Premises of any Hazardous Materials or any
Hazardous Materials contamination or arise out of or result from the
environmental condition of the Leased Premises or the applicability of any
governmental requirements relating to Hazardous Materials (including without
limitation CERCLA or any federal, state or local so-called “Superfund” or
“Superlien” laws, statute, law, ordinance, code, rule, regulation, order or
decree). The representations, covenants, warranties and indemnifications
contained in this Section shall survive the termination of this
Lease.
5.8 Insurance. In
pursuit, but not in derogation of or by way of substitution for Lessee’s
obligations under Article V, Lessee shall at all times cause to be maintained at
its sole cost and expense minimum insurance coverage and policies with the
following prescribed terms:
(a) Commercial
General Liability Insurance with a combined single limit of $1,000,000 each
occurrence and $2,000,000 annual aggregate, applicable to bodily injury and
property damage, including pollution liability.
(b) The
Commercial General Liability Insurance shall be issued on an “occurrence” basis
and shall include coverage for all operations of Lessee, including independent
contractor’s coverage, blanket contractual liability and the policy will be
endorsed to eliminate exclusion for work, construction or demolition within 50
feet of railroad trackage, broad form property damage, including completed
operations, and, where applicable, property damage liability resulting from
blasting or explosion, collapse or structural injury and/or subsurface
operations. The policy shall not be modified to reduce the standard coverages
provided under a Commercial General Liability policy form. The pollution
liability endorsement may be on a “claims made” basis.
(c) Lessor
shall be designated as additional named insured under the policy required by
Lessor.
(d) As
respects all insurance policies applicable to this Lease, Lessee shall, prior to
the commencement of this Lease and upon the annual anniversaries, furnish to
Lessor certificates of insurance evidencing the maintenance of all coverages
required and the payment of premiums.
(e) Lessor
shall have the right to review Lessee’s insurance coverages, and/or to obtain
upon request certified copies of the insurance policies, periodically, to insure
full and adequate protection and to otherwise reasonably require additional
and/or other forms of coverage, in accordance with current generally accepted
coverages in the industry and/or within the Tulsa Metropolitan Area in respect
to operations and/or activities similar to those of Lessee, whether similar in
whole or in part. The cost of additional coverage and/or forms of coverage shall
be borne by Lessee.
(f) All
policies of insurance shall require that Lessor and Lessee be given 30 days’
prior written notice of any modification, termination and/or cancellation of
coverages.
(g) All
insurance policies shall be issued by an insurance company rated A (Excellent)
or better and be included in financial size category VII, or better, in Best’s Insurance
Guide, and be otherwise reasonably satisfactory to Lessor with respect to
form and content. If Lessee refuses or neglects to secure and maintain insurance
policies complying with the provisions of this Section, Lessor may, but shall
not be required to, secure and maintain insurance policies, and Lessee shall
reimburse Lessor for the cost thereof as additional rent, upon
demand.
(h) Lessee
shall not use the Leased Premises in any manner which would increase the
existing rates of insurance premiums paid by Lessor with respect to its
operations and activities at the Tulsa Port of Catoosa and/or in the vicinity of
the Leased Premises. If it nevertheless does so, then, at the option of the
Lessor, the full amount of any resulting increase in premiums, to the extent
allocable to the remaining rent for the year in which the increase is
recognized, may be added to the amount of rentals specified herein and shall be
paid by Lessee to Lessor commencing upon the monthly rental day next thereafter
occurring.
ARTICLE
VI. TERMINATION
6.1 Termination. Upon the
termination of this Lease, however termination may be brought about, whether by
expiration of the term hereof, or otherwise, Lessee shall quit and surrender the
Leased Premises to Lessor in good condition, excepting only natural wear and
tear from a reasonable use thereof and destruction of the Leased Premises by
covered peril and subject to the provisions of Section 4.2.
6.2 Events of Default:
The following shall be “events of default” under this Lease, and the terms
“events of default” or
“default” shall mean
whenever they are used in this Lease, any one or more of the following
events:
(a) Failure
or refusal of Lessee to pay or cause to be paid any lease rental, charges and/or
assessments hereunder or any installment thereof when due and the continuance of
such failure for a period of 10 days;
(b) Failure
by Lessee to perform any agreement, covenant, condition, obligation and/or
undertaking herein contained and/or to observe or comply with any of the terms,
provisions and conditions of this Lease;
(c) In
the event Lessee, before the expiration of this Lease, without the written
consent of Lessor, vacates the Leased Premises or abandons possession of all or
any portion thereof, or uses the same for purposes other than the purposes for
which the Leased Premises are let hereunder, or ceases to use the Leased
Premises for the purposes herein specified;
(d) Issuance
of execution against Lessee’s interest in this Lease or any legal process which
by operation of law would cause Lessee’s interest in this Lease to pass to any
person other than Lessee or its successor assignee pursuant to Section 2.3;
and/or
(e) Insolvency,
assignment for the benefit of creditors, adjudication as a bankrupt or the
appointment of a receiver for substantially all of the Lessee’s property and/or
Lessee’s interest in this Lease.
6.3 Cancellation. Save
and except for defaults occurring under Subsections 6.2 (a), (d) and (e), in
which cases no notice of default shall be required of Lessor, if any default
shall occur and continue unremedied or uncorrected for a period of 60 days after
Lessor shall have given Lessee notice in writing specifying the default, then at
the written option of Lessor this Lease and all Lessee’s interests and rights
hereunder shall immediately cease and terminate. In the case of a default
occurring under Section 6.2(b) which does not endanger or impair or threaten to
endanger or impair Lessor or any of its lessees or operators or any of their
facilities or operations and which is. remediable but will reasonably require in
excess of 60 days to remedy, if Lessee shall, upon receipt of notice of default
from Lessor, have notified Lessor of the probability of such delay and thereupon
undertaken to remedy with due diligence and reasonable dispatch, then
termination shall be stayed so long as, and only so long as, Lessee in good
faith continues its best efforts to remedy with due diligence and reasonable
dispatch.
6.4 Right of Re-entry.
Upon the termination of this Lease, however such termination is brought about,
whether by Lessor’s election to terminate under any one or more of the foregoing
provisions, or otherwise, Lessor may immediately, or at any time thereafter,
re-enter the Leased Premises without notice or demand and remove all persons and
things therefrom with or without legal process and without prejudice to any of
Lessor’s other legal rights, using such force as may be necessary or proper for
the purpose. Any and all claims for damages by reason of Lessor’s re-entry or
the form or manner of re-entry or the taking possession of the Leased Premises
are hereby waived as also are all claims for damage by reason of any proceedings
in the nature of execution, attachment, sequestration, forcible detainer or
other legal action which Lessor may employ to recover possession of the Leased
Premises or rentals and charges due. If upon Lessor’s re-entry there remains any
personal property of Lessee or any person holding under or through it pursuant
to Section 2.3, other than property as either or both shall hold as actual or
constructive bailee(s), Lessor may take possession of the property and sell it
at public or private sale without notice to Lessee, and this right to take and
sell shall be a prior lien and claim against the property, subject, however, to
any prior duly perfected third party encumbrance thereof Subject to any legal
and priority encumbrances, Lessor may, without obligation to do so take
possession of the property and hold it for the owners thereof or may place the
same in a public garage or warehouse, all at the expense and risk of the owners
thereof Lessee shall reimburse Lessor for any expenses it incurs in connection
with removal and storage of property upon Lessor’s presentment of invoices
therefor. If Lessor elects to take possession of the property and sell it, the
proceeds of sale shall be applied first to the costs of the sale, second to the
payment of the charges for storage, if any, and third to the payment of any
other amounts which may then be due from Lessee to Lessor, with the balance, if
any, to be paid to Lessee. Notwithstanding any re-entry upon default by Lessee
or a termination of this Lease occasioned by reason thereof, the lease rentals
due hereunder for the remainder of the then current lease term and such other
charges and/or obligations, if any as may be otherwise payable under this Lease,
shall be and become immediately due and payable and the liability of Lessee for
the full amount provided herein shall not be extinguished for the balance of the
term of this Lease. Lessee shall make good to Lessor any deficiency arising from
a reletting of the Leased Premises at a lesser rental than that hereinbefore
agreed upon. Lessee shall pay the rental deficiency each month as the amount
thereof is ascertained by Lessor, upon the presentment of invoices
therefor.
6.5 Holding Over. If
Lessee shall, with the consent of the Lessor, hold over after the expiration or
sooner termination of the term of this Lease, the resulting tenancy shall,
unless otherwise mutually agreed, be for an indefinite period of time on a
month-to-month basis. During any month-to-month tenancy, Lessee shall pay to
Lessor the same rate of rental as set forth herein, unless a different rate
shall be agreed upon, and Lessee shall be bound by all of the provisions of this
Lease insofar as they may be pertinent.
6.6 Waiver of Breach or Default
Cumulative Remedies. Waiver by either of the Parties of any breach or
default of this Lease shall not be deemed a waiver of similar or other breaches
or defaults, nor shall the failure of either of the Parties to take any action
by reason of any such breach or default deprive that party of the right to take
action at any time while the breach or default continues. The rights and
remedies created by this Lease shall be cumulative and nonexclusive of those to
which the Parties may be entitled at law and equity. The right to exercise all
remedies is hereby reserved. The use and availability of one remedy shall not be
taken to exclude or waive the right to use of another. In order to entitle
either of the Parties to exercise any remedy reserved to it in this Lease it
shall not be necessary to give any notice, other than notice expressly
required.
ARTICLE
VII. MISCELLANEOUS
7.1 Examination of Lessee’s
Records. Lessor shall at all reasonable times be permitted to examine
and/or audit and, to the extent necessary, duplicate Lessee’s books and records
maintained with respect to its operations and activities hereunder and/or
maintained in compliance with the terms and conditions of this Lease. In the
event books and records are maintained at other than Lessee’s local office
identified above, Lessee, upon the receipt of written notice by Lessor
specifying the nature and extent of its intended inquiry and/or examination,
agrees to immediately furnish Lessor with full, true and accurate copies of all
its books and records as may be appropriate thereto.
7.2 Lessor’s Leasehold
Interest. It is mutually understood and agreed by the Parties that: (i)
Lessor has only a leasehold interest in the property covered by this Lease which
has been granted to Lessor by the City, (ii) this instrument is a sublease and
the Parties are sublessees and sublessors as the case may be, (iii) this Lease
is subject to the terms and conditions of a lease from the City to Lessor, and
(iv):
(a) Lessor
is authorized to enter into this Lease for the primary and renewal terms
provided herein, pursuant to the terms of its lease with the City.
(b) The
lease between the City and Lessor dated June 22, 1971, has been modified
subsequent to the date of its original execution.
(c) This
Lease is generally in accordance with the Master Plan of Development of the Port
Authority, as amended, and as required in Article III of Lessor’s lease with the
City.
7.3 RESERVED
7.4 Quiet Enjoyment.
Lessor covenants that during the entire Lease Term and for so long as Lessee (i)
shall make timely payment of rentals due hereunder and (ii) shall perform all
covenants on its part to be performed, Lessee shall and may peaceably and
quietly have, hold and enjoy the Leased Premises.
7.5 Notices. All notices
under this Lease must be sent by United States mail, postage prepaid, addressed
as follows, except that either Party may by written notice given as aforesaid
change its address for subsequent notices to be given hereunder;
(a) Lessor:
|
THE
CITY OF TULSA-XXXXXX COUNTY PORT AUTHORITY
|
|
|
0000
Xxxxxxxx Xxxx
|
|
|
Xxxxxxx,
Xxxxxxxx 00000
|
(b) Lessee:
|
PORT
PARTNERSHP
|
|
|
x/x
Xxxxx Xxxxx
|
|
|
X.X.
Xxx 00000
|
|
|
Xxxxx,
Xxxxxxxx 00000
|
provided,
however, that payments made by Lessee may be sent first class mail, postage
prepaid, to Lessor at the address above given or paid in such other manner as
Lessor may designate. Any and all notices given by either of the Parties hereto
shall be deemed effective upon their receipt by the primary addressee, as set
forth hereinabove.
7.6 Nondiscrimination.
Lessee agrees that it shall not, with respect to its operations conducted on the
Leased Premises, discriminate against any employee or applicant for employment
because of race, color, religion, sex, age, national origin or handicap. Lessee
shall take affirmative action to ensure that applicants are employed, and
employees are treated during employment, without regard to race, color,
religion, sex, age, national origin or handicap. Such action shall include, but
not be limited to, the following: employment, upgrading, demotion, or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay or
other forms of compensation; and selection for training, including
apprenticeship.
7.7 Navigability. The
United States Corps of Engineers endeavors to maintain the water level in the
Tulsa Port of Catoosa channel at 532 feet above mean sea level. Lessor assumes
no responsibility for any increase or decrease in the water level caused by the
raising or lowering of the water level in the Verdigris River, the backwater
provided by said river in the channel, the erosion of water channel banks or
sediment.
7.8 Substitution of
Performance. If Lessee shall fail to do anything required to be done by
it under the term(s) of this Lease, except to pay rent and other charges, Lessor
may, after 30 days, written notice to Lessee, at Lessor’s sole option, do such
act or thing on behalf of Lessee, and upon notification of the cost thereof to
Lessor, Lessee shall promptly pay to Lessor the amount of that
cost.
7.9 Exhibits and
Attachments. All exhibits, attachments, riders and addenda referred to in
this Lease, together with the exhibits listed hereinbelow, are incorporated into
this Lease and made a part hereof by this reference for all intents and
purposes.
Exhibit
“A”: Leased
Premises
Exhibit
“B”: Building
and Development Regulations
Exhibit
“C”: Other
Charges
Exhibit
“D”: Consent
to Subleases
7.10 Authority. Each of
the Parties to this Lease represents to the other that it has taken all action
necessary to authorize the execution, delivery and performance of this Lease and
that it has executed and delivered all other documents as required herein and
that its representative who has signed this Lease has all requisite power and
authority to enter into this Lease and bind the party on whose behalf execution
is provided. Each of the Parties to this Lease represents and warrants to the
other that this Lease is the legal, valid and binding obligation of that Party,
enforceable in accordance with its terms and performance of said Party does not
require the consent of or approval of any other person, agency or court, and
will not conflict with, result in the breach of any term of, or constitute a
default under any material agreement or instrument to which that Party is party,
or to which that Party is subject.
7.11 Entire Agreement.
This Lease embodies the entire agreement between the Parties with respect to the
leasing and use of the Leased Premises. There are no representations, terms,
conditions, covenants or agreements between the Parties relating thereto which
are not mentioned or contained herein. This Lease shall completely and fully
supersede all other prior agreements, both written and oral, between the Parties
pertaining to the Leased Premises including but not limited to the agreement
dated August 1, 1983, as amended August 1, 2000. No party to any such prior
agreement hereafter will have any rights thereunder, and shall look solely to
this Lease for definition and determination of its rights, liabilities or
responsibilities or relating to the matters set forth herein.
7.12 Captions. The article
and section headings and captions contained herein are included for convenience
only and shall not be considered a part hereof or affect in any manner of the
construction or interpretation of this Lease.
7.13 Severability. The
Parties agree that if it should ever be held by a court of competent
jurisdiction that any one or more sections, clauses or provisions of this Lease
are invalid or ineffective for any reason, any such section, clause or provision
shall be deemed separate from the remainder of this Lease and shall not affect
the validity and enforceability of such remainder.
7.14 Successors and
Assigns. The covenants, terms, conditions and obligations set forth and
contained in this Lease shall be binding upon and inure to the benefit of Lessor
and Lessee and their respective successors and assigns.
7.15 Governing Law. The
Parties understand and agree this Lease, its terms and conditions, and any
interpretation thereof shall be governed by the laws of the State of
Oklahoma.
7.16 Counterparts. This
Lease may be executed in two or more counterparts, each of which when so
executed shall be deemed an original, and which together shall constitute one
and the same instrument.
IN
WITNESS WHEREOF, this Lease has been executed in multiple counterparts, each of
which, for all purposes, shall be deemed an original and all of which shall
evidence one agreement between the Parties.
|
LESSOR:
|
||
|
THE
CITY OF TULSA-XXXXXX COUNTY
|
||
|
PORT AUTHORITY, a State
Agency
|
||
|
[SEAL]
|
By:
|
|
|
(Vice)Chairman
|
||
|
ATTEST:
|
APPROVED:
|
|
|
(Assistant)
Secretary
|
By:
|
|
|
Port Authority
|
||
|
LESSEE:
|
||
|
PORT
PARTNERSHIP, L.L.P.
|
||
|
an
Oklahoma limited liability partnership
|
||
|
[SEAL]
|
By:
|
|
|
Managing
Partner
|
||
|
ATTEST:
|
||
|
(Assistant)
Secretary
|
||
|
This
Lease Agreement is approved and consented to as of April 4,
2005
|
||
|
CITY:
|
||
|
CITY
OF TULSA, OKLAHOMA,
|
||
|
a
Municipal Corporation
|
||
|
[SEAL]
|
By:
|
|
|
Mayor
|
||
|
ATTEST:
|
APPROVED:
|
|
|
|
By:
|
|
|
City
Clerk
|
City
Attorney
|
|
|
STATE
OF
OKLAHOMA )
|
|
|
)
|
|
|
COUNTY
OF
XXXXXX )
|
|
|
The foregoing instrument was
acknowledged before me on March 17, 2005, by Xxxxx X. Xxxxxxx, Chairman of
The City of Tulsa-Xxxxxx County Port Authority, a State agency, on behalf
of said agency.
|
|
|
Notary
Public
|
|
|
STATE
OF OKLAHOMA )
|
|
|
)
|
|
|
COUNTY
OF
TULSA )
|
|
|
The foregoing instrument was
acknowledged before me on March 15, 2005, by Xxxxxxx X. Xxxxxx, Xx.,
Managing Partner of Port Partnership, a Oklahoma LLP, on behalf of said
Partnership.
|
|
|
Notary
Public
|
|
|
My
commission expires: 04/02/2006
|
|
|
My
commission number: 02004213
|
|
|
STATE
OF
OKLAHOMA )
|
|
|
)
|
|
|
COUNTY
OF
TULSA )
|
|
|
The foregoing instrument was
acknowledged before me on April 4, 2005, by Xxxx XxXxxxxxx, Mayor of the
City of Tulsa, a municipal corporation, on behalf of said
corporation.
|
|
|
Notary
Public
|
|
|
My
commission expires: 7-12-2008
|
|
