EXHIBIT 10.5
CONFIDENTIAL TREATMENT REQUESTED
PLEASE AGREEMENT FOR COMMERCIAL USE PROPERTY ENTERED INTO, ON ONE HAND, BY
IMPULSORA TURISTICA DE OCCIDENTE, S.A. DE C.V., AS OWNER OF THE PROPERTY,
REPRESENTED HEREIN BY XX. XXXXXXXX XXXXXXXXX XXXXXXXXX AND HEREINAFTER REFERRED
TO AS THE "LESSOR", AND, ON THE OTHER HAND, BY HOTELERA QUALTON, S.A. DE C.V.,
REPRESENTED HEREIN BY XX. XXXXX XXXXX XXXXX AND HEREINAFTER REFERRED TO AS THE
"LESSEE".
RECITALS
The LESSOR declares through its legal representative that:
1) It is a Commercial Company legally incorporated pursuant to Mexican
law as evidenced by public deed number 4497 dated January 2, 1979, passed before
the faith of Xx. Xxxx Xxxxxxx Xxxxxx, Substitute Associate Notary to Notary
Public number 3 in the City of Guadalajara, State of Jalisco, recorded at the
Public Registry of Property and Commerce in the City of Puerto Vallarta,
Jalisco, under number 59 of the matriculation book and 143 of book 3, second
auxiliary tome 3 of the commerce section. Additionally, its corporate purpose
includes, among others, the following: "The operation, use and lease of hotels,
apartments, condominiums and residential homes and units, even those that
operate under the time-sharing scheme and of companies destined to provide
services such as restaurants, bars, night clubs, artisan commercial
establishments, jewelry, costume jewelry, antiques, perfume, gifts, decor and
other merchandise, commercial purchase and sales and commercial trading of all
kinds of movable and real estate property for the fulfillment of their corporate
purposes; and, in general, the execution of
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
all kinds of civil and commercial activities convenient to the company and
allowed by law that in one form or another facilitate and complement the
purposes of its administration.
2) It is free to make use of the possession of the property comprised
of land and constructions in the form of buildings as follows: towers A, B and
C; located on the plot of land marked with number two of zone one, located in
the hotel zone "Prolongacion Los Tules" in Puerto Vallarta, Jalisco, subject
matter of this agreement and recorded at the Public Registry of Property and
Commerce in that City under record 95o, of book 55, of section 1 at such
Registry.
3) Its representative has the sufficient powers to act as its
representative, which were granted on October 16, 1991, before the faith of Xx.
Xxxxxxx X. Xxxxxxx, Notary Public Num. 21 of the Federal District and that such
powers have not been revoked nor amended and that such powers have not been
limited to this date.
4) It executed on September 18, 1992 a separate agreement with the
LESSEE for the operation of the hotel described in this agreement, in which
LESSEE appears as the OPERATOR.
5) Hotel units have been sold during the past under the Time-Sharing
scheme, with a use between *** and *** years. That *** hotel units have been
placed on inventory, of which part thereof are currently in a conversion
process, which is why the available inventory for use and operation of hotel
rooms is *** units.
The LESSEE declares through its Legal Representative that:
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
1) It is a Commercial Company legally incorporated pursuant to Mexican
law as evidenced by public deed number 106800 dated September 18, 1992, passed
before the faith of Xx. Xxxxxxx Xxxxxxx y Xxxxxxx, Notary Public number 21 in
the Federal District, the recording of which is pending at the Public Registry
of Property and Commerce of the Federal District. Additionally, its corporate
purpose includes, among others, the following: "Purchase, sale, lease and
operation of hotels, motels, restaurants and related services, as well as
rendering administration and technical assistance services in the areas
described above."
2) Its representative has the sufficient powers to act as its
representative, which were granted on September 18, 1992 before the faith of Xx.
Xxxxxxx X. Xxxxxxx, Notary Public number 21 of the Federal District and that
such powers have not been revoked nor amended and that such powers have not been
limited to this date.
3) It executed on September 18, 1992 a separate agreement with the
LESSOR for the operation of the hotel described in this agreement, in which it
appears as the OPERATOR.
4) That it is aware of the "Time-Sharing" sale situation and commits to
providing the service to the buyers in exchange for the "maintenance fee" paid
by such buyers and which sum shall be set annually by the parties.
BOTH PARTIES declare that:
1) It is their intention to execute this lease agreement and obligate
themselves in the terms set forth hereunder, since it is in their best interest,
as follows:
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ARTICLES
ONE. SCOPE OF THE AGREEMENT.
The scope of this agreement is the property comprised of land and constructions
in the form of buildings as follows: towers A, B and C; located on the plot of
land marked with number two of zone one, located in the hotel zone "Prolongacion
Los Tules" in Puerto Vallarta, Jalisco, subject matter of this agreement and
recorded at the Public Registry of Property and Commerce in this City under
record 95o, 8260 of book 55, of section 1 at such Registry, and has the
following features:
LAND:
TOTAL AREA: 11,682.84 m(2)
CROSSING ROAD SECTION, LIMITS AND DIRECTION THAT IT FACES: On Calle del
Pueblo de Puerto Vallarta, 2.6 km from Tepic on the highway, on the sidewalk
facing the east.
MEASUREMENTS AND ADJACENT PROPERTIES:
TO THE NORTH: 92.00 m of private property
TO THE SOUTH: 146.00 m with Fiesta Americana Hotel
TO THE EAST: 100.00 m with private property and access road (120 m x 7.00 m
wide)
TO THE WEST: 98.00 m with the beach and rest areas
PANORAMIC FEATURES: View to the sea, to the Puerto Vallarta Bay.
HOUSING DENSITY. Hotel type.
CONSTRUCTION INTENSITY. ***
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
SERVICES AND/OR LIMITATIONS. ***
PROPERTY:
CURRENT USE: ***
***
***
***
TYPE OF CONSTRUCTION:
***
***
***
***
***
QUALITY AND CLASSIFICATION OF CONSTRUCTION. ***
TWO. The LESSOR gives the LESSEE a lease on the property described above. Such
lease shall include everything that de facto or by law pertains to the property
(both land and buildings edified on such land). As of the date of this agreement
and throughout its term and that of its extensions, if any, the LESSEE shall be
entitled to the exclusive possession of the property, operating equipment,
furniture, machinery, boilers, etc. leased.
THREE. USE OF THE PROPERTY
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
The property shall be used for commercial purposes as a hotel, including, in
addition to the rendering of hotel services, services such as restaurant, bar,
discotheque, events (party rooms, banquets, etc.), pool, dressers, tennis
courts, spa, gym and other similar services.
FOUR. RENT
***
***
***
The rent to be accrued as of the date notification is made, as set forth in the
preceding paragraph shall be *** per month for the year ***. Such rent shall be
paid within the first *** days of each month by LESSEE. LESSOR shall provide
LESSEE with receipts of rent payment pursuant to the tax requirements set forth
in law. ***
The monthly rent shall be paid at LESSOR's domicile within the
period set forth in the preceding paragraph. Payment shall be made in U.S.
Dollars or in Mexican currency at the exchange rate published by the Central
Mexican Bank for payment of obligations denominated in foreign currencies.
In the event that LESSEE does not timely pay the rent, LESSEE shall pay interest
at a rate of ***.
LESSEE may not withhold payment of the agreed upon rent unless LESSOR has
defaulted in its obligations hereunder and LESSEE were obligated to expend
necessary sums so that the property subject matter of this agreement is in
compliance with the purpose of this agreement the purpose for which it was
leased.
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
FIVE. TERM OF THE AGREEMENT
The term of this agreement is a compulsory *** period for both parties
commencing on the date of execution of this agreement.
The parties are entitled to extend the foregoing term through notice
addressed to the other party. In such case, the legal relationship shall be
deemed unaltered and shall not be understood as a novation of this agreement.
Each and every article contained in this agreement shall prevail during any
extension, with the sole exception of the updating of the rent in terms of
article FOUR. ***
SIX. The LESSEE shall not use the property for any other purposes than those set
forth in article TWO of this agreement.
SEVEN. The LESSEE may execute the modifications that LESSEE deems necessary for
the property in order to use such property for the purposes for which it has
been leased.
EIGHT. All repairs made to the property for its proper maintenance and
preservation during the term of this agreement, as well as all modifications to
which reference is made in the preceding article shall be borne by the ***.
NINE. LESSEE shall return the property, upon termination of this agreement, in
the same conditions in which it was delivered by the LESSOR, with the exception
of the modifications made to the property.
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
TEN. LESSOR commits to delivering the property to LESSEE in good and normal
conditions for its use. ***, both LESSOR and LESSEE shall collaborate in
preparing the Record of Delivery, which shall, by reference, be incorporated
herein.
ELEVEN. LESSOR commits to delivering the property at the time of execution of
this agreement with telephone, water, gas and electricity services, as well as
the applicable land use permits, license for the use of the federal
land-maritime zone, and further commits to pay for the services for which it is
responsible under law.
The payment of the contributions for water and electricity, as well as for
the renewal of the permits or the obtaining of new governmental permits
required for providing the property with the use for which it is destined
shall be the *** responsibility as of the date of execution of this agreement
and until its termination.
The payment of property tax and payments for the use of the Federal
Land-Maritime Zone shall be borne by the ***.
TWELVE. Articles THIRTEEN through TWENTY-SEVEN shall enter into force at the
time LESSEE notifies LESSOR in terms of article FOUR of this agreement.
THIRTEEN. ***
1) ***
2) ***
3) ***
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
4) ***
5) ***
6) ***
7) ***
8) ***
9) ***
FOURTEEN. All equipment, including furniture and fittings, plating, dinnerware,
stemware and linens and all other equipment required for the operation of the
hotel shall be deemed property of the ***. These equipment shall be described in
the Record of Delivery set forth in article TEN hereto.
FIFTEEN. REPLACEMENT OF OPERATING EQUIPMENT. *** shall replace the HOTEL
operating equipment during the term of this Agreement that *** deems convenient.
Such replacements shall be borne by the ***.
Such replacements, once installed and concluded, shall become part of the
HOTEL.
SIXTEEN. IMPROVEMENTS, ALTERATIONS AND/OR ADDITIONS. When improvements,
alterations and/or additions are to be made to the property, *** shall carry
them out. ***.
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
Such improvements, alterations and/or additions, once installed and concluded,
shall become part of the HOTEL.
SEVENTEEN. PREVENTIVE MAINTENANCE. *** shall maintain the HOTEL in good
operating conditions, notwithstanding reasonable wear and tear and damages
caused as a result of fires, riots, disasters, events of force majeure or acts
of God or other similar accidents. The expenses incurred by the *** in
maintaining and repairing the HOTEL for its proper functioning shall be borne
solely by the ***.
EIGHTEEN. STRUCTURAL CHANGES. If during the term of this agreement, *** sees the
need to make structural changes or repairs to the HOTEL for the proper
functioning of the HOTEL, or such structural changes are required pursuant to a
court order, legal or regulatory requirement in force or coming into force
during the term of this Agreement or pursuant to an express order of any
competent authority, *** shall implement such changes or repairs with the prior
written authorization of the ***.
In such an event, the structural changes and repairs shall be borne solely by
the ***, whom expressly so accepts the foregoing, and the structural changes
and repairs shall be implemented seeking to minimize hindrance to the HOTEL's
activities. In the event that the *** refuses to pay for such restructuring
expenses, *** shall pay such expenses ***.
NINETEEN. PERMITS AND LICENSES. All necessary permits and licenses and those
permits and licenses which are required for the operation of the HOTEL, by
regulations or administrative provisions, shall be obtained by the *** at its
expense and
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
shall be issued in its name. *** commits to maintaining such permits and
licenses in force during the term and extensions of this Agreement and shall be
responsible for the expenses incurred in connection therewith.
TWENTY. COMMITMENTS AND LIABILITIES. The provisions of this Agreement are not
intended to constitute an association or a company between LESSOR and LESSEE.
Consequently, the LESSEE's revenues and fees shall not be affected in any manner
whatsoever as a result of its hotel activities or operation of the property.
TWENTY-ONE. PERSONNEL. ***, at the time this article enters into force, shall
pay ***, the payroll and related expenses of all employees that intervene in the
hotel operation, such as Social Security, Infonavit, etc. ***. In this sense,
the *** hereby undertakes to grant the *** or the person designated by the ***
all general powers necessary in labor matters for the contracting, dismissal,
termination, selection, etc. of personnel, as well as powers to appear before
any labor authority, whether local or federal or judicial or administrative in
nature, or labor unions to defend its interests. *** shall determine the number
of employees.
It is hereby set forth and exclusively agreed that all personnel renders
services exclusively to the *** and are not employed by the ***.
*** shall not be liable for such personnel with respect to wages or
compensation to such employees, except for the provisions set forth in the
applicable labor laws.
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
TWENTY-TWO. INSURANCE. *** shall obtain, at its sole expense, insurance
denominated in Dollars of the United States of America covering any risk to
which the leased property is exposed, such as fire, lightning, earthquakes
and/or tremors and/or volcanic eruptions, hurricanes, hail and/or whirlwinds,
heavy seas and/or floods, explosions and acts of vandalism.
The value of the insured risk shall be determined by mutual agreement of the
parties hereto and shall never be less than the total insurable replacement
cost of the leased property damaged. The preferred beneficiary shall be the
***.
It is expressly agreed that in the event that such an incident were to occur,
the *** shall invest the proceeds from the insurance company in no more than
*** days from the date of the incident to reconstruct the leased property; in
the event the *** defaults on this obligation, the *** shall be entitled to
rescind this agreement and shall be further entitled *** the option of
rebuilding the property with its own funds, ***.
*** shall maintain at its sole expense, insurance that covers its civil and
objective liability vis-a-vis the public, as well as business interruption
insurance.
TWENTY-THREE. STANDARDS. During the term of this Agreement, the HOTEL shall
operate in like form as other similar businesses of the Qualton Hotel Chain,
maintaining the same standards of common order maintained in other businesses
under its management and ensuring good, efficient service, wholesome food and
courteous and kind treatment for its clients.
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
LESSEE may advertise the HOTEL as another hotel operated by the LESSEE's chain
and shall use the signs, trade names, and diagrams of its organization regarding
the HOTEL administration.
LESSOR acknowledges that it has no right whatsoever to the diagrams, insignias,
emblems, trade names, trademarks and other similar legally protected property
set forth and regulated by the intellectual and industrial property protection
laws applicable to the LESSEE, and that are used by the LESSEE in its hotel
operations. Furthermore, LESSOR acknowledges that at the termination of this
Agreement, LESSOR shall refrain from using the signs and trade names and shall
likewise make no statement or declaration that may induce the general public to
believing that the HOTEL continues under LESSEE management and that the LESSEE
continues to be affiliated in any manner whatsoever to LESSOR's system.
TWENTY-FOUR. SUCCESSORS AND ASSIGNEES. The parties agree that any change in
ownership of the HOTEL shall not affect the LESSEE's rights hereunder and LESSOR
expressly agrees that the new owner shall be aware of and shall assume all
obligations and responsibilities for which LESSOR is liable hereunder.
Upon executing the Trust Agreements, Mortgage Agreements or any other type of
liens, the LESSEE's rights as set forth hereunder shall be secured with respect
to their survival and continuity. Such rights shall survive regardless of the
fact that the LESSOR merges or consolidates itself with another company.
Therefore, in such event, the new company shall continue abiding by the terms
and conditions of this agreement.
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
In the event that the LESSOR receives any type of offer for the HOTEL and all
the facilities that are part of the HOTEL, LESSOR shall ensure that such offer
includes the acceptance of the terms and conditions hereunder by the future
owner.
Notwithstanding the foregoing, in the case set forth in the preceding paragraph,
the LESSOR shall notify the LESSEE in writing of the purchase offer in case
that, pursuant to the provisions of article 2447 of the Civil Code in force in
the Federal District, the LESSEE may exercise the preferential right granted in
article 2448 of such Civil Code. This right shall be exercised by the LESSEE
within 90 days following the date on which written notice is received from the
LESSOR.
If the LESSEE does not exercise its right within the period set forth in this
article, LESSOR may transfer the leased property to the third party, without
prejudice of the obligations set forth in the first paragraph of this article.
TWENTY-FIVE. LIENS. In the event that LESSOR is in need of obtaining a loan or
credit facility for financing HOTEL expansions, constructions and/or
refurbishments, LESSOR commits to obtaining from the lender its approval of the
contents of this Agreement and acknowledgment of such agreement in its terms and
conditions. If for any reason such lender were to acquire possession or
ownership of the property, such acquisition shall be deemed in acceptance of the
terms and conditions set forth hereunder.
TWENTY-SIX. PARTICIPATION OF LESSOR IN THE OPERATION. Pursuant to the agreement
of the parties herein, the LESSOR shall not be entitled during the term of this
agreement to request that LESSEE acknowledge circumstances, or implement
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
methods or systems that LESSOR deems are convenient for the better operation of
the HOTEL, since such matters shall be the sole responsibility of the LESSEE.
TWENTY-SEVEN. LESSEE may assign or sublet the leased property to one of its
affiliates or subsidiaries. LESSOR hereby grants its express consent as of the
date hereof to the foregoing. For the purposes of this article, affiliate or
subsidiary shall mean any company in which, due to shareholding position or
bylaw provisions or contractual provisions, the LESSEE is entitled to determine
the manner in which its administrative bodies are composed or administrative
decisions are made by such body. In the event that the LESSOR grants its consent
for subletting, the LESSEE shall remain liable to the LESSOR as if the LESSEE
continued using and enjoying the leased property; therefore, LESSEE agrees to
not execute sublease agreements for a period exceeding the term of this
agreement and to deliver to LESSOR, at the termination thereof, the leased
property free of any occupants and free of any liability towards its
sublessee(s). Concessions that by the very nature of the business need be
granted to third parties for providing additional services to guests are
expressly excluded from the foregoing.
TWENTY-EIGHT. ***.
***
1) ***
2) ***
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
3) ***
TWENTY-NINE. ***
***
THIRTY. JURISDICTION AND AUTHORITY OF THE COURTS
The interpretation and fulfillment of this agreement shall be governed, as
agreed by the parties, by the laws in force in the Federal District at the time
of execution of this agreement and by the courts sitting in the Federal
District. The parties hereby waive any forum that may be available to them by
reason of their current or future domiciles or otherwise.
For the purposes of this agreement, the parties designate the following as their
domiciles:
LESSOR: PLOT OF LAND MARKED WITH NUMBER
TWO OF ZONE ONE, LOCATED IN THE
HOTEL ZONE "PROLONGACION LOS TULES"
IN PUERTO VALLARTA, JALISCO
LESSEE: MONTERREY NUMBER 150
COL. XXXX, X.X. 00000
XXXXXX, D.F.
The parties declare that there is no error, fraud, bad faith or any other vice
of consent or violence at the time of execution of this agreement and that once
this agreement was read, they sign it on September 18, 1992.
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
LESSOR
/s/ Xxxxxxxx Xxxxxxxxx Xxxxxxxxx
---------------------------------------------------------------
XX. XXXXXXXX XXXXXXXXX XXXXXXXXX
LESSEE
/s/ Xxxxx Xxxxx Xxxxx
---------------------------------------------------------------
XX. XXXXX XXXXX XXXXX
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
