Exhibit 10.1
LEASE
PARTIES AND ADDRESSES
"TAA" TUCSON AIRPORT AUTHORITY
an Arizona nonprofit corporation
Attention: Director of Properties
Tucson International Airport
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
"Tenant" XXXXXXXX AEROSPACE TECHNOLOGIES, INC., a
Delaware corporation d.b.a. Renegade Ventures,
Inc.
P.O. Box 23009 Tucson,
Arizona 85734-3009
TABLE OF CONTENTS
Page
ARTICLE 1 -PREMISES 1
1.1 PREMISES 1
1.2 CONDITION OF PREMISES 1
1.3 ACCESS 1
1.4 SECURITY 1
1.5 PARKING 2
ARTICLE 2 -TERM 2
2.1 TERM 2
2.2 HOLDOVER 2
2.3 SURRENDER OF PREMISES 2
ARTICLE 3 - RENT AND CONTRACT BOND 2
3.1 BASERENT 2
3.2 COMMENCEMENT OF RENTAL OBLIGATIONS 3
3.3 INTEREST/ADMINISTRATIVE CHARGE 3
3.4 CONTRACTBOND 3
ARTICLE 4 - CONSTRUCTION OF IMPROVEMENTS 4
4.1 TITLE TO IMPROVEMENTS 4
4.2 APPROVAL OF PLANS, CONTRACTOR 4
4.3 COMPLIANCE WITH APPLICABLE REGULATIONS AND
APPROVED PLANS; STANDARDS OF CONSTRUCTION 4
4.4 LEASEHOLD MORTGAGE 4
4.5 COMPLIANCE WITH FAR PART 77 5
4.6 MECHANICS LIENS; PAYMENT BOND 5
4.7 PERFORMANCE BOND 5
ARTICLE 5 - USE OF PREMISES 6
5.1 PERMITTED USES; COVENANT TO OPERATE 6
5.2 INDEMNITY 6
5.3 DANGEROUS CONDITIONS 6
5.4 COMMUNICATIONS; INTERFERENCE WITH OPERATIONS OF
TAA 6
ARTICLE 6 - INSURANCE 7
6.1 INSURANCE REQUIRED 7
6.2 DEDUCTIBLE 8
6.3 MODIFICATION OF REQUIREMENTS 8
6.4 CERTIFICATES 8
6.5 ADDITIONAL INSURANCE 8
6.6 ADDITIONAL INSUREDS 9
6.8 USEOFPROCEEDS 9
-1-
TABLE OF CONTENTS
(continued)
Page
6.9 WAIVER OF SUBROGATION
6.10 INSURANCE BY TAA 9
ARTICLE 7 -UTILITIES 10
7.1 TENANT'S RESPONSIBILITIES 10
7.2 TAA'S RIGHTS AND RESPONSIBILITIES 10
ARTICLE 8 - REPAIR AND MAINTENANCE 10
7.1 REPAIR AND MAINTENANCE 10
7.2 CASUALTY TO PREMISES 11
ARTICLE 9 -TAXES 11
9.1 TENANT'S RESPONSIBILITY 11
9.2 PROTEST 12
ARTICLE 10 - RULES, REGULATIONS AND LAWS 12
10.1 COMPLIANCE WITH ALL APPLICABLE LAWS 12
10.2 NON-DISCRIMINATION 12
10.3 FEDERAL REGULATIONS; SAFETY AND SECURITY 13
10.5 STATE AND FEDERAL AVIATION REGULATIONS 13
10.6 EXCLUSIVE RIGHTS PROHIBITED 14
10.7 ENVIRONMENTAL LAWS 14
ARTICLE 11 - SUPERIOR RIGHTS 17
11.1 AGREEMENTS WITH UNITED STATES 17
11.2 RIGHTS OF GOVERNMENT DURING WAR OR NATIONAL
EMERGENCY 18
11.3 RIGHTS OF TAA 18
11.4 AGREEMENTS WITH CITY OF TUCSON 18
11.5 ABATEMENT OF OBLIGATION TO CONSTRUCT OR REBUILD 18
11.6 SUPERFUND CONSENT DECREE 19
ARTICLE 12 - RESERVATION OF AVIGATION EASEMENT 19
12.1 EASEMENT 19
12.2 STRUCTURES; ELEVATION LIMIT 19
12.3 USEOFPREMISES 19
ARTICLE 13 - ASSIGNMENT AND SUBLEASE 20
13.1 TAA'S CONSENT REQUIRED 20
13.2 NO RELEASE OF TENANT; FURTHER ASSIGNMENTS 20
13.3 CHANGES IN OWNERSHIP 20
13.4 LIABILITY OF ASSIGNEE/SUBTENANT 20
13.5 BANKRUPTCY 21
13.6 TAA'SFEES 21
TABLE OF CONTENTS
(continued)
Page
ARTICLE 14 - COMMISSIONS 21
14.1 REAL ESTATE BROKER COMMISSION 21
ARTICLE 15 - DEFAULTS AND REMEDIES 22
15.1 DEFAULT BY TENANT 22
15.2 REMEDIES OF TAA 23
15.3 REMEDIES CUMULATIVE 24
15.4 NO WAIVER 25
15.5 CONTENT OF DEFAULT NOTICE 25
ARTICLE 16 - TERMINATION BY TENANT 25
16.1 TERMINATION EVENTS 25
16.2 CURE 25
16.3 NO WAIVER 26
ARTICLE 17 - SURRENDER OF POSSESSION, CONDITION OF PREMISES 26
17.1 SURRENDER 26
17.2 GOOD CONDITION 26
ARTICLE 18 - MISCELLANEOUS 26
18.1 ENTRY UPON PREMISES; REVIEW OF RECORDS 26
18.2 SUCCESSORS AND ASSIGNS BOUND 26
18.3 ARTICLE HEADINGS 26
18.4 SEVERABILITY 27
18.5 APPLICABLE LAW 27
18.6 INDEPENDENT COUNSEL; CONSTRUCTION OF LEASE 27
18.7 COSTS AND ATTORNEYS' FEES 27
18.8 NOTICES; TENANT CONTACT 28
18.9 SURVIVAL 28
18.10 TIME IS OF THE ESSENCE 28
18.11 ADDITIONAL DOCUMENTS 28
18.12 NON-WAIVER 28
18.13 FORCE MAJEURE 29
18.14 AUTHORITY TO EXECUTE 29
18.15 EFFECTIVE DATE 29
RECITALS
A. TAA has leased from the City of Tucson, a municipal corporation, the
airport known as Tucson International Airport located in Pima County, State
of Arizona (the "Airport").
B. Tenant desires to sublease from TAA the property consisting of
approximately 59,000 square feet, illustrated on Exhibit A attached hereto
(the "Premises"), which Premises are of a portion of the building
("Building(1)') located at 7001 5. Park, Tucson, Arizona.
COVENANTS AND CONDITIONS
ARTICLE 1- PREMISES
1.1 PREMISES
TAA does hereby demise and let unto Tenant, for its exclusive use and
occupancy, and Tenant does hereby lease from TAA, the Premises, together
with all improvements thereon, subject to all utility easements and rights
of way that encumber the Premises.
XXX agrees that so long as Tenant shall timely pay the rent and other
charges required to be paid hereunder and perform all of its other
obligations under this Lease, Tenant shall peaceably have and enjoy the use
of the Premises without hindrance from TAA.
1.2 CONDITION OF PREMISES
Tenant accepts the Premises from TAA in As Is condition, with no warranty
or representation, express or implied, of any kind, relating to the
condition of the Premises or improvements thereon whether or not known or
disclosed.
Should Tenant desire any inspection report, environmental assessment,
survey, creation of a legal description, drainage report, or any
similar study, Tenant shall be responsible for the same at Tenant's
sole expense.
1.3 ACCESS
Tenant is granted the right of reasonable access to the Premises over
such other portions of the Airport as are necessary to provide
reasonable access to and from the Premises. TAA reserves the right to
designate the location of such access and to change its location from
time to time, as TAA deems reasonably necessary and appropriate.
1.4 SECURITY
By executing this Lease, Xxxxxx is deemed to acknowledge and is hereby
advised that the Building houses additional rental spaces and tenants.
Tenant is responsible for securing Tenant's Premises, and neither TAA
nor its agents or employees shall be responsible for any loss of or
damage to Tenant's possessions while stored on the Premises.
1.5 PARKING
Tenant shall be entitled to utilize the parking areas associated with
the Building in common with other tenants. TAA reserves the right, but
shall not be obligated, to assign specific parking spaces to tenants.
ARTICLE 2 - TERM
2.1 TERM
The term (the "Term") of this Lease shall commence on March 1, 2005
(the "Commencement Date") and terminate one year thereafter.
2.2 HOLDOVER
If Tenant holds over after the expiration or earlier termination of
this Lease without the express written consent of TAA, Tenant shall
become a Tenant at sufferance only, at a rental rate equal to two
hundred percent (200%) of the rent in effect upon the date of such
expiration or termination, and shall be subject to the terms, covenants
and conditions of this Lease. Acceptance by TAA of rent after such
expiration or termination shall not result in a renewal or extension of
this Lease. The foregoing provisions of this Section are in addition to
and do not affect TAA's rights specified herein or any rights of TAA
provided by law for such holding over. If Xxxxxx fails to surrender the
Premises upon such expiration or termination despite TAA's demand to do
so, Tenant shall indemnify and hold TAA harmless from all loss, claim
or damage TAA incurs, including without limitation, a claim made by a
successor tenant for failure to provide possession of the Premises and
any attorney's fees and costs incurred by TAA related thereto.
2.3 SURRENDER OF PREMISES
Upon the expiration or earlier termination of this Lease, Tenant shall
(a) peaceably surrender the Premises and all alterations and additions
thereto, (b) broom clean the Premises, (c) remove all trade fixtures,
(d) leave the Premises in good order, repair and condition, reasonable
wear and tear excepted, and (e) comply with any other provisions
herein.
ARTICLE 3 - RENT AND CONTRACT BOND
3.1 BASERENT
X. Xxxxxx covenants and agrees to pay TAA rent during the Term beginning
on the Commencement Date in an amount equal to $204,000.00 per year
(the "Base Rent") as periodically adjusted herein, in equal monthly
installments.
B. Tenant covenants and agrees to pay TAA for utilities provided to the
Premises as provided in Section 7.1.
3.2 COMMENCEMENT OF RENTAL OBLIGATIONS.
The first installment of rent shall be due upon the Commencement Date
hereof. In the event that the Commencement Date is a day other than the
first day of the month, the first payment shall be prorated to reflect
the number of days remaining in the applicable calendar month.
Subsequent installments shall be due, in advance, on the first day of
each succeeding calendar month during the Term of this Lease. Any
invoice provided by TAA is for courtesy only, and any failure of TAA to
send such an invoice shall not relieve Tenant of its obligation
hereunder to pay the rent in a timely manner.
3.3 INTEREST/ADMINISTRATIVE CHARGE
Payments not received when due shall accrue interest from the due date
at the rate of one and one half percent (1.5%) per month. In addition,
if any payment due hereunder is more than ten (10) days past due,
Tenant shall pay TAA an amount equal to five percent (5%) of such
payment as an administrative charge to help offset the administrative
burden created by late payments.
3.4 CONTRACT BOND
On or before the Commencement Date hereof, Tenant shall furnish an
unconditional, irrevocable letter of standby credit, in a form
reasonably acceptable to TAA, or such other security approved by TAA to
assure the faithful and full performance by Tenant of this Lease and to
stand as security for the payment by Tenant of any valid claim by TAA
against Tenant. The letter of credit shall be drawn in favor of TAA
upon a bank that is satisfactory to TAA and that is authorized to do
business in Arizona. Such irrevocable letter of credit shall be in an
amount equal to three months' rent, shall be in a form that is
satisfactory to TAA and shall remain in effect without interruption
during the Term of this Lease and sixty (60) days thereafter. If the
term of the letter of credit is less than the Term of this Lease,
Tenant shall deliver to TAA written notice from the bank of its renewal
no later than sixty (60) days before the stated expiration of the
letter of credit.
As an alternative to the letter of credit, Tenant shall have the option
of furnishing TAA with a valid surety bond, in an amount equal to three
months' rent, issued in a form reasonably acceptable to TAA. The bond
shall be issued by a surety company which is an admitted insurer in the
State of Arizona qualified to do business in the State of Arizona and
acceptable and satisfactory to TAA. The surety bond shall be maintained
and kept by Tenant in full force and effect during the Term of this
Lease and sixty (60) days thereafter and shall be conditioned to assure
the faithful and full performance by Tenant of this Lease and to stand
as security for the payment by Tenant of any valid claim by TAA against
Xxxxxx. The surety company may issue the performance bond for a term of
one (1) year and may renew said performance bond annually; provided,
however that Tenant shall deliver written notice of such renewal from
the surety company to TAA no later than sixty (60) days before the
stated expiration of the bond.
Nothing herein shall be construed to limit any other legal rights or
remedies which TAA may have against Tenant.
ARTICLE 4 - CONSTRUCTION OF IMPROVEMENTS
4.1 TITLE TO IMPROVEMENTS
All existing permanent improvements on the Premises are the property of
TAA. Any additional permanent improvements constructed on the Premises
shall, upon installation, become the property of TAA subject to the
lease between TAA and the City and subject to Tenant's rights pursuant
to this Lease.
4.2 APPROVAL OF PLANS, CONTRACTOR
Tenant shall not construct or substantially alter or modify any
buildings, structures, or other improvements on the Premises without
TAA's prior written approval of its plans and specifications, which
approval shall not be unreasonably withheld. Items of normal repair and
maintenance and minor, non-structural alterations and modifications
need not be submitted to TAA for approval. TAA's approval shall not
constitute an opinion or warranty that the improvements comply with
local building codes or any other applicable law and Tenant shall
indemnify and defend TAA from all claims relating thereto.
Tenant shall not use a contractor, for construction on the Premises, to
which TAA has reasonable objections. Tenant shall, prior to commencing
any construction on the Premises, submit to TAA the name of the
contractor that it proposes using for the project. If TAA does not
notify Tenant, in writing, within ten (10) days thereafter, that TAA
objects to the contractor, TAA will be deemed to have approved the
contractor selected by Tenant. If TAA does so notify the Tenant, the
Tenant will select another contractor that is acceptable to TAA.
Approval of a contractor by TAA does not constitute an endorsement of
that contractor.
4.3 COMPLIANCE WITH APPLICABLE REGULATIONS AND APPROVED PLANS; STANDARDS OF
CONSTRUCTION
Tenant must comply with all guidelines, minimum standards, and rules
and regulations of TAA regarding construction of any improvements on
the Premises and with all applicable laws, regulations, and ordinances,
whether federal, state or local, including all applicable building,
electrical, and fire codes. Tenant shall indemnify and hold harmless
TAA from and against any cost, expense, loss, or liability incurred by
it as a result of any violation by Tenant of any applicable law,
ordinance, or regulation in the construction of improvements on the
Premises. Any improvements built by Tenant on the Premises shall comply
in all respects to the plans and specifications previously approved by
TAA pursuant to Section 4.2 above, and shall be constructed in a good
and workmanlike manner, free of material defects.
4.4 LEASEHOLD MORTGAGE
TAA agrees that it will consent to a mortgage or deed of trust on
Xxxxxx's leasehold interest hereunder granted to a lending institution
to secure a loan, the proceeds of which will be used entirely to pay
for the construction of improvements on the Premises; provided,
however, that the language of such mortgage or deed of trust and of all
related
documents that require the execution, approval, or consent of TAA shall
be subject to the prior review and approval of legal counsel for TAA,
and that all legal fees incurred by TAA in connection with such legal
counsel review and approval shall be paid by Xxxxxx. The leasehold
mortgagee, upon taking possession or upon foreclosure or taking an
assignrnent in lieu thereof shall be liable for all future rents and
obligations hereunder and shall attorn to TAA.
4.5 COMPLIANCE WITH FAR PART 77
Tenant shall comply with the notification and review requirements
covered in Part 77 of the Federal Aviation Regulations in connection
with any improvements or modification or alteration of improvements on
the Premises.
4.6 MECHANICS' LIENS; PAYMENT BOND
Tenant shall promptly pay all entities supplying labor or materials in
connection with any construction by Tenant on the Premises and shall
obtain waivers of mechanics and materials liens from such contractors
and suppliers as a condition of such payment Tenant further agrees to
indemnify and hold TAA harmless from the imposition of any mechanics',
materialmen's or other similar liens imposed against the Premises or
Xxxxxx's interest therein as a result of any action or inaction by
Tenant or Tenant's employees, agents, or contractors. In the event that
a lien is recorded against the Premises as a result of the construction
or improvement thereof Tenant shall cause the lien to be removed
pursuant to A.R.S. ss.33-1004 within fifteen (15) days of notice to
either TAA or Tenant of the lien. If Tenant fails to timely remove the
lien, TAA may, but shall not be obligated to, cause the removal of the
lien. Tenant shall reimburse TAA for all costs and fees incurred by TAA
and associated therewith including, without limitation, attorneys' fees
and costs within five (5) days of receipt of notice from TAA of such
costs and expenses.
Tenant shall, in addition, prior to commencement of any construction,
require the contractor to provide a labor and materials payment bond in
the full contract amount to protect claimants supplying labor and
materials in connection with the construction. The bond shall comply in
all respects with the requirements of A.R.S. ss. 33-1003 as it may be
amended or renumbered from time to time. The bond shall be issued by a
surety company acceptable to TAA and duly licensed for such undertaking
in the state of Arizona and shall be accompanied by a power of attorney
disclosing the authority of the person executing it on behalf of the
surety. The bond and a copy of the contract shall be recorded in the
office of the Pima County Recorder as required under A.R.S. ss.
33-1003, and a copy of the bond shall be provided to the President/CEO
of TAA.
4.7 PERFORMANCE BOND
Tenant shall, in addition, prior to commencement of any construction,
require the contractor to provide a performance bond in the full
contract amount conditioned upon the faithful performance of the
contract in accordance with plans, specifications and conditions
thereof. The bond shall be in a form reasonably acceptable to TAA;
shall be issued by a surety company acceptable to TAA and duly licensed
for such undertaking in
the state of Arizona; and shall be accompanied by a power of attorney
disclosing the authority of the person executing it on behalf of the
surety.
ARTICLE 5 - USE OF PREMISES
5.1 PERMITTED USES; COVENANT TO OPERATE
The Premises leased exclusively to Tenant hereunder may be used for
storage and warehousing of aircraft parts; provided that such use(s)
comply with all applicable FAA regulations, zoning restrictions, and
all other applicable laws, rules and regulations, and for no other
purpose, without TAA's written consent.
5.2 INDEMNITY
Xxxxxx agrees to fully indemnify and save and hold harmless TAA and the
City of Tucson from and against all claims, fines, damages, penalties,
actions and all expenses, including reasonable attorneys' fees
incidental to the investigation and defense thereof, related to or
arising out of the use, occupancy, or maintenance of the Premises by
Tenant, its agents, employees, subtenants or contractors. TAA shall
give to Tenant prompt and reasonable notice of any such claims or
actions against it covered by this indemnity and Tenant shall have the
right to investigate, compromise and defend the same. Any counsel
retained by Xxxxxx to investigate, compromise or defend any claims,
fines, damages, penalties or actions shall be acceptable to TAA in its
sole and absolute discretion, and TAA expressly retains the right to
join in any investigation, compromise and defense should it deem such
action necessary or appropriate.
5.3 DANGEROUS CONDITIONS
Xxxxxx agrees to exercise reasonable care when using the Premises and
all improvements thereon to discover and promptly remedy any conditions
that may pose an unreasonable risk of harm to members of the general
public or that may constitute a violation of law. If an unsafe,
defective or dangerous condition, or violation of the law is
discovered, Tenant warrants that no one other than Tenant and TAA
employees, agents and representatives will be admitted to the Premises
and no property belonging to any party other than Tenant and TAA will
be transported to, collected at or stored upon the Premises until the
unsafe, defective or dangerous condition, or violation of law is
corrected.
5.4 COMMUNICATIONS; INTERFERENCE WITH OPERATIONS OF TAA.
Tenant acknowledges that TAA has special safety and operational
concerns regarding TAA's communication ability at the Airport.
Therefore, Tenant shall operate any and all of its communications
equipment (wired or wireless) in a manner that will not cause
interference to TAA's operations of the Airport. Upon any notification
from TAA, the FAA or the police or fire departments of any interference
caused by Xxxxxx's operation, Tenant shall cease and desist all
communications operations, transmissions and uses related to the
Premises. Tenant may not resume communications operations until TAA has
so notified Tenant in writing. If such interference persists, or if TAA
deems it necessary for the orderly development of the Airport, TAA may
require the relocation of
Tenant's communications equipment to other locations with the Airport
which are reasonably suitable for the purposes and uses for which this
Lease has been entered into by Tenant. Should such relocation be
necessary, Xxxxxx agrees, at Xxxxxx's sole cost and expense, to move
its improvements and all other communication equipment to the new
location within ninety (90) days of written notice by XXX.
ARTICLE 6 - INSURANCE
6.1 INSURANCE REQUIRED
At all times during the Term of this Lease (except as otherwise
provided), Tenant shall obtain and maintain in full force and effect,
with a company or companies authorized to transact the business of
insurance in the State of Arizona, of sound and adequate financial
responsibility, with a rating of at least A-, VII, from A.M. Best Co.,
in Best's Rating Guide, selected by Xxxxxx and reasonably acceptable to
TAA, the following insurance (either as part of any other policy or
policies carried by Tenant, or separately):
A. Builder's Risk Insurance
During any construction on the Premises by Tenant (whether new
construction or remodeling, renovation, restoration or repair), Tenant
shall keep, or cause the contractor performing such construction to
keep, the improvements being built, remodeled, or restored, insured
under builder's risk insurance (or similar insurance) in the amount of
the cost of construction of the improvements.
B. Liability Insurance
A comprehensive insurance policy or policies providing for the
protection of Tenant against:
(1) general liability, including all direct or contingent loss or
liability for damages for bodily injury, personal injury, death
or damage to property, including loss of use thereof, occurring
on or in any way related to the Premises or occasioned by reason
of occupancy by and the operations of Tenant or any sublessee,
guest or invitee upon, in and around the Premises including but
not limited to any elevators and escalators therein and any
sidewalks, streets or public ways adjoining the Premises, with
limits of $3,000,000 per occurrence for personal injury or death
or damage to property, with coverage at least as broad as that
provided by INSURANCE SERVICES OFFICE COMMERCIAL GENERAL
LIABILITY COVERAGE form CGOOO1 (Occurrence Form), and such policy
or policies shall cover all of Tenant's operations on the entire
Premises, including but not limited to any elevators and
escalators therein and any sidewalks, streets or other public
ways adjoining the Premises; and
(2) automobile liability covering owned, non-owned, leased and hired
vehicles with combined single limits of no less than $1,000,000
per occurrence.
C. Workers Compensation; Employers Liability
(1) Workers compensation coverage and limits as statutorily required
by the state of Arizona and all other applicable states of
operation.
(2) Employers Liability limits of at least $1,000,000 per accident.
6.2 DEDUCTIBLE
The deductible for any policy required hereunder shall not exceed
$1,000.
6.3 MODIFICATION OF REQUIREMENTS
TAA may adjust or increase liability insurance amounts and requirements
as TAA deems reasonably necessary, or as may be required because of
changes in the insurance requirements imposed by TAA's insurer or by
applicable law. Tenant shall comply with such adjustments or increases
within such reasonable time period as is requested by TAA.
6.4 CERTIFICATES
Upon or prior to the commencement of the Term of this Lease and at
least annually thereafter Tenant shall furnish to TAA certificates of
insurance showing the amount and type of the insurance then in effect
that is required to be procured and maintained by it hereunder and
stating the date and term of the policies. Tenant shall, upon request,
supply TAA with certified copies of all applicable insurance policies,
riders, endorsements and declaration pages. Certificates evidencing any
renewal, replacement or extension of any or all of the insurance
required hereunder, shall be delivered by Tenant to TAA not less than
thirty (30) days prior to the expiration of any policy of insurance
renewed, replaced or extended by the insurance represented by any such
certificate. Each policy of insurance required hereunder shall provide
for not less than thirty (30) days notice to TAA and Tenant before such
policy may be canceled or materially modified.
6.5 ADDITIONAL INSURANCE
The provisions of this Lease as to insurance required to be procured
and maintained shall not limit or prohibit, or be construed as limiting
or prohibiting, TAA or Tenant from obtaining any other or greater
insurance with respect to the Premises or improvements thereon or the
use and occupancy thereof that either or both of them may wish to
carry, but in the event TAA or Tenant, as the case may be, shall
procure or maintain any such insurance not required by this Lease, the
cost thereof shall be at the expense of the party procuring or
maintaining the same.
6.6 ADDITIONAL INSUREDS
All insurance required by this Article shall be procured and maintained
in the name of Tenant and shall add TAA and the City of Tucson and
their directors, officers, members, employees and agents as additional
insureds as their interests appear. All policies required under this
Article for property and builder's risk insurance shall provide for
payments of the losses to Tenant and TAA as their respective interests
may appear; provided that during the period of any construction, any
builder's risk insurance carried pursuant hereto may provide for
payment to the contractor, as its interest may appear.
6.7 PRIMARY INSURANCE; CROSS LIABILITY; SEVERABILITY OF INTERESTS
All insurance policies required to be procured and maintained by Tenant
[, with the exception of Workers Compensation and Employers Liability]
shall provide or be endorsed to provide:
X. Xxxxxx's insurance coverage shall be primary insurance with respect to
TAA and the City of Tucson and their directors, officers, members,
employees and agents. Any insurance or self-insurance maintained by
TAA and the City of Tucson is excess of and non-contributing with
Tenant's insurance.
B. Tenant's insurance coverage shall state that Tenant's insurance shall
apply separately to each insured except with respect to the limits of
the liability and shall contain no cross-liability exclusions.
6.8 USE OF PROCEEDS
Proceeds of any liability and property damage insurance required under
this Article shall be applied toward extinguishing, satisfying or
remedying the liability, loss or damage with respect to which such
proceeds may be paid.
6.9 WAIVER OF SUBROGATION
Each party hereto waives all claims for recovery from the other party
for any loss or damage to any of its property on the Premises insured
under valid and collectible insurance policies to the extent of any
recovery collected from such policies. All policies required under this
Article shall provide or be endorsed to provide that the insurer agrees
to waive all rights of subrogation against TAA and the City of Tucson
and their directors, officers, members, employees and agents.
6.10 INSURANCE BY TAA
TAA may, upon written notice to Tenant, in the event that Tenant fails
to timely provide proof of insurance as required by Section 6.4 above,
procure and maintain any or all of the insurance required of Tenant
under this Article. In such event, all costs of such insurance procured
and maintained by TAA on behalf of Tenant shall be the
responsibility of Tenant and shall be fully reimbursed to TAA within
ten (10) business days after TAA advises Tenant of the cost thereof.
ARTICLE 7 - UTILITIES
7.1 TENANT'S RESPONSIBILITIES
Tenant shall fully reimburse TAA for fifty percent (50%) of the cost of
all utility services supplied to the Building in which the Premises are
located. Tenant shall fully reimburse TAA within ten (10) business days
after receipt of invoice and supporting documentation therefor.
7.2 TAA'S RIGHTS AND RESPONSIBILITIES
Notwithstanding the execution of this Lease, TAA retains the right to
the continued use of such utility lines and services as are presently
on the Premises and the right to repair the same when necessary in
TAA's sole discretion, including but not limited to any utility
easements on the Premises. TAA shall conduct such repairs in such a
manner and at such times as to not unreasonably interfere with Xxxxxx's
operations.
ARTICLE 8 - REPAIR AND MAINTENANCE
8.1 REPAIR AND MAINTENANCE
X. Xxxxxx's Responsibilities
Except as otherwise provided in Paragraphs 7.1B below, Tenant shall,
at no expense to TAA, maintain and repair the Premises and all
improvements thereon, and keep the same in a neat, clean, and safe
condition and in a manner that is compatible with all other nearby
Airport properties, and in compliance with all applicable laws, rules,
regulations and orders. The standards of such upkeep, maintenance and
repair shall in any event be not less than the standards followed by
TAA for similar buildings and premises devoted to the same or similar
use, and shall be consistent with the following:
(1) General combustible storage shall not exceed twelve (12) feet in
height.
(2) Aisle separation shall be between four (4) feet and eight (8) fee
wide, with the final width to be determined by classification of
commodities being stored and applicable fire code regulations.
(3) Storage piles shall be stable; leaning stacks are prohibited.
Tenant is responsible for any and all lighting (bulb replacement),
plumbing, HVAC, cooling and/or heating maintenance and any interior
door or window replacement within the Premises.
Tenant is responsible for any and all necessary electrical upgrade of
service if necessary to Tenant's use of the Premises. Tenant's
equipment may be required to be metered. Any meter installation or
electrical upgrade shall be at the sole expense of Tenant.
B. TAA's Responsibilities
TAA shall repair and maintain, at its own cost and expense, all
structural portions of the improvements on the Premises, including the
roof, foundation, structural wall components, major plumbing or
electrical components of the Building serving multiple tenants and any
components not accessible by Tenant within the interior of the
Premises, and the building exterior, but not including HVAC units
serving only the Premises or such things as doors (interior or
exterior), windows, interior non-load-bearing walls, and minor
electrical and plumbing components within the Premises. In the event
that failure of any major building system renders the Premises
unsuitable for Tenant's operation, and TAA elects not to replace the
system, and TAA determines that the system cannot be repaired
economically, Tenant may elect to repair or replace the system at its
expense, or may elect to terminate this Lease..
Tenant shall pay TAA the reasonable cost of maintenance and repair if
such maintenance and repair is necessitated in whole or in part by the
act, neglect, fault or omission of any duty by Tenant, its agents,
servants, employees or invitees. TAA shall not be liable for any
failure to make any such repair or maintenance unless such failure
shall persist for an unreasonable time, given the nature of the
problem, after Xxxxxx gives TAA written notice of the need for such
repairs or maintenance.
8.2 CASUALTY TO PREMISES
TAA may, but shall not be required to, maintain insurance against loss
or damage to the Building and the Premises, but TAA shall have no
obligation to repair the Building or the Premises in the event of
casualty or damage thereto. In the event that any such casualty renders
the Premises unsafe or untenantable, this Sublease shall terminate
immediately.
ARTICLE 9 - TAXES
9.1 TENANT'S RESPONSIBILITY
Tenant shall pay before delinquency any and all taxes levied or
assessed (i) against the Premises; (ii) against or by reason of
personal property located in, on or about the Premises; (iii) because
of Tenant's right to possession of the Premises and improvements
thereon (iv) by any government body as the result of Tenant's
operations; and (v) as the result of rentals payable under this Lease.
All such taxes and assessments for partial years shall be apportioned
and adjusted on a time basis.
9.2 PROTEST
Tenant shall have the right at its own cost and expense to contest the
amount or validity of any such tax or assessment and to bring or defend
any actions involving the amount or validity of any such tax or
assessment in its own name or, if necessary, in the name of TAA;
provided that, if unsuccessful, Tenant shall pay and discharge any such
tax or assessment so contested, together with any penalties, fines,
interest, costs and expenses, including reasonable attorneys' fees,
that may result from any such action by Tenant, and provided that,
pending resolution of the protest, Tenant shall take any actions
necessary (including conditional payment of the amount in dispute) to
prevent the attachment or accrual of any tax lien or penalty.
ARTICLE 10 - RULES, REGULATIONS AND LAWS
10.1 COMPLIANCE WITH ALL APPLICABLE LAWS
Tenant and all persons operating under the rights granted hereby shall
observe and obey all reasonable and lawful rules and regulations and
minimum standards with respect to the use of the Airport which have
been or may in the future be adopted by TAA and shall further abide by
all applicable laws, statutes, ordinances, rules, orders, and
regulations of all governing bodies which are now in effect or which
may hereafter be put into effect, including without limitation payment
of employee payroll taxes.
10.2 NON-DISCRIMINATION
A. In the event improvements are constructed, maintained, or otherwise
operated on the Premises for a purpose for which a Department of
Transportation ("DOT") program or activity is extended or for another
purpose involving the provision of similar services or benefits,
Tenant shall maintain and operate such improvements and services in
compliance with all other requirements imposed pursuant to 49 CFR Part
21, Nondiscrimination in Federally Assisted Programs of the Department
of Transportation, as it may be amended.
B. Tenant agrees that: (1) no person on the grounds of race, color, or
national origin shall be excluded from participation in, denied the
benefits of; or be otherwise subjected to discrimination in the use of
said improvements, (2) that in the construction of any improvements
on, over, or under such land and the furnishing of services thereon,
no person on the grounds of race, color, or national origin shall be
excluded from participation in, denied the benefits of; or otherwise
be subject to discrimination, (3) that Tenant shall use the Premises
in compliance with all other requirements imposed by or pursuant to 49
CFR Part 21, Nondiscrimination in Federally Assisted Programs of the
Department of Transportation, as it may be amended.
C. To the extent that Tenant conducts or engages in any aeronautical
activity for furnishing services to the public at the Airport, Tenant
shall furnish its services on a reasonable and not unjustly
discriminatory basis to all users and charge reasonable and not
unjustly discriminatory prices for each unit or service, provided that
Tenant may be allowed to make reasonable and nondiscriminatory
discounts, rebates or other similar type of price reductions to volume
purchasers.
X. Xxxxxx assures that it will comply with pertinent statutes, Executive
Orders, and rules promulgated to assure that no person shall, on the
grounds of race, creed, color, national origin, sex, age, or handicap,
be excluded from participating in any activity conducted with or
benefiting from Federal assistance.
10.3 FEDERAL REGULATIONS; SAFETY AND SECURITY
Tenant shall conform to TAA, Federal Aviation Administration and
Transportation Security Administration safety and security rules and
regulations regarding use of the airport operations area, including
runways, taxiways, and aircraft aprons by vehicles, employees,
customers, visitors, etc., in order to prevent security breaches and
avoid aircraft incursions and vehicle/pedestrian deviations; shall
complete and pass airfield safe driving instruction programs when
offered or required by TAA; and shall be subject to penalties as
prescribed by TAA for violations of the airport safety and security
requirements.
Tenant and all persons operating under the rights granted hereunder
shall comply with all applicable Federal laws, Federal Aviation
Regulations and Transportation Security Regulations with respect to
aircraft operations and airport security at the Airport. Tenant shall
at all times take all reasonable steps to control, police and regulate
the use of the Premises and of the Airport premises to prevent
unauthorized persons and the general public from obtaining access to
the Airport. Such steps by Tenant shall include, but not be limited to,
steps requested by TAA and those required under Federal regulations.
Tenant must secure the Premises so that there is no inadvertent or
purposeful unauthorized entry in or upon the Airport by people,
vehicles, or animals.
10.4 FAR PART 139 SAFETY STANDARDS AND INSPECTIONS
Tenant and all persons operating under the rights granted hereunder
shall comply with Part 139 of the Federal Aviation Regulations with
respect to airport operations and safety, and shall comply with the
standards established by TAA pursuant to Part 139. Tenant shall at all
times take reasonable steps for the safe handling of aviation fuel and
such steps shall include, but not be limited to, steps requested by TAA
and those required under Federal Regulations. Tenant shall take
immediate corrective action upon notice from TAA of noncompliance with
Part 139 or with the standards established pursuant thereto. Tenant
shall permit TAA to physically inspect the Premises for purposes of
determining Tenant's compliance with Part 139 and this Section.
10.5 STATE AND FEDERAL AVIATION REGULATIONS
Tenant will conduct its operations and activities on the Airport so as
to conform to all applicable regulations of the United States
Department of Transportation and the Aeronautics Division of the
Arizona Department of Transportation.
10.6 EXCLUSIVE RIGHTS PROHIBITED
Nothing contained in this Lease shall be construed to grant or
authorize the granting of an exclusive right within the meaning of 49
U.S.C. xx.xx. 40103(e) and 47107(a)(4).
10.7 ENVIRONMENTAL LAWS
A. Definitions
(1) "Environmental Laws" means any and all laws, rules, regulations,
regulatory agency guidance and policies, ordinances, applicable
court decisions, and airport guidance documents, directives,
policies (whether enacted by any local, state or federal
governmental authority, or by TAA) now in effect or hereafter
enacted that deal with the regulation or protection of the
environment (including the ambient air, ground water, surface
water and land, including subsurface land and soil), or with the
generation, handling, storage, disposal or use of chemicals or
substances that could be detrimental to human health, the
workplace, the public welfare, or the environment.
(2) "Extremely Hazardous Substances" means any substance or material
designated by the United States Environmental Protection Agency
as an "extremely hazardous substance" under either Section
302(a)(2) of the Emergency Planning and Community Right-to-Know
Act ("EPCRTKA") (42 U.S.C. ss. 1 1002(a)(2)) or any other
Environmental Law.
(3) "Hazardous Material" means all solid, liquid or gaseous
substances, materials and wastes that are, or that become,
regulated under, or that are classified as hazardous or toxic or
a "contaminant" or "pollutant" under any Environmental Law
(including, but not limited to, Extremely Hazardous Substances
and Toxic Chemicals and asbestos).
(4) "Release" means any releasing, disposing, discharging, injecting,
spilling, leaking, leaching, pumping, dumping, emitting,
escaping, emptying, seeping, dispersal, migration, transporting,
placing, and actions of similar nature, including without
limitation, the moving of any material through, into or upon any
land, soil, surface water, ground water, or air, or otherwise
entering into the environment.
(5) "Toxic Chemicals" means any substance or material subject to
Section 313 of EPCRTKA (42 U.S.C. ss. 1 1002(a)(2)) or the Toxic
Substances Control Act, 15 U.S.C. ss.2601 et seq., or any
comparable Environmental Law.
B. Compliance
(1) Compliance with Environmental Laws Generallv. Tenant, at its own
expense, shall ensure that Tenant and Tenant's agents, employees,
contractors, invitees, sublessees, and any third party that comes
in contact
with the Premises comply with all present and hereafter enacted
Environmental Laws, and any amendments thereto, affecting
operations on the Premises. In the event of a conflict between
this provision and the mandate set forth in Paragraph 10.1,
above, the interpretation most favorable to TAA shall apply.
(2) Governmental Submittals. Tenant shall timely, at Xxxxxx's own
cost and expense, make all submissions to, provide all
information to, and comply with all requirements of any
governmental authority having jurisdiction (the "Government")
under the Environmental Laws with respect to any activity or
operation on the Premises during the term of this Lease,
including, but not limited to, timely submittal of permit
applications and renewals, notices, and approvals. Should the
Government determine that an environmental investigation of any
kind and/or a cleanup plan be prepared or that a cleanup should
be undertaken because of any Release or threat of a Release of
Hazardous Materials at the Premises which occurs or may have
occurred during the term of this Lease, regardless of whether
Tenant caused the Release by any act or omission, then Tenant
shall promptly and timely, at Tenant's own cost and expense,
prepare and submit the required plans and financial assurances,
and carry out the approved plans in accordance with all
requirements of the Government.
(3) Information Sharing. Tenant shall provide to TAA a copy of
any and all information, reports, and applications submitted
to the Government as described in Paragraph 1 0.7B(2),
whether such submittal is routine with respect to any
regulatory refinement or in response to a Release or
threatened Release of any Hazardous Material, and whether
the impetus for such submittal is generated by Tenant, or by
an inquiry or action by the Government or another third
party. At no cost or expense to TAA, Tenant shall promptly
provide all information requested by TAA to determine the
applicability of the Environmental Laws to the Premises, or
to respond to any governmental investigation or to respond
to any claim of liability by third parties which is related
to environmental conditions on or adjacent to the Premises.
Tenant shall immediately notit~~ TAA of any correspondence
or communication from any governmental authority regarding
the application of Environmental Laws to the Premises or
Tenant's operation on the Premises.
(4) Change in Use of Premises. Tenant shall immediately notify
TAA of any change in Tenant's operation on the Premises that
will change or has the potential to change the nature or
extent of Tenant's or TAA's obligations or liabilities under
the Environmental Laws.
C. Hazardous Materials
(1) No Violation. Tenant shall not cause or permit any Hazardous
Material to be used, generated, manufactured, produced,
stored, brought upon, or
Released, on, under or about the Premises, or transported to
and from the Premises, by Tenant, its agents, employees,
contractors, invitees, sublessees or any third party in
violation of any Environmental Law, provided that, in no
circumstances shall Tenant cause or permit any Extremely
Hazardous Substance or Toxic Chemical to be used, generated,
manufactured, produced, stored, brought upon, or Released,
on, under or about the Premises, or transported to and from
the Premises. Tenant shall promptly notify TAA of any action
or condition that is contrary to any prohibition in the
previous sentence.
(2) Cleanup. Without limiting the foregoing, if the presence of
any Hazardous Material introduced in, on, under or about the
Premises during the term of this Lease by any person results
in any adverse impact whatsoever to the value, condition,
operations, or activities of the Premises, including the
environment on, under, or about the Premises, Tenant shall
promptly take all actions at its sole cost and expense as
are necessary to return the Premises to the condition
existing prior to the introduction of any such Hazardous
Material to the Premises; provided that TAA's approval of
such actions shall first be obtained, which approval shall
not be unreasonably withheld so long as such actions would
not potentially have any material adverse effect on the
Premises. In the event Tenant shall fail timely to commence
or cause to be commenced or fail diligently to prosecute to
completion such actions as are necessary to return the
Premises to the conditions existing prior to the
introduction of any Hazardous Material to the Premises, TAA
may, but shall not be obligated to, cause such action to be
performed, and all costs and expenses (including, without
limitation, attorneys' fees) thereof or incurred by TAA in
connection therewith shall be paid by Tenant promptly upon
demand.
D. Clean Water Act
(1) Non-Stormwater Discharges. Notwithstanding Paragraph 10.
8(B)(1), Tenant shall not cause or permit any direct
discharge of non-stormwater flows under a National Pollutant
Discharge Elimination System ("NPDES") permit unless
specifically authorized in writing by TAA.
(2) Stormwater Discharges. Notwithstanding Paragraph 1
0.8(B)(l), any discharge of stormwater by Tenant or from
Tenant's operations at the Premises shall comply with the
NPDES Storm Water Multi-Sector General Permit ("MSGP") for
industrial activities and with any multi-sector permit
obtained by TAA. Tenant shall timely submit a Notice of
Intent to TAA indicating that it is subject to the TAA
permit. Tenant shall timely prepare a Storm Water Pollution
Prevention Plan ("SWPPP") that conforms to TAA's SWPPP and
that covers Tenant's operations or activities at the
Premises. Tenant shall be solely responsible for all fees,
assessments, and other costs charged by any governmental
authority in connection with the issuance of any permit or
any inspection or related
event in connection with the NPDES MSGP or with respect to
the Premises.
E. Indemnity
Tenant shall indemnify, defend and hold harmless TAA, its
successors and assigns, its employees, agents and attorneys from
and against any and all liability, loss, damage, expense,
penalties and costs (including legal and investigation fees or
costs) arising from or related to any claim or action for injury,
liability, breach of warranty or representation, or damage to
persons or property and any and all claims or actions brought by
any party or governmental authority of any kind, alleging or
arising in connection with (i) contamination of; or adverse
effects on the environment (whether known, alleged, potential, or
threatened), or (ii) alleged or potential violation of any
Environmental Law or other statute, ordinance, rule, regulation,
judgment or order of any government or judicial entity which are
brought as a result (whether in part or in whole) of any activity
or operation on or Release from the Premises (caused in whole or
in part by any person or entity other than TAA) during the term
of this Lease. This obligation includes but is not limited to all
costs and expenses related to investigation and/or cleaning up
the Premises and all land, soil and underground or surface water
as required under the law. Tenant's obligations and liabilities
under this paragraph shall continue so long as TAA bears any
liability or responsibility under the Environmental Laws for any
action that occurred on the Premises during the term of this
Lease. This indemnification of TAA by Tenant includes, without
limitation, costs incurred in connection with any investigation
of site conditions or any cleanup, remedial, removal or
restoration work required by any federal, state or local
governmental agency or political subdivision because of Hazardous
Material located on the Premises or present in the soil or ground
water on, under or about the Premises. The parties agree that
XXX's right to enforce Xxxxxx's promise to indemnify is not an
adequate remedy at law for Tenant's violation of any provision of
this paragraph; TAA shall have all the rights and remedies set
forth in this Lease as well as all other rights and remedies
provided by law.
F. Subtenants
Tenant shall insert the provisions of this section in any lease
agreement or contract by which it grants a right or privilege to
any person, firm or corporation under this Lease.
ARTICLE 11 - SUPERIOR RIGHTS
11.1 AGREEMENTS WITH UNITED STATES
This Lease shall be subordinate to the provisions and requirements of
any existing or future agreement between TAA and the United States,
relative to the development, operation or maintenance of the Airport.
Failure of Tenant or any occupant to comply with the requirements of
any existing or future agreement between TAA and the United
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States, which failure shall continue after reasonable notice to make
appropriate corrections, shall be cause for immediate termination of
Xxxxxx's rights hereunder.
11.2 RIGHTS OF GOVERNMENT DURING WAR OR NATIONAL EMERGENCY
This Lease and all the provisions hereof shall be subject to whatever
right the United States Government now has or in the future may have or
acquire, affecting the control, operation, regulation and taking over
of the Airport or the exclusive or non-exclusive use of the Airport by
the United States during the time of war or national emergency.
Tenant and TAA recognize that during the time of war or national
emergency the City of Tucson, owner of the Airport, has the right to
enter into agreements with the United States government for military or
naval use of part or all of the Airport. If any such agreement is
executed by the City of Tucson, the provisions of this Lease, insofar
as they are inconsistent with the provisions of any agreement so made
by the City of Tucson with the United States government, shall be
subject to the terms of such agreement and Tenant shall have no claim
against TAA or the City of Tucson for any loss or damage sustained by
Tenant because of the making of such agreement by the City of Tucson.
In such event, however, the amounts, if any, payable from the City of
Tucson or the United States for improvements placed on the Premises by
Tenant shall be paid to Tenant if this Lease is in effect at the time
of such taking.
11.3 RIGHTS OF TAA
TAA reserves the right to further develop or improve the landing area
of the Airport as it sees fit, regardless of the desires or view of
Tenant and without interference or hindrance from Tenant, its agents,
employees, subtenants or other occupiers of the Premises.
TAA reserves the right, but shall not be obligated to Tenant, to
maintain and keep in repair the landing area of the Airport and all
publicly-owned facilities of the Airport, together with the right to
direct and control all activities of Tenant in this regard.
11.4 AGREEMENTS WITH CITY OF TUCSON
This Lease is subject to the existing lease between TAA and the City of
Tucson and to the provisions of any existing or future agreement
between the City of Tucson and TAA.
11.5 ABATEMENT OF OBLIGATION TO CONSTRUCT OR REBUILD
Inasmuch as this Lease contains certain provisions concerning repairs,
replacement and rebuilding of damaged or destroyed buildings,
construction of buildings, quiet enjoyment and other related causes
applicable to the parties to this Lease, and inasmuch as the Premises
constitute a portion of a public Airport, it is agreed that the parties
hereto shall not be required to repair, replace, rebuild or construct
any building or portion of any building so long as the obligated party
is prevented from so doing by action of the United States government or
any agency or department thereof.
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11.6 SUPERFUND CONSENT DECREE.
The Premises are part of a site, as more particularly defined in the
below-described Consent Decree (the "Site"), that is the subject of
that certain Civil Action No. 99--3 13 TUC WDB, United States of
America v. Tucson Airport Authority, City of Tucson, United States Air
Force, General Dynamics Corp., XxXxxxxxx Xxxxxxx Corporation, in the
United States District Court for the District of Arizona, brought
pursuant to Sections 106 and 107 of the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. ss.ss.9606 and
9607. The United States Environmental Protection Agency ("EPA") has
selected certain remedial actions to be carried out on the Site
(including the Premises) pursuant to that certain "Record of Decision,
Tucson International Superfund Site, Tucson, Arizona, Airport Property
- Soils and Shallow Groundwater Zone, Xxxx-Xxxxx Property - Soils,
Former West-Capt Property - Soils" signed on September 30, 1997 (the
"ROD"). The City, TAA and certain other parties (collectively, the
"Settling Defendants") and EPA have entered into that certain Consent
Decree, which was entered by the United States District Court in the
above-described action on February 17, 2000 (the "Consent Decree"),
which grants EPA certain access, enforcement, and other rights with
respect to the Site, and imposes on Settling Defendants certain
obligations regarding implementation of the remedial action selected in
the ROD. This Sublease is subject to the Consent Decree and the rights
and obligations of the parties thereto, including the obligation of
Settling Defendants to undertake the remedial actions described therein
with respect to the Site, and the right of the EPA to access the Site
to inspect and enforce compliance with the Consent Decree.
ARTICLE 12 - RESERVATION OF AVIGATION EASEMENT
12.1 EASEMENT
There is reserved unto TAA, for the use and benefit of the public, a
right of flight for the passage of aircraft in the airspace above the
surface of the Premises, which shall include the right to cause in the
airspace any noise inherent in the operation of aircraft, now known or
hereafter used for navigation of or flight in or through the airspace,
and for the use of the airspace for landing on, taking off from, or
operation on the Airport.
12.2 STRUCTURES; ELEVATION LIMIT
Tenant shall not erect or permit the erection of any structure or
building, nor permit the growth of any tree on the Premises or any
other obstruction, that exceeds the height requirements contained in 14
CFR Part 77 or amendments thereto, or interferes with the runway and/or
taxiway "line of sight" of the control tower. In the event these
covenants are breached, TAA reserves the right to enter upon the
Premises and to remove the offending structure or object at the expense
of Tenant.
12.3 USE OF PREMISES
Tenant, by accepting this Lease agrees for itself; its successors and
assigns that it will not make use of the Premises in any manner which
might interfere with the landing and taking off of aircraft from the
Airport or otherwise constitute a hazard. In the event the
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aforesaid covenant is breached, TAA reserves the right to enter upon
the Premises and cause the abatement of such interference at the
expense of Xxxxxx.
ARTICLE 13 - ASSIGNMENT AND SUBLEASE
13.1 TAA'S CONSENT REQUIRED
Tenant shall not, directly or indirectly, voluntarily or by operation
of law, sell, assign, encumber, pledge or otherwise transfer or
hypothecate all or any part of the Premises or Tenant's leasehold
estate hereunder (collectively "Assignment"), or permit the Premises to
be occupied by anyone other than Tenant or sublet the premises or any
portion thereof ("Sublease") without TAA's prior written consent.
13.2 NO RELEASE OF TENANT; FURTHER ASSIGNMENTS
No consent by TAA to any Assignment or Sublease by Tenant shall relieve
Tenant of any obligation to be performed by Tenant under this Lease,
whether arising before or after the Assignment or Sublease. The consent
by TAA to any Assignment or Sublease shall not relieve Tenant of the
obligation to obtain TAA's express written consent to any other
Assignment or Sublease. Any Assignment or Sublease that is not in
compliance with this Section shall be void and, at the option of TAA,
shall constitute a material default by Tenant under this Lease. The
acceptance of rent or payment of any other monetary obligation by TAA
from a proposed assignee or subtenant shall not constitute the consent
by TAA to such Assignment or Sublease.
13.3 CHANGES IN OWNERSHIP
Any sale or other transfer, including transfer by consolidation, merger
or reorganization, of twenty-five percent (25%) or more of the voting
stock or membership interests of Tenant in a single or related
transactions, if Tenant is a corporation or limited liability company,
or any sale or other transfer of twenty-five percent (25%) or more of
the partnership interest in Tenant, if Tenant is a partnership, shall
be deemed to be an Assignment for purposes of this Section. As used in
this subsection, the term "Tenant" shall also mean any entity that has
guaranteed Tenant's obligation under this Lease, and the prohibition
hereof shall be applicable to any sales or transfers of stock or
partnership interests of said guarantor.
13.4 LIABILITY OF ASSIGNEE/SUBTENANT
Each assignee, subtenant or other transferee shall assume, as provided
in this subsection, all obligations of Tenant under this Lease and
shall be and remain liable jointly and severally with Tenant for the
payment of rent and all other monetary obligations hereunder, and for
the performance of all the terms, covenants, conditions and agreements
herein contained on Tenant's part to be performed; provided, however,
that the assignee, subtenant, or other transferee shall be liable to
TAA for rent only in the amount set forth in the Assignment or
Sublease. In connection with a Sublease, Tenant or the subtenant shall
deliver to TAA an instrument (acceptable in form and substance to TAA)
agreeing that subtenant shall be bound by all of the terms and
conditions of this
5
Lease, other than those pertaining to rent, applicable to the subleased
space and that subtenant shall, at TAA's sole option, attorn to TAA as
lessor under the Sublease if this Lease is terminated for any reason
and TAA chooses to keep the Sublease in effect. In connection with an
Assignment, Tenant and the assignee shall deliver to TAA a copy of the
Assignment, which shall be in form and substance reasonably
satisfactory to TAA, by which assignee expressly assumes all
obligations of Tenant under this Lease.
13.5 BANKRUPTCY
A. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et seq., (the
"Bankruptcy Code"), any and all monies or other consideration payable
or otherwise to be delivered in connection with such assignment shall
be paid or delivered to TAA, shall be and remain the exclusive
property of TAA and shall not constitute property of Tenant or of the
estate of Tenant within the meaning of the Bankruptcy Code. Any and
all monies or other considerations constituting TAA's property under
the preceding sentence not paid or delivered to TAA shall be held in
trust for the benefit of TAA and be promptly paid or delivered to TAA.
B. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code, shall be deemed, without further
act or deed, or have assumed all of the obligations arising under this
Lease on and after the date of such assignment. Any such assignee
shall upon demand execute and deliver to TAA an instrument confirming
such assumption.
13.6 TAA'S FEES
Within ten (10) days of TAA's delivery of a written invoice,
identifying such costs and expenses, Tenant shall reimburse TAA for its
expenses and attorneys' fees incurred in processing an Assignment or
Sublease, but in no event less than Five Hundred Dollars ($500.00) for
each such proposed transfer to cover the legal review and processing
expenses of TAA, whether or not TAA shall grant its consent to such
proposed transfers.
ARTICLE 14 - COMMISSIONS
14.1 REAL ESTATE BROKER COMMISSION
Tenant warrants that they have not dealt with any brokers, real estate
agents or licensees or finders with respect to this transaction and the
Premises and that there are no real estate commissions owing, except as
specifically disclosed by Xxxxxx and otherwise provided for herein. If
Tenant has dealt with any person or real estate broker with respect to
leasing or renting the Premises, Tenant shall be solely responsible for
the payment of any sum due such person or firm and Tenant shall
indemnify and hold TAA harmless from any liability in respect thereto,
including attorney's fees and costs incurred by TAA.
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ARTICLE 15 - DEFAULTS AND REMEDIES
15.1 DEFAULT BY TENANT
Tenant shall be in default under this Lease upon the occurrence of any
of the following "Events of Default":
A. Tenant shall fail to pay when due any installment of rent payable
pursuant to this Lease and such failure shall continue unremedied for
a period of five (5) days after written notice from TAA; provided that
Tenant shall not be entitled to the benefit of more than two (2) such
grace periods of five (5) days under this paragraph A within any
calendar year.
B. Tenant shall fail to furnish TAA with a valid surety bond or letter of
credit, or a notice of renewal of such bond or letter of credit sixty
(60) days before the stated expiration thereof; as provided in Section
3.4 and such failure shall continue unremedied for a period of five
(5) days after written notice from TAA.
C. Tenant or any of Tenant's agents, employees, guests, invitees, or
subtenants, shall use Premises for any unlawful or illegal purpose and
such use shall continue for a period of three (3) days after written
notice from TAA; provided that Tenant shall not be entitled to the
benefit of more than one (1) such grace period of three (3) days under
this paragraph B during the Term of this Lease.
D. The actions of Tenant or any of Tenant's agents, employees, guests,
invitees, or subtenants are in violation of the Airport Security Plan
and result in official warning, notice or other action from the TAA
Police Department and/or the Transportation Security Administration
five (5) times in any twelve (12) month period, or fifteen (15) times
during the Term of this Lease.
E. Tenant shall fail to observe or perform any other covenant, agreement
or obligation hereunder and such failure shall not be remedied within
thirty (30) days (or such additional time as is reasonably required in
the opinion of TAA to correct any such failure, if Tenant has
instituted corrective action and is diligently pursuing the same)
after TAA shall have given Tenant written notice specifying which
covenant, agreement or obligation Tenant has failed to observe or
perform; provided that Tenant shall not be entitled to the benefit of
more than two (2) grace periods under this paragraph within any
calendar year.
F. There is commenced by or against Tenant any case under the Bankruptcy
Code (Title 11 of the United States Code) or any other bankruptcy,
arrangement, reorganization, receivership, custodianship or similar
proceeding under any federal, state or foreign law, and with respect
to any such case or proceeding that is involuntary, such case or
proceeding is not dismissed with prejudice within sixty (60) days of
such filing.
X. Xxxxxx makes a general assignment for the benefit of creditors or
applies for, consents to, or acquiesces in the appointment of a
trustee, receiver, or other
custodian for Tenant or the property of Tenant or any part thereof; or
in the absence of such application, consent, or acquiescence, a
trustee, receiver or other custodian is appointed for Tenant or the
property of Tenant or any part thereof; and such appointment is not
discharged within sixty (60) days.
H. Any action is commenced against Tenant to foreclose any lien or
mortgage or other rights of Tenant in or to the Premises.
15.2 REMEDIES OF TAA
If Tenant shall be in default hereunder as set forth above, TAA may
exercise any of the following remedies in TAA's sole discretion.
A. Termination
TAA may, at its election, give Tenant written notice of its intention
to terminate this Lease, which termination shall be effective on the
effective date set forth in the notice, or on the date notice is
deemed received under Section 18.8 if no effective date is stated.
Tenant's rights (including the rights of any sublessee) to possession
of the Premises shall cease and, with or without re-entry by TAA, this
Lease and the Term shall terminate, and TAA may then re-enter and take
possession of the Premises as provided below with respect to reentry
without termination. Any such termination must be express, and neither
notice to pay rent or to deliver up possession of the Premises given
pursuant to law, nor any proceeding instituted by TAA, nor the failure
by Tenant for any period of time to pay any of the rent herein
reserved, shall of itself operate to terminate this Lease.
B. Reentry Without Termination
As an alternative remedy, TAA may, without terminating this Lease, and
after giving Tenant ten (10) days written notice, re-enter the
Premises and take possession thereof pursuant to any legal proceedings
or notice required by law, in which event Tenant shall remain liable
for the payment of all rent and the performance of all conditions
contained in this Lease as they come due.
After such re-entry, TAA shall use reasonable diligence to re-let the
Premises, or any part or parts thereof; for such period or periods and
upon such term or terms and at such reasonable rental or rentals and
upon such other conditions as TAA may deem advisable, with the right
to make alterations and repairs to the Premises. Tenant and any
sublessee hereby irrevocably appoints TAA as the agent and
attorney-in-fact of Tenant and any sublessee to enter upon and re-let
the Premises and to incur any necessary expenses in doing so, all to
be reimbursed by Xxxxxx. Xxxxxx agrees that no acts of TAA in
effecting such re-letting shall constitute a termination of this
Lease, irrespective of the period for which such re-letting is made or
the terms and conditions of such re-letting or otherwise.
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C. Removal of Tenant
Upon any re-entry of the Premises by TAA (whether or not the Lease is
terminated), TAA may expel Tenant and those claiming through or under
Tenant and remove their property and effects (forcibly, if necessary)
without being guilty in any manner of trespass and without any
liability therefor and without prejudice to any remedies of TAA in the
event of default by Tenant, and without liability for any interruption
of the conduct of the affairs of Tenant or those claiming through or
under Tenant which may result from such entry. Tenant hereby
irrevocably appoints TAA as the agent and attorney-in-fact of Tenant
to remove all of Tenant's property whatsoever situated upon the
Premises and to place such property in storage in any warehouse or
other suitable place in Tucson, Arizona, for the account of and at the
expense of Tenant and Tenant hereby exempts and agrees to save
harmless TAA from any costs, loss or damage whatsoever arising or
occasioned by any such removal and storage of such property by TAA or
its duly authorized agents in accordance with the provisions herein
contained.
D. Damages
Notwithstanding the termination of this Lease or any re-entry by TAA,
Tenant shall continue to be liable for and TAA shall be entitled to
recover as damages:
(1) the sum of all rent that is due and owing as of the date of
termination or re-entry and all other sums then owing by Tenant
hereunder;
(2) all rent as it accrues hereunder during the remaining Term or, if
TAA elects to terminate the Lease, the discounted present value
of the sum of all rentals to be paid for the remaining term of
this Lease, calculated by TAA in its reasonable discretion, less
any sums that Xxxxxx proves could reasonably be avoided; and
(3) the reasonable costs incurred by TAA in re-letting the Premises
(including brokerage commissions and attorney fees) and the
reasonable costs to TAA necessary to place the Premises in
condition for re-letting.
E. Credit
Any rent, income, receipts, profits or other monies received or
derived by TAA from any re-letting or other use of the Premises by TAA
shall, so long as Tenant shall continue to be liable for the payment
of rent hereunder, be credited against such rent as received and
collected.
15.3 REMEDIES CUMULATIVE
All rights, options and remedies of TAA contained in this Lease shall
be construed and held to be cumulative, and no one of them shall be
exclusive of the other, and TAA shall have the right to pursue any one
or all of such remedies or any other remedy or relief which may be
provided by law, whether or not stated in this Lease (including but not
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limited to any right of "self help" or similar remedy in order to
minimize any damages, expenses, penalties and related fees or costs).
15.4 NO WAIVER
No waiver of any Event of Default of Tenant hereunder shall be implied
from any acceptance by TAA of any rent or other payments due hereunder
or any omission by TAA to take any action on account of such default if
such default persists or is repeated, and no express waiver shall
affect an Event of Default in a manner other than as specified in said
waiver. The consent or approval by TAA to or of any act by Tenant
requiring TAA's consent or approval shall not be deemed to waive or
render unnecessary TAA's consent or approval to or of any subsequent
similar acts by Xxxxxx.
15.5 CONTENT OF DEFAULT NOTICE
Any default notice tendered to Tenant hereunder shall be deemed to be
sufficient if it is reasonably calculated to put Tenant on inquiry as
to the nature and extent of such default, and is made in accordance
with Section 18.8.
ARTICLE 16 - TERMINATION BY TENANT
16.1 TERMINATION EVENTS
Tenant may terminate this Lease at any time upon thirty (30) days
written notice to TAA upon or after the happening or continuation of
any of the following events:
A. The inability of Tenant to use, for a period of thirty (30)
consecutive days, any portion of the rights, licenses, services or
privileges of Tenant hereunder because of any law, rule, regulation or
other action or failure to act on the part of any United States
governmental authority having jurisdiction thereof.
B. The default by TAA in the performance of any covenant or agreement
herein required to be performed by TAA and the failure of TAA to
remedy such default for a period of thirty (30) days after receipt of
written request or demand from Tenant to remedy the same.
C. The assumption by the United States government or any authorized
agency thereof of the operation or control of the Airport or any part
thereof; in such manner as to substantially restrict Tenant for a
period of at least thirty (30) consecutive days from conducting any of
its operation on the Premises.
16.2 CURE
If any of the foregoing reasons for termination by Tenant cease to
exist prior to a termination, then the right to terminate for such
reason shall cease.
16.3 NO WAIVER
No waiver by Tenant of TAA's default of any of its obligations
hereunder shall be construed to be or act as a waiver by Tenant of any
subsequent default by TAA.
ARTICLE 17 - SURRENDER OF POSSESSION,
CONDITION OF PREMISES
17.1 SURRENDER
Upon the expiration or earlier termination of this Lease, all rights
herein granted to Tenant shall cease and terminate and Tenant shall
forthwith surrender the Premises to TAA.
17.2 GOOD CONDITION
The Premises shall be returned to TAA in as good condition as at the
time of occupancy by Xxxxxx, together with any improvements made by
Tenant, except as otherwise provided in this Lease and except for
ordinary wear and tear and casualty. Tenant shall remove any and all
personal property, including portable buildings, signs, trade fixtures,
machinery and equipment from the Premises; provided, however, that
Tenant shall repair any damage caused by such removal. Any personal
property remaining in the Premises after expiration or termination may
be removed, sold or destroyed by TAA at Tenant's expense.
ARTICLE 18 - MISCELLANEOUS
18.1 ENTRY UPON PREMISES; REVIEW OF RECORDS
TAA may enter upon the Premises subleased exclusively to Tenant
hereunder at any reasonable time, for any purpose necessary, incidental
to or connected with the exercise of its governmental functions, or to
inspect the Premises for compliance with all applicable laws, rules,
regulations and covenants hereunder or to prevent waste, loss or
destruction. TAA shall have the right to review such records and
documentation as shall demonstrate compliance with the terms of this
Lease, including without limitation, maintenance logs and records for
aircraft on the Premises evidencing that the aircraft is registered,
certificated and in airworthy condition.
18.2 SUCCESSORS AND ASSIGNS BOUND
All the terms, covenants and conditions of this Lease shall extend to
and bind the successors and assigns of the respective parties hereto.
18.3 ARTICLE HEADINGS
The article headings contained herein are for convenience and reference
and are not intended to define or limit the scope of any provisions of
this Lease.
18.4 SEVERABILITY
If any term or condition of this Lease shall be deemed to be invalid or
unenforceable, all other terms and conditions shall remain in full
force and effect.
18.5 APPLICABLE LAW
The terms and conditions of this Lease shall be interpreted in
accordance with the laws of the State of Arizona.
18.6 INDEPENDENT COUNSEL; CONSTRUCTION OF LEASE
XXX and Xxxxxx each acknowledge that they have been represented by
independent counsel in connection with the preparation and review of
this Lease and that the fact that this Lease was prepared by XXX's
counsel as a matter of convenience shall have no import or
significance. Any rule of construction to the effect that ambiguities
are to be resolved against the drafting party shall not apply in the
interpretation of this Lease. No remedy or election given by any
provisions of this Lease shall be deemed exclusive unless so indicated,
but each shall, whenever possible, be cumulative with all other
remedies in law or equity. Each provision hereof shall be deemed both a
covenant and a condition and shall run with the land for the duration
of the leasehold Term. Whenever the content of any provision shall
require it, the singular number shall be held to include the plural
number and vice versa. The form of this Lease contemplates that Tenant
will be an entity and not one or more natural persons. If Tenant is one
or more natural persons, then all pronouns referring to Tenant shall be
deemed to be appropriately changed to fit those circumstances.
18.7 COSTS AND ATTORNEYS' FEES
A. TAA's Review
Tenant shall pay the expenses (including reasonable attorneys' fees
and the fees of other consultants) incurred by XXX in drafting,
negotiating and reviewing any of the documents (including, but not
limited to, subleases, and plans and specifications of any
improvements to be constructed by Tenant) for which XXX's approval is
required by the terms hereof.
B. Enforcement of Rights
The non-prevailing party shall promptly pay to the prevailing party,
upon demand, all costs and other expenses paid or incurred by the
prevailing party (including, without limitation, reasonable attorney's
fees) in enforcing or exercising its rights or remedies created by,
connected with or provided for in this Lease, whether or not any
action or proceeding is brought (including, without limitation, all
such costs, expenses and fees incurred in connection with any
bankruptcy, receivership, or other court proceedings [whether at the
trial or the appellate level]).
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18.8 NOTICES; TENANT CONTACT
Except as provided below with respect to emergencies, notice to either
party shall be sufficiently served if it is in writing and is
physically delivered; sent by certified mail, postage prepaid; or sent
by facsimile transmission, to such party at the address set forth on
the first page of this Lease, or to such other location as shall be
provided by such party in writing from time to time.
Service of any notice or demand by physical delivery shall be deemed
complete upon the date of delivery. Service of any notice or demand by
certified mail shall be deemed complete at the expiration of three (3)
days after the date of the certified mailing if mailed within the
continental United States. Service by facsimile transmission shall be
deemed complete upon the date of transmission if an automatically
generated confirmation slip shows the transmission to have been
initiated prior to 4 p.m., Tucson time, and otherwise on the following
day.
Tenant shall also provide to TAA, in writing, the name, address and
telephone number(s) of a representative of Tenant who TAA can contact,
24 hours per day, 7 days a week, in the event of an emergency, which
individual shall be authorized to act on behalf of Tenant.
18.9 SURVIVAL
Indemnities of either party set forth herein shall survive expiration
or earlier termination of this Lease.
18.10TIME IS OF THE ESSENCE
Time is of the essence in the performance of this Lease.
18.11ADDITIONAL DOCUMENTS
Each party agrees to perform any further acts and to execute and
deliver any further documents which may be reasonably necessary to
carry out the terms of this Lease.
18.12NON-WAIVER
No waiver of any condition expressed in this Lease shall be implied by
any neglect of TAA to enforce any remedy on account of the violation of
such condition if such violation be continued or repeated subsequently,
and no express waiver shall affect any condition other than the one
specified in such waiver and that one only for the time and in the
manner specifically stated. No receipt of monies by TAA from Tenant
after the termination in any way of this Lease or Xxxxxx's rights
hereunder or after the giving of any notice shall reinstate, continue
or extend the Term or affect any notice given to Tenant prior to
receipt of such monies, it being agreed that after the service of
notice or the commencement of a suit or after final judgment for
possession of the Premises, TAA may receive and collect any rent or
other sums due, and such payment shall not waive or affect said notice,
suit or judgment.
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18.13 FORCE MAJEURE
Force Majeure shall mean delays caused by or resulting from and Act of
God, severe weather conditions, war, insurrection, riot, civil
commotion, fire or other casualty, strikes, lockouts, inability to
obtain labor or materials, governmental regulations, or other causes
beyond the party's reasonable control.
Neither party shall have any liability whatsoever to the other party on
account of any event of Force Majeure. If this Lease specifies a time
period for performance of an obligation of either party, that time
period shall be extended by the period of any delay caused by any event
of Force Majeure. However, an event of Force Majeure shall not in any
way affect Tenant's obligation to pay rent or other moneys due, nor
shall it extend the Term of this Lease.
18.14 AUTHORITY TO EXECUTE
Each party represents and warrants to the other that it has the right
and authority to enter into this Lease.
18.15 EFFECTIVE DATE
This Lease shall be effective as of the date upon which both parties
have executed below ("Effective Date").
IN WITNESS WHEREOF the parties have executed this Lease as of the day
and year first above written.
TUCSON AIRPORT AUTHORITY, INC., an
Arizona nonprofit corporation
By:
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Name:
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Title:
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Date:
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"TAA"
XXXXXXXX AEROSPACE TECHNOLOGIES, INC., a Delaware corporation
d.b.a. Renegade Ventures, Inc.
By:
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Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
Date:
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"Tenant"
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