EXHIBIT 10.2
COMMERCIAL LEASE AGREEMENT
This lease, made this 30th day of June, 2006 by and between King Investment
Partners ("Landlord") whose address is; XX Xxx 0000, Xxxx, XX 00000 and Braemar,
Inc. ("Tenant") whose address is; 0000 Xxxxxxxxx Xxxxxx Xx., Xxxxx 000, Xxxxx,
XX 00000.
WITNESSETH:
PREMISES
1. Landlord, for an in consideration of the rents, covenants,
agreements, and stipulations hereinafter mentioned, provided for and
covenanted to be paid, kept and performed by Tenant, leases and rents
unto Tenant, and Tenant hereby leases and takes upon the terms and
conditions which hereinafter appear, the following described property
(hereinafter called the "Premises"), to wit:
Address: 000 Xxxxxxxxxx Xxxxx, Xxxx, XX 00000
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Legal Description: Brick and steel building
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TERM
2. The Tenant shall have and hold the Premises for a term of Two Years
beginning on the 30th day of June, 2006 and ending on the 29th day of
June, 2008, at midnight, unless sooner terminated as hereinafter
provided. The first Lease Year Anniversary shall be the date twelve
(12) calendar months after the first day of the first full month of the
term hereof and successive Lease Year Anniversaries shall be the date
twelve (12) calendar months from the previous Lease Year Anniversary.
THIS LEASE MAY BE CANCELLED WITH 90-DAY NOTICE.
RENTAL
3. Tenant agrees to pay Landlord or its Agent without demand, deduction
or set off, an annual rental of $50,400.00 payable in equal monthly
installments of $4,200.00 in advance on the first day of each calendar
month during the term hereof. Upon execution of this lease, Tenant
shall pay to Landlord the first month's rent due hereunder. Rental for
any period during the term hereof which is less than one month shall be
the pro-rated portion of the monthly rental due.
LATE CHARGES
4. If Landlord fails to receive any rent payment within 30 days after
it becomes due, Tenant shall pay Landlord, as additional rental, a late
charge equal to six percent (6%) of the overdue amount of $250.00,
whichever is greater, plus any actual bank fees incurred for resumed or
dishonored checks. The parties agree that such a late charge represents
a fair and reasonable estimate of the cost Landlord will incur by
reason of such late payment.
UTILITY BILLS
5. Tenant shall pay all utilities. Responsibility to pay for a utility
service shall include all metering, hook-up fees or other miscellaneous
charges associated with the installation and maintenance of such
utility in said party's name.
USE OF PREMISES
6. The Premises shall be used for manufacture, sales and repair of
electronic equipment purposes only and no other. The Premises shall not
be used for any illegal purposes, nor in any manner to create any
nuisance or trespass.
TAX AND INSURANCE
7. Tenant shall pay all taxes (including but not limited to, ad valorem
taxes, special assessments and any other governmental charges) on the
Premises for each tax year. Tenant shall further pay all fire and
extended coverage insurance including any and all public liability
insurance on the building.
INDEMNITY; INSURANCE
8. Tenant agrees to and hereby does indemnify and save Landlord
harmless against all claims for damages to persons or property by
reason of Tenant's use or occupancy of the Premises, and all expenses
incurred by Landlord because thereof, including attorney's fees and
court costs. Supplementing the foregoing and in addition thereto,
Tenant shall during the term of this Lease and any extension or renewal
thereof, and at Tenant's expense, maintain in full force and effect
comprehensive general liability insurance, which insurance shall
contain a special endorsement recognizing and insuring any liability
accruing to Tenant under the first sentence of this paragraph and
naming Landlord as additional insured. Tenant shall provide evidence of
such insurance to Landlord prior to the commencement of the term of
this Lease. Landlord and Tenant each hereby release and relieve the
other, and waive any right of recovery, for loss or damage arising out
of or incident to the perils insured against which perils occur in, on
or about the Premises, whether due to the negligence of Landlord or
Tenant or their agents, employees, contractors and/or invitees, to the
extent that such loss or damage is within the policy limits of said
comprehensive general liability insurance. Landlord and Tenant shall,
upon obtaining the policies or insurance required, give notice to the
insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease.
REPAIRS BY LANDLORD
9. Landlord agrees to keep in good repair the roof, foundation and
exterior walls of the Premises (exclusive of all glass and exclusive of
all exterior doors) and underground utility and sewer pipes outside the
exterior walls of the building except repairs rendered necessary by the
negligence or intentional wrongful acts of Tenant, its agents,
employees or invitees. Tenant shall promptly report in writing to
Landlord any defective condition known to it which Landlord is
required to repair and failure to report such conditions shall make
Tenant responsible to Landlord for any liability incurred by Landlord
by reason of such conditions.
REPAIRS BY TENANT
10. Tenant accepts the Premises in their present condition and as
suited for the uses intended by Tenant. Tenant shall, throughout the
initial term of this Lease, and any extension or renewal thereof, at
its expense, maintain in good order and repair the Premises, including
the building, heating and air conditioning equipment (including but not
limited to replacement of parts, compressors, air handling units and
heating units) and other improvements located thereon, except those
repairs expressly required to be made by Landlord hereunder. Unless the
grounds are common areas of a building(s) larger than the Premises,
Tenant further agrees to care for the grounds around the building,
including paving, the mowing of grass, care of shrubs and general
landscaping. Tenant agrees to return the Premises to Landlord at the
expiration or prior termination of this Lease, in as good condition and
repair as when first received, natural wear and tear, damage by storm,
fire, lightning, earthquake or other casualty alone excepted. Tenant,
Tenant's employees, agents, contractors or subcontractors shall take no
action which may void any manufacturers or installers warranty with
relation to the Premises. Tenant shall indemnify and hold Landlord
harmless from any
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liability, claim, demand or cause of action arising on account of
tenant's breach of the provisions of this paragraph.
ALTERATIONS
11. Tenant shall not make any alterations, additions or improvements
to the Premises without Landlord's prior written consent. Tenant shall
promptly remove any alterations, additions, or improvements
constructed in violation of this Paragraph upon Landlord's written
request. All approved alterations, additions, and improvements will be
accomplished in a good and workmanlike manner, in conformity with all
applicable laws and regulations, and by a contractor approved by
Landlord, free of any liens or encumbrances. Landlord may require
Tenant to remove any alterations, additions or improvements (whether
or not made with Landlord's consent) at the termination of the Lease
and to restore the Premises to its prior condition, all at Tenant's
expense. All alterations, additions and improvements which Landlord
has not required Tenant to remove shall become Landlord's property and
shall be surrendered to Landlord upon the termination of this Lease,
except that Tenant may remove any of Tenant's machinery or equipment
which can be removed without material damage to the Premises. Tenant
shall repair, at Tenant's expense, any damage to the Premises caused
by the removal of any such machinery or equipment.
REMOVAL OF FIXTURES
12. Tenant may (if not in default hereunder) prior to the expiration of
this Lease, or any extension or renewal thereof, remove all fixtures
and equipment which it has placed in the Premises, provided Tenant
repairs all damage to the Premises cause by such removal.
DESTRUCTION OF OR DAMAGE TO PREMISES
13. If the Premises are totally destroyed by storm, fire, lightning,
earthquake or other casualty, this lease shall terminate as of the date
of such destruction and rental shall be accounted for as between
Landlord and Tenant as of that date. If the Premises are damaged but
not wholly destroyed by any such casualties, rental shall xxxxx in such
proportion as effective use of the Premises has been affected and
Landlord shall restore Premises to substantially the same condition as
before damage as speedily as is practicable, whereupon full rental
shall commence.
GOVERNMENT ORDERS
14. Tenant agrees, at its own expense, to comply promptly with all
requirements of any legally constituted public authority made necessary
by reason of Tenant's occupancy of the Premises. Landlord agrees to
comply promptly with any such requirements if not made necessary by
reason of Tenant's occupancy. It is mutually agreed, however, between
Landlord and Tenant, that if in order to comply with such requirements,
the cost to Landlord or Tenant, as the case may be, shall exceed a sum
equal to one year's rent, the Landlord or Tenant, whichever is
obligated to comply with such requirements, may terminate this Lease by
giving written notice of termination to the other party by registered
mail, which termination shall become effective sixty (60) days after
receipt of such notice and which notice shall eliminate the necessity
of compliance with such requirements by giving such notice unless the
party giving such notice of termination shall, before termination
becomes effective, pay to the party giving notice all cost of
compliance in excess of one year's rent, or secure payment of said sum
in manner satisfactory to the party giving notice.
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CONDEMNATION
15. If the whole of the Premises, or such portion thereof as will make
the Premises unusable for the purposes herein leased, is condemned by
any legally constituted authority for any public use or purpose, then
in either of said event the term hereby granted shall cease from the
date when possession thereof is taken by public authorities, and rental
shall be accounted for as between Landlord and Tenant as of said date.
Such termination, however, shall be without prejudice to the rights of
either Landlord of Tenant to recover compensation and damage caused by
condemnation from the condemnor. It is further understood and agreed
that Tenant shall not have any rights in any award made to Landlord by
any condemnation authority.
ASSIGNMENT AND SUBLETTING
16. Tenant shall not, without the prior written consent of Landlord,
which shall not be unreasonably withheld, assign this Lease or any
interest hereunder, or sublet the Premises or any part thereof, or
permit the use of the Premises by any party other than the Tenant.
Consent to any assignment or sublease shall not impair this provision
and all later assignments or subleases shall be made likewise only on
the prior written consent of Landlord. The Assignee of Tenant, at
option of Landlord, shall become directly liable to Landlord for all
obligations of Tenant hereunder, but no sublease or assignment by
Tenant shall relieve Tenant of any liability hereunder.
EVENTS OF DEFAULT
17. The happening of any one or more of the following events
(hereinafter any one of which may be referred to as an "Event of
Default") during the term of this Lease, or any renewal or extension
thereof, shall constitute a breach of this Lease on the part of the
Tenant: (a) Tenant fails to pay the rental as provided for herein; (b)
Tenant abandons or vacates the Premises; (c) Tenant fails to comply
with or abide by and perform any other obligation imposed upon Tenant
under this Lease; (d) Tenant is adjudicated bankrupt; (e) A permanent
receiver is appointed for Tenant's property and such receiver is not
removed within sixty (60) days after written notice from Landlord to
Tenant to obtain such removal; (f) Tenant, either voluntarily or
involuntarily, takes advantage of any debt or relief proceedings under
any present or future law, whereby the rent or any part thereof is, or
is proposed to be reduced or payment thereof deferred; (g) Tenant makes
an assignment for benefit of creditor; or (h) Tenant's effects are
levied upon or attached under process against Tenant, which is not
satisfied or dissolved within thirty (30) days after written notice
from Landlord to Tenant to obtain satisfaction thereof.
REMEDIES UPON DEFAULT
18. Upon the occurrence of Event of Default, Landlord may pursue any
one or more of the following remedies separately or concurrently,
without prejudice to any other remedy herein provided or provided by
law; (a) if the Event of Default involves nonpayment of rental and
Tenant fails to cure such default within five (5) days after receipt of
written notice thereof from Landlord, or if the Event of Default
involves a default in performing any of the terms or provisions of this
Lease other than the payment of rental and Tenant fails to cure such
default within (15) days after receipt of written notice of default
from Landlord, Landlord may terminate this Lease by giving written
notice to Tenant and upon such termination shall be entitled to recover
from Tenant damages as may be permitted under application law; or (b)
if the Event of Default involves any matter other than those set forth
in item (a) of this paragraph, Landlord may terminate this Lease by
giving written notice to Tenant and, upon such termination, shall be
entitled to recover from the Tenant damages in an amount equal to all
rental which is due and all rental which would otherwise have become
due throughout the remaining term of this Lease, or any renewal or
extension thereof (as if this Lease had not been terminated); or (c)
upon any Event of Default, Landlord, as Tenant's agent, without
termination this Lease, may enter upon and rent the Premises, in whole
or in part, at the best
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price obtainable by reasonable effort, without advertisement and by
private negotiations and for any term Landlord deems proper, with
Tenant being liable to Landlord for this deficiency, if any, between
Tenant's rent hereunder and the price obtained by Landlord on reletting
provided however, that Landlord shall not be considered to be under any
duty by reason of this provision to take any action to mitigate damages
by reason of Tenant's default. In the event Landlord hires an attorney
to enforce its rights upon default, Tenant shall in addition be liable
for reasonable attorney's fees and all costs of collection.
EXTERIOR SIGNS
19. Tenant shall place no signs upon the outside walls or roof of the
Premises, except with the express written consent of the Landlord. Any
and all signs placed on the Premises by Tenant shall be maintained in
compliance with governmental rules and regulations governing such signs
and Tenant shall be responsible to Landlord for any damage caused by
installation, use or maintenance of said signs, and all damage incident
to removal thereof.
LANDLORD'S ENTRY OF PREMISES
20. Landlord may advertise the Premises "For Rent" or "For Sale" ninety
(90) days before the termination of this Lease. Landlord may enter the
Premises at reasonable hours to exhibit same to prospective purchasers
or tenants and to make repairs required of Landlord under the terms
hereof or to make repairs to Landlord's adjoining property, if any.
EFFECT OF TERMINATION OF LEASE
21. No termination of this Lease prior to the normal ending thereof, by
lapse of time or otherwise, shall affect Landlord's right to collect
rent for the prior to termination thereof.
MORTGAGEE'S RIGHTS
22. Tenant's rights shall be subject to any bona fide mortgage, deed of
trust or other security interest which is now or may hereafter be
placed upon the Premises by Landlord. Tenant shall, if requested by
Landlord, execute a separate agreement reflecting such subordination,
and shall be obligated to execute such documentation as may facilitate
Landlord's sale or refinancing of the Premises, including, but not
limited to estoppel certificates, subordination or attornment
agreements.
QUIET ENJOYMENT
23. So long as Tenant observes and performs the covenants and
agreements contained herein, it shall at all times during the Lease
term peacefully and quietly have and enjoy possession of the Premises,
but always subject to the terms hereof. Provided, however, that in the
event Landlord shall sell or otherwise transfer its interest in the
Premises, Tenant agrees to attorn to any new owner or interest holder
and shall, if requested by Landlord, execute a separate agreement
reflecting such attornment, provided that said agreement requires the
new owner or interest holder to recognize its obligations and Tenant's
rights hereunder.
HOLDING OVER
24. If Tenant remains in possession of the Premises after expiration of
the term hereof, with Landlord's acquiescence and without any express
agreement of the parties, Tenant shall be a tenant at will at the
rental rate which is in effect at end of this Lease and there shall be
no renewal of this Lease by operation of law. If Tenant remains in
possession of the Premises after expiration of the term hereof without
Landlord's acquiescence, Tenant shall be a tenant at sufferance and
commencing on the date following the date of such expiration, the
monthly rental payable under Paragraph 3 above shall for each month, or
fraction thereof during which Tenant so remains in possession of the
premises, be twice the monthly rental otherwise payable under Paragraph
3 above.
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ATTORNEY'S FEES
25. In the event that any action or proceeding is brought to enforce
any term, covenant or condition of this Lease on the part of Landlord
or Tenant, the prevailing party in such litigation shall be entitled to
recover reasonable attorney's fees and costs.
RIGHTS CUMULATIVE
26. All rights, powers and privileges conferred hereunder upon parties
hereto shall be cumulative and not restrictive of this given by law.
WAIVER OF RIGHTS
27. No failure of Landlord to exercise any power given Landlord
hereunder or to insist upon strict compliance by Tenant of its
obligations hereunder and no custom or practice of the parties at
variance with the terms hereof shall constitute a waiver of Landlord's
right to demand exact compliance with the terms hereof.
ENVIRONMENTAL LAWS
28. (a) Tenant shall not bring onto the Premises any Hazardous
Materials (as defined below) without the prior written approval by
Landlord. Any approval must be preceded by submission to Landlord of
appropriate Material Safety Data Sheets (MSD Sheets). In the event of
approval by Landlord, Tenant covenants that it will (1) comply with all
requirements of any constituted public authority and all federal, state
and local codes, statutes, rules and regulations, and laws, whether now
in force or hereafter adopted relating to Tenant's use of the Premises,
or relating to the storage, use, disposal, processing, distribution,
shipping or sales of any hazardous, flammable, toxic, or dangerous
materials, waste or substance, the presence of which is regulated by a
federal, state, or local law, ruling rule or regulation hereafter
collectively referred to as "Hazardous Materials"); (2) comply with any
reasonable recommendations by the insurance carrier of either Landlord
or Tenant relating to the use by Tenant on the Premises of such
Hazardous Materials; (3) refrain from unlawfully disposing of or
allowing the disposal of any Hazardous Materials upon, within, about or
under the Premises; and (4) remove all Hazardous Materials from the
Premises, either after their use by Tenant or upon the expiration or
earlier termination of this lease, in compliance with all applicable
laws.
(b) Tenant shall be responsible for obtaining all necessary
permits in connection with its use, storage and disposal of Hazardous
Materials, and shall develop and maintain, and where necessary file
with the appropriate authorities all reports, receipts, manifest,
filings, lists and invoices covering those Hazardous Materials and
Tenant shall provide Landlord with copies of all such items upon
request. Tenant shall provide within five (5) days after receipt
thereof, copies of all notices, orders, claims or other correspondence
from any federal, state or local government or agency alleging any
violation of any environmental law or regulation by Tenant, or related
in any manner to Hazardous Materials. In addition, Tenant shall provide
Landlord with copies of all responses to such correspondence at the
time of the response.
(c) Tenant hereby indemnifies and holds harmless Landlord, its
successors and assigns from and against any and all losses,
liabilities, damages, injuries, penalties, fines, costs, expenses and
claims of any and every kind whatsoever (including attorney's fees and
costs, expenses or claims asserted or arising under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, from time to time, and regulations promulgated thereunder, any
so-called state or local "Superfund" or "Superlien" law, or any other
federal, state or local statute, law or ordinance, code, rule,
regulation, order or decree
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regulating relating to, or imposing liability or standards of conduct
concerning any Hazardous Materials) paid, incurred or suffered by, or
asserted against, Landlord as a result of any claim, demand or judicial
or administrative action by any person or entity (including
governmental or private entities) for, with respect to, or as a direct
or indirect result of, the presence on or under or the escape, seepage,
leakage, spoilage, discharge, emission or release from the Premises on
any Hazardous Materials caused by Tenant or Tenant's agents, employees,
invitees or successors in interest. This indemnity shall also apply to
any release of Hazardous Materials caused by a fire or other casualty
to the Premises if such Hazardous Materials were stored on the Premises
by Tenant, its agents, employees, invitees or successors in interest.
(d) If Tenant fails to comply with the Covenants to be
performed hereunder with respect to Hazardous materials, or if an
environmental protection lien is filed against the Premises as a result
of the actions of Tenant, its agents, employees or invitees, then the
occurrence of any such events shall be considered a default hereunder.
(e) Tenant will give Landlord prompt notice of any release of
Hazardous Materials, reportable or non-reportable, to federal, state or
local authorities, of any fire, or any damage occurring on or to the
Premises.
(f) Tenant will use and occupy the Premises and conduct its
business in such a manner that the Premises are neat, clean and orderly
at all times with all chemicals or Hazardous Materials marked for easy
identification and stored according to all codes at outline above.
(g) The warranties and indemnities contained in this Paragraph
shall survive the termination of this Lease.
TIME ESSENCE
29. Time is of the essence in this Lease.
ABANDONMENT
30. Tenant shall not abandon the Premises at any time during the Lease
term. If Tenant shall abandon the Premises or be dispossessed by
process of law, any Personal Property belonging to Tenant and left on
the Premises shall, at the option of Landlord, be deemed abandoned, and
available to Landlord to use or sell to offset any rent due or any
expenses incurred by removing same and restoring the Premises.
DEFINITIONS
31. "Landlord" as used in this Lease shall include the undersigned, its
heirs, representatives, assigns and successors in title to the
Premises. "Agent" as used in this Lease shall mean the party designated
as same in Paragraph 32, its heirs, representatives, assigns and
successors. "Tenant" shall include the undersigned and its heirs,
representatives, assigns and successors, and if this Lease shall be
validly assigned or sublet, shall include also Tenant's assignees or
sublessees as to the Premises covered by such assignment or sublease.
"Landlord", "Tenant", and "Agent" include male and female, singular and
plural, corporation, partnership or individual, as may fit the
particular parties.
NOTICES
32. All notices required or permitted under this Lease shall be in
writing and shall be personally delivered or sent by U.S. Certified
mail, return receipt requested, postage prepaid. Notices to Tenant
shall be delivered or sent to the address shown at the beginning of
this Lease, except that upon Tenant taking possession of the Premises,
then the Premises shall be Tenant's address for such purposes. Notices
to
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Landlord shall be delivered or sent to the address shown at the
beginning of this Lease and notices to Agent, if any, shall be
delivered or sent to Agent for King Investment Partners, XX Xxx 0000,
Xxxxxxx-Xxxxx, XX 00000-0000.
ALL NOTICES SHALL BE EFFECTIVE UPON DELIVERY. ANY PARTY MAY CHANGE ITS NOTICE
ADDRESS UPON WRITTEN NOTICE TO THE OTHER PARTIES, GIVEN AS PROVIDED HEREIN.
ENTIRE AGREEMENT
33. This Lease contains the entire agreement of the parties hereto,
and no representations, inducements, promises or agreements, oral or
otherwise between the parties, not embodied herein shall be of any
force or effect. This Lease may not be modified except by a writing
signed by all the parties hereto.
AUTHORIZED LEASE EXECUTION
34. Each individual executing this Lease as director, officer, partner,
member or agent of a corporation, limited liability company, or
partnership represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of such corporation, limited
liability company, or partnership.
TRANSFER OF LANDLORD'S INTEREST
35. In the event of the sale, assignment or transfer by Landlord of its
interest in the Premises or in this Lease (other than a collateral
assignment to secure a debt of Landlord) to a successor in interest who
expressly assumes the obligation of Landlord under this Lease, Landlord
shall thereupon be released and discharged from all its covenants and
obligations under this Lease, except those obligations that have
accrued prior to such sale, assignment or transfer; and Tenant agrees
to look solely to the successor in interest of Landlord for the
performance of those covenant's accruing after such sale, assignment or
transfer. Landlord's assignment of this Lease, or of any or all of its
right in this Lease, shall not affect Tenant's obligations hereunder,
and Tenant shall attorn and look to the assignee as Landlord, provided
Tenant has first received written notice of the assignment of
Landlord's interest.
MEMORANDUM OF LEASE
36. Upon request by either Landlord or Tenant, the parties hereto shall
execute a short form lease (Memorandum of Lease) in recordable form,
setting forth such provisions hereof (other than the amount of Base
Monthly Rent and other sums due) as either party may wish to
incorporate. The cost of recording such memorandum of lease shall be
borne by the party requesting execution of same.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE HEREUNTO SET THEIR HANDS AND SEALS,
THAT DATE AND YEARS FIRST ABOVE WRITTEN.
LANDLORD: TENANT:
BUSINESS ENTITY: BUSINESS ENTITY:
KING INVESTMENT PARTNERS BRAEMAR, INC.
By: /s/ Xxxxx X. Xxxxxx (SEAL) By: /s/ Xxxxxx X. Xxxxxxxxxxx (SEAL)
--------------------- ---------------------------
Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxxxxx,
General Partner President
July 27, 2006
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