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Title: |
Tenant Use Contract |
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Date: |
2004 |
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Preview shows 19KB of 298KB total |
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$62 |
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ID: |
#1035804 |
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<SEQUENCE>2
<FILENAME>v08535_1ex10-1.txt
<TEXT>
================================================================================
TENANT USE CONTRACT
between
IONATRON INC.
and
MASON TECHNOLOGIES INC.
July 14, 2004
BASIC ORDER AGREEMENT 04T002
================================================================================
<PAGE>
I. Use of Facilities.....................................................2
II. Title to Property.....................................................3
III. Alterations to and Movement of Property...............................4
IV. Property Control System...............................................6
V. Access to Facilities..................................................6
VI. Indemnification; Exclusion of Indirect,
Incidental and Consequential Damages.................................6
VII. Warranty..............................................................7
VIII. Agreement Modification................................................8
IX. Orders, Changes and Limitation of Liability...........................8
X. Use by Others/Transfer/Assignment.....................................9
XI. Representations.......................................................11
XII. Payment for Use of Facilities.........................................11
XIII. Services of MTI.......................................................12
XIV. Inspection of Facilities..............................................15
XV. Reporting of Explosives, Propellants, Etc.
Stored on Army-Owned Installations...................................16
XVI. Relayaway of Facilities...............................................17
XVII. Liability for Facilities..............................................18
XVIII. Permits and Licenses; Compliance with Law.............................21
XIX. Maintenance and Utilization...........................................22
XX. Termination...........................................................22
XXI. Exclusion of Facilities Cost in Other Contracts.......................25
XXII. Real Property.........................................................25
XXIII. Contract Clauses......................................................26
XXIV. Disputes and Governing Law............................................27
XXV. Term..................................................................29
XXVI. Insurance.............................................................32
XXVII. Toxic and Hazardous Materials.........................................33
XXVIII. Pre-Existing Conditions...............................................34
XXIX. Miscellaneous.........................................................34
i
<PAGE>
BASIC ORDER AGREEMENT 04T002
EXHIBITS TO THE AGREEMENT:
Exhibit A - Permitted Use
Exhibit B - Tenant Plans
Exhibit C - AMCCOMR 702-9
Exhibit D - Order #001
Exhibit E - Form ENG 43
Exhibit F - NISPOM Definition of Foreign Person(s)
EXHIBITS TO ORDER 001:
Exhibit A - The Facility
Exhibit B - Government and/or Contractor Owned Property (Reserved)
Exhibit C - Service Fees
Exhibit D - Maintenance Obligations
Exhibit E - ARMS Improvements/Charette/Plans
ii
<PAGE>
BASIC ORDER AGREEMENT 04T002
WHEREAS, MASON TECHNOLOGIES INC. (hereafter referred to as "MTI" or
"Contractor") has entered into Facility Use Contract #DAAA09-92-E-0007, as
amended by P00001 through P00015 (as amended, the "Contract") with the U.S. Army
(the "Army") for use of certain Army Facilities, namely, the Mississippi Army
Ammunition Plant (the "MSAAP") at Stennis Space Center, MS 39529-7099, and
WHEREAS, IONATRON INC. (hereafter referred to as "SUBCONTRACTOR") desires
to obtain from MTI the right to use and occupy certain Army Facilities at MSAAP
and to obtain from MTI certain support services, and
WHEREAS, SUBCONTRACTOR's requirements for the Facilities (as hereinafter
defined), and services of MTI will be evolving over time, and MTI has the
capability to accommodate these requirements, and
WHEREAS, this document (hereinafter referred to as "Agreement or "Basic
Agreement") is a written instrument of understanding between MTI and
SUBCONTRACTOR which sets forth the negotiated provisions which will apply to
Order No. 001 (attached hereto as Exhibit D) as well as all future Orders and
such Orders shall incorporate the provisions herein (unless otherwise expressly
provided therein), and
WHEREAS, this Basic Agreement shall, subject to the terms and conditions
contained herein, become effective at 12:01 a.m., on the 15th day of July, 2004
(the "Effective Date").
THEREFORE, MTI and SUBCONTRACTOR agree as follows:
Page 1 of 39
<PAGE>
BASIC ORDER AGREEMENT 04T002
I. Use of Facilities
A. SUBCONTRACTOR shall have the right to use space, buildings,
improvements, equipment, and other Army and/or Contractor-owned
property provided to SUBCONTRACTOR under Orders issued pursuant to
this Agreement (referred to in combination as "Facilities") at the
MSAAP solely and specifically for the use specified in the letter
dated April 28, 2004 from MTI to the Army and the Army's written
approval of such (the "Permitted Use"), a copy of which is attached
hereto as Exhibit A, as well as the right of ingress and egress and
the right, in common with others, to the use of supporting
facilities, roadways and available parking areas. Any change in the
Permitted Use shall not be permitted unless and until written Army
approval of the change is obtained. Each Order issued hereunder
shall identify the Facilities for which use is authorized. No use of
the Facilities other than the Permitted Use will be permitted.
B. Under the Contract, MTI must comply with an Army-approved property
control system (the "Property Control System"). Pursuant to the
terms of the Property Control System, Contractor has furnished
SUBCONTRACTOR with a (a) tenant maintenance plan, (b) tenant
property control plan, (c) tenant security plan, (d) tenant safety
plan, (e) tenant fire protection plan and (f) tenant environmental
plan, copies of which are attached hereto as Exhibit B (collectively
referred to as the "Tenant Plans"), which Tenant Plans allocate
certain responsibilities between Contractor and SUBCONTRACTOR
relating to the use, operation and maintenance of the Facilities.
SUBCONTRACTOR agrees that its use of Facilities at MSAAP shall at
all times be in accordance with the Tenant Plans, as they may be
changed from time to time, provided, however, that any changes
initiated by the Contractor to such Tenant Plans, shall not
materially increase SUBCONTRACTOR'S obligations or materially
decrease SUBCONTRACTOR'S rights under this Agreement. If changes in
the Property Control System are initiated by the Army, the
Page 2 of 39
<PAGE>
BASIC ORDER AGREEMENT 04T002
Contractor shall have the right to make corresponding changes to the
Tenant Plans even if such changes materially increase
SUBCONTRACTOR'S obligations or materially decrease SUBCONTRACTOR'S
rights under this Agreement, provided, however, that in such event,
SUBCONTRACTOR shall be entitled (at its election) to (a) terminate
this Agreement, promptly vacate the Facilities, removing all of its
personal property therefrom and leaving the Facilities in the same
condition it received them, reasonable wear and tear excepted, with
no further liability to Contractor, and/or (b) seek (at its own
expense) an equitable adjustment from the Army through a Sponsored
Claim (as defined in ss. XXIV below). Contractor shall provide
written notification to SUBCONTRACTOR of changes to the Property
Control System which affect the Tenant Plans. SUBCONTRACTOR'S
non-compliance with the Tenant Plans shall be considered a breach of
a material provision of this Agreement, subject to the notice and
cure periods set forth in ss. XX.
C. If SUBCONTRACTOR elects to terminate this Agreement and invoke its
rights under ss. XXIV, it is understood that all the terms and
conditions of ss. XXIV shall remain in full force and effect with
regard to such Sponsored Claim, notwithstanding such termination.
II. Title to Property
A. Title to all Facilities shall remain with the Army and/or
Contractor. Title to parts of the Facilities replaced by
SUBCONTRACTOR (other than SUBCONTRACTOR'S trade fixtures and as
provided in ss. III.A below) in carrying out maintenance obligations
shall pass to, and vest in, the Army and/or Contractor upon
completion of their installation in the Facilities.
B. Title to the Facilities shall not be affected by their incorporation
into, or attachment to, any property not owned by the Army and/or
Contractor, nor shall any item of the Facilities become a fixture or
lose its identity as personal property by being attached to any real
property. The SUBCONTRACTOR shall keep the Facilities free and clear
of all liens and encumbrances and, except as may be otherwise
permitted by this Agreement or authorized by Orders issued under
this Agreement or by the Contractor, shall not remove or otherwise
part with possession of, or permit the use by others of, any of the
Facilities.
Page 3 of 39
<PAGE>
BASIC ORDER AGREEMENT 04T002
III. Alterations to and Movement of Property
A. The SUBCONTRACTOR may install, arrange, or rearrange, on Army
premises, readily movable machinery, equipment, and other items
belonging to the SUBCONTRACTOR, provided, however, in the event such
installations or arrangements will affect any of the building
systems serving the Facilities, SUBCONTRACTOR shall provide prior
written notification of such activities to the Contractor and, if
Contractor incurs additional costs directly attributable to such
installations and/or arrangements, SUBCONTRACTOR shall reimburse
Contractor for such increased costs. Title to any such item shall
remain in the SUBCONTRACTOR even though it may be attached to real
property owned by the Army, unless the Contractor reasonably
determines that it is so permanently attached that removal would
cause substantial injury to the real property, in which event, at
SUBCONTRACTOR'S election (i) such item will remain in place and
SUBCONTRACTOR will have no obligation to remove same or (ii)
SUBCONTRACTOR shall have the right to remove such item, provided it
agrees to pay the cost and a fee of seven percent (7%) of such costs
to Contractor for such restoration and that it provides the
Contractor, prior to the removal, with such payment to restore the
real property to which it is attached. Contractor and SUBCONTRACTOR
shall attempt to reasonably resolve these issues prior to the
attachment of personal property to real property, and, in any event,
Contractor shall make the determination of permanent attachment in a
timely manner in order to update real property records of MSAAP
Page 4 of 39
<PAGE>
BASIC ORDER AGREEMENT
after notification and discussions with SUBCONTRACTOR. The
SUBCONTRACTOR is responsible for clearly marking property belonging
to it so as to avoid discrepancies caused by co-mingling of
SUBCONTRACTOR and Army and/or Contractor-owned property.
B. The SUBCONTRACTOR shall not construct or install any fixed
improvement or structural alterations in or about Army buildings or
other real property without advance written approval of the
Contractor, which approval shall not be unreasonably withheld,
conditioned or delayed, except that, to the extent that Army
approval is required for such improvements or alterations under the
terms of the Contract, Contractor shall not be deemed to have acted
unreasonably if it withholds, conditions or delays its approval to
the same extent that the Army so withholds, conditions or delays its
approval. Contractor shall have a reasonable period of time to
communicate such approvals. Fixed improvements or structural
alterations, as used herein, mean any alteration or improvement in
the structure of the building or other real property that, after
completion, cannot be removed without substantial loss of value or
damage to the Facilities, as determined by the Army. Notwithstanding
the foregoing, (a) all of SUBCONTRACTOR'S requirements for fixed
improvements or structural alterations in real property (including
foundations for production equipment) shall be procured from the
Contractor by SUBCONTRACTOR's submission of completed Form ENG-43,
SUBCONTRACTOR Work Request Form (attached hereto as Exhibit E), to
Contractor and (b) SUBCONTRACTOR may, at SUBCONTRACTOR'S sole cost
and expense, make non-structural alterations to the Facilities,
provided that such non-structural alterations do not (i) affect the
building's exterior, (ii) adversely affect the building's systems or
facilities, (iii) adversely affect any service required to be
furnished by Contractor to SUBCONTRACTOR or to any other occupant of
MSAAP, or (iv) reduce the value or utility of the building.
Page 5 of 39
<PAGE>
BASIC ORDER AGREEMENT 04T002
IV. Property Control System
The SUBCONTRACTOR shall fulfill the requirements of the Tenant Plans on
SUBCONTRACTOR'S part to be performed, including (i) conducting an annual
inventory of all Army and/or Contractor-owned personal property, if any,
in its possession and reporting the results of this inventory to the
Contractor and (ii) reporting promptly all lost, damaged or destroyed Army
and/or Contractor-owned property to the Contractor. The Contractor shall
fulfill the requirements of the Tenant Plans on Contractor's part to be
performed.
V. Access to Facilities
The Contractor, the Army and NASA, and their respective agents and
employees, shall, at reasonable times and after coordination with the
SUBCONTRACTOR (except such coordination is not required in the event of an
emergency), have access to the Facilities and the premises where any of
the Facilities are located, provided that any such access shall be in
strict compliance with any and all security plans maintained by
SUBCONTRACTOR pursuant to the terms of SUBCONTRACTOR'S government
contracts (collectively, "Security Plans"). In the event Contractor incurs
additional cost directly attributable to SUBCONTRACTOR'S Security Plans,
SUBCONTRACTOR agrees to pay Contractor for all such costs and a fee of
seven percent (7%) of such costs in addition to the Fixed Service Fee
identified in Orders issued hereunder. Nothing set forth herein impairs
the right of the Army, NASA or other governmental agencies to engage in
sovereign acts in order to respond to terrorist threats or other emergency
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