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EXHIBIT 10.3
LEASE AGREEMENT
STATE OF TEXAS
COUNTY OF XXXXXX
This Lease Agreement, made and entered into by and between Teachers Insurance
and Annuity Association, a New York Corporation, hereinafter referred to as
"Landlord" and Winston Furniture Company of Alabama, Inc., an Alabama
Corporation, its successors, and assigns, hereinafter referred to as "Tenant",
WITNESSETH:
1. Premises and Term: In consideration of the obligation of Tenant to pay rent
as herein provided, and in consideration of other terms, provisions and
covenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby takes from Landlord certain premises situated within the County of
Xxxxxx, State of Texas, more particularly described as follows:
The 89,494 square foot portion, more particularly described on Exhibit A out of
the 89,494 square foot building known 000 Xxxx 0xx Xxxxxx, situated on that
certain 174,433 square feet of land out of a 278,537 square foot track of land
out of Blocks 271 and 272 and Abandoned Ashland Street out of Houston Heights
Addition according to the plat thereof filed at Volume 64, Page 1, Deed Records
of Xxxxxx County, Texas and being more particularly described as 000 X. 0xx
Xxxxxx, Xxxxxxx, XX 00000.
Together with all rights, privileges, easements, appurtenances and immunities
belonging to or in any way pertaining to the said premises and together with the
buildings and other improvements erected upon said premises (the said real
property and the buildings and improvements thereon being hereinafter referred
to as the "premises").
To have and to hold the same for a term commencing on DECEMBER 15, 1999 and
ending ONE HUNDRED TWENTY-FOUR (124) months thereafter. Tenant acknowledges that
it has inspected and accepts the premises, and specifically the buildings and
improvements comprising the same, in their present condition as suitable for the
purpose for which the premises are leased, provided all improvements outlined in
Exhibit B and detailed construction drawings are completed by Landlord. Taking
of possession by Tenant shall be deemed conclusively to establish that said
buildings and other improvements are in good and satisfactory condition as of
when possession was taken. Tenant further acknowledges that no representations
as to the repair of the premises, nor promises to alter, remodel or improve the
premises have been made by Landlord, unless such are expressly set forth in this
Lease. If this Lease is executed before the premises become vacant or otherwise
available and ready for occupancy, or if any present tenant or occupant of the
premises holds over, and Landlord cannot acquire possession of the premises
prior to the date above recited as the commencement date of this Lease, Landlord
shall not be deemed to be in default hereunder, and Tenant agrees to accept
possession of the premises at such time as Landlord is able to tender the same,
which date
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shall thenceforth be deemed the "commencement date", and Landlord hereby waives
payment of rent covering any period prior to the tendering of possession to
Tenant hereunder. After the commencement date Tenant shall, upon demand, execute
and deliver to Landlord a letter of acceptance of delivery of the premises.
Interior improvements, with the exception of the "shop" restrooms and any
interior concrete work, as reflected in architectural drawings to be submitted
to the City of Houston shall be completed by December 18, 1995. In the event
such improvements are not substantially completed by such date, Landlord shall
pay to Tenant $500.00 per day as damages. The "shop" restrooms, interior
concrete work and all exterior work should be completed no later than January
15, 1996. Landlord shall provide a temporary restroom facility for the "shop"
employees during the period that such permanent "shop" restrooms are under
construction.
2. Base Rent and Security Deposit.
a) Tenant agrees to pay to Landlord rent for the premises in advance, without
demand, deduction or set off, for the entire term hereof at the rate of See
Addendum One, Item 1 Dollars ($ -- ) per month. One such monthly
installment shall be due and payable on the date hereof and a like monthly
installment shall be due and payable on or before the first day of each
calendar month succeeding the Commencement Date recited above during the
hereby demised term, except that the rental payment for any fractional
calendar month at the commencement or end of the lease period shall be
prorated.
b) Intentionally deleted.
3. Use. The demised premises shall be used only for the purpose of receiving,
storing, manufacturing, shipping and selling (other than retail; semi-annual
public sales excepted) products, materials and merchandise made and or
distributed by Tenant and for such other lawful purposes and may be
incidental thereto. Tenant shall at its own cost and expense obtain any and
all licenses and permits necessary for any such use. Tenant shall comply
with all governmental laws, ordinances and regulations applicable to the use
of the premises, and shall promptly comply with all governmental orders and
directives for the correction, prevention and abatement or nuisances in or
upon, or connected with, the premises, all at Tenant's sole expense. Tenant
shall not permit any objectionable or unpleasant odors, smoke, dust, gas,
noise or vibrations to emanate from the premises, in violation of any
permits or laws. Without Landlord's prior written consent, Tenant shall not
receive, store or otherwise handle any products, material or merchandise
which is explosive or highly inflammable. Tenant will not permit the
premises to be used for any purpose or in any manner (including without
limitation any method of storage) which would render the insurance thereon
void or the insurance risk more hazardous or cause of State
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Board of Insurance or other insurance authority to disallow any sprinkler
credits.
4. Taxes.
a) Landlord agrees to pay before they become delinquent all taxes, assessments
and governmental charges of any kind and nature whatsoever hereinafter
collectively referred to as "taxes") lawfully levied or assessed against the
building and the grounds, parking areas, driveways and alleys around the
building; provided, however that the maximum amount of taxes to be paid by
Landlord hereunder during any one real estate tax year shall be SEE ADDENDUM
ONE, ITEM 2.
b) Intentionally deleted.
c) If at any time during the term of this Lease, the present method of taxation
shall be changed so that in lieu of the whole or any part of any taxes,
assessments or govenmental charges levied, assessed or imposed on real
estate and the improvements thereon, there shall be levied, assessed or
imposed on Landlord a capital levy or other tax directly on the rents
received therefrom and/or a franchise tax, assessment, levy or charge
measured by or based, in whole or in part, upon such rents for the present
or any future building or buildings on the premises, then all such taxes,
assessments, levies or charges, or the part thereof so measured or based, in
whole or in part, upon such rents for the present or any future building or
buildings on the premises, then all such taxes, assessments, levies or
charges, or the part thereof so measured or based, shall be deemed to be
included within the term "taxes" for the purposes hereof.
d) The Landlord shall have the right to employ a tax consulting firm to attempt
to assure a fair tax burden on the building and grounds within the
applicable taxing jurisdiction. Tenant shall pay to Landlord upon demand
from time to time, as additional rent, the amount of Tenant's "proportionate
share" (as defined in subparagraph 49b) above) of the cost of such service.
e) Any payment to be made pursuant to this Paragraph 4 with respect to the real
estate tax year in which this Lease commences or terminates shall be
prorated.
5. Landlord's Repairs. Landlord shall at this expense maintain only the roof,
foundation and the structural soundness of the exterior walls of the
building in good repair, reasonable wear and tear excepted. Tenant shall
repair and pay for any damage caused by Tenant, or Tenant's employees,
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agents or invitees, or caused by Tenant's default hereunder. The term
"walls" as used herein shall not include windows, glass or plate glass,
doors, special store fronts or office entries. Tenant shall immediately give
Landlord written notice of defect or need for repairs, after which Landlord
shall have reasonable opportunity to repair same or cure such defect.
Landlord's liability with respect to any defects, repairs or maintenance for
which Landlord is responsible under any of the provisions of this lease
shall be limited to the cost of such repairs or maintenance or the curing of
such defect.
6. Tenant's Repairs
a) Tenant shall at its own cost and expense keep and maintain all parts of the
premises (except those for which landlord is expressly responsible under the
terms of this Lease) in good condition, promptly making all necessary
repairs and replacements, including but not limited to, windows, glass and
plate glass, doors, any special office entry, interior walls and finish
work, floors and floor covering, downspout, gutters, heating and air
conditioning systems, dock boards, truck doors, dock bumpers, paving,
plumbing work and fixtures, termite and pest extermination, regular removal
of trash and debris, regular mowing of any grass, trimming, weed removal and
general landscape maintenance, keeping the parking areas, driveways, alleys
and the whole of the premises in a clean and sanitary condition. Tenant
shall not be obligated to repair any damages caused by fire, tornado or
other casualty covered by the insurance to be maintained by Landlord
pursuant to subparagraph 12(a) below, except that Tenant shall be obligated
to repair all wind damage to glass except with respect to tornado or
hurricane damage.
b) Tenant shall not damage any demising wall or disturb the integrity and
support provided by any demising wall or shall, at its sole cost and
expense, promptly repair any damage or injury to any demising wall caused by
Tenant or its employees, agents or invitees.
c) Tenant and its employees, customers and licensees shall have the exclusive
right to use the parking areas. Landlord shall not be responsible for
enforcing Tenant's exclusive parking rights against any third parties.
Further, Landlord shall perform the paving and landscape maintenance,
exterior painting and common sewage line plumbing which are otherwise
Tenant's obligations under subparagraph (a) above, and Tenant shall, in lieu
of the obligations set forth under subparagraph 9a) above with respect to
such items, be liable for the cost and expense over and above the base year
expense stop outlined in Addendum One, Item 2 herein, of the care of the
grounds around the building, including but not limited to, the mowing of
grass, care of shrubs, general landscaping, maintenance of parking areas,
driveways and alleys, exterior repainting and common sewage line plumbing.
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d) Intentionally deleted.
e) Tenant shall, at its own cost and expense service all hot water, heating and
air conditioning systems and equipment within the premises and keep same in
good working condition.
7. Alterations. Tenant shall not make any alterations, additions or
improvements to the premises (including but not limited to roof and wall
penetrations) without the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed. Tenant may, without the
consent of Landlord, but at its own cost and expense and in a good
workmanlike manner erect such shelves, bins, machinery, and trade fixtures
as it may deem advisable, without altering the basic character of the
building or improvements and without overloading or damaging such building
or improvements, and in each case complying with all applicable governmental
laws, ordinances, regulations and other requirements. All alterations,
additions, improvements and partitions erected by Tenant shall be and remain
the property of Tenant during the term of this Lease and Tenant shall,
unless Landlord otherwise elects as hereinafter provided, remove all
alterations, additions, improvements and partitions erected by Tenant and
restore the premises to their original condition by the date of termination
of this Lease or upon earlier vacating of the premises; provided, however,
that if Landlord so elects prior to termination of this lease or upon
earlier vacating of the premises, such alterations, additions, improvements
and partitions shall become of property of Landlord as of the date of
termination of this Lease or upon earlier vacating of the premises and shall
be delivered up to the Landlord with premises. All shelves, bins, machinery
and trade fixtures, installed by Tenant may be removed by Tenant prior to
the termination of this Lease if Tenant so elects, and shall be removed by
the date of termination of this Lease or upon earlier vacating of the
premises if required by Landlord; upon any such removal Tenant shall restore
the premises to their original condition. All such removals and restoration
shall be accomplished in a good workmanlike manner so as not to damage the
primary structure or structural qualities of the buildings and other
improvements situated on the premises.
8. Signs. Tenant shall have the right to install signs upon the premises only
when first approved in writing by Landlord, which approval shall not be
unreasonably withheld or delayed, and subject to any applicable governmental
laws, ordinances, regulations, Landlord's architectural controls, and other
requirements. Tenant shall remove all such signs by the termination of this
Lease. Such installations and removals shall be made in such manner as to
avoid injury or defacement of the building and other improvements, and
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Tenant shall repair any injury or defacement, including without limitation
discoloration, caused by such installation and/or removal. Landlord hereby
acknowledges that monument signage, building signage and flag poles may be
installed on the building and property.
9. Inspection. Landlord and Landlord's agents and representatives shall have
the right to enter and inspect the premises at any reasonable time during
business hours, for the purpose of ascertaining the condition of the
premises or in order to make such repairs as may be required or permitted to
be made by Landlord under the terms of this Lease with twenty-four (24)
hours notice except in the case of emergencies. During the period that is
three (3) months prior to the end of the term hereof, Landlord and
Landlord's agents and representatives shall have the right to enter the
premises at any reasonable time during business hours for the purpose of
showing the promises and shall have the right to erect on the premises a
suitable sign indicating the premises are available. Tenant shall give
written notice to Landlord at least thirty (30) days prior to vacating the
premises and shall arrange to meet with Landlord for a joint inspection of
the premises prior to vacating. In the event of Tenant's failure to give
such notice or arrange such joint inspection, Landlord's inspection at or
after Tenant's vacating the premises shall be conclusively deemed correct
for purposes of determining Tenant's responsibility for repairs and
restoration.
10. Utilities. Landlord agrees to provide at its cost water, electricity, gas
and telephone service connections into the premises and all initial light
bulbs, tubes and ballasts; but Tenant shall pay for all water, gas heat,
light, power, telephone, sewer, sprinkler charges and other utilities and
services used on or from the premises, together with any taxes, penalties,
surcharges or the like pertaining thereto and any maintenance charges for
utilities and shall furnish all electric light bulbs and tubes after the
commencement date. Landlord shall in no event be liable for any interruption
or failure of utility service on the premises, unless caused by Landlord's
negligence.
11. Assignment and Subletting. Tenant will not assign this Lease, or allow same
to be assigned by operation of law or otherwise, or sublet the demised
premises or any part thereof without the prior written consent of Landlord.
Notwithstanding are permitted assignment or subletting, Tenant shall at all
times remain directly, primarily and fully responsible and liable for the
payment of the rent herein specified and for compliance with all of its
other obligations under the terms, provisions and covenants of this Lease.
Upon the occurrence of an "event of default" as hereinafter defined, if the
premises or any part thereof are then assigned or sublet, Landlord, in
addition to any other remedies herein provided or provided by law, may at
its option collect directly from such assignee or subtenant all rents
becoming due to Tenant under such assignment or
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sublease and apply such rent against any sums due to Landlord from Tenant
hereunder, and no such collection shall be construed to constitute a
novation or a release of Tenant from the further performance of Tenant's
obligations hereunder.
If Tenant shall propose to sublet or assign this Lease, it shall so notify
Landlord in writing not less than fifteen (15) days prior to the date of the
proposed assignment or subletting, such notice setting forth the name of the
proposed subtenant or assignee, the term, use, rental rate and other
particulars of the proposed subletting or assignment, including without
limitation, proof satisfactory to Landlord that the proposed subtenant or
assignee is financially responsible and will immediately occupy and
thereafter use the entire premises (or any sublet portion thereof) for the
remaining term of this Lease (or for the entire term of the sublease, if
shorter).
Except for the approximately 19,000 square feet outlined on Exhibit B
attached hereto, which Tenant has the right to sublease, Landlord shall have
the option, in the event of any proposed assignment or subletting, to cancel
this Lease as of the date of subletting or assignment described in Tenant's
notice is to be effective. The option shall be exercised, if at all, by
Landlord's giving Tenant written notice thereof within twenty (20) days
following Landlord's receipt of Tenant's written request. Upon any such
cancellation Tenant shall pay to Landlord all costs or charges which are the
responsibility of Tenant hereunder, and Tenant shall, at Tenant's own cost
and expense, discharge in full any outstanding commission obligation on the
part of Landlord with respect to this Lease. Further, upon any such
cancellation Landlord and Tenant shall have no further obligations or
liabilities to each other under this Lease, except with respect to
obligations or liabilities which accrue hereunder, as of such cancellation
date in the same manner as if such cancellation date were the date
originally fixed for the expiration of the term hereof. Without limitation,
Landlord may Lease the premises to the prospective subtenant or assignee,
without liability to the Tenant. Landlord's failure to exercise any right
hereunder shall not waive Landlord's right as to any subsequent proposed
sublease or assignment, nor shall any such failure be deemed to constitute
Landlord's approval of the proposed sublease or assignment.
Landlord agrees to approve any assignment by Tenant to any corporation
succeeding to substantially all the business and assets of Tenant by merger,
consolidation, purchase of assets or otherwise, or to any assignment or
subletting to a corporation which is an affiliate of Tenant. In other cases,
Landlord agrees not to unreasonably withhold approval of any proposed
subletting or assignment as to which Landlord declines its rights to
cancellation hereunder provided such proposed transaction is consummated
within thirty (30) days after Landlord's refusal or failure to so
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recapture, and upon the same terms and conditions disclosed to Landlord in
Tenant's notice, and with another financially responsible party whose use of
the demised premises will not depreciate the value of the premises, or the
value of the property adjacent thereto, or will not be extra hazardous with
reference to the risk of fire or other hazards. Any assignment or subletting
without Landlord's approval, where required hereunder, shall be void and of
no effect.
Tenant shall have the right to sublease up to 19,000 square feet contained
within the leased premises without obtaining prior written consent from
Landlord, provided Tenant continues to be the primary occupant of the
building and fully responsible for all obligations hereunder.
Landlord shall have the right to transfer and assign, in whole or in part,
any of its rights under this lease, and in the Building and property
referred to herein; and to the extent that such assignee assumes Landlord's
obligations hereunder, Landlord shall by virtue of such assignment be
released from such obligations.
12. Fire and Casualty Damage.
a) Landlord agrees to maintain standard fire and extended coverage insurance
covering the building of which the premises are a part in an amount not less
than 80% (or such greater percentage as may be necessary to comply with the
provisions of any co-insurance clauses of the policy) of the "replacement
cost" thereof as such term is defined in the Replacement Cost Endorsement to
be attached thereto, insuring against the perils of Fire, Lighting and
Extended Coverage, such coverages and endorsements to be as defined,
provided and limited in the standard bureau forms prescribed by the
insurance regulatory authority for the State in which the premises are
situated for use by insurance companies admitted in such state for the
writing of such insurance on risks located within such state. Subject to the
provisions of subparagraphs 12(c), 12(d) and 12(e) below, such insurance
shall be for the sole benefit of Landlord and under its sole control. Any
payment to be made pursuant to this subparagraph (a) with respect to the
year in which this Lease commences or terminates shall bear the same ratio
to the payment which would be required to be made for the full year as the
part of such year covered by the term of this Lease bears to a full year.
b) If the buildings situated upon the premises should be damaged or destroyed
by fire, tornado or other casualty, Tenant shall give immediate written
notice thereof to Landlord.
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c) If the building situated upon the premises should be totally destroyed by
fire, tornado or other casualty, or if they should be so damaged, thereby
that rebuilding or repairs cannot in Landlord's estimation be completed
within one hundred twenty (120) days after the date upon which Landlord is
notified by Tenant of such damage, this Lease shall terminate and the rent
shall be abated during the unexpired portion of this Lease, effective upon
the date of the occurrence of such damage.
d) If the building situated upon the premises should be damaged by any peril
covered by the insurance to be provided by Landlord under subparagraph 12(a)
above, but only to such extent that rebuilding or repairs can in Landlord's
estimation be completed within one hundred twenty (120) days after the date
upon which Landlord is notified by Tenant of such damage, this Lease shall
not terminate, and Landlord shall at its sole cost and expense thereupon
proceed with reasonable diligence to rebuild and repair such buildings to
substantially the condition in which they existed prior to such damage,
except that Landlord shall not be required to rebuild, repair or place any
part of the partitions, fixtures, additions and other improvements which may
have been placed in, on or about the premises by Tenant. If the premises are
untenantable in whole or in part following such damage, the rent payable
hereunder during the period in which they are untenantable shall be reduced
to such extent as may be fair and reasonable under all of the circumstances.
In the event that Landlord shall fail to complete such repairs and
rebuilding within one hundred twenty (120) days after the date upon which
Landlord is notified by Tenant of such damage, Tenant may at its option
terminate this Lease by delivering written notice of termination to Landlord
as Tenant's exclusively remedy, whereupon all rights and obligations
hereunder shall cease and terminate.
e) Intentionally deleted.
f) Each of Landlord and Tenant hereby releases the other from any loss or
damage to property caused by fire or any other perils insured through or
under them by way of subrogation or otherwise for any loss or damage to
property caused by fire or any other perils insured in policies of insurance
covering such property, even if such loss or damage shall have been caused
by the default or negligence of the other party, or anyone for whom such
party may be responsible; provided, however, that this release shall be
applicable and in force and effect only with respect to loss or damage
occurring during such times as the releasor's policies or prejudice the
right of the releasor to recover thereunder and then only to the extent of
the insurance proceeds payable under such policies. Each of the Landlord and
Tenant agrees that it will request its insurance carriers to include in its
policies such a clause or endorsement. If
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extra cost shall be charged therefor, each party shall advise the other
thereof and of the amount of the extra cost, and the other party, at its
election, may pay the same, but shall not be obligated to do so.
13. Liability. Landlord shall not be liable to Tenant or Tenant's employees,
agents, patrons or visitors, or to any other person whomsoever, for any
injury to person or damage to property on or about the premises, resulting
from and/or caused in part or whole by the negligence or misconduct of
Tenant, its agents, servants or employees, or of any other person entering
upon the premises, or caused by the buldings and improvements located on the
premises becoming out of repair, or caused by leakage of gas, oil, water or
steam or by electricity emanating from the premises, or due to any cause
whatsoever, and Tenant hereby covenants and agrees that it will at all times
indemnify and hold safe and harmless the property, the Landlord (including
without limitation the trustee and beneficiaries if Landlord is a trust),
Landlord's agents and employees from any loss, liability, claims, suits,
costs, expenses, including without limitation attorney's fees and damages,
both real and alleged, arising out of any such damage or injury; except
injury to persons or damage to property the sole cause of which is the
negligence of Landlord or the failure of Landlord to repair any part of the
premises which Landlord is obligated to repair and maintain hereunder within
a reasonable time after the receipt of written notice from Tenant of needed
repairs. Tenant shall procure and maintain throughout the term of this Lease
a policy or policies of liability insurance, as its sole cost and expense,
insuring both Landlord and Tenant against all claims, demands or actions
arising out of or in connection with: (i) the premises; (ii) the condition
of the premises; (iii) Tenant's operations in and maintenance and use of the
premises; and (iv) Tenant's liability assumed under this Lease, the limits
of such policy or policies to be in the amount of not less than $1,000,000
per occurrence in respect of injury (including death), and in the amount of
not less than $500,000 per occurrence in respect of property damage or
destruction, including loss of use thereof. All such policies shall be
procured by Tenant from responsible insurance companies satisfactory to
Landlord. Certified copies of such policies, together with receipt
evidencing payment of premium therefor, shall be delivered to Landlord prior
to the commencement date of this Lease. Not less than fifteen (15) days
prior to the expiration date of such policies certified copies of the
renewals thereof (bearing notations evidencing the payment of renewal
premiums therefor, shall be delivered to Landlord. Shall policies shall
further provide that not less than thirty (30) days written notice shall be
given to Landlord before such policy may be canceled or changed to reduce
insurance provided thereby.
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14. Condemnation
a) If the whole or any substantial part of the premises should be taken for any
public of quasi-public use under governmental law, ordinance or regulation
or by right of eminent domain, and the taking would prevent or materially
interfere with the use of the premises for the purpose for which they are
being used, this Lease shall terminate and the rent shall be abated during
the unexpired portion of this Lease, effective when the physical taking the
said premises shall occur.
b) If part of the premises shall be taken for any public or quasi-public use
under any governmental law, ordinance or regulation, or by right of eminent
domain, and this Lease is not terminated as provided in the subparagraph
above, this Lease shall not terminate but the rent payable hereunder during
the unexpired portion of this Lease shall be reduced to such extent as may
be fair and reasonable under all of the circumstances.
c) In the event of any such taking, Landlord and Tenant shall each be entitled
to receive and retain such separate awards and/or portion of Lump Sum awards
as may be allocated to their respective interests and any condemnation
proceedings.
15. Holding Over. Tenant will at the termination of this Lease by lapse of time
or otherwise, yield up immediate possession to Landlord. If Landlord agrees
in writing that Tenant may hold over after the expiration or termination of
this Lease, unless the parties hereto otherwise agree in writing on the
terms of such holding over, the hold over tenancy shall be subject to
termination by Landlord at any time upon not less than thirty (30) days
advance written notice, or by Tenant at any time upon not less than thirty
(30) days advance written notice, and all of the other terms and provisions
of this Lease shall be applicable during that period, except that Tenant
shall pay Landlord from time to time upon demand, as rental for the period
of any hold over, an amount equal to one and one-half (1-1/2) the rent in
effect on the termination date, computed on a daily basis for each day of
the hold over period. No holding over by Tenant, whether with or without
consent of Landlord shall operate to extend this Lease except as otherwise
expressly provided. The preceding provisions of this paragraph 15 shall not
be construed as Landlord's consent for Tenant to hold over.
16. Quiet Enjoyment. Landlord covenants that it now has, or will acquire before
Tenant takes possession of the premises, good title to the premises, free
and clear of all liens and encumbrances, excepting only the lien for current
taxes not yet due, such mortgage or mortgages as are permitted by the terms
of this Lease, zoning ordinances and other building and fire ordinances and
governmental regulations relating to
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the use of such property, and easements, restrictions and other conditions
of record. In the event this Lease is a sublease, then Tenant agrees to take
the premises subject to the provisions of the prior leases. Landlord
represents and warrants that it has full right and authority to enter into
this lease and that Tenant, upon paying the rental herein set forth and
performing its other covenants and agreements herein set forth, shall
peaceably and quietly have, hold and enjoy the premises for the term hereof
without hindrance or molestation from Landlord, subject to the terms and
provisions of this Lease.
17. Events of Default. The following shall be deemed to be events of default by
Tenant under this Lease:
a) Tenant shall fail to pay any installment of the rent herein reserved when
due, or any payment with respect to taxes hereunder when due, or any other
payment or reimbursement to Landlord required herein when, due, and such
failure shall continue for a period of five (4) days from receipt of notice
that such payment was past due.
b) Tenant shall become insolvent or shall make a transfer in fraud of creditor,
or shall make an assignment for the benefit of creditors.
c) Tenant shall file a petition under any section of the National Bankruptcy
Act, as amended, or under any similar law or statute of the United States or
any State thereof; or Tenant shall be adjudged bankrupt or insolvent in
proceedings filed against Tenant thereunder.
d) A receiver or trustee shall be appointed for all or substantially all of the
assets of Tenant.
e) Tenant shall desert or vacate any substantial portion of the premises and
discontinue payment of rent.
f) Tenant shall fail to comply with any term, provision or covenant of this
Lease (other than the foregoing in this Paragraph 17)j, and shall not cure
such failure within thirty (30) days after written notice thereof to Tenant.
18. Remedies. Upon the occurrence of any such events of default described in
Paragraph 17 hereof, Landlord shall have the option to pursue any or more of
the following remedies without any notice or demand whatsoever:
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a) Terminate this Lease, in which event Tenant shall immediately surrender the
premises to Landlord, and if Tenant fails so to do, Landlord may, without
prejudice to any other remedy which it may have for possession or arrearages
in rent, enter upon and take possession of the premises and expel or remove
Tenant and any other person who may be occupying such premises or any part
thereof; and Tenant agrees to pay to Landlord on demand the amount of all
loss and damage which Landlord may suffer by reason of such termination,
whether through inability to relet the premises on satisfactory terms or
otherwise.
b) Enter upon and take possession of the premises and expel ore remove Tenant
and any other person who may be occupying such premises or any part thereof,
and relet the premises and receive the rent therefor; and Tenant agrees to
pay to the Landlord on demand any deficiency that may arise by reason of
such reletting. In the event Landlord is successful in reletting the
premises at a rental in excess of that agreed to be paid by Tenant pursuant
to the terms of this Lease, Landlord and Tenant each mutually agree that
Tenant shall not be entitled, under any circumstances, to such excess
rental, and Tenant does hereby specifically waive any claim to such excess
rental.
c) Enter upon the premises, and do whatever Tenant is obligated to do under the
terms of this Lease; and Tenant agrees to reimburse Landlord on demand for
any expenses which Landlord may incur in thus effecting compliance with
Tenant's obligations under this Lease, and Tenant further agrees that
Landlord shall not be liable for any damages resulting to the Tenant from
such action, unless caused by the negligence of Landlord.
In the event Tenant fails to pay any installment of rent or any
reimbursement, additional rental, or any other payment hereunder as and when
such payment is due, to help defray the additional cost to Landlord for
processing such late payments Tenant shall pay to Landlord on demand a late
charge in an amount equal to five percent (5%) of such installment,
reimbursement, additional rental or any other payment and the failure to pay
such late charges within ten (10) days after written demand therefor shall
be an event of default hereunder. The provision for such late charge shall
be in addition to all of Landlord's other rights and remedies hereunder or
at law and shall not be construed as liquidated damages or as limiting
Landlord's remedies in any manner.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law,
nor shall pursuit of any remedy herein provided constitute a forfeiture or
waiver of
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any rent due to Landlord hereunder or of any damages accruing to Landlord by
reason of the violation of any of the terms, provisions and covenants herein
contained. No act or thing done by the Landlord or its agents during the
term hereby granted shall be deemed a termination of this Lease or any
acceptance of the surrender of the premises, and no agreement to terminate
this Lease or accept a surrender of said premises shall be valid unless in
writing signed by Landlord of any violation or breach of any of the terms,
provisions and covenants herein contained shall be deemed or construed to
constitute a waiver of any other violation or breach of any of the terms,
provisions and covenants herein contained. Landlord's acceptance of the
payment of rental or other payment hereunder after the occurrence of an
event of default shall not be construed as a waiver of such default, unless
Landlord so notifies Tenant in writing. Forbearance by Landlord to enforce
one or more of the remedies herein provided upon an event of default shall
not be deemed or construed to constitute a waiver of such default or of
Landlord's right to enforce any such remedies with respect to such default
or any subsequent default. If, on account of any breach or default by Tenant
in Tenant's obligation under the terms and conditions of this Lease, it
shall become necessary or appropriate for Landlord to employ or consult with
an attorney concerning or to enforce or defend any of Landlord's rights or
remedies hereunder, Tenant agrees to pay any reasonable attorney's fees so
incurred.
19. Intentionally deleted.
20. Subordination. This Lease and all rights of Tenant hereunder are subject and
subordinate (1) to any mortgage or deed of trust, blanket or otherwise,
which does not or may hereafter affect the building (and which may also
affect other properties) and (ii) to any and all increases, renewals,
modifications, consolidations, replacements and extensions of any such
mortgage or deed of trust. This provision is hereby declared by Landlord and
Tenant to be self-operative and no further instruments shall be required to
effect such subordination of this Lease. Tenant shall, however, within
fifteen (15) days after written receipt, execute, acknowledge and deliver to
Landlord any and all reasonable instruments and certificates that may be
necessary or proper to more effectively subordinate this Lease and all
rights of Tenant hereunder to any such mortgage or deed of trust or to
confirm or evidence such subordination. In the event Tenant shall fail or
neglect to execute, acknowledge and deliver any such subordination agreement
or certificate, Landlord in addition to any other remedies it may have, may,
as the agent and attorney in fact of Tenant, execute acknowledge and deliver
the same and Tenant hereby irrevocably nominates, constitutes and appoints
Landlord Tenant's proper and legal agent and attorney in fact for such
purposes. Such power of attorney shall not terminate on disability of the
principal. Tenant covenants and agrees, in the event any proceedings are
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brought for the foreclosure of any such mortgage or if the Building be sold
pursuant to any such deed or trust, to attorn to the purchaser, upon any
such foreclosure sales or trustee's sale if so requested by such purchaser
and to recognize such purchase as the landlord under this Lease. Tenant
agrees to execute and deliver upon the request of Landlord or of any
holder(s) of any of the indebtedness or other obligations secured by any of
the mortgages or deeds of trusts referred to in this paragraph, within
fifteen (15) days after written receipt, any reasonable instruments or
certificates which, in the sole judgment of the Landlord or of such
holder(s), may be necessary or appropriate in any such foreclosure
proceeding or otherwise to evidence such attornment.
21. Landlord's Default. In the event Landlord should become in default in any
payments due on any such mortgage described in Paragraph 20 hereof or in the
payment of taxes or any other items which might become a lien upon the
premises and which Tenant is not obligated to pay under the terms and
provisions of this Lease, Tenant is authorized and empowered after giving
Landlord five (5) days prior written notice of such default and Landlord's
failure to cure such default, to pay any such items for and on behalf of
Landlord, and the amount of any item so paid by Tenant for or on behalf of
Landlord, together with any interest or penalty required to be paid in
connection therewith, shall be payable on demand by Landlord to Tenant;
provided, however, that Tenant shall not be authorized and empowered to make
any payment under the terms of this Paragraph 21 unless the item paid shall
be superior to Tenant's interest hereunder. In the event Tenant pays any
mortgage debt in full, in accordance with this paragraph, it shall, at its
election, be entitled to the mortgage security by assignment or subrogation.
22. Mechanic's Lien. Tenant shall have no authority, express or implied to
create or place any lien or encumbrance of any kind or nature whatsoever
upon, or in any manner to bind, the interest of Landlord in the premises or
to charge the rentals payable hereunder for any claim in favor of any person
dealing with Tenant, including those who may furnish materials or perform
labor for any construction or repairs, and each such claim shall effect and
each such lien shall attach to, if at all, only the leasehold interest
granted to Tenant by this instrument. Tenant covenants and agrees that it
will pay or cause to be paid all sums legally due and payable by it on
account of any labor performed or materials furnished in connection with any
work performed on the premises on which any lien is or can be validly and
legally asserted against its leasehold interest in the premises or the
improvements thereon and that it will save and hold Landlord harmless from
any and all loss, cost or expense based on or arising out of asserted claims
or liens against the leasehold estate or against the right, title and
interest of the Landlord in the premises or under the terms of this Lease.
Tenant has no responsibility for any liens caused by work, improvements or
repairs caused by Landlord.
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23. Notices. Each provision of this instrument or of any applicable governmental
laws, ordinances, regulations and other requirements with referent to the
sending mailing or delivery of any notice or the making of any payment by
Landlord to Tenant or with reference to the sending, mailing or delivery of
any notice or the making of any payment by Tenant to Landlord shall be
deemed to be complied with when and if the following steps are taken:
a) All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address hereinbelow set forth
or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Tenant's obligation to pay
rent and any other amounts to Landlord under the terms of this Lease shall
not be deemed satisfied until such rent and other amounts have been actually
received by Landlord.
b) All payments required to be made by Landlord to Tenant hereunder shall be
payable to Tenant at the address hereinbelow set forth, or at such other
address within the continental United States as Tenant may specify from time
to time by written notice delivered in accordance herewith.
c) Any notice or document required or permitted to be delivered hereunder shall
be deemed to be delivered whether actually received or not when deposited in
the United States Mail, postage prepaid. Certified or Registered Mail,
addressed to the parties hereto at the respective addresses set out below,
or at such other address as they have heretofore specified by written notice
delivered in accordance herewith:
Landlord: Tenant:
c/o Transwestern Property Company Winston Furniture Company of Alabama, Inc.,
0000 Xxxxxxxxx Xxxxxxx, an Alabama corporation
Xxxxx 000 000 X. 0xx Xxxxxx
Houston, Texas 77074 Xxxxxxx, XX 00000
And
000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000
If and when included within the term "Landlord," as used in this instrument,
there are more than one person, firm or corporation, all shall jointly
arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address for the receipt of
notices and payments to Landlord; if and when included within the term
"Tenant," as used in this instrument, there are more than one person, firm
or corporation, all shall jointly arrange among themselves for their joint
execution of such a notice specifying some individual at some specific
address within the continental United States for the receipt of notices and
payments to Tenant. All parties included within the terms "Landlord" and
"Tenant," respectively, shall be bound by notices given in accordance with
the provisions of this paragraph to the same effect as if each had received
such notice.
24. Miscellaneous
a) Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
b) The terms, provisions and covenants and conditions contained in this Lease
shall apply to, inure to the benefit of, and
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be binding upon, the parties hereto and upon their respective heirs, legal
representatives, successors and permitted assigns, except as otherwise
herein expressly provided, Landlord shall have the right to assign any of
its rights and obligations under this Lease. Each party agrees to have the
Lease signed by a duly authorized officer of the respective companies.
c) The captions inserted in this Lease are for convenience only and in no way
define, limit or otherwise describe the scope or intent of this Lease, or
any provision hereof, or in any way affect the interpretation of this Lease.
d) Tenant agrees from time to time within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating that this Lease is in full force and effect, the date to
which rent has been paid, the unexpired term of this Lease and such other
matters pertaining to this Lease as may be requested by Landlord. It is
understood and agreed that Tenant's obligation to furnish such estoppel
certificates in a timely fashion is a material inducement for Landlord's
execution of this Lease.
e) This Lease may not be altered, changed or amended except by an instrument in
writing signed by both parties hereto.
f) All obligations of Tenant hereunder not fully performed as of the expiration
or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation all payments obligations with respect to taxes and insurance and
all obligations concerning the condition of the premises. Upon the
expiration or earlier termination of the term hereof, and prior to Tenant
vacating the premises, Tenant shall pay to Landlord the amount, as estimated
by Landlord, of Tenant's obligation hereunder for real estate taxes and
insurance premiums for the year in which the Lease expires or terminates.
All such amounts shall be used and held by Landlord for payment of such
obligations of Tenant hereunder, with Tenant being liable for any additional
costs therefor upon demand by Landlord, or with any excess to be returned to
Tenant after all such obligations have been determined and satisfied, as the
case may be. Any security deposit held by Landlord shall be credited against
the amount payable by Tenant under this Paragraph 24(f).
g) If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto
that the remainder of this Lease shall not be affected thereby, and it is
also the intention of the parties to this Lease that in lieu of each clause
or provision of this Lease that is illegal, invalid or unenforceable, there
be added as a part of this Lease contract a clause or provision as similar
in terms to such illegal, invalid or unenforceable clause or provision as
may be possible and be legal, valid and enforceable.
h) Because the premises are on the open market and are presently being shown,
this Lease shall be treated as an
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offer with the premises being subject to prior lease and such offer subject
to withdrawal or non-acceptance by Landlord or Tenant or to other use of the
premises without notice, and this Lease shall not be valid or binding unless
and until accepted by Landlord and Tenant in writing.
i) All references in this Lease to "the date hereof" or similar references
shall be deemed to refer to the last date, in point of time, on which all
parties hereto have executed this Lease.
25. Exhibits and Attachment. All exhibits, attachments, riders and addenda
referred to in this Lease are incorporated in this Lease and made a part
hereof for all intents and purposes.
Executed by Landlord, this _______ day of ____________, 19____.
Teachers Insurance and Annuity
Association, a New York
corporation
Attest/Witness
/s/ Evanyeline Xxxxxx By: /s/ Xxxxx St. Clair
---------------------------------- ------------------------------
Title: REAL ESTATE ASSISTANT Title: ASSISTANT SECRETARY
Executed by Tenant, this ____
day of ________, 19____.
Winston Furniture Company of Alabama,
Inc., an Alabama corporation
Attest/Witness
/s/ [ILLEGIBLE] By: /s/ Xxxxx Xxxxxx
---------------------------------- ------------------------------
Title: VP OPERATIONS Title: PRESIDENT
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ADDENDUM ONE
TO LEASE AGREEMENT BETWEEN
TEACHERS INSURANCE AND ANNUITY ASSOCIATION, A NEW YORK CORPORATION
AND
WINSTON FURNITURE COMPANY, INC.
1. The monthly base rental rate shall be as follows:
Months 1 - 4 No Rent Due
Months 5 - 28 $.23/sf or $20,584.00/mo.
Months 29 - 52 $.25/sf or $22,374.00/mo.
Months 53 - 76 $2675/sf or $23,940.00/mo.
Months 77 - 100 $.285/sf or $25,506.00/mo.
Months 101 - 124 $305/sf or $27,296.00/mo
2. In the event the operating expenses (as defined below) of Landlord for the
project of which the Leased premises are a part shall, in any calendar year
during the term of this Lease, exceed the sum of their 1996 base year level,
Tenant agrees to pay as additional rental Tenant's proportionate share of
such excess operating expenses. Tenant's proportionate share as used in this
lease shall mean a fraction, the numerator which is the space contained in
the premises and the denominator of which is the entire space contained in
the building. Landlord shall, within nine months following the close of any
calendar year for which additional rental is due under this paragraph,
invoice Tenant for the additional rental. The invoice shall include in
reasonable detail all computations of the additional rental, and Tenant
agrees to pay the additional rental within twenty days following receipt of
the invoice. If this Lease shall terminate on a day other than the last day
of a year, the amount of any additional rental payable by Tenant applicable
to the year in which such termination shall occur shall be prorated on the
ratio that the number of days from the commencement of such year to and
including such termination date bears to 365. If at any time during the term
of this Lease, Landlord has reason to believe the per square foot operating
expenses for the calendar year will exceed the sum set forth above, in the
previous year, or if no additional rental was paid in the previous year,
then Tenant shall prepay monthly one-twelfth of the amount Landlord
reasonably estimates for Tenant's additional rental for such calendar year.
If the invoice delivered within nine months following the close of a
calendar year in accordance with this subparagraph shows an amount owing by
Tenant that is less than the sum of the monthly payments made by Tenant in
the previous calendar year, the invoice shall be accompanied by a refund of
the excess by Landlord to Tenant. If such invoice shows an amount owing by
Tenant which is more than the sum of the monthly payments made by Tenant in
the previous calendar year, Tenant shall pay such deficiency to Landlord
within twenty days after receipt of the invoice. For the year in which this
Lease terminates, Landlord shall have the option to charge Tenant for
Tenant's proportionate share of the excess operating expenses based upon the
previous year's excess operating expenses; Landlord shall invoice Tenant
under this right, at its own expense and at a reasonable time, but not more
than once per
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calendar year, to audit Landlord's books relevant to the additional rentals
due under this paragraph. All information pertaining to this subparagraph or
any billing submitted to Tenant will be prepared by Landlord or Landlord's
agent under generally accepted accounting principles.
The term "operating" expenses as used above includes all expenses incurred
with respect to the maintenance and operation of the project, including but
not limited to, common area maintenance costs referred to in Paragraphs 6
and 10, all other maintenance and repair costs, and management fees,
reasonable wages and fringe benefits payable to employees of Landlord whose
duties are connected with the operation and maintenance of the project. The
term "operating expenses" also includes all taxes and installments of
special or general assessments, upgrades, changes in, or additions to water
and sewage, including special assessments due to deed restrictions and/or
owner's associations, which accrue against the project of which the leases
premises are a part during the term of the Lease as well as all insurance
premiums Landlord is required to pay or deems appropriate to pay, including
public liability insurance, with respect to the project. The term "operating
expenses" does not include any capital improvements to the project of which
the leased premises are a part, no shall it include repairs, restoration or
other work occasioned by fire, windstorm or other casualty, income and
franchise taxes of Landlord, expenses incurred in leasing to or procuring of
tenants, leasing commissions, advertising expenses, expenses for renovating
of space for new tenants, interest or principal payments on any mortgage or
other indebtedness of Landlord, nor depreciation allowance or expense.
3. Landlord agrees to construct improvements as generally outlined on Exhibit
"B" attached hereto and detailed construction drawings to be prepared by
Xxxxxx X. Xxxxxx Associates. The cost of such construction and architectural
drawings shall be borne by Landlord. Such improvements shall be in
accordance with Landlord's standard specifications for improvements. In
addition, Landlord agrees to inspect the existing HVAC, electrical,
plumbing, sprinkler and mechanical systems, fans, smoke release system
(glass domes), all doors, and lighting and make any repairs necessary to put
such systems in good working order at lease commencement. Landlord agrees to
warranty all such systems for the first six (6) months of the Lease term,
with the exception of light bulbs and ballasts. Subsequent maintenance shall
be the responsibility of Tenant.
4. While this Lease is in full force and effect, provided that Tenant is not in
default of any of the terms, covenants and conditions thereof, Tenant shall
have the right or option to extend the original term of this Lease for two
(2) further terms of sixty (60) months each. Such extension or renewal shall
be on the same terms, covenants and conditions as provided for in the
original term except that the rental during the extended term shall be at
the fair market rental then in effect on equivalent properties, of
equivalent size,
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in equivalent areas. Notice of Tenant's intention to exercise the option
must be given to Landlord in writing at least one hundred twenty (120) days
prior to lease expiration.
5. Hazardous Waste. The term "Substances", as used in this lease shall mean
pollutants, contaminants, toxic or hazardous wastes, or any other
substances, the use, storage, handling, disposal, transportation or removal
of which is regulated, restricted, prohibited or penalized by any
"Environmental Law", which term shall mean any federal, state or local, law,
ordinance or other statute of a governmental or quasi-governmental authority
relating to pollution or protection of the environment and shall
specifically include, but not be limited to, any "hazardous substance" as
that term is defined under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 and any amendments or successors in
function thereto. Tenant hereby agrees that (1) no activity will be
conducted on the premises that will produce any Substance, except for "such
activities that are part of the ordinary course of Tenant's business
activities (the "Permitted Activities") provided said Permitted Activities
are conducted in accordance with all Environmental Laws, Tenant shall be
responsible for obtaining any required permits and paying any fees and
providing any testing required by any governmental agency; (2) the premises
will not be used in any manner for the storage of any Substances except for
the temporary storage of such materials that are used in the ordinary course
of Tenant's business (the "Permitted Materials") provided such Permitted
Materials are properly stored in a manner and location meeting all
Environmental Law; Tenant shall be responsible for obtaining any required
permits and paying any fees and providing any testing required by any
governmental agency; (3) no portion of the premises will be used as a
landfill or a dump; (4) Tenant will not install any underground tanks of any
type; (5) Tenant will not allow any surface or subsurface conditions to
exist or come into existence that constitute, or with the passage of time
may constitute a public or private nuisance; (6) Tenant will not permit any
Substances to be brought onto the premises, except for the Permitted
Materials described below or upon written permission from Landlord, and if
so brought or found located thereon, the same shall be immediately removed,
with proper disposal, and all required cleanup procedures shall be
diligently undertaken pursuant to all Environmental Laws. Landlord or
Landlord's representative shall have the right but not the obligation to
enter the premises for the purposes of inspecting the storage, use and
disposal of Permitted Materials to ensure compliance with all Environmental
Laws. Should it be determined, that said Permitted Materials are being
improperly stored, used or disposed or, then Tenant shall immediately take
such corrective action. Should Tenant fail to take such corrective action
within twenty-four (24) hors, Landlord shall have the right to perform such
work and Tenant shall promptly reimburse Landlord for any and all costs
associated with said work. If at any time during or after the term of the
Lease, the prmises is found to be so contaminated or subject to said
conditions, Tenant shall
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diligently institute proper and thorough cleanup procedures at Tenant's sole
cost, and Tenant agrees to indemnify and hold Landlord harmless from all
claims, demands, actions, liabilities, costs, expenses, damages, fines,
reimbursement, restitution, response costs, cleanup costs, and obligations
(including investigative responses and attorney's fees) of any nature
arising from or as a result of the use of the premises by Tenant. The
foregoing indemnification of the responsibilities of Tenant shall survive
the termination or expiration of this Lease.
Permitted Materials: None
6. In the event that a buyout of Tenant's current lease obligation is required
by Tenant's current landlord(s), Landlord agrees to pay such amount, not to
exceed $30,000.00. Any amount paid shall be amortized over the
non-cancellable portion of the term of this Lease (10) percent interest and
added to the monthly base rental outlined in item 1 above.
7. It is agreed and acknowledged that Xxxxx Xxxxxxxxxxx of Xxxxx Partners, Inc.
is the broker of record (hereinafter referred to as "Broker") and has
represented Tenant in this Lease transaction. In consideration for the
execution of this Lease. It is agreed that Broker shall be paid a commission
of 4% of the base rental consideration of this Lease outlined in Paragraph
One of this Addendum One to the Lease. Fifty percent (50%) of such
commission payment shall be made to Broker by Landlord within fifteen (15)
days from the date of execution of this Lease and fifty percent (50%) of
such commission payment shall be made to Broker within fifteen (15) days
from Tenant's occupancy of the premises. Tenant hereby agrees to indemnify
and hold Landlord Harmless from and against any claim by any other broker,
agent or other person claiming a commission or other form of compensation by
virtue of having dealt with Tenant with regard to this Lease transaction.
8. In the event the Building is sold to a third party or if the Landlord ever
request third party financing requiring a mortgage or lien on the property,
then Landlord will use the best efforts to provide Tenant with a fully
executed Non-Disturbance Attornment Agreement signed by all appropriate
parties.
9. Landlord represents and warrants to Tenant that, to the best of its
knowledge, the Premises and Landlord are not in violation of or subject to
any existing, pending or threatened investigation or inquiry by any
governmental authority or any response costs or remedial obligations under
any law pertaining to Hazardous Materials or Hazardous Materials
Contamination and that there are no known Building or soil contaminations
and indemnifies Tenant for any pre existence of Hazardous Materials prior to
occupancy by Tenant.
10. So long as Tenant is not in default of any of the terms and conditions of
this Lease Agreement, Tenant may cancel this Lease at the end of the
eighty-eighth (88th) month of the primary term by providing written notice
to Landlord not
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later than one hundred eighty (180) days prior to such date. The penalty
associated with such early termination shall accompany such notice, and
shall include an amount equal to the unamortized (at 10%) portion of
Landlord's upfront costs, estimated to be approximately $420,000, plus one
(1) month base rent for a combined estimated amount of approximately
$197,500.00.
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EXHIBIT "B"
BLACKSTONE ENTERPRISES
00000 XXXXXXXX XX. XXXX.-X
XXXXX 000
XXXXXXX, XXXXX 00000
000-0000 XXXXX
000-0000 XXX
DATE: 11/8/95
JOB NUMBER: 95139R
TRANSWESTERN PROPERTY
0000 XX XXXX
XXX. 000
XXXXXXX, XXXXX 00000
000-0000 (PHONE)
000-0000 (FAX
ATTN.: XXX XXXXXX
JOB DESCRIPTION: TEXACRAFT
000 XXXX 0XX XXXXXX
1. As per plans submitted by Xxxxxx Xxxxxx & Associates 10.28.95 REV 11.2.95.
2. Final clean includes make ready clean & prep for Tenant move in & Sweep
clean whse.
3. Demolition to include removal of 1800 SW @ east section of office space &
removal of interior doors.
4. Landscaping to include relocation of irrigation and trees to install ADA
ramp.
5. Asphalt Paving & curbs to include compacted lime base & asphalt tack & top
coat for 3/4 surface area @ rear of whse., to include drive entrance &
curbing, asphalt to be graded to provide culvert for drainage, pitched to
piping on south side of paved area to connect to storm drainage. Grade
remaining area.
6. Concrete includes ten 2z2z4 footings with "L" bolt inserts for crane system
and 8" retention curbing at wash stations to include 3" PVC drain pipe
capped. Additional concrete to include repair of remaining rear dock
including retention walls as required, new 45LF ramp, 10' x 40' x 6"
dumpster pad, 10' x 40' c 6" pad for tanks and compressors, ADA ramp to
office entrance to include retention wall & railing as required, saw cut
excavate and provide new retention walls for extended interior dock, provide
new 24" interior ramp.
7. Masonry/Mortar to include 5" x 8" cast in place monument sign with 6" high
plastic lettering showing TEXACRAFT 601 W SIXTH ST." And 22' brushed alum
flag pole.
8. Structural steel to include exterior metal stairs and treads to warehouse
pedestrian entrances.
9. Fencing to include 8' high interior chain link fence with two 10' wide gates
to separate warehouse space, 8' high exterior chain link fencing with barbed
wire at the North and South ends of rear paved area to include 20' gate with
electric opener, 4' high chain link fence at ramp as required by city code.
10. Finished carpentry to include lower cabinet for bar sink and standard
shelving for copier and fax room as required. Includes cleaning and minor
repair of existing kitchen cabinets.
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11. Insulation to include miscellaneous replacement at remodeled areas.
12. Roofing to include (4) 36" & (1) 48" penetrations and roof curbing as
required for equipment ventilation.
13. Sealant to include smoke seal caulk for partitions at fiberglass shop.
14. Doors and frames to include Raco style 9' high standard office throughout to
include replacement of existing doors.
15. Special Doors - saw cut and remove two 10 x 10 sections of tilt panel wall,
supply and install 2 new 10 x 10 overhead doors, one pair of 2 hr. Fire
Rated double 4'x 9' doors at fiberglass shop.
16. Hardware - provide ADA level handle passage sets for all interior office
doors.
17. Glazing/Mirror - provide mirrors at all sink locations for interior
restrooms.
18. Drywall - provide Raco style partitions to include top track and end caps as
required for all new interior partitions and provide top trim for existing
partitions, provide Raco style cap for all partitions designated below
ceiling height.
19. Acoustical Ceiling - provide new insulated ceiling with 2 x 4 grid in office
areas and building standard ceiling tile for paint booth.
20. Vinyl Flooring/Base - provide building standard (Xxxxxxxxx or equal)VCT in
kitchen and all bathrooms, break-room and prod-areas (color to be selected
by tenant), provide 4" high cove base at all partitions throughout office
space.
21. Carpet - building standard 28 oz. direct glue level loop, in non VCT covered
office areas (color to be selected by Tenant).
22. Paint - finish coat paint on all existing partitions, prime and finish coat
on all new partitions, paint type to be interior latex flat, Xxxxxxx
Xxxxxxxx or equal (color to be selected by tenant).
23. Pedestrian/Traffic control - provide striping, hashes and signs as required
for ADA ramp.
24. Toilet accessories - provide new toilet partitions for all restrooms and
grab bars for restrooms designated for ADA.
25. Window coverings - provide mini blinds as required for exterior windows in
office area.
26. Equipment - provide penetration to compressor station and 2" main air lines
with tee and plug at each joint. Main to supply five stations throughout
warehouse space to include control valves as required locations designated
by tenant.
27. HVAC - clean and service existing roof top a/c units, cut back supply ducts
to demo office area, re-route ducts, furnish new ducts, registers, and
thermostat controls to accommodate new office layout. Supply and install
exhaust fans in kitchen, existing and new restrooms as required.
28. Plumbing - provide new shop sink, silk screen wash area, provide new sinks,
commodes and urinals at ADA restrooms, provide new water cooler, and provide
full size sink and rough-in plumbing for bar sink.
29. Fire protection - relocated existing sprinkler heads, add additional
sprinkler heads for new floor plan as required by fire code.
30. Electrical power - provide additional 400 AMP service and back feed existing
service to obtain a total of 800 AMPS, provide panels and 30 KVA transformer
for three 440 volt and one 220 volt distribution panels, relocated from
existing
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tenant space if possible. Provide drop feed for 24 welding stations using
ridged conduit as required. Provide additional outlets, switches as required
by new floor plan to obtain 8" spacing between outlets. Provide 10 dedicated
circuits, 34 phone/computer pulls, 4 GFI outlets (to include cut back for
demolished area).
31. Lighting - provide 1--two bulb strips in warehouse area as required to
provide adequate foot candle for lighting. Relocate existing fixtures in
office space, add 8 new 2x4 fixtures in office area, provide 2x4 fixtures in
new restrooms, 5 exit lights and 4 emergency lights.
32. Additional asphalt - provide additional 7200 SF of asphalt paving, wheel
stops and lot striping as required, to provide 17 additional spaces in NW
lot area.
ALTERNATE QUALIFICATIONS
1. Equipment distribution allowance - run conduit from distribution panels
included in base bid to equipment disconnect (location to be provided
by tenant). Pricing to include weekend premium time.
