EXHIBIT 10.9
SUBLEASE AGREEMENT
SUBLEASE
THIS SUBLEASE is made as of November 13, 2000, between STS CORPORATION,
A FLORIDA CORPORATION, having an office at 000 Xxxx 00xx Xxxxx, Xxxxxxx,
Xxxxxxx 00000 ("Sublandlord"), and FLOUR CITY ARCHITECTURAL METALS
MANUFACTURING CO., ("Subtenant").
RECITALS
A. WARECO ENTERPRISES, INC., as Landlord ("Landlord"), and STS
CORPORATION, a Florida corporation, as Tenant ("Sublandlord"), have entered
into that certain Lease Agreement dated December 23, 1998 (the "Master
Lease"), whereby Landlord leased to Sublandlord and Sublandlord leased from
Landlord the property located at 00000 X.X. 00 Xxxxxx, Xxxxx, Xxxxxxx,
consisting of approximately 59,000 square feet of office/warehouse space
("Building") together with the land ("Land") (hereinafter the Building and
Land are collectively referred to as the "Premises"), together with all
improvements therein and thereon belonging or pertaining to the Premises,
including all rights, privileges, easements and appurtenances belonging or
pertaining thereto. The Master Lease, as modified and/or amended from time to
time in the future, is referred to in this Sublease as the "Lease".
B. Sublandlord desires to sublease to Subtenant, and Subtenant desires
to hire from Sublandlord, a portion of the Premises as more particularly
described in this Sublease upon the terms and conditions described in this
Sublease.
TERMS
In consideration of the mutual covenants and promises contained in this
Sublease and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Sublandlord and Subtenant,
Sublandlord and Subtenant agree as follows:
1. RECITALS. The foregoing recitals are true and are made a part of
this Sublease.
2. DEFINED TERMS. Unless otherwise defined in this Sublease or unless
the context requires otherwise, all capitalized terms used in this Sublease
shall have the meanings ascribed to them in the Lease.
3. DEMISE. Sublandlord hereby leases to Subtenant, and Subtenant
hereby hires from Sublandlord, those certain premises (the "Subleased
Premises") consisting of 59,000 square feet of warehouse space located at
00000 X.X. 00 Xxxxxx, Xxxxx, Xxxxxxx as more particularly depicted on Exhibit A
attached to and made a part of this Sublease.
4. ACCEPTANCE OF SUBLEASED PREMISES. Subtenant hereby accepts the
Subleased Premises in its "as is" condition except as set forth in Paragraph 31
of this Sublease.
5. CERTIFICATE OF OCCUPANCY. Prior to the Commencement Date, as
hereinafter defined, Subtenant shall obtain, at its own cost and expense, any
and all permits, licenses, and/or certificates, of any kind or nature, from
any and all authorities having jurisdiction over the Subleased Premises,
necessary or required for the occupancy and use of the Subleased Premises as
provided for in this Sublease.
6. TERM. The term of this Sublease shall be for the period of Twenty
Five (25) Months ("Initial Term"), commencing on December 1, 2000
("Commencement Date") and ending on December 31, 2002 (the "Expiration Date").
7. BASE RENT. Subtenant shall pay a base rent (the "Base Rent") under
this Sublease due hereunder in the sum of Six Hundred Twenty Two Thousand
Nine Hundred Forty One and 71/100 ($622,941.71) Dollars, payable as follows:
Commencing December 1, 2000 and on the first day of each month through
December 31, 2001, the sum of Twenty Four Thousand Ninety One and 67/100
($24,091.67) Dollars.
Commencing January 1, 2002 and on the first day of each month through
December 31, 2002, the sum of Twenty Five Thousand Eight Hundred Twelve and
50/100 ($25,812.50) Dollars.
In addition to the Base Rent and Additional Rent (as defined below),
Subtenant shall pay all applicable state and local sales tax thereon. In the
event this Lease commences on a date other than the first day of the month or
terminates on a date other than the last day of the month, Subtenant shall be
responsible for payment of a prorated portion of the monthly Base Rent
divided by the number of days in the applicable calendar month.
8. ADDITIONAL RENT. In addition to the Base Rent, Subtenant shall pay
as additional rent (the "Additional Rent") during the Initial Term and Option
Term if any, when and as due and payable by the Tenant under the Lease,
Subtenant's proportionate share ("Subtenant's Share") of (i) increases in
insurance premiums above the 1998 premium charge as provided by Paragraph 3
of the Lease, (ii) increases in Real Property Taxes above the 2000 amount as
provided by Paragraph 3 of the Lease, and (iii) any other sums due under the
Lease.
9. PAYMENT OF RENT. The Base Rent and the Additional Rent shall be
paid promptly when due, without notice or demand, and without deduction,
abatement, counterclaim, or setoff of any amount or for any reason
whatsoever, except as provided herein. Each installment of Base Rent and all
payments of Additional Rent under this Sublease shall be paid by Subtenant
directly to Sublandlord in lawful money of the United States to STS
Corporation, 000 Xxxx 00xx Xxxxx, Xxxxxxx, XX 00000 or to such other address
as Sublandlord may from time to time designate by notice to
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Subtenant. Provided, however, in the event that Landlord notifies Subtenant
that Sublandlord has failed to pay rent to the Landlord pursuant to the
Lease, Subtenant may pay all Base Rent and Additional Rent directly to
Landlord without liability to Sublandlord.
10. SECURITY DEPOSIT. Subtenant, concurrently with the execution of
this Sublease, has deposited with Sublandlord the sum of $52,000.00, the
receipt of which is hereby acknowledged by Sublandlord, which sum shall be
retained by Sublandlord as security for the payment by Subtenant of the rents
agreed to be paid by Subtenant and for the faithful performance by Subtenant
of the terms and covenants of this Sublease. Sublandlord, at Sublandlord's
option, may at any time apply said sum or any part thereof toward the payment
of the rents and all other sums payable by Subtenant under this Sublease, and
towards the performance of each and every of Subtenant's covenants under this
Sublease, but such covenants and Subtenant's liability under this Sublease
including all cost for making necessary repairs to the subleased premises
shall thereby be discharged only pro tanto; that Subtenant shall remain
liable for any amounts that such sum shall be insufficient to pay; that
Sublandlord may exhaust any or all rights and remedies against Subtenant
before resorting to said sum, but nothing herein contained shall require or
be deemed to require Sublandlord so to do; that, in the event this deposit
shall not be utilized for any such purposes, then such deposit shall be
returned by Sublandlord to Subtenant within ten days after the expiration of
the term of this Sublease. Sublandlord shall not be required to pay Subtenant
any interest on said security deposit and may commingle it with other funds
of Sublandlord. Subtenant shall have no right, title, or interest of any kind
with respect to Sublandlord's security deposit described in the Lease.
11. USE OF SUBLEASED PREMISES. The Subleased Premises shall be used
only for fabrication and assembly of architectural systems for building
construction related products and related uses. Subtenant shall comply with
any certificate of occupancy related to the Subleased Premises and with all
laws, statutes, ordinances, orders, rules, regulations and requirements of
all federal, state and municipal governments and the appropriate agencies,
officers, departments, boards and commissions thereof, the board of fire
underwriters and/or the fire insurance rating organization or similar
organization performing the same or similar functions, and with all
requirements of Landlord's property and liability insurers, whether now or in
the future in force, applicable to the Subleased Premises.
12. INSURANCE. Subtenant shall maintain throughout the term of this
Sublease with respect to the Subleased Premises such insurance as is required
to be maintained by the Tenant under the Lease with respect to the Premises.
Subtenant shall also procure hazard insurance covering the full replacement
value of any leasehold improvements made by Sublandlord or Subtenant to the
Subleased Premises. All insurance policies required under this Sublease shall
name Landlord and Sublandlord as additional insureds, and evidence of same
and the renewal of same shall be delivered to Landlord and Sublandlord in
accordance with the provisions of the Lease.
13. SERVICES. Subtenant shall not be entitled to any facilities or
utility or other services with respect to the Subleased Premises except to
the extent that the Lease may provide for same to be provided generally to
the Premises. Subtenant shall be solely responsible for the payment of
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electricity and all other utilities. Subtenant shall establish new accounts
with all utilities in its own name. Subtenant shall indemnify and hold
Sublandlord harmless in respect to all utility fees and liens (if any)
incurred by Subtenant.
14. MAINTENANCE. Subject to Sublandlord's obligations pursuant to
Paragraph 31 below, Subtenant shall be responsible for maintaining and
repairing the Subleased Premises, as well as all leasehold improvements
within the Subleased Premises, in accordance with the provisions of the Lease
concerning maintenance and repair of the Premises by the Tenant under the
Lease. Except and subject to Sublandlord's obligations pursuant to Paragraph
31 below, Subtenant shall be required to maintain at its sole expense at all
times during the term of this Sublease a maintenance contract on the HVAC
systems serving the Subleased Premises with Classic Air or such other
maintenance company as is satisfactory to Landlord in Landlord's sole
discretion. Prior to the Commencement Date, Subtenant shall procure such
maintenance contract and deliver a copy of same to Landlord.
15. ALTERATIONS. Subtenant shall not make or cause, suffer or permit
the making of any alteration, addition, change, replacement, installation, or
addition in or to the Subleased Premises without the prior written consent of
Sublandlord and consent of Landlord in accordance with the Lease. Neither
Sublandlord nor Subtenant shall make such alterations with respect to any
utilities servicing any part of the Premises without the consent of Landlord
as provided by the Lease.
16. ENVIRONMENTAL. (a) Subtenant shall not use or suffer the Subleased
Premises to be used in any manner so as to create an environmental violation
or hazard, nor shall Subtenant cause or suffer to be caused any chemical
contamination or discharge of a substance of any nature which is noxious,
offensive or harmful or which under any law, rule or regulation of any
governmental authority having jurisdiction constitutes a Hazardous Substance
or Hazardous Waste. Subtenant shall also immediately notify Landlord and
Sublandlord in writing of any environmental concerns relating to Hazardous
Substances or Hazardous Waste. Subtenant shall also immediately notify
Landlord and Sublandlord in writing of any environmental concerns of which
Subtenant is or becomes aware and which are raised by any private party or
government agency with regard to each of the Environmental Laws. Subtenant
shall also notify Landlord and Sublandlord immediately of any spills or
release of a Hazardous Substance or Hazardous Waste at the Subleased Premises
and of any other hazardous substance or hazardous waste of which Subtenant
becomes aware. Not in limitation of the generality of the foregoing, but as
additional covenants, Subtenant specifically agrees that (i) Subtenant shall
not generate, manufacture, refine, transport, treat, dispose of or otherwise
deal with any Hazardous Substances or Hazardous Waste as now or hereafter
defined by applicable law, and (ii) Subtenant shall defend, indemnify and
hold Landlord and Sublandlord harmless against any liability, loss, cost or
expense, including reasonable attorneys' fees and costs (whether or not legal
action has been instituted) at investigative, trial and appellate levels
incurred by reason of the existence arising out of Subtenant's activities (or
the activities of those under Subtenant's control) of or any failure by
Subtenant to comply with any environmental law now or hereafter in effect.
For the purposes hereof, the phrase Hazardous Substance or Hazardous Waste
includes but is not limited to, (i) materials defined as "hazardous waste"
under the Federal Resource Conservation and Recovery Act and similar
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state laws, (ii) "hazardous substances" as identified under the Federal
Comprehensive Environmental Response, Compensation and Liability Act and as
set forth in Title 40, Code of Federal Regulations, Part 302, as amended,
(iii) those elements or compounds which are contained in the list of
hazardous substances adopted by the United States Environmental Protection
Agency (the "EPA") and the list of toxic pollutants designated by Congress or
the EPA or defined by any other federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree regulating, relating to or
imposing liability or standards of conduct concerning any hazardous, toxic,
polluting or dangerous waste, substance or materials, as such lists are now
or at any time hereafter in effect, (iv) asbestos and radon, (v)
polychlorinated biphenyl's, (vi) petroleum products, (vii) such other
materials, substances or waste which are otherwise dangerous, hazardous,
harmful or deleterious to human, plant or animal health or well being.
(b) Subtenant shall fully cooperate in allowing, from time to time, such
examinations, tests, inspections, and reviews of the Subleased Premises as
Landlord or Sublandlord, each in its sole and absolute discretion, shall
determine to be advisable in order to evaluate any potential environmental
problems. Landlord and Sublandlord expressly reserve the right to conduct
examinations, tests (including but not limited to a geohydrologic survey of
soil and subsurface conditions), inspections, and reviews of the Subleased
Premises as Landlord or Sublandlord, each in its sole and absolute discretion
may determine to be necessary, but in a manner so as not to unreasonably
interfere with Subtenant's conduct of business.
Notwithstanding anything herein to the contrary, Subtenant shall not be
responsible for any pre-existing violation or contamination.
(c) This Section shall survive termination of the Sublease.
17. SUBORDINATION. This Sublease and the rights of Subtenant under
this Sublease and otherwise with respect to the Subleased Premises are and
shall at all times be subject and subordinate to the Lease and to any
mortgage, deed of trust, lease, or other matter to which the Lease is or
shall be subject and subordinate from time to time.
18. INCORPORATION OF TERMS OF LEASE. Except for monetary covenants and
obligations of Sublandlord set forth in the Lease or except for covenants or
obligations inconsistent with the terms and conditions expressed in this
Sublease, the terms, covenants, and conditions of the Lease are incorporated
in this Sublease by reference and Subtenant shall be bound by each and every
term of the Lease as they relate to the Subleased Premises, and as they
relate to the balance of the Premises with respect to Subtenant's activities
thereon. Subtenant shall not do any act, which shall constitute a breach of
the Lease. If any of the express provisions of this Sublease shall conflict
with any of the provisions incorporated by reference, such conflict shall be
resolved in every instance in favor of the express provisions of this
Sublease.
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19. JOINT AND SEVERAL LIABILITY. This Sublease shall in no way release
Sublandlord from the full performance of all of the obligations of the Tenant
under the Lease, including the payment of all rent and additional rent as
provided by the Lease, except and only to the extent such obligations are
actually performed by Subtenant. Sublandlord and Subtenant shall be jointly
and severally liable to Landlord for the performance of the obligations of
the Tenant under the Lease as they relate to the Subleased Premises (but
Subtenant shall not be liable to any party for any liability or amount beyond
those undertaken in this Sublease) and any additional obligations of
Subtenant under this Sublease, and Landlord shall not be required to look
first to either Sublandlord or Subtenant for such performance. Any notices of
default under the Lease or other notices given by Landlord under the Lease
shall be sent both to Sublandlord (in accordance with the notice provisions
of the Lease) and to Subtenant (in accordance with the notice provisions of
this Sublease).
20. LANDLORD'S RIGHTS AND REMEDIES. Nothing in this Sublease shall be
deemed to diminish or derogate from any of Landlord's rights and remedies
provided by the Lease or any of the Tenant's obligations under the Lease, or
extend or modify in any way any times for performance (including cure
periods, if any) of the Tenant's obligations under the Lease. To the extent
that this Sublease creates any additional rights or remedies of Landlord,
Landlord shall be deemed a third-party beneficiary of this Sublease.
The following acts shall constitute events of default under this
Sublease Agreement:
(a) Subtenant's failure to pay any installment of rent or other
Subtenant payment due under this agreement within the time frames provided in
Paragraph 2 of the Lease.
(b) Subtenant's failure to comply with any other obligation under this
Sublease Agreement, subject to the notice and cure rights described in the
Lease.
In the event of any default by Subtenant, Sublandlord shall have the
right to remove Subtenant from the Sublease Premises through summary eviction
proceedings and to recover damages for all past due rents, plus future
installments of rent for the balance of the sublease term which sum shall
become immediately accelerated and due to Sublandlord, but subject to
Sublandlord's duty to mitigate damages.
21. NO PRIVITY OF ESTATE. Nothing contained in this Sublease shall be
construed to create privity of estate between Subtenant and Landlord under
the Lease. This Sublease shall for all purposes be deemed a sublease and not
an assignment or transfer of the Lease.
22. NOTICES. All notices, consents, approvals, demands and requests
which are required or desired to be given by either party to the other under
this Sublease shall be in writing and shall be sent by United States
registered or certified mail and deposited in a United States post office,
return receipt requested and postage prepaid or by a courier or recognized
overnight delivery service to the other party at the addresses set forth
below.
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SUBLANDLORD: STS Corporation
000 Xxxx 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
SUBTENANT: Flour City Architectural Metals Mfg. Co., Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: President
23. BROKERAGE. Both Sublandlord and Subtenant represent that except
for The Fiur Organization, Inc., and Xxxxxxxxxx Realty, Inc., no broker,
salesman, or finder, or other person had any part, or was instrumental in any
way, in bringing about this Sublease. If a claim for brokerage in connection
with this Sublease is made by any broker, salesman, or finder other than the
above-named broker claiming to have dealt through or on behalf of one of the
parties (the "indemnitor"), the indemnitor agrees to indemnify, defend and
hold harmless the other party and Landlord under the Lease (jointly, the
"indemnitees") from and against any claims made by any broker or other person
for a brokerage commission, finder's fee, or similar compensation, by reason
of or in connection with this Sublease, and any loss, liability, damage, cost
and expense (including, without limitation, reasonable attorneys' fees) in
connection with such claims. Sublandlord shall pay commissions to the
above-named brokers pursuant to the terms of separate written agreements.
24. COMPLETE AGREEMENT. There are no representations, agreements,
arrangements, or understandings, oral or written, between the parties related
to the subject matter of this Sublease which are not fully expressed in this
Sublease. This Sublease cannot be changed or terminated orally or in any
manner other than by a written agreement executed by both parties and
consented to in writing by Landlord. This Sublease may be executed in any
number of counterparts, including facsimile counterparts, each of which shall
be deemed an original document.
25. BINDING EFFECT. The provisions of this Sublease shall extend to,
bind, and inure to the benefit of, Sublandlord and Subtenant and their
respective legal representatives, successors, and permitted assigns. Neither
Sublandlord nor Subtenant shall assign all or any part of this Sublease
without the consent of the other and without Landlord's consent, which shall
not be unreasonably withheld or delayed. Subtenant shall not further sublet
the Subleased Premises or otherwise permit any other party to occupy the
Subleased Premises without Landlord's prior written consent, which shall not
be unreasonably withheld or delayed. This Sublease shall have no effect until
Landlord shall have given its written consent to this Sublease in accordance
with the terms of the Lease.
26. SURVIVAL. Sublandlord's and Subtenant's obligations to observe and
perform the terms, covenants, conditions and agreements in this Sublease
shall survive the expiration or sooner termination of this Sublease.
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27. ATTORNEYS' FEES. In the event that any suit or other legal
proceeding is brought for the enforcement of any of the provisions of this
Sublease, the prevailing party shall be entitled to recover from the other
party reasonable attorneys' fees, including attorneys' fees for any appeal,
and costs incurred in bringing such suit or proceeding.
28. TIME OF THE ESSENCE. Time shall be of the essence as to all terms
and conditions of this Sublease.
29. RADON GAS. Radon is a naturally occurring radioactive gas that,
when it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from
your county public health unit.
30. BROOMSWEPT CLAUSE. Sublandlord agrees to deliver the premises in a
broomswept condition with all electrical, plumbing, mechanical, air
conditioning, lighting, dock levelers and overhead doors in good working
order prior to the commencement of this Sublease and it shall be the
Subtenant's responsibility to maintain same thereafter.
31. SUBLANDLORD WORK. Sublandlord agrees to do the following work at
its sole cost and expense and will have all work completed within 4 weeks
from the date all parties have signed this Sublease. In the event the work is
not completed within said 4 weeks then there will be a complete abatement of
the rent until all work is completed:
1. Air clean ceilings, walls and columns.
2. Pressure clean floors.
3. Remove all fencing except at electric service and all rooms except
for the original offices and all bathrooms.
4. There are 6 potential openings in the original east wall of the
warehouse - open #2, 4, 5, 6 from south to north to full height
and width.
5. Remove all vertical drops except for air lines.
6. Paint all warehouse and office bathrooms.
7. Fill in all floor grates with concrete.
8. Sublandlord shall deliver all HVAC units, fans, fire sprinklers,
lighting of all kinds, bathroom fixtures, electrical plumbing, dock
levelers, overhead doors, outlets, and air (as disconnected) drops in
"good working order".
Subtenant's possession of the Premises for a period of thirty (30) days
shall constitute Subtenant's acknowledge that steps 1 through 8 above have
been satisfactorily completed, unless Subtenant notices Sublandlord to the
contrary in writing before expiration of the thirty (30) day period.
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32. WAIVER OF JURY TRIAL. SUBTENANT AND SUBLANDLORD HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY
JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS SUBLEASE, THE LEASE AND ANY AGREEMENT CONTEMPLATED TO
BE EXECUTED IN CONJUNCTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR SUBLANDLORD ENTERING INTO THIS
SUBLEASE WITH SUBTENANT.
IN WITNESS WHEREOF, the parties hereto have signed, sealed and delivered this
Sublease at Miami, Florida on the day and year first above written.
SUBLANDLORD:
Witnesses to Sublandlord:
By: /s/ Xxxxx Xxxxxx 12/9/00
-------------------------------- --------------------------------
/s/ Xxxxx Kraizarw Print Name: Xxxxx Xxxxxx
-------------------------------- -----------------------
SUBTENANT:
Witnesses to Subtenant:
/s/ Xxxxxx Rochester By: /s/ Xxxxxx X. Xxxxx, III
-------------------------------- --------------------------------
My commission expires April 30, 2003 Print Name: Xxxxxx X. Xxxxx, III
-------------------------------- ------------------------
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CONSENT OF LANDLORD
A. WARECO ENTERPRISES, INC., as Landlord ("Landlord"), and STS
CORPORATION, as Tenant ("Sublandlord"), have entered into that certain
Warehouse Lease dated December 23, 1998 (the "Master Lease"), whereby
Landlord leased to Sublandlord and Sublandlord leased from Landlord the
property more particularly described therein.
Pursuant to the provisions of the Lease, WARECO ENTERPRISES, INC.,
hereby consents to the terms and conditions of that Sublease between STS
CORPORATION, and FLOUR CITY ARCHITECTURAL METALS MANUFACTURING CO., dated
November 13, 2000 ''Sublease""; provided, however, that nothing contained in
the Sublease shall be deemed to release Sublandlord in any way from the full
performance of all of the obligations of the Tenant under the Lease, nor
shall Landlord's consent constitute a waiver of any condition or covenant
contained in the Lease, including, but not limited to, the right of Landlord
to require any subsequent assignee, transferee, or sublessee to satisfy the
requirements contained in the Lease as a condition to any assignment,
transfer, or sublease.
LANDLORD:
Witnesses to Landlord:
/s/ Xxxxx Xxxxxx By: /s/ Xxxxx Kraizarw
-------------------------------- --------------------------------
Print Name: Xxxxx Kraizarw
-------------------------------- ------------------------
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