EXHIBIT 10.6
SUBLEASE
This SUBLEASE (this "SUBLEASE") is made as of this 5th day of July, 2004,
by and between FACILITECH, INC., DBA BUSINESS INTERIORS, a Texas corporation
("SUBLESSOR"), and THE GOLF WAREHOUSE, L.L.C., a Delaware limited liability
company ("SUBLESSEE").
ARTICLE I -- BASIC SUBLEASE TERMS
For the purposes of this Sublease, the following terms shall have the
meanings set forth below:
1.1 MASTER LEASE. The Lease Agreement between Sublessor, as tenant, and U.
S Business Centers, L.L.C. ("MASTER LESSOR"), as landlord, as successor to
Xxxxxxx X. Xxxxx, as Trustee of the Xxxxx Xxxxx Trust, created pursuant to a
Trust Agreement dated October 4, 1996, executed by Xxxxxxx X. Xxxxx, as grantor,
and Xxxxxxx X. Xxxxx, as trustee, dated May 10, 1999, covering certain premises
more fully described therein as the Leased Premises, which are the same as the
Subleased Premises. Sublessor represents and warrants that a true and complete
copy of the Master Lease, including all amendments and modifications thereto, is
attached hereto as Exhibit 1.
1.2 BUILDING. The warehouse building (the "BUILDING") located at 0000 X.
00xx Xxxxxx, xx Xxxxxxx, Xxxxxx more particularly described as Xxx 0, Xxxxx 0,
Xxxxxxxxxxxxx Xxxxx, an Addition to Wichita, Sedgwick County, Kansas. The
Building and the land on which it is located are collectively referred to herein
as the "PROPERTY."
1.3 SUBLEASED PREMISES. The premises (the "SUBLEASED PREMISES") containing
an aggregate of approximately 43,200 square feet of floor area, more
particularly described as the "Leased Premises" in the Master Lease.
1.4 SUBLEASE TERM. This subtenancy shall commence. on the date which is
three (3) days after the date Sublessee is notified that receipt of the Master
Lessor's consent to this Sublease, have been obtained or satisfied, and vacant
possession of the Subleased Premises has been tendered to Sublessee in the
condition required by this Sublease (the "SUBLEASE COMMENCEMENT Date") and,
unless sooner terminated, shall expire on September 30, 2006 (the "SUBLEASE
EXPIRATION DATE"); provided, however, if the Master Lease is terminated for any
reason, then this Sublease shall be terminated automatically, effective as of
the date of termination of the Master Lease. If the Commencement Date shall not
occur by August 1, 2004 (as to which date time is of the essence), (1) Sublessee
shall be entitled to an abatement in Rent beyond that specified in Section 2.2
of two days for each day of delay commencing on August 1, 2004 and ending on the
first business day after the Commencement Date shall occur, and (2) Sublessee
may terminate this Sublease at any time prior to the Commencement Date on one
(1) day's notice to Sublessor. Sublessee and its representatives shall be
granted reasonable access to the Subleased Premises prior to the Commencement
Date for the purpose of inspections, tests and preparation of construction
plans.
1.5 BASE RENT. Base Rent is $151,200 per year, payable in monthly
installments of $12,600.00 per month.
1.6 PERMITTED USE. The Subleased Premises may be used and occupied only for
general office and warehouse use and the .display and sale of Sublessee's
merchandise (the "PERMITTED USE") and any other use with Sublessor's prior
consent, such consent not be unreasonably withheld or delayed (Sublessor's
withholding of its consent to such new use being deemed to be reasonable if
Master Lessor refuses to approve the new use).
ARTICLE II -- GRANTING CLAUSE AND RENT PROVISIONS
2.1 GRANT OF PREMISES. Sublessor hereby leases the Subleased Premises to
Sublessee during the Sublease Term, subject to the provisions of this Sublease.
2.2 BASE RENT. Sublessee agrees to pay the Base Rent to Sublessor monthly
in advance, commencing on the later of (i) September I, 2004, and (ii) the
31-day anniversary of the Commencement Date, and continuing on the first day of
each month thereafter, during the term of this Sublease, without demand, offset
or reduction except as set forth in this Sublease. Base Rent due for any partial
calendar month at the beginning or end of the Sublease Term is prorated on a per
diem basis.
2.3 ADDITIONAL RENT. Sublessee shall pay to Sublessor, as additional rent,
all amounts that Sublessor is required to pay to Master Lessor (or to the
appropriate utility provider, as applicable) pursuant to the Master Lease for
utilities, electricity, gas and water imposed on or due for services rendered to
the Subleased Premises during the Sublease Term. Sublessee shall pay such
amounts within thirty (30) days after receipt of notice of the amount due (and
any supporting documentation that Sublessee shall reasonably require).
Additional rent. due for utilities for any partial calendar month at the
beginning or end of the Sublease Term is prorated on a per diem basis. Sublessee
shall pay, as additional rent, all other sums due under this Sublease (together
with the Base Rent, "RENT"). Sublessee is not responsible, however, for the
payment of the proportionate share of either the taxes and insurance charged
pursuant to Section 2(b) of the Master Lease, or the cost of operation and
maintenance of the common area charged pursuant to Section 2(c) of the Master
Lease.
2.4 ADDRESS FOR RENT PAYMENTS. Sublessee shall send all payments of Rent
and any other payment obligations that become due under this Sublease (unless
due directly to third parties) to Sublessor at its address as set forth by its
signature block below (or such other address as Sublessor may, from time to
time, designate in writing in accordance with Section 11.2 of this Sublease).
2.5 LAST MONTH'S RENT. Sublessor hereby acknowledges the receipt of $12,600
(the "LAST MONTH'S RENT") from Sublessee, which amount shall be held by
Sublessor, in trust, during the term of this Sublease, it being understood that
the application of the Last Month's Rent to the final month's Base Rent shall
not relieve Sublessee of its obligation to pay additional rent that may be due
hereunder. The Last Month's Rent shall applied by Sublessor against the Base
Rent due and payable for the last month of the term of this Sublease. Upon the
expiration or termination of the term of this Sublease, any unapplied portion of
the Last Month's Rent shall be promptly returned to the Sublessee by Sublessor.
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ARTICLE III -- USE AND ACCEPTANCE
3.1 OCCUPANCY AND USE. The Subleased Premises shall be used and occupied
only for the purpose as set forth in Section 1.6 above. Sublessee shall not use
the outside of the Subleased Premises for storage, except Sublessee may park
semi-trucks and trailers in the dock area designated for Sublessor's or
Sublessee's use. Sublessee shall not operate an incinerator or burn trash or
garbage on the Property. Sublessee, at its expense, shall comply with all
applicable legal requirements and with the reasonable rules and regulations of
the Property. If Sublessee is not complying with such legal requirements, rules
and regulations, Sublessor may at its election, upon reasonable notice, enter
the Subleased Premises without liability therefor and fulfill Sublessee's
obligations at Sublessee's expense. Notwithstanding anything to the contrary
contained in this Sublease, Sublessee shall not be required to make any Capital
Repairs (as hereinafter defined) pursuant to this Section 3.1 unless and to the
extent that the need therefor shall arise out of Sublessee's manner of use of
the Subleased Premises.
3.2 ACCEPTANCE OF THE SUBLEASED PREMISES. Subject to Section 7.7, Sublessee
has inspected the Subleased Premises and the Building and accepts them in their
present "AS-IS" condition, "WITH ALL FAULTS" and Sublessor has no obligation to
improve, repair, restore or refurbish the Subleased Premises. Neither Master
Lessor nor Sublessor has any obligation to alter or improve the Subleased
Premises (under Sections 28 or 29 of the Master Lease or otherwise) as a
condition to or term of this Sublease. Sublessee waives all defects, if any, in
the Subleased Premises and the Building. Except as set forth in this Sublease,
Sublessor has not made, and Sublessee waives, any express or implied
representation or warranty with respect to the Subleased Premises or any other
portion of the Building including, without limitation, any representation or
warranty with respect to the suitability or fitness of the Subleased Premises or
any other portion of the Building for the conduct of Sublessee's business.
ARTICLE IV -- UTILITIES AND SERVICES
4.1 BUILDING SERVICES.
(a) Sublessor is not responsible for providing any services or
utilities to Sublessee and Sublessee shall look solely to Master Lessor for all
such services or utilities. Sublessor shall, however, cooperate with Sublessee,
at no cost to Sublessor, to attempt to cause Master Lessor to comply with its
obligations under the Master Lease with respect to the Subleased Premises and to
provide all such services and utilities for the benefit of the Subleased
Premises.
(b) Failure by Master Lessor to furnish all or any portion of any of
the services or utilities under the Master Lease, or by any cessation in the
furnishing of any services or utilities shall not render Sublessor liable to
Sublessee in any respect for damages to either persons or property, nor be
construed as an eviction by Sublessor, nor work an abatement of rent, nor
relieve Sublessee from fulfillment of any covenant or agreement in this
Sublease. In the event of any such failure by Master Lessor or any such
cessation, Sublessor shall cooperate with Sublessee, at no cost to Sublessor
unless caused by Sublessor, and use commercially reasonable efforts to cause
Master Lessor to restore the service promptly.
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ARTICLE V -- REPAIRS AND MAINTENANCE
5.1 SUBLESSOR REPAIRS. Sublessor shall have no obligation under this
Sublease to repair, maintain, refurbish or make replacements for the Subleased
Premises (collectively, "REPAIRS"), whether or not arising out of fire, other
casualty, or in connection with the need for normal maintenance and repair,
except for Repairs capitalized in accordance with generally accepted accounting
principles ("CAPITAL REPAIRS"), unless and to the extent that the need therefor
shall arise out of or in connection with negligence or willful misconduct of
Sublessee, and Repairs to the extent arising out of or in connection with the
negligence or willful misconduct of Sublessor ("SUBLESSOR REPAIRS"). Except for
Capital Repairs (other than Capital Repairs which are the obligation of Master
Lessor under the Master Lease) and Sublessor Repairs, Sublessee shall look
solely to Master Lessor for all such repairs. Sublessor shall, however,
cooperate with Sublessee, at no cost to Sublessor, to cause Master Lessor to
comply with its obligations under the Master Lease with respect to the Subleased
Premises and to provide such Repairs for the benefit of the Subleased Premises.
5.2 SUBLESSEE REPAIRS. Sublessee, at its own cost and expense, shall
perform such maintenance, repairs and replacements as are required to keep the
Subleased Premises in as good a condition as existed on the Sublease
Commencement Date, ordinary wear and tear and casualty excepted, including,
without limitation maintenance, repairs and replacements to the items and
systems set forth in Section 3(b) of the Master Lease. Sublessee shall also
repair or replace any damage or injury to all or any part of the Subleased
Premises and/or the Property, caused by any act or omission of Sublessee or
Sublessee's agents, employees, invitees, licensees, or visitors. Notwithstanding
anything to the contrary contained in this Sublease, Sublessee shall not be
required to make any Capital Repairs or Sublessor Repairs pursuant to this
Section 5.2 or any other provision of this Sublease, and Sublessor shall
promptly make or cause to be made, all Capital Repairs and Sublessor Repairs,
provided, that, notwithstanding the foregoing, Sublessee shall make all Capital
Repairs if and to the extent that the need therefor shall arise out of or in
connection with negligence or willful misconduct of Sublessee.
5.3 HVAC MAINTENANCE AGREEMENT. Sublessee shall, during the term of this
Sublease, cause the portion of the Building's heat, ventilation and air
conditioning system, exclusive serving the Subleased Premises to be maintained
pursuant to a maintenance contract substantially similar to that attached hereto
as Exhibit 2.
ARTICLE VI -- ALTERATIONS, IMPROVEMENTS, AND SIGNAGE
6.1 NO ALTERATIONS OR IMPROVEMENTS. Sublessee may not make or allow to be
made any alterations, physical additions or improvements in or to the Subleased
Premises (including adding any cabling or wiring) without first obtaining the
written consent of Sublessor, which consent shall not be unreasonably withheld
or delayed; provided, however, Sublessor's refusal to consent to alterations or
improvements shall be deemed reasonable if Master Lessor refuses or fails to
approve such alterations or improvements. Notwithstanding the foregoing,
Sublessor hereby consents to any and all penetrations of the walls between the
Subleased Premises and adjacent space desired by Sublessee.
6.2 SIGNAGE. Sublessee may not, without Sublessor's prior written consent
(a) install any exterior lighting, decorations, painting, awnings, canopies or
the like; or (b) erect or
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install any signs, window or door lettering, placards, decorations or
advertising media of any type that can be viewed from the exterior of the
Subleased Premises.
ARTICLE VII -- MASTER LEASE
7.1 COMPLIANCE WITH MASTER LEASE. Except as expressly otherwise provided in
this Sublease, Sublessee may not violate any of the provisions, of the Master
Lease incorporated herein pursuant to Section 7.2 that are to be observed or
performed by Sublessor as tenant thereunder with respect to the Subleased
Premises (except as otherwise provided above). Sublessee shall not, by any act
or omission, cause Sublessor to be in violation of or in default under the
Master Lease.
7.2 INCORPORATION OF MASTER LEASE. Insofar as the provisions of the Master
Lease pertaining to the Subleased Premises do not conflict with specific
provisions hereof, they and each of them are incorporated by this reference into
this Sublease as fully as if completely restated herein. The following sections
of the Master Lease are not incorporated into this Sublease.
Section 1
Section 2
Section 3(b)
Section 15
Section 16
Section 17
Section 27
Section 28
Section 29
Section 32
Section 34
Sublessee shall be bound by all of the provisions of the Master Lease pertaining
to the Subleased Premises (except as otherwise provided above) and shall perform
all of the obligations and responsibilities that Sublessor by the Master Lease
undertakes toward Master Lessor pertaining to the Subleased Premises (except as
otherwise provided above). Therefore, in construing Sublessee's obligations, to
the extent applicable wherever in the Master Lease the word "Landlord" or
"Lessor" is used, it shall mean Sublessor and wherever in the Master Lease the
word "Tenant" or "Lessee" is used, it shall mean Sublessee and wherever in the
Master Lease the words "Leased Premises" or similar words are used, they shall
mean the Subleased Premises.
7.3 SUBLEASED PREMISES. The parties acknowledge and agree that Sublessee's
rights and obligations hereunder only relate to those portions of the premises
covered by the Master Lease that are a part of, or are related or appurtenant
to, the Subleased Premises.
7.4 SUBJECT TO MASTER LEASE. This Sublease is expressly subject to and
inferior to the Master Lease.
7.5 FAMILIARITY WITH MASTER LEASE. Sublessee represents that it has read
and is familiar with all of the provisions of the Master Lease.
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7.6 SUBLESSOR'S OBLIGATIONS REGARDING MASTER LEASE. Provided Sublessee is
not in default hereunder beyond any applicable notice and cure period, Sublessor
shall pay the base rent and additional rent due to Master Lessor and shall
perform Sublessor's other obligations under the Master Lease, so as not to cause
a default under the Master Lease.
7.7 SUBLESSOR'S REPRESENTATIONS AND WARRANTIES. (a) Sublessor hereby
represents and warrants that: (i) the Master Lease is in full force and effect
and that no default exists by Sublessor, and, to Sublessor's knowledge, by
Master Lessor under the Master Lease and (ii) no event exists which, upon the
giving of notice or the passage of time, or both, could become a default under
the Master Lease.
(b) Sublessor shall not (i) voluntarily surrender or terminate the
Master Lease or the term and estate granted thereby, or (ii) amend or modify the
Master Lease unless such amendment or modification shall not reduce Sublessee's
rights or increase Sublessee's obligations under this Sublease.
(c) Sublessor shall deliver to Sublessee by telecopy, with hard copy
to follow, copies of all notices sent or received by Sublessor with respect to
the Subleased Premises or the Master Lease within three (3) business days of
receipt or delivery, as applicable, of such notice.
7.8 INDEMNITY. (a) Sublessor shall indemnify, defend and hold harmless
Sublessee from and against all losses, liabilities, claims, damages, interest,
costs and expenses (Sublessee hereby waiving claims for consequential damages),
including, but not limited to, reasonable attorneys' fees and costs incurred in
the defense thereof, which Sublessee may incur or pay out by reason of (i) any
default under the Master Lease by the tenant thereunder, (ii) any act, omission,
negligence or willful misconduct of Sublessor or any of its agents, contractors,
servants, licensees, employees or invitees or (iii) any failure of Sublessor to
perform or comply with all of the provisions of this Sublease. The provisions
hereof shall survive the expiration or sooner termination of this Sublease.
(b) Sublessee shall indemnify, defend and hold harmless Sublessor from
and against all losses, liabilities, claims, damages, interest, costs and
expenses (Sublessee hereby waiving claims for consequential damages), including,
but not limited to, reasonable attorneys' fees and costs incurred in the defense
thereof, which Sublessor may incur or pay out by reason of (i) any act,
omission, negligence or willful misconduct of Sublessee or any of its agents,
contractors, servants, licensees, employees or invitees or (ii) any failure of
Sublessee to perform or comply with all of the provisions of this Sublease. The
provisions hereof shall survive the expiration or sooner termination of this
Sublease.
ARTICLE VIII -- LIMITATION ON LIABILITY AND INSURANCE
8.1 CONDITION OF PROPERTY. Notwithstanding any provision of this Sublease
or the Master Lease to the contrary, Sublessor shall not be liable to Sublessee
or any of its agents, employees, servants, or invitees for any death or injury
to any person or persons or for damage to property due to the condition or
design or any defect in the Subleased Premises, the Building or any complex of
which it is a part, or any part or component thereof (including without
limitation any mechanical, electrical, plumbing, heating, air conditioning or
other systems or equipment), which may exist or subsequently occur, except to
the extent of Sublessor's own negligence or
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willful misconduct. Sublessee, for itself and its agents, employees, servants,
and invitees, expressly assumes all risks of damage to persons and property,
either proximate or remote, by reason of the present or future condition of the
Subleased Premises, the Building or any complex of which it is a part, or any
part or component thereof, except to the extent caused by Sublessor's negligence
or willful misconduct.
8.2 ACTS OF SUBLESSEE. Sublessee agrees that it will indemnify, defend and
hold Sublessor harmless from and against all liability, loss, cost, damage or
expense, including without limitation attorneys' fees and costs and any
liability Sublessor may have to Master Lessor or any other party, arising out of
or related to any act or omission of Sublessee or any of Sublessee's agents,
employees, servants or invitees.
8.3 DEFAULT BY MASTER LESSOR. Sublessor shall not be responsible or liable
for any violation or default by Master Lessor under the Master Lease (regarding
utilities, services, repairs or otherwise) or for the acts or omissions of any
tenant of the Building, but only for defaults of Sublessor hereunder or of
Sublessor as lessee under the Master Lease (to the extent any such default does
not result from Sublessee's default hereunder) and for the negligence or willful
misconduct of Sublessor.
8.4 INSURANCE. Sublessee shall provide liability insurance coverage
conforming to that required of Sublessor in the Master Lease and shall name
Sublessor as an additional insured on all policies.
8.5 TERMINATION. Sublessee acknowledges that if the Master Lease is
terminated pursuant to Section 5(b) or Section 6 thereof, Sublessor may
similarly terminate this Sublease.
8.6 ALTERNATIVE SPACE. Notwithstanding anything to the contrary contained
in this Sublease, if the Subleased Premises are not usable by Sublessee
following a casualty or condemnation, Sublessor shall only be required to
provide Sublessee with alternative space if such space is made available to
Sublessor pursuant to the Master Lease.
ARTICLE IX -- ASSIGNMENT OR SUBLEASE
Sublessee shall not assign, sublet, transfer or hypothecate, in whole or in
part, this Sublease, by operation of law or otherwise, without the prior written
consent of Sublessor, and in no event shall any such assignment or sublease ever
release Sublessee from any obligation or liability hereunder. Notwithstanding
anything to the contrary contained in this Sublease, Sublessee may assign this
Sublease or sub-sublease all or any portion of the Subleased Premises without
the consent of Sublessor and Master Lessor, but with written notice to Sublessor
and Master Lessor, (i) in connection with any merger, consolidation or
reorganization of Sublessee, (ii) as part of a sale of all or substantially all
of (y) the assets of Sublessee located in the State of Kansas or (z) the equity
of Sublessee, (iii) as part of a public or private offering, or (iv) to an
affiliate, parent or subsidiary of Sublessee.
ARTICLE X -- DEFAULTS AND REMEDIES
10.1 Default by Sublessee. The occurrence of any of the following shall
constitute an "EVENT OF DEFAULT" in the terms of this Sublease:
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(a) The failure to pay Rent and/or Additional Rent when due and
failure to cure such default within ten (10) days after Sublessee receives
written notice from Sublessor.
(b) The filing of a petition in bankruptcy or the appointment of a
receiver or an assignment for the benefit of creditors relating to Sublessee.
(c) The failure to comply with the terms of this Sublease (including,
but not limited to, the provisions of the Master Lease to the extent
incorporated pursuant to Section 7.2) within thirty (30) days after receipt of
written notice of the provision in default, excepting Rent, provided, that if
such failure to comply shall not be reasonably capable of being cured within
such 30-day period, then Sublessee shall not be in default if Sublessee shall
have commenced and shall diligently pursue until completion the cure of same.
10.2 SUBLESSOR'S REMEDIES. Upon the occurrence of any Event of Default
under this Sublease, the Sublessor may exercise the following remedies by giving
prior written notice to Sublessee:
(a) Terminate this Sublease, at which time Sublessor shall have the
right to remove any furniture, equipment or other personal property of Sublessee
located at the Subleased Premises.
(b) Pursue all other remedies available under law or equity.
Sublessor's remedies are cumulative and not in the alternative.
ARTICLE XI -- MISCELLANEOUS
11.1 LEGAL FEES. In the event of litigation, mediation or arbitration
concerning the interpretation or enforcement of this Agreement, the prevailing
party is entitled to recover from the losing party its reasonable legal fees,
court costs, and expenses, whether at the trial or appellate level.
11.2 NOTICES. All notices, requests, demands, and other communications
under this Sublease must be in writing and will be deemed to be duly given when
delivered in person, or sent by express delivery service with charges prepaid
and receipt requested, or, if those services are not available, three (3)
business days after mailed (postage prepaid) by certified mail with return
receipt requested addressed to the parties at the respective addresses set forth
by the signature blocks below. Any party may change that party's address by
written notice to the other parties.
11.3 SECURITY. Sublessor has no obligation to provide guards or other
security personnel or security, and Sublessee waives all claims against
Sublessor, its agents and/or employees based on or related to any failure to
furnish security services, failure to furnish protection from crime or related
matters.
11.4 SURRENDER OF THE SUBLEASED PREMISES. At the termination of this
Sublease, Sublessee shall remove all of its trade fixtures, furniture, equipment
and other personal property from the Subleased Premises; vacate the Subleased
Premises; and deliver the Subleased Premises to Sublessor in as good condition
as existed at the Sublease Commencement Date of this Sublease, ordinary wear and
tear and casualty excepted.
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11.5 HOLDING OVER. Sublessee shall indemnify Sublessor from any holdover
penalties pursuant to the Master Lease solely on account of Sublessee's failure
to vacate the Subleased Premises upon the expiration or termination of this
Sublease. This indemnity shall survive the expiration or termination of this
Sublease.
11.6 BROKERAGE; MUTUAL INDEMNITIES. Sublessee and Sublessor each warrants
that it has had no dealings with any broker or agent in connection with the
identification of the Subleased Premises and negotiation or execution of this
Sublease except Xxxxxxx/Power Real Estate Group. Each party shall indemnify,
defend, and hold the other party harmless against all costs, expenses, legal
fees, or other liability for commissions or other compensation or charges
claimed by any other broker or agent claiming by, through, or under the first
party with respect to this Sublease. Sublessor shall pay all commissions and
fees due or payable to Xxxxxxx/Power Real Estate Group.
11.7 NO OPTIONS. Sublessee does not have any option to extend the Sublease
Term under Section 27 of the Master Lease.
11.8 HEADINGS. The headings of the sections and subsections of this
Sublease have been inserted for convenience of reference only and do not
restrict or modify any of the terms or provisions of this Sublease.
11.9 COUNTERPARTS. This Sublease may be signed in original or by fax in
counterparts, each of which will be deemed to be an original, and the
counterparts will together constitute one complete document.
11.10 AMENDMENT. This Sublease may not be altered, waived, or amended
except by an instrument in writing signed by Sublessor and Sublessee.
11.11 LIMITATION OF WARRANTIES. SUBLESSOR AND SUBLESSEE EXPRESSLY AGREE
THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY,
HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT
THIS SUBLEASE, AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY
SET FORTH IN THIS SUBLEASE.
11.12 WAIVER AND RELEASES. Sublessee shall not have the right to withhold
or to offset rent or to terminate this Sublease except as expressly. provided
herein. Sublessee waives and releases any and all statutory liens and offset
rights.
11.13 SEVERABILITY. Any provision of this Sublease which is determined by a
court of competent jurisdiction to be prohibited or unenforceable in any
jurisdiction will, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Sublease, and any such prohibition or unenforceability in any jurisdiction
will not invalidate or render unenforceable such provision in any other
jurisdiction.
[SIGNATURES ON FOLLOWING PAGE]
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The parties have executed this Sublease and delivered it as of the date
first written above.
SUBLESSOR:
FACILITECH, INC., dba BUSINESS
INTERIORS, a Texas corporation
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: CEO
ADDRESS:
Facilitech, Inc.
dba Business Interiors
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attn: Ms. Xxxxx Xxxxx
Fax: (000) 000-0000
SUBLESSEE:
THE GOLF WAREHOUSE, L.L.C., a
Delaware limited liability company
By: /s/ R. Xxxxxxx Xxxxxx
--------------------------------
R. Xxxxxxx Xxxxxx
President
ADDRESS:
The Golf Warehouse, L.L.C.
0000 X. 00xx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxx
Fax: (000) 000-0000
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CONSENT TO SUBLEASE BETWEEN
FACILITECH, INC. AND THE GOLF WAREHOUSE, L.L.C.
The undersigned Master Lessor joins in the execution of this Sublease to
(a) acknowledge its consent to the sublease of the Subleased Premises to
Sublessee, (b) confirm that the use of the Subleased Premises as set forth in
Section 1.6 hereof is acceptable and the amendment of the Master Lease to permit
such use, (c) confirm that: (i) to Master Lessor's knowledge, Sublessor is not
in default under the terms or conditions of the Master Lease and no event exists
that, with the giving of notice or the passage of time, could constitute a
default, (ii) the initial term of the Master Lease extends beyond September 30,
2006 (although with proper notice and timely payment of the lump sum set forth
in Section 32 of the Master Lease, Sublessor (as tenant) has the right to
terminate the Master Lease on such date), and (iii) Master Lessor, at the same
time it notifies Sublessor of Sublessor's default under the Master Lease, will
also notify Sublessee of such default, (d) confirm Master Lessor's consent to
the assignment and sublease provisions as set forth in Article IX hereof and the
amendment of the Master Lease to permit such assignments and sublease rights,
and (e) consent to leasehold improvements consisting of perforations and
penetrations of the wall between the Subleased Premises and other space
currently leased to the Sublessee (and Master Lessor confirms that Sublessee,
and not Sublessor, shall be obligated to restore such perforations and
penetrations at the expiration or termination of the term of the Sublease).
Nothing contained in this consent shall be deemed to operate as a waiver of
Master Lessor's right to approve other non-affiliated subleases in the future,
nor shall it be deemed to act to release Sublessor from any obligations under
the Master Lease. The undersigned represents and warrants that it is the Lessor
under the Master Lease.
Executed as of July 8, 2004
U.S. BUSINESS CENTERS, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Manager
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EXHIBIT 1
MASTER LEASE
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LEASE AGREEMENT
THIS LEASE is made and entered into for Identification purposes on the 10 day of
May, 1999, by and between XXXXXXX X XXXXX, as trustee of the Xxxxx Xxxxx Trust,
created pursuant to a Trust Agreement dated October 4, 1996, executed by Xxxxxxx
X. Xxxxx, as grantor, and Xxxxxxx X. Xxxxx, as Trustee (hereinafter called the
"Lessor") and FACILITECH, INC., a Texas corporation, d.b.a. Business
Interiors/Xxxxx Xxxx (hereinafter called the "Lessee").
LEASED PREMISES:
In consideration of the obligation of LESSEE to pay rent as herein provided and
in consideration of the other terms, covenants and conditions hereof, LESSOR
hereby demises and leases to LESSEE, and LESSEE hereby takes from LESSOR, those
certain premises, now or hereafter to be erected within the City of Wichita,
County of Sedgwick, State of Kansas, and being a part of that certain warehouse
building located at 0000 X. 00xx Xxxxxx (hereinafter referred to as the
"WAREHOUSE"), more particularly described in the legal description attached
hereto as EXHIBIT "A", which premises have a common street address of 0000 X.
00xx Xxxxxx, Xxxxxxx, Xxxxxx, and consist of a space containing approximately
43,200 square feet of floor area (hereinafter called the "LEASED PREMISES"). The
approximate dimensions of the Leased Premises are as follows:
Width or Front: Approximately 240 feet measured, as applicable, from the
outside of each exterior wall of the Warehouse, which is also
a wall of the Leased Premises or, in the case of those
interior walls separating the Leased Premises from other
tenant spaces in the Warehouse, from the center line of such
interior walls.
Depth: Approximately 180 feet measured from the outside of the front
to the outside of the rear wall of the Leased Premises.
The boundaries and location of the Leased Premises are outlined in red on the
site plan of the Warehouse which is attached hereto as EXHIBIT "B" and made a
part hereof.
1. Lease Term: Lessor hereby demises, lets, and leases unto Lessee the above
described real property, together with the improvements located hereon, and
all appurtenances thereto appertaining, for a term of ten (10) years
beginning on the earlier of: (i) the day Lessee commences to distribute any
merchandise from the Leased Premises; (ii) the day Lessee opens to the
public for business at the Leased Premises; or (iii) the day Lessor has
substantially completed "Lessor's Work" (hereafter defined) and the
"Leasehold Improvements" (hereafter defined) and tendered possession of the
Leased Premises to Lessee (herein the "COMMENCEMENT DATE"), and shall
expire ten (10) years after the last day of the month in which the
Commencement Date falls. Annual base rent shall be payable in equal monthly
installments, commencing on the Commencement Date or if the Commencement
Date is not the first day of a month, then on the first day of the month
immediately following the month in which the Commencement Date falls and
continuing on the first day of each month thereafter during the term of
this Lease. In the event the Commencement Date falls on a day other than
the first day of a calendar month, the base
rental for such partial month shall be prorated by multiplying one twelfth
(1/12) of the annual base rent by a fraction, the numerator of which shall
be the number of days remaining in said partial month from and after (and
including) the Commencement Date, and the denominator of which shall be
thirty (30). The base rent for such partial month shall be paid on the
first day of the month immediately following the month in which the
Commencement Date falls. In the event, prior to the Commencement Date.
Lessor shall determine, in its sole discretion, that allowing Lessee to
take possession of a portion of the warehouse space within the Leased
Premises for the limited purpose of storing Lessee's property will not
interfere with Lessor's completion of the construction of the Leased
Premises, Lessor will notify Lessee of such determination and, thereupon,
Lessee shall have the right to store its property in the portions of the
Leased Premises designated by Lessor, but only in accordance with such
rules as Xxxxxx shall impose.
2. Rental: Lessee agrees to pay to Lessor, its successors and assigns, as
rental for said Leased Premises, the following:
(a) Base Rent. Lessee shall pay, as base rent for years 1 through 5, the
sum of $201,312.00 annually in equal monthly installments of
$16,776.00 per month; and for years 6 through 10 the sum of
$218,592.00 annually in equal monthly installments of $18,216.00 per
month.
(b) Taxes and Insurance: In addition to the base rent above provided, and
as additional lease rent, Lessee shall pay its proportionate share of
all taxes, general and special, assessed against every. part of the
Warehouse of which the leased premises are a part and the land upon
which the Warehouse is located (but not with respect to personal
property owned by Landlord or other tenants nor any interest or
penalty related to such taxes), and also its proportionate share of
the cost of all fire, windstorm and other hazard insurance, including,
without limitation, liability and rent loss coverage, carried upon the
Warehouse of which the Lease Premises are a part. The square footage
of building space leased to Lessee hereunder is 43,200 square feet,
and the total leasable space in the Warehouse is 108,000 square feet
and, therefore, Lessee's proportionate share is 40.00%, which
percentage figure shall be applied to the total taxes assessed and
insurance costs to determine the amount for which Lessee is liable.
Lessor shall estimate for the period from the Commencement Date to
January 1, next following the Commencement Date, Lessee's
proportionate share of taxes and insurance costs and notify Lessee of
the amount of such estimate.
Lessee's proportionate share shall be the prorated for the actual
number of months and days from the Commencement Date to January 1,
next following the Commencement Date and Lessee shall pay the amount
so determined to Lessor in equal monthly installments, concurrent with
payment of the base rental, commencing on the, Commencement Date and
continuing through and including the rental payment due December 1,
next following the Commencement Date. On or before January 1, next
following the Commencement Date, and on or before each succeeding
January 1, thereafter, Lessor shall estimate Lessee's, pro rata
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share of the taxes and insurance costs for the succeeding calendar
year, as provided above, and shall notify Lessee of the amount of said
estimate. Lessee shall pay to Lessor monthly thereafter during the
ensuing calendar year, concurrent with the payment of the base rental,
1/12th of the amount so estimated.
Lessor shall keep annual records of the amount of taxes assessed and
insurance costs paid and shall compute Lessee's pro rata share
thereof. By no later than April 1 of each year of this lease,
commencing April 1, 2000, Lessor shall notify Lessee of said amount of
taxes and insurance coats. If the monthly payments previously made by
Lessee are not sufficient to pay said taxes and insurance costs,
Lessee shall pay to Lessor, within thirty (30) days after receipt of
notice of said deficiency, the amount by which the actual costs of
said taxes and insurance exceeds the estimated amount paid by Lessee.
If the estimated amount paid by Lessee exceeds the taxes assessed and
the cost of insurance, Lessor shall credit such excess to Lessee and
shall reduce the estimated amount to be paid by Lessee for the ensuing
year by that amount, or if a refund is owed to Lessee after the
termination or expiration of the Lease, such amount, after deducting
any amount owed by Lessee to Lessor, shall be paid to Lessee by no
later than March 15 of the year immediately following the year for
which the refund is due (this provision shall survive such termination
or expiration).
(c) Common Area Maintenance: In addition to the be rent above provided,
and as additional lease rent, Lessee shall pay its proportionate share
of the cost of operation and maintenance of the common area. Common
area is defined for all purposes of this lease as part of the
Warehouse intended for the common use of all Lessees, including among
other facilities (as such may be applicable to the Warehouse) parking
area, private streets and alleys, landscaping, curbs, curb cuts,
loading area, sidewalks, lighting facilities and pylon signs. Lessor
agrees to maintain the Common area in good condition and repair,
ordinary wear and tear excepted.
Lessor's operating costs shall mean the costs and expense of
operating, maintaining, and managing the common area in a manner
deemed by Lessor to be reasonable and appropriate and for the best
interests of the Warehouse including, without limitation, all costs
and expense of operating, maintaining, repairing or replacing the
parking lot, sweeping, stripping, patching or resurfacing, landscape
mowing, replanting and replacing flowers, shrubbery and planters,
watering landscape areas, security service for the Warehouse, if any
is provided, maintenance, repairing and electric expenses of the pylon
sign, exterior building painting, electric expense for parking lot
lighting, replacement of light bulbs and other common area lighting.
Notwithstanding the foregoing to the contrary: (i) the cost of
operation and maintenance shall not include capital improvements made
to the building, costs of repairs, restoration or replacement
occasioned by fire, storm or acts of God, replacements to the extent
covered by warranties, and costs due to the negligence or tort of
Landlord or an agent, employee or contractor of Lessor; (ii) in the
event all or a portion of the parking lot is replaced, the cost
thereof shall
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be amortized over fifteen (15) years from and after the date the
applicable replacement is completed; and (iii) the replacement of all
or any portion of the parking lot because of defective materials or
workmanship shall not be included in the cost of operation and
maintenance of the common area.
Lessee's share of the cost of operation, maintenance, replacements
described above and management of the common area shall be determined,
estimated and paid in the same manner as Lessee's Share of taxes and
insurance.
The first year's estimate of taxes, insurance and common area
maintenance is $4,068.00 per month which is broken xxxx as follows:
$.75/sq. ft./year for estimated taxes, $.10/sq.ft./year for estimated
insurance, $.22/sq. ft./year for estimated CAM, and $.06/sq. ft./year
for estimated management fees.
(4) Audit Rights: After giving LESSOR 30 days prior written notice
thereof, LESSEE may inspect or audit, at LESSOR'S offices, LESSOR'S
records for the Warehouse relating to Taxes, Insurance, and Common
Area Maintenance. LESSEE'S inspection or audit shall occur only during
business hours and Lessee shall pay the cost of the audit or
inspection. If an error was made in the costs previously charged to
Tenant, then LESSOR shall refund to Lessee any overpayment or LESSEE
shall pay to LESSOR any underpayment, as the case may be, within 30
days after such overpayment or underpayment is established,
3. Maintenance and Repairs:
(a) LESSOR shall, at its cost and expense, keep the foundation (excluding
any special foundation poured at LESSEE'S request), the exterior walls
(except plate glass; windows; doors; door closure devises; window and
door frames, moldings, locks and hardware; and interior painting or
other interior treatment of exterior walls), the roof (including,
without limitation, both the membrane and the structure), the
structural portions of the Leased Premises, and the laterals of the
water, sewer, gas and electric from their point of connection with the
supplier thereof to the Leased Premises, in good repair, except that
LESSOR shall not be required to make any repairs occasioned by the act
or negligence of LESSEE its employees, subtenants, licensees,
contractors or concessionaires. In the event that the Leased Premises
should become in need of repairs required to be made by LESSOR
hereunder, LESSEE shall give immediate written notice thereof to
LESSOR, and LESSOR shall, subject to force majeure, have twenty (20)
days after receipt of said notice within which to commence and
thereafter to diligently complete such repairs.
(b) Except for those portions of the Leased premises which Lessor is
obligated to maintain pursuant to subsection 3 (a) above, Lessee shall
keep the Leased Premises in good, clean condition and repair at all
times during the term and any extended term of this Lease and shall,
at its sole cost and expense, make all needed repairs and
replacements, including the repair and replacements of all
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lighting, heat, air-conditioning, plate glass, doors, windows, door
closure devises, window and door frames, moldings, locks and hardware,
and interior painting or other interior treatment of exterior walls,
plumbing and other electrical, mechanical and electromotive
installations (including, without limitation, dock levelers and dock
sealers), equipment and fixtures and also including all repairs to
ducts, conduits, pipes and wiring, and any sewer stoppage located in,
under or above the Leased Premises and replacement of cracked or
broken glass and repairs, replacements and alterations required by any
governmental authority or any insurance company providing coverage on
any part of the Warehouse to the extent required because of Lessee's
use or occupancy of the Leased Premises or relating to installations
made by LESSEE. LESSEE shall also make all necessary repairs and
replacements of its fixtures required for the proper conduct of its
business. If any repairs required to be made by LESSEE hereunder are
not made within twenty (20) days after written notice delivered to
LESSEE by LESSOR, LESSOR may at his option make such repairs without
liability to LESSEE for any loss or damage which may result to its
stock or business by reason of such repairs, and LESSEE shall pay to
LESSOR upon demand as additional rent hereunder the cost of such
repairs plus interest at the highest lawful rate from the date of
payment by LESSOR until repaid by LESSEE. At the expiration of this
lease, LESSEE shall surrender the Leased Premises in good condition,
reasonable wear and tear and loss by fire or other casualty covered by
LESSOR'S insurance excepted.
(c) Lessor represents and warrants that, to its actual knowledge: (i) all
building systems associated with the Leased Promises are in good
working order and are free from known material defects; and (ii) the
portions of the Warehouse constructed by Lessor are free from known
material defects.
4. Signs: LESSEE shall not without LESSOR'S prior written consent: (a) install
any exterior lighting, decoration, painting, awnings, canopies or the like;
or (b) erect or install any signs, window or door lettering, placards,
decorations or advertising media of any type which can be viewed from the
exterior of the Leased Premises. All signs, lettering, placards,
decorations and advertising media shall conform in all respects to the sign
criteria established by LESSOR for the Warehouse from time to time in the
exercise of its sole discretion, and shall be subject to the prior written
approval of LESSOR as to construction, method of attachment, size, shape,
height lighting, color and general appearance. If LESSOR shall change its
sign criteria and LESSEE'S signage no longer conforms thereto, LESSEE shall
promptly alter its signs so that they do conform to the changes requested
by LESSOR; provided, however, the cost of making such changes shall be paid
by LESSOR. All signs shall be kept in good condition and in proper
operating order at all times.
5. Indemnity and Fire and Casualty Damage:
(a) Indemnification and Liability Insurance: LESSEE covenants and agrees
that it will protect and save and keep the LESSOR and any holder of a
mortgage or deed of trust upon the Warehouse or any portion thereof
forever harmless and
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indemnified against and from any penalty or damage or charges imposed
for any violation of any laws or ordinances whether occasioned by the
neglect of LESSEE or those holding under LESSEE and that LESSEE will
at all times protect, indemnify and save and keep harmless the LESSOR
and any holder of a mortgage or deed of trust upon the Warehouse or
any portion thereof against and from any and all claims and against
and from any and all loss, costs, damage or expense, arising out of or
from any accident or other occurrence on or about said Leased
Premises, causing injury to any person or damage to property
whomsoever or whatsoever and will protect, indemnify and save and keep
harmless the LESSOR and any holder of a mortgage or deed of trust upon
the Warehouse or any portion thereof against and from any and all
claims and against and from any and all loss, costs, damage or expense
arising out of any failure of LESSEE in any respect to comply with and
perform all the requirements and provisions hereof. Without limiting
the generality of the foregoing, LESSEE further agrees at all times
during the term hereof, at its own expense, to maintain and keep in
effect liability insurance policies for damages to person or property
in or about said Leased Premises. LESSEE shall furnish to LESSOR a
Certificate of Insurance evidencing the existence of such insurance.
The amount of said liability insurance shall not be less than
$1,000,000.00 for property damage. LESSOR and any holder of a mortgage
or deed of trust upon the Warehouse or any portion thereof shall be
named as additional insured parties under said liability insurance.
(b) Fire and Casualty Damage: LESSOR shall continuously insure the
Warehouse for not less than 90% of its full replacement value and
shall, upon request, provide LESSEE with reasonable proof of such
coverage. LESSEE shall give immediate written notice to LESSOR of any
damage caused to the Leased Premises by fire or other casualty. In the
event that the Leased Premises all be damaged or destroyed by fire or
other casualty insurable under standard fire and extended coverage
insurance and LESSOR does not elect to terminate this lease as
hereinafter provided, LESSOR shall proceed with reasonable diligence
and at its sole cost and expense to rebuild and repair the Leased
Premises; provided, however, in the event (a) the Warehouse is
destroyed or substantially damaged by a casualty not covered by
LESSOR'S insurance or (b) the Warehouse shall be destroyed or rendered
untenable to an extent in excess of fifty percent (50%) of the first
floor area by a casualty covered by LESSOR'S insurance, or (c) the
holder of a mortgage, deed of trust or other lien on the Leased
Premises at the time of the casualty elects pursuant to such mortgage,
deed of trust or other lien, to require the use of all or part of
LESSOR'S insurance proceeds in satisfaction of all or part of the
indebtedness secured by the mortgage, deed of trust or other lien,
then LESSOR may elect either terminate this lease or to proceed to
rebuild and repair the Leased Premises. If more than fifty (50%) of
the Leased Premises is destroyed or rendered untenantable by a
casualty during the last twelve (12) months of the term or damage to
the Leased Premises, occurring at anytime during the term, will take
longer than six (6) months to repair from the date of the damage
(exclusive of any time required, by LESSEE for repairing damage to its
property or improvements), LESSOR and LESSEE shall each have the right
to elect to terminate
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this Lease. The parties shall give written notice to the other of such
election within thirty (30) days after the occurrence of such
casualty. If this Lease is not terminated in accordance with any of
the foregoing provisions of this subsection 5 (b), LESSOR shall
proceed to repair said damage with reasonable diligence and at its
sole cost and expense; provided, however, if the repairs to the Leased
Premises are not substantially complete within six (6) months after
the date of the casualty (herein the "Rebuild Period"), LESSEE shall
have the right to terminate this Lease by providing written notice of
termination to LESSOR within ten (10) days after expiration of the
Rebuild Period. Notwithstanding the foregoing to the contrary, in the
event LESSOR can not substantially complete such repairs within the
Rebuild Period because of acts of God, the public enemy, shortages or
materials or labor or other matters beyond the reasonable control of
LESSOR, then the Rebuild Period shall be extended one day for every
day that LESSOR is so delayed. LESSOR'S obligation to rebuild and
repair under this section shall, in any event, be limited to restoring
the Leased Premises to substantially the condition in which the same
existed prior to such casualty, exclusive of any alteration,
additional improvements, fixtures and equipment installed by LESSEE,
LESSEE agrees that during any period of reconstruction or repair of
the Leased Premises it will continue to the extent practicable. During
the period from the occurrence of the casualty until LESSOR'S repairs
are completed, the base rental and all additional rents and charges
shall be reduced to such extent as may be fair and reasonable under
the circumstances.
(c) Waiver of Subrogation: Each party hereto waives any and every claim
which arises or may arise in its favor and against the other party
hereto during the term of this lease or any renewal or extension
thereof for any and all loss of, or damage to, any of its property
located within or upon, or constituting a part of, the premises leased
to LESSEE hereunder, which loss or damage is covered by valid and
collectible fire and extended coverage insurance policies. Said mutual
waivers shall be in addition to, and not in limitation or derogation
of any other waiver or release contained in this lease with respect to
any loss of, or damage to, property of the parties hereto. Inasmuch as
the above mutual waivers will preclude the assignment of any aforesaid
claim by way of subrogation (or otherwise) to an insurance company or
any person, each party hereto hereby agrees immediately to give to
each insurance company which has issued to its policies of fire and
extended coverage insurance, written notice of the terms of said
mutual waivers, and to have said insurance policies properly endorsed,
if necessary, to prevent the invalidation of said insurance coverages
by reason of said waivers.
6. Eminent Domain: If any of the floor area of the Leased Premises should be
taken for any public or quasi-public use under any government law,
ordinance or regulation or by right of eminent domain this lease shall
terminate and the rent shall be abated during the unexpired portion of this
lease, effective on the date physical possession is taken by the condemning
authority.
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If any part of the common area should be taken as aforesaid, this lease
shall not terminate, nor shall the rent payable hereunder be reduced,
except that either LESSOR or LESSEE may terminate this lease if: (a) the
parking areas remaining following such taking (as the same may be
reconfigured by LESSOR within the boundaries of the land described in
Exhibit A) fail to meet the then applicable parking requirements of the
applicable governmental authority; or (b) complete access to the Leased
Premises is taken. Any election to terminate this lease in accordance with
this provision shall be evidenced by written notice of termination
delivered to the other party within thirty (30) days after the date
physical possession is taken by the condemning authority.
All compensation awarded for any taking of the Leased Premises or common
area shall be the property of LESSOR, and LESSEE hereby assigns its
interest in any such award to LESSOR; provided, however, LESSOR shall have
no interest in any award made to LESSEE for LESSEE'S moving and relocation
expenses or for the loss of LESSEE'S fixtures and other tangible personal
property if a separate award for such items are made to LESSEE.
7. Acceptance of Premises: LESSEE acknowledges it has examined and knows the
contents of the Leased Premises and has received the same in good condition
or repair (subject to latent defects) and that no representations as to the
condition or repair thereof have been made by LESSOR or LESSOR'S agent that
are not herein expressed. LESSOR shall not be liable for any damage
occasioned by or from plumbing, gas, water, steam, or other pipes, or
sewage or the bursting, leaking, or running of any cistern tank, washstand,
water closet or waste pipe in, above, upon, or about said building or
premises, nor for any damages arising from acts or negligence of co-tenants
or other occupants of the same building, or any owners or occupants of
adjoining or contiguous property unless the damage results from a failure
by LESSOR to perform its maintenance obligations set forth in this Lease.
8. Use and Possession: The Leased Premises may be used and occupied for the
following purposes only:
general office and warehouse and display or showroom of LESSEE'S
merchandise.
If LESSEE desires to change its use of the Leased Premises, then it may do
so only with the prior written consent of LESSOR, which consent shall not
be unreasonably withheld or delayed. It is agreed that LESSEE shall not use
the outside of the premises for storage, except LESSEE may park semi-trucks
and trailers in the dock area designated for LESSEE'S use.
9. Care of Premises and Trash Removal: LESSEE shall take good care of the
Leased Premises and keep the same free from trash at all times. LESSEE
shall keep the Leased Premises and sidewalks, service ways and loading
areas adjacent to the Leased Premises, arranging for the regular pickup of
such trash and garbage at LESSEE'S expense. Receiving and delivery of goods
and merchandise and removal of garbage and trash shall be made only in the
manner and areas prescribed by LESSOR. LESSEE shall not operate an
incinerator or burn trash or garbage within the Warehouse area.
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10. Lessor's Access to Premises: LESSOR shall have the right to enter upon the
Leased Premises at any reasonable time, during normal business hours with
reasonable advance notice, for the purpose of the inspecting the same, or
of making repairs or additions to the Leased Premises, or of making
repairs, alterations or additions to adjacent premises, or of showing the
Leased premises to prospective purchasers, lessees or lenders but LESSOR
shall use reasonable efforts not to materially disturb the ongoing business
of LESSEE being conducted within the Leased Premises. LESSOR shall have the
further right to place "For Rent", "For Lease" or similar such signs in, on
or about the Leased Premises during the last thirty (30) days of the term
of this lease.
11. Alterations, Additions and Improvements: LESSEE may erect such alterations,
additions, and improvements inside the premises as it desires only upon
receiving the prior written consent of LESSOR, which consent shall not be
unreasonably withheld or delayed. Minor alterations, additions and
improvements will not require the prior written consent of LESSOR. All such
alterations, additions, or improvements shall be performed in a workmanlike
manner and shall not weaken or impair the structural strength or lessen the
value of the building and the premises, or change the purposes for which
the building, or any part thereof, may be used, any such alterations,
additions, or improvements shall be erected at the sole cost and expense of
LESSEE, and LESSEE shall have no right, authority, or power to bind LESSOR
or any interest of LESSOR in the Leased Premises, for the payment of any
claim for labor or materials or for any charge or expense incurred in the
erection, construction, or maintenance of such improvements, nor to render
said Leased Premises liable for any lien for labor, material, or any other
charge incurred in connection therewith, and LESSEE shall in no way be
considered the agent of LESSOR in the erection, construction, operation and
maintenance of said improvements, including electrical, plumbing and
anything screwed, bolted or attached to the building, unless specifically
excluded by written agreement between the LESSEE and LESSOR except "trade
fixtures" put in at this expense of LESSEE, shall remain upon and be
surrendered with the premises as a part thereof, at any termination of the
lease, for any cause, and shall become the property of the LESSOR. LESSEE
shall not allow any mechanic or materialman liens to be filed against the
Leased Premises or any part thereof for work performed by or on behalf of,
LESSEE. If any such lien is filed, LESSEE shall immediately cause such lien
to be released by posting an appropriate bond or paying the claim which is
the basis for the lien.
LESSEE is leasing the demised premises in an as is condition except for the
improvements to be constructed by LESSOR listed in EXHIBIT "C" attached to
this lease and LESSOR'S representations set forth in subsection 3 (c)
hereof.
12. Lease Assignment/Sublease: Without LESSOR'S prior consent, but with written
notice to LESSOR, LESSEE shall have the right to assign or sublet the
Leased Premises, in whole or in part, to an affiliate, joint venture
partner, subsidiary or any entity owned and controlled by LESSEE, to the
surviving entity resulting from a merger between LESSee and another company
or to the buyer of all or at least a majority of the assets of or voting
interests in LESSEE, or to an entity composed of LESSEE and a third party,
which entity acquires all or substantially all of the business arising out
of the Leased Premises, and LESSEE may sublease, without LESSOR'S consent,
portions of the Leased Premises to any supplier,
9
client or customer with whom LESSEE is working; provided, however, any such
assignee or subtenant must observe and comply with the terms and provisions
of this Lease including, without limitation, the limitations on use of the
Leased Premises set forth in Section 8 hereof. Any such assignment or
subletting shall not, in any manner, release LESSEE from its obligations
under this lease.
LESSEE shall not have the right to assign or in any manner transfer this
lease or any estate or interest therein, or sublet said premises or any
part thereof to other tenants, or permit any person, firm or corporation to
share or use any part thereof with it, without the previous written consent
of LESSOR. The consent hereby required shall not be unreasonably withheld
or delayed, but any such assignment or subletting consented to by LESSOR
shall not release LESSEE from its obligations under this lease. Consent to
any assignment, when given, shall not operate as a waiver of this
provision, and any subsequent assignment may be consented to by LESSOR as
required herein.
13. Holding Over: In the event LESSEE remains in possession of the Leased
Premises after the expiration of this lease and without the execution of a
new lease, it shall be deemed to be occupying said premises as a LESSEE
from month-to-month at a rental equal to the rental herein provide plus
twenty percent (20%) of such amount and otherwise subject to all the
conditions, provisions and obligations of this lease insofar as the same
are applicable to a month-to-month tenancy.
14. Modification: No modifications of any of the terms or conditions of this
lease, as expressed above, shall be effective unless reduced in writing and
executed by both parties.
15. Default: If LESSEE shall default in the payment of any rent when due and
shall fail to cure such default within ten (10) days after LESSOR gives
LESSEE written notice thereof, or if LESSEE shall default in the
performance of any other covenant or condition of this lease and shall fail
to cure such default within thirty (30) days after LESSOR gives LESSEE
written notice thereof (unless such default cannot reasonably be cured
within thirty (30) days and in such case, LESSEE shall have commenced to
cure said default within said thirty (30) days and thereafter continue
diligently to pursue to completion the curing of same), LESSOR shall, at
its election, have the right to terminate this lease and with or without
terminating this lease have immediate possession of the Leased Premises,
without waiving or relinquishing any claim for rent or damages then due or
to become due thereafter, and LESSEE shall remain liable as hereinafter
provided, in such event LESSOR, without prejudice to any other right or
remedy which it may have hereunder or by law, may re-enter the Leased
Premises either by force, or otherwise, or dispossess LESSEE, any legal
representative of LESSEE or other occupant of the Leased Premises by
appropriate suit, action or proceeding, and remove its effect and hold the
Leased Premises if this lease has not been made. Notwithstanding that
LESSOR may elect to terminate this lease, and during the full period which
would otherwise have constituted the balance of the term of this lease,
LESSEE shall continue liable for the performance of all the covenants of
LESSEE under this lease, including LESSEE'S covenant to pay the full amount
of rent reserved hereunder and LESSEE at its option may rent the Leased
Premises
10
for a term, or terms, which may be shorter or longer than the balance of
the term hereof, in which event or events LESSOR shall apply any moneys
collected first to the expense of resuming or obtaining possession of and
reletting the Leased Premise and second to the payment of the rent due and
to become due to LESSOR hereunder, and LESSEE shall be and remain liable
for any deficiency. Should LESSOR fail to exercise any remedy it may have
for default of LESSEE, such failure shall not be deemed to be a waiver of
LESSOR'S rights to exercise such remedy for such default at a later time or
for subsequent defaults, or otherwise to insist upon strict compliance with
the terms hereof.
LESSOR hereby waives any rights with respect to any contractual or
statutory liens on LESSEE'S fixtures, furniture, equipment or tangible
personal property located at the Leased Premises as well as those items of
any client or customer whether stored on-site within the Leased Premises.
16. Bankruptcy of Lessee: If any adjudication of bankruptcy or insolvency be
rendered against LESSEE herein or if a receiver of the assets or business
of the LESSEE shall be appointed, or if any sale or attempted sale of the
leasehold interest hereby created shall be made under or by virtue of any
execution or other judicial process, LESSOR may at its option immediately
terminate this lease.
17. Notices: Any notices to be given hereunder shall either be delivered
personally or may be given by certified mail. All notices shall be deemed
to be given when delivered, if delivered personally to the party upon whom
such notice is addressed, or if given by certified mail, when deposited in
a sealed envelope, postage prepaid, addressed to the parties as follows:
To Lessor: The Xxxxx Xxxxx Trust
Building E. Suite 200
0000 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
To Lessee: Facilitech, Inc.
0000 Xxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
with copy to: Facilitech, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxxxx, XX 00000
or at such other place as either party may hereinafter from time to time
designate in writing.
18. Binding on Parties: Subject to the limitations, hereinbefore set forth
pertaining to assignment and subletting, this lease shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns.
11
19. Parking: If requested by LESSOR, in writing, LESSEE agrees to cause its
employees to park only in such places as provided and designated by LESSOR,
from time to time, for employee parking. In the event parking spaces
located on the land described in Exhibit A, does not satisfy the parking
requirements of the applicable governmental parking code and LESSOR fails
to correct such deficiency within sixty (60) days after being notified
thereof, in writing, by LESSEE, LESSEE shall have the right to terminate
this Lease by giving LESSOR written notice of termination within thirty
(30) days after expiration of said sixty (60) day cure period.
20. Prohibited Practices: LESSEE will not allow said premises to be used for
any purposes or in any way that will increase the rate of insurance
thereon. LESSEE shall not permit any acts or carry on any practices which
may injure the building or become a nuisance to other tenants of the
Warehouse or district of which the Leased Premises are a part and shall
keep the premises under its control clean and free from rubbish, refuse,
dirt, snow. and ice at all times. The LESSEE shall be responsible and pay
the costs of removal any refuse, rubbish, and trash from the Lease
Premises. Refuse and trash containers shall be kept in a location approved
by the LESSOR and such area shall be kept clean at all times.
21. Utilities: The LESSEE shall pay for all utilities, including electric
current, gas, water, telephone, waste disposal and sewage charges imposed
on or due for services rendered to the hereby Leased Premises as the same
shall become due during the term of this lease.
22. No Waiver Covenant: No waiver by LESSOR, its successors or assigns, of any
breach of any of the covenants made by LESSEE herein shall be construed to
be a waiver of any succeeding breach of any such covenant or agreement.
23. Successors in Interest: In the event of the transfer and assignment by the
LESSOR of its interest in this lease and the building containing the
premises to a person or entity assuming LESSOR'S obligations under the
lease, LESSOR shall hereby be released from any further obligations
hereunder and LESSEE agrees to look solely to the responsibility of such
successor in interest of the LESSOR.
24. Subordination: There are currently no mortgages or other financing liens
encumbering the Warehouse. LESSEE will subordinate its rights hereunder in
this lease to any mortgage or mortgages, deed of trust or deeds of trust or
the lien resulting from any other method of financing or refinancing,
hereafter in force against the land and/or buildings of which the Leased
Premises are a part, if and only if such mortgagee shall recognize, in such
subordination agreement, the validity and continuance of this lease in the
event of a foreclosure of the LESSOR'S interest, as long as the LESSEE
shall not be in default under the terms of this lease. LESSEE agrees to
execute and deliver to LESSOR, within twenty (20) days after receipt
thereof a subordination agreement prepared with respect to a particular
mortgage, deed of trust or other lien so long as the form thereof is in
accordance with commercially reasonable standards applied by the lending
industry in loans of the type and amount sought by LESSOR and such
agreement provides for the non-disturbance of LESSEE in the event of
foreclosure so long as LESSEE is not in default of the performance of its
obligations under this Lease beyond any applicable cure period. LESSEE'S
failure to
12
timely deliver such agreement shall constitute a default under this Lease.
25. Estoppel Certificates: LESSEE shall, within twenty (20) days after written
request from LESSOR, execute, acknowledge, and deliver to LESSOR or to
LESSOR'S mortgagee, proposed mortgagee, lender or proposed purchaser of the
Warehouse or any part thereof, any estoppel certificates requested by
LESSOR, from time to time, which estoppel certificates shall show whether
the lease is in full force and effect and whether any changes may have been
made to the original lease; whether there are any defaults by LESSOR and,
if so, the nature of such defaults, whether possession has been assumed and
all improvements to be provided by LESSOR have been completed; and whether
rent has been paid more than thirty (30) days in advance and that there are
no liens, changes, or offsets against rental due or to become due and that
the address shown on such estoppel is accurate, and containing such other
matters as LESSOR may reasonably require.
26. Partnership: Nothing contained herein shall be deemed or construed by the
parties hereto, nor by any third party as creating a relationship between
the parties hereto other than the relationship of LESSOR and LESSEE.
27. Option: LESSOR grants LESSEE the option to extend this lease for two
additional terms of five (5) years each, provided, however, that written
notice by registered mail of the exercise of such option shall be given by
the LESSEE at least 150 days before the expiration of the then current term
of this lease. All the terms and conditions of this lease shall remain the
same during the option period except the rental for such additional term
shall be adjusted upwards in accordance with the following:
For the purposes of the rental computations hereafter described, the
following definitions shall apply:
"CPI" shall mean the Consumer Price Index, All Consumers, All Items,
(1982-84 = 100), U. S. City Average, as maintained by the United
States Department of Labor, Bureau of Labor Statistics.
"Base 1 Figure" shall mean the CPI figure for May 31, 2004.
"Base 2 Figure" shall mean the CPI figure for May 31, 2008.
"Base 3 Figure" shall mean the CPI figure for May 31, 2014.
The annual base rent for the Leased Premises shall be adjusted at the
beginning of the first extended term to equal the product obtained by
multiplying the annual base rent to the last year of the initial term
by a fraction, the numerator of which shall be the Base 2 Figure and
the denominator of which shall be the Base 1 Figure. Such adjusted
annual Fixed Minimum Rent shall be referred to herein as the "First
Adjusted Rent" and shall be effective for each year of the first
extended term.
13
The annual base rent for the Leased Premises shall be adjusted at the
beginning of the first year of the second extended term to equal the
product obtained by multiplying the First Adjusted Rent by a fraction,
the numerator of which shall be the Base 3 Figure and the denominator
of which shall be the Base 2 Figure,
Notwithstanding any of the, foregoing to the contrary, the annual base rent
for the extended periods shall not be less than the annual base rent for
the year immediately preceding the applicable extended period.
In the event LESSEE exercises its first option described above, LESSOR
agrees to make available to LESSEE, after the commencement of the extended
term, a refurbishment allowance (herein the "Refurbishment Allowance") in
the amount of $40,000 to be used in redecorating the Leased Premises.
LESSOR shall not be obligated to pay the Refurbishment Allowance to LESSEE
until LESSEE has complied with requirements (a), (b), (c) and (e) of
Section 30 hereof, with respect to the redecorating work performed by
LESSEE.
28. Lessee Improvements. LESSEE has submitted to LESSOR a set of plans and
specifications for the improvements which LESSEE desires to make to the
Leased Premises. LESSOR is currently reviewing said plans and
specifications. LESSOR and LESSEE shall have until and including May 21,
1999, within which to agree, in writing, upon a set of plans and
specifications for LESSEE'S improvements (herein the "LEASEHOLD
IMPROVEMENTS") to the Leased Premises and the bid for the construction
thereof. Such mutually acceptable plans and specifications for LESSEE'S
improvements shall be referred to herein as the "LESSEES APPROVED PLANS"
and the mutually acceptable bid for the construction of the Leasehold
Improvements shall be referred to herein as the "APPROVED BID". In the
event the parties fail to agree, in writing, upon a set of plans and
specifications for the Leasehold Improvements and the bid for the
construction thereof by and including May 21, 1999, then this Lease shall
automatically terminate as of 5:00p.m., Wichita, Kansas, time, on May 21,
1999, and the parties shall thereupon be relieved of their respective
rights and obligations set forth in this Lease. In the event LESSOR and
LESSEE agree, in writing, upon a set plans and specifications for the
Leasehold Improvements and the bid for the construction thereof by and
including May 21, 1999, then LESSOR shall execute a construction agreement
pursuant to the Approved Bid and proceed to construct the Leasehold
Improvements in accordance with the LESSEE'S Approved Plans. LESSOR shall
pay for the cost of constructing the Leasehold Improvements up to a maximum
amount of $200,000 (herein the "CONSTRUCTION COST CAP"). LESSEE shall pay
the cost of constructing the Leasehold Improvements to the extent such cost
exceeds $200,000. One-half (1/2) of the cost of constructing the demising
wall between the Leased Premises and the adjacent space shall be charged
against the Construction Cost Cap. LESSEE shall pay to LESSOR, at the time
LESSOR'S Work and the Leasehold Improvements are substantially complete,
the amounts, if any, by which the sum of: (a) one-half (1/2) of the cost of
constructing the demising wall between the Leased Premises and the adjacent
space; and (b) the cost of constructing the Leasehold Improvements exceeds
the Construction Cost Cap.
14
29. Description of Lessor's Work. LESSOR'S Work is defined and described in
Exhibit C hereto.
30. [intentionally Omitted]
31. Hazardous Materials. LESSEE agrees that it will not, without the prior
written consent of LESSOR, use or permit to be used on or bring onto or
about the premises any materials that have been or are in the future
determined to be hazardous by any federal, state or local government agency
other than those materials which are used by LESSEE in the ordinary course
of its business and which are stored in accordance with requirements of
applicable laws (LESSOR confirms that LESSEE'S electrostactic painting
operation, so long as it is accomplished in accordance with applicable
laws, is specifically allowed within the Leased Premises). LESSEE shall and
hereby agrees to defend, indemnify and hold the LESSOR harmless from and
against any claim asserted by, or any liability to any person, including,
without limitation, any agency, branch or representative of federal, state
or local government, on account of any personal injury or death or damage,
destruction or loss of property (whether it be sudden and accidental or
gradual and steady) resulting from or arising out of LESSEE'S usage,
storage or disposal of hazardous material on the premises or LESSEE'S
generation, brokerage or transference of any hazardous materials from the
premises.
LESSOR warrants that there ore no hazardous materials present in the
building and/or site in any form as of the date of this Lease.
32. Early Termination. LESSEE shall have the right to terminate this Lease
effective on the last day of the 7th year of the original lease term,
provided however, that LESSOR receives notice in writing of said early
termination at least six months in advance of the end of the 7th year of
the original lease term and provided that LESSEE pays to LESSOR a lump sum
of $125,000.00 at the time LESSEE vacates the Leased Premises; provided,
however, in the event LESSEE exercises its first-right-of-refusal set forth
in Section 34 hereof, the foregoing provisions of this Section 32 shall be
null and void and LESSEE shall not have the right to terminate this Lease
as set forth above in this Section.
33. [Intentionally Omitted]
34. Right of First Refusal to Lease Additional Space. For the purposes of this
Lease, the 14,600 square feet of additional floor space within the
Warehouse located adjacent to the Leased Premises shall be referred to
herein as the "ADJACENT Space". In the event, during the Term of this
Lease, LESSOR shall receive a bona fide offer from a third party,
acceptable to LESSOR (which may be in the form of a lease or letter of
intent to be signed), to lease space within the Warehouse which includes
the Adjacent Space (herein the "FIRST REFUSAL SPACE"), LESSOR shall submit
a written notice thereof to LESSEE. Upon receipt of said notice, LESSEE
shall have the right (the "RIGHT OF FIRST REFUSAL), exercisable at any time
within ten (10) business days from and after the date of LESSEE'S receipt
of such notice (herein the "EXERCISE PERIOD"), to lease the First Refusal
Space
15
upon the same terms and conditions offered by the third party; provided,
however, (a) the term of the lease for the First Refusal Space shall be the
same as the remaining term of this Lease; and (b) if the term of the offer
to lease the First Refusal Space extends beyond the end of the then current
term of this Lease and there remains an unexercised option to extend this
Lease, LESSEE must exercise such option at the time it elects to exercise
its right of first refusal. In order to exercise LESSEE'S Right of First
Refusal, LESSEE must give LESSOR written notice thereof on or before the
last day of the Exercise Period.
35. Competition. LESSOR agrees that so long as LESSEE is not in default in the
performance of its obligations under this Lease and LESSEE is conducting
substantially the same business from the Leased Premises as LESSEE
conducted at the commencement of this Lease, LESSOR shall not lease any
spare in the Warehouse to any of the following competitors of LESSEE:
Office Installation Company (CIC), Total Installation Management
Specialists (XXXX), Xxxxxxxxx'x or any division or affiliate of
Xxxxxxxxx'x; Hesston Business Interiors, Xxxxxxx'x Office Furniture, X.X.
Xxxxx & Associates Furnishing Solutions; Traditions Office Furniture; Xxxx
Design; Single Source; Southwestern Office Supply; Tri City Office
Equipment; Office One; Xxxxxx Line; Furniture Options; Alcazar LTD; CCR
Office Products; IFG; Xxxxxx Line; Spaces; Corporate Express; and any
entity which, at the time in question, derives more than fifty (50%).
percent of its annual gross office furniture sale revenues from the sale of
Xxxxxx Xxxxxx, Xxxxxxx or Xxxxx office furniture.
IN WITNESS WHEREOF, the parties hereto have executed this lease the day and
year first above written.
"LESSOR"
THE XXXXX XXXXX TRUST
By: /s/ Xxxxxxx X. Xxxxx, Trustee
------------------------------------
Xxxxxxx X. Xxxxx, Trustee
"LESSEE"
FACILITECH, INC.
d.b.a. Business Interiors/Xxxxx Xxxx
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
----------------------------------
Title: Exec V.P.
----------------------------------
16
EXHIBIT A
Xxx 0, Xxxxx 0, Xxxxxxxxxxxxx Xxxxx, an Addition to Wichita, Sedgwick
County, Kansas.
17
Exhibit "B"
(FLOOR PLAN)
Address of the Leased Premises: 0000, X. 00xx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxx 00000
Exhibit "C"
Landlord's Work
1. Warehouse Sprinklers
- Fire protection system for the shell area to be standard fire
sprinkler system. This is a wet pipe system.
2. Dock Equipment
- Dock levelers to be hydraulic 35,000 lb. capacity for five dock doors
- Dock bumpers for five dock doors
- Dock seals for two dock doors
- 10 x 10 overhead doors - five doors
3. Electrical
- Service to be 480/277 volt, 3 phase 200 amps
- Soffit lights at entrance included
- Exterior lighting provided
- Warehouse lighting - 400 watt metal halide high bay fixtures on 30 ft
centers
4. HVAC
- Warehouse heating system will include unit heaters to maintain 50
degree temperature in the warehouse space with minus 10 degree design
temperature
5. Plumbing
- 1" water service to building
- Sanitary sewer stubbed to sewer blockout in concrete floor, 40 ft from
front wall
Aluminum storefront windows
- Storefront windows and doors per the plan included
XXXXX INVESTMENT GROUP
September 28, 1999
Xx. Xxxxx X. Xxxxx
Executive Vice-President
Facilitech, Inc.
0000 Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000
RE: Lease dated May 10, 1999
0000 X. 00xx Xxxxxx
Xxxxxxx, Xxxxxx
Dear Xxxxx:
Per section 1 (iii) of our Lease Agreement dated May 10, 1999, the Commencement
Date shall be the day Lessor has substantially completed "Lessor's Work" and the
"Leasehold Improvements" and tendered possession of the Lease Premises to
Lessee. Although we were substantially complete prior to October 1st, we have
discussed with Xxx Xxxxx, and agreed to a Commencement Date of October 1, 1999.
Please sign both copies of the enclosed Commencement Date letter, and return one
signed original to my office along with the first month's rent check in the
amount of $20,844.00 ($16,776.00 per month base rent, and $4,068.00 per month
for estimated taxes, insurance and CAM).
If you have any questions or need any additional information, please call me at
000-000-0000.
Sincerely,
/s/ Xxxxxxx X. Xxxxx, Trustee
-------------------------------------
Xxxxxxx X. Xxxxx, Trustee
The Xxxxx Xxxxx Trust
0000 XXXXX XXXX XXXX - XXXXXXXX X, XXXXX 000
X.X. XXX 00000 - XXXXXXX, XXXXXX 00000
(000) 000-0000 - FAX (000)000-0000
COMMENCEMENT DATE
With respect to that certain Lease Agreement (the "Lease") dated May 10,
1999, by and between, XXXXXXX X. XXXXX, as trustee of the Xxxxx Xxxxx Trust
("Lessor") and FACILITECH, INC., a Texas corporation, d.b.a. Business
Interiors/Xxxxx Xxxx ("Lessee"), covering approximately 43,200 square feet of
floor area located at 0000 X. 00xx Xxxxxx, Xxxxxxx, Xxxxxx, by their respective
execution below, Lessor and Lessee each hereby stipulates and agrees that the
Commencement Date (as referenced in paragraph (1) of the Lease) will occur on
October 1, 1999. This Declaration may be relied upon by any person having or
acquiring an interest in the Lease or by any person having or acquiring an
interest in Lessee, without notice or consent of Lessor or Lessee.
LESSOR
THE XXXXX XXXXX TRUST
By: /s/ Xxxxxxx X. Xxxxx, Trustee
------------------------------------
Xxxxxxx X. Xxxxx, Trustee
Date:
--------------
LESSEE
FACILITECH, INC.
d.b.a. Business Interiors/Xxxxx Xxxx
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Title: Executive Vice President
---------------------------------
Date: 10-8-99
----------------------------------
ASSIGNMENT OF LEASES
KNOW ALL MEN BY THESE PRESENTS:
THAT THE XXXXX XXXXX TRUST, created pursuant to a Trust Agreement dated
October 4, 1996, executed by Xxxxxxx X. Xxxxx, as grantor, and Xxxxxxx X Xxxxx,
as trustee, ("Assignor"), in consideration of the sum of Ten and no/100 Dollars
($10.00) in hand paid, and other good and valuable considerations, the payment,
receipt and sufficiency of which is hereby acknowledged, does hereby assign,
transfer, set over and convey to U.S. BUSINESS CENTERS, L.L.C., a Kansas limited
liability company, ("Assignee"), all of Assignor's right, title and interest in
and to all leases, including any and all security deposits made by tenants
pursuant to said leases in effect at the real property legally described on
Exhibit "A" attached hereto, which is located in Sedgwick County, Kansas
("Existing Leases").
IN WITNESS WHEREOF, Assignor has executed this Assignment to be effective
as of the 1st day of June, 2000.
ASSIGNOR:
THE XXXXX XXXXX TRUST
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Xxxxxxx X. Xxxxx, Trustee
STATE OF KANSAS )
), ss.
COUNTY OF SEDGWICK )
This instrument was acknowledged before me on June 12, 2000, by XXXXXXX L,
XXXXX, Trustee, of THE XXXXX XXXXX TRUST.
/s/ Xxxxxx X. Pack
-------------------------------------
Notary Public, State of Kansas
My commission expires: June 6, 2004
------------
XXXXXX X. PACK
Notary Public - State of Kansas
My Appt. Expires: 6-6-2004
EXHIBIT 2
HVAC MAINTENANCE CONTRACT
(FAHNESTOCK HEATING AND AIR CONDITIONING, INC. LOGO)
SILVER MEDAL
PREVENTIVE MAINTENANCE AGREEMENT
FAHNESTOCK HTG.& A/C INC. AGREEMENT
0000 X. XXXXXXXX XXXXXX
XXXXXXX XX 00000 00013977 1
(000) 000-0000
PAGE 2 of 2
JOB: XXXX TO:
GOLF WAREHOUSE GOLF WAREHOUSE
0000 X. 00XX X. 0000 X. 00XX X.
XXXXXXX XX 00000 XXXXXXX XX 00000
(OFF) 838-5551 Ext 101 (OFF) 838-5551
PERIOD COVERED BY AGREEMENT
TO
1/01/04 12/31/04
Complete Inspection and 24-Hour "Silver Medal All necessary labor and
preventive maintenance service Top Priority" service filter removals (except
in the spring and in the fall in case of emergency. high efficiency).
of the equipment listed below. Twenty percent discount
on replacement parts.
EQUIP/MODEL# MAKE/SERIAL# AGREEMENT TYPE
GAS/ELEC RTU RUUD 00 SILVER MEDAL
RKKBAl 2ODL15E940 2B6336ADAAF0200
TOTAL DUE 994.00
SPECIAL INSTRUCTIONS 0.00
994.00
PROVISIONS OF AGREEMENT
TOTAL DUE 994.00
SPECIAL INSTRUCTIONS 0.00
994.00
PROVISIONS OF AGREEMENT
1. Owner will be contacted by phone prior to scheduled service call.
2. Scheduled service will be provided during regular working hours.
3. This contract does not cover the moving of any equipment, the electrical
beyond refrigeration units and furnace, or any work required due to
negligence or misuse of equipment or failure of the Owner to follow normal
operating procedure, or any shortage of electrical or water supply,
sabotage, damage caused by freezing or breaking of pipes, or damage from
any cause which is external or which does not arise solely and directly out
of operation of the equipment.
4. This contract does not cover out-of-warranty heat exchangers, compressors,
or coils.
5. This contract is not transferable without written consent of Fahnestock
Heating and Air Conditioning, Inc.
6. This contract may be cancelled by either party at any time upon written
notice.
/s/ Xxxxx Xxxxxxx 12/11/03
------------------------------------- --------
DEALER APPROVAL DATE
/s/ signature not legible Please return signed yellow copy
------------------------------------- with remittance. Thank You.
ACCEPTED
Fahnestock Heating & Air Conditioning, Inc. - 0000 X. Xxxxxxxx - Xxxxxxx,
Xxxxxx 00000 - Dial 943-HEAT or 943-COOL
(FAHNESTOCK HEATING AND AIR CONDITIONING, INC. LOGO)
SILVER MEDAL
PREVENTIVE MAINTENANCE AGREEMENT
FAHNESTOCK HTG.& A/C INC. AGREEMENT
0000 X. XXXXXXXX XXXXXX
XXXXXXX XX 00000 00013977 1
(000) 000-0000
PAGE 1 OF 2
JOB: 943-4328 XXXX TO:
GOLF WAREHOUSE GOLF WAREHOUSE
0000 X. 00XX X. 0000 X. 00XX X.
XXXXXXX XX 00000 XXXXXXX XX 00000
(OFF) 838-5551 Ext 101 (OFF) 838-5551
PERIOD COVERED BY AGREEMENT
TO
Complete Inspection and 24-Hour "Silver Medal All necessary labor and
preventive maintenance service Top Priority" service filter removals (except
in the spring and in the fall in case of emergency. high efficiency).
of the equipment listed below. Twenty percent discount
on replacement parts.
EQUIP/MODEL# MAKE/SERIAL# AGREEMENT TYPE
------------------------------ --------------------- -----------------
AIR HANDLER RUUD 00 SILVER MEDAL
RUBHA17J14MFA M379902695
AIR CONDITIONER RUUD 00 SILVER MEDAL
RUKKA037CAZ 5776M499805469
GAS/ELEC RTU RUUD 00 SILVER MEDAL
RKKBAl2ODL15E940 2B6336ADAAF0200
GAS/ELEC RTU RUUD 00 SILVER MEDAL
" " 2B6336ADAAF0200
GAS/ELEC RTU RUUD 00 SILVER MEDAL
" " 2B6336ADAAF0200
GAS/ELEC RTU RUUD 00 SILVER MEDAL
" " 2B6336ADAAF0200
GAS/ELEC RTU RUUD 00 SILVER MEDAL
" " 2B6336ADAAF0200
TOTAL DUE
SPECIAL INSTRUCTIONS
PROVISIONS OF AGREEMENT
XXXXXXX XX 00000 00013977 1
(JOB) 943-4323
PAGE 1 OF 2
XXXX TO:
GOLF WAREHOUSE GOLF WAREHOUSE
0000 X. 00XX X. 0000 X. 00XX X.
XXXXXXX XX 00000 XXXXXXX XX 00000
(OFF) 838-5551 Ext 101 (OFF) 838-5551
PERIOD COVERED BY AGREEMENT
TO
Complete Inspection and 24-Hour "Silver Medal All necessary labor and
preventive maintenance service Top Priority" service filter removals (except
in the spring and in the fall in case of emergency. high efficiency).
of the equipment listed below. Twenty percent discount
on replacement parts.
EQUIP/MODEL# MAKE/SERIAL# AGREEMENT TYPE
AIR HANDLER RUUD 00 SILVER MEDAL
RUBHA17J14MFA M379902695
AIR CONDITIONER RUUD 00 SILVER MEDAL
RUKKA037CAZ 5776M499805469
GAS/ELEC RTU RUUD 00 SILVER MEDAL
RKKBAl2ODL15E940 2B6336ADAAF0200
GAS/ELEC RTU RUUD 00 SILVER MEDAL
" " 2B6336ADAAF0200
GAS/ELEC RTU RUUD 00 SILVER MEDAL
" " 2B6336ADAAF0200
GAS/ELEC RTU RUUD 00 SILVER MEDAL
" " 2B6336ADAAF0200
GAS/ELEC RTU RUUD 00 SILVER MEDAL
" " 2B6336ADAAF0200
TOTAL DUE
SPECIAL INSTRUCTIONS
PROVISIONS OF AGREEMENT
1. Owner will be contacted by phone prior to scheduled service call.
2. Scheduled service will be provided during regular working hours.
3. This contract does not cover the moving of any equipment, the electrical
beyond refrigeration units and furnace, or any work required due to
negligence or misuse of equipment or failure of the Owner to follow normal
operating procedure, or any shortage of electrical or water supply,
sabotage, damage caused by freezing or breaking of pipes, or damage from
any cause which is external or which does not arise solely and directly out
of operation of the equipment.
4. This contract does not cover out-of-warranty heat exchangers, compressors,
or coils.
5. This contract is not transferable without written consent of Fahnestock
Heating and Air Conditioning, Inc.
6. This contract may be cancelled by either party at any time upon written
notice.
------------------------------------- --------------------------------
DEALER APPROVAL DATE
------------------------------------- Please return signed yellow copy
ACCEPTED with remittance. Thank You.
Fahnestock Heating & Air Conditioning, Inc. - 0000 X. Xxxxxxxx - Xxxxxxx,
Xxxxxx 00000 - Dial 943-HEAT or 943-COOL
