EXHIBIT 10b
LEASE AGREEMENT
WITH OPTION TO PURCHASE
THE STATE OF ALABAMA )
)
COUNTY OF XXXXXX )
Recitals
X. Xxxxxxxx Industrial Properties, Inc. ("Landlord"), An Alabama
corporation, owns that certain real property in the city of Xxxxxxxx, Xxxxxx
County, Alabama more fully described as follows:
A tract of land containing 3.62 acres, situated in the Xxxxxxxxx 0/0 xx
Xxxxxxxxx 0/0 xx Xxxxxxx 00, Xxxxxxxx 00 South, Rage [sic] 12 Xxxx,
Xxxxxx County, Alabama and being more particularly described as
follows: Commence at the Southwest corner of Northwest 1/4 of Northwest
1/4 of said Section 14, thence run N. 88 degrees 52 E. along the South
boundary of said NW 1/4-NW 1/4 and along the centerline of First Avenue
South, a distance of 25.00 feet to a point; thence run N. 04 degrees 15
W., a distance of 25.00 feet to an old angle iron pin situated at the
intersection of the Northerly right-of-way of First Avenue South with
the Easterly right-of-way of a second Paved city of Winfield Street,
said iron and intersection point being the point of beginning for the
tract herein described to-wit: thence continue N. 04 degrees 15 W.
along the Easterly right-of-way of said second Paved City of Winfield
Street to an old fence post (cut off); thence run N. 88 degrees 52 E.
and parallel with the South boundary of above said NW 1/4-NW 1/4 a
distance of 631.00 feet to a steel fence post situated in the center of
a 20.0 foot wide alley (abandoned); thence run S. 04 degrees 15 E.
along the center abandoned alley, a distance of 250.0 feet to a 1/2
inch rebar situated on the Northerly right-of-way of the above said
First Avenue South; thence run S. 88 degrees 52' W. along the Northerly
right-of-way of said avenue, a distance of 631.00 feet to the point of
beginning.
Description furnished by Xxxx X. Xxxxx & Associates, Land Surveyors,
Hamilton, Al. reg. No 10681.
Building on said Property consist of 30,000 square feet less 5,000
square feet and a yard which is leased to Roadway Services, Inc. for
their exclusive use. (See Exhibit A)
Said real property plus the improvements thereon shall hereinafter be referred
to as the "Leased Premises."
B. Superior Door Company, Inc.("tenant"), an Alabama corporation, desires
to lease the Lease Premises from Landlord upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
That, for value received, Landlord and Tenant have agreed:
1. Leased Premises.
1.1. Lease. Pursuant to the terms of this Lease Agreement
("Lease"), and subject to the provisions of Section 1.2 below, Landlord hereby
leases and lets unto Tenant and Tenant does hereby take from Landlord the Leased
Premises. Tenant acknowledges that it has fully inspected the Leased Premises
and accepts the Leased Premises as suitable for the purposes for which the same
are hereby leased. Subject to the provisions of Section 11.2, Tenant accepts the
Lease Premises in their current condition AS IS, WHERE IS and WITH ALL FAULTS.
2. Term.
2.1. Initial Term. The initial term of this Lease is for a
period of 5 years commencing as of December 1, 1995 ("Commencement Date") and
ending on November 30, 2000. Notwithstanding the foregoing, if the Lease
Premises are occupied by Tenant prior to the Commencement Date, the initial term
of this Lease shall be deemed to have commenced on the date of Tenant's
occupancy of the termination date of the initial term shall remain the same as
stated above.
2.2. Renewal Term. Tenant shall have the option to renew this
Lease for an additional term of five (5) years, by written notice of such
renewal delivered to Landlord as hereinafter provided, under the same terms,
conditions and covenants set forth herein, except that the rents payable
hereunder shall be adjusted as set forth in Section 3.2 and Tenant shall have no
additional options to renew this Lease.
2.3. Notice Requirements. Not more than 180 days prior to the
expiration of the initial term, Landlord shall give Tenant written notice
requesting that Tenant notify Landlord whether or not Tenant intends to exercise
its right of renewal pursuant to Section or its option to purchase pursuant to
Section 19. Within 60 days after Tenant's receipt of such notice, Tenant shall
notify Landlord in writing if Tenant desires to renew this Lease or exercise its
option to purchase the Lease Premises. If Tenant fails to respond to such
written notice from Landlord, Tenant shall deemed to have elected to not renew
this Lease and not exercise its option to Purchase the Leased Premises. If
Landlord fails to give such written notice to Tenant, Tenant may nevertheless
exercise its right to renew this Lease or its option to purchase the Leased
Premises by giving Landlord written notice of the intention to do so at any time
prior to the expiration of the initial term of this Lease. If Tenant exercises
its right to renew this Lease (and therefore does not exercise its option to
purchase the Leased Premises at that time), not more than 180 days prior to the
expiration of the renewal term, the notice requirements set forth herein shall
be applicable and shall be utilized by Landlord and Tenant in connection with
the exercise (or not) of Tenant's option to purchase the Lease Premises.
3. Rents.
3.1. Initial Term. As rents for the Lease Premises during the
initial term, Tenant shall pay Landlord at Landlord' suffices [sic] in Xxxxxxxx,
Xxxxxx County, Alabama the aggregate sum of $180,000 payable in 60 equal monthly
installments of $3,000 each; the first of such installments shall be due and
payable on or before the Commencement Date, and a similar payment shall be due
and payable on or before the first day of each successive calendar month
thereafter until all of such monthly installments have been so paid. In the
event that the Lease Premises are occupied by Tenant on a day other than the
first day of a month, rent for such partial month shall be calculated and paid
on a prorated basis according to the number of days in such month the Lease
Premises are occupied by Tenant.
3.2. Renewal Term. In the event Tenant exercises its right to
renew this lease for an additional five (5) year term, as set forth above, the
rent payable hereunder shall be adjusted effective as of the first day of the
renewal term in accordance with Section 3.2. Effective December 1, 2000, the
monthly rent payment due pursuant to this Lease shall be adjusted to an amount
equal to the product obtained by multiplying $3,000 by a fraction, the numerator
of which is the Consumer Price Index for All Urban Consumers, U.S. City Average,
For All Items, as published by the U.S. Bureau of Labor Statistics (the "CPI
Index") for November 30, 2000. and the denominator of which is the CPI Index for
December 31, 1995; provided, however, the monthly rent payment shall not be less
than $4,000. The monthly rent payment calculated pursuant to the preceding
sentence shall then remain constant during the remainder of the renewal term.
4. Insurance.
4.1. Required Coverage. Tenant, at its sole cost and expense,
will obtain and maintain, with insurance carriers duly licensed to do business
in Alabama, the following insurance coverage with respect to the Lease Premises:
(a) Fire and extended coverage insurance in an
amount not less than $530,000 or the full replacement cost of the Leased
Premises, whichever is greater.
(b) At Tenant's option, fire and extended coverage
insurance in an amount to be determined by Tenant insuring Tenant's contents in
the Leased Premises.
(c) General liability insurance in an amount not
less than $1,000,000 per person and $1,000,000 per occurrence for bodily injury
and $1,000,000 for property damage.
Each such insurance policy shall name Landlord and Tenant as insured
parties and shall include Landlord's mortgage lender, if any, as a loss payee as
its interest may appear. Tenant shall furnish to Landlord certificates or other
evidence of the required insurance coverage prior to Tenant's occupancy of the
Leased Premises. Prior to the expiration of any such coverage, Tenant shall
furnish Landlord evidence of the continuation of such coverage.
4.2. Waiver of Subrogation Rights. Landlord and Tenant hereby
waive their respective rights of subrogation against the other for all claims
and causes whatsoever arising out of any injury upon or loss or damage to the
Leased Premises or any part thereof resulting from a risk or peril included
within the insurance policies herein required and/or purchased by either party.
Each party will promptly notify their respective insurers of this waiver.
5. Taxes. Tenant shall pay before they become delinquent all ad valorem
taxes and special assessments lawfully levied or assessed against the Leased
Premises during the term of this Lease. Landlord shall be responsible for the
payment of all such taxes and assessments for any period prior to the
Commencement Date. Tenant shall pay such taxes and assessments directly to the
taxing authority entitled to receive such payment; provided, however, Tenant
reserves the right to contest any such tax or assessment at Tenant's sole risk
and expense. In the event of any such contest, Tenant does not have to pay the
contested tax or assessment so long as Tenant diligently pursues such contest in
accordance with the applicable administrative procedures and applicable law.
Notwithstanding the foregoing, however, during the course of any such contest,
Tenant shall at all times protect and preserve Landlord's title to the Leased
Premises, and, if necessary to protect and preserve Landlord's title thereto,
Tenant shall pay the contested tax or posted appropriate bond therefor prior to
allowing the taxing authority to take any action to enforce its tax lien against
the Leased Premises.
6. Maintenance. Tenant, at its sole risk and expense, shall through the
term of this Lease and any renewal thereof maintain the Leased Premises in good
repair and condition. Subject to the provisions of Section and hereof, at the
end of the term of the Lease, Tenant shall surrender and deliver up the Leased
Premises to Landlord in good repair and condition (damage by fire, tornado or
other casualty and reasonable wear and use excepted). In the event Tenant should
fail to maintain the Leased Premises, and such failure should continue for a
period of 30 days after Landlord's written notice to Tenant thereof, or if such
failure cannot be reasonably cured within the said 30 days and Tenant shall not
have commenced to cure such failure within said 30 days and shall not thereafter
with reasonable diligence and good faith proceed to cure such failure, Landlord
shall have the right (but not the obligation) to cause repairs or corrections to
be made, and the costs thereof shall be payable to Tenant to Landlord on the
next rental installment date.
7. Inspection. Landlord and Landlord's authorized agents shall have the
right to enter the Leased Premises during Tenant's normal business hours of
operation for the purpose of inspecting the general condition and state of
repair of the Leased Premises or for any other reasonable purpose.
8. Use. Tenant may occupy and use the Leased Premises for the
manufacture and sale of doors and general office and/or supply and warehouse
facilities in connection therewith and/or for any other lawful purpose. At all
times, Tenant shall occupy the Leased Premises, conduct its business and control
its agents, employees, invities [sic] and visitors in a way as is lawful and
reputable and will not create a nuisance or otherwise interfere with, annoy or
inconvenience Landlord or the occupants of surrounding real property. Tenant
shall be solely responsible to obtain at its sole cost any and all
authorizations from applicable governing authorities for the conduct of such
business, including waivers and certificates of permissive use and exemption, if
necessary, from applicable zoning ordinances.
9. Utilities. As of the Commencement Date, Landlord shall provide the
normal and customary utility connections that are currently in use into the
Leased Premises. Tenant shall pay the cost of all utility services, including
but not limited to, all charges for gas, water and electricity used on the
Leased Premises and all costs of garbage and trash removal and sewer services.
10. Fire and Casualty Damage.
10.1. Total. If the Leased Premises should be totally
destroyed by fire, tornado or other casualty, or if they should be so damaged
that rebuilding or repairs cannot reasonably be completed within 180 working
days from the date of the occurrence of the damage, this Lease shall terminate
at the option of the Landlord, otherwise, repairs will be completed and the
Lease continue without abatement of rent.
10.2. Partial.
(a) If the Leased Premises should be damaged by
fire, tornado or other casualty but not to such an extent that rebuilding or
repairs cannot reasonably be completed within 180 working days from the date
of the occurrence of the damage, this Lease shall not terminate, but Landlord
shall, if the casualty has occurred prior to the final 180 days of the lease
term, at its sole cost and risk, proceed forthwith to rebuild or repair the
Leased Premises to substantially the condition existing prior to such damage. If
the casualty occurs during the final 180 days of the Lease term, Landlord shall
not be required to rebuild or repair such damage unless Tenant notifies Landlord
in writing within 60 days following the date of such damage that Tenant is
exercising its right to renew this lease or its option to purchase the Leased
Premises, as the case may be. If Tenant does not exercise its right to renew
this Lease or its option to purchase the Leased Premises and if Landlord does
not elect to rebuild or repair such damage, then this lease shall terminate,
effective as of the date of said damage. If the Leased Premises are to be
rebuilt or repaired and are untenantable in whole or in part following such
damage, the rents payable hereunder during the period in which it is
untenantable shall be adjusted equitably.
(b) Notwithstanding anything in this Section
which might be deemed to be the contrary, except as hereinafter provided,
Landlord shall not be required to spend any amount in excess of the insurance
proceeds made available to Landlord in connection with the rebuilding or repair
of the Leased Premises. In the event the insurance proceeds available to
Landlord are insufficient for such purpose, Landlord shall so notify Tenant in
writing. In such event Landlord may elect not to rebuild or repair the Leased
Premises and to terminate the lease effective as of the date of such damage
unless, Tenant notifies Landlord in writing, within 30 days after Tenant's
receipt of the notice from Landlord as to the insufficient insurance proceeds,
that Tenant will pay all of the repair costs in excess of such insurance
proceeds. If Tenant so notifies Landlord, Landlord shall proceed with due
diligence to rebuild and/or repair the Leased Premises to substantially the
condition existing prior to such damage.
11. Hold Harmless.
11.1. By Tenant. Tenant shall indemnify, defend and save and
hold Landlord harmless from and against any and all liabilities, losses,
damages, claims, fines, causes of action, attorney's fees and court costs due to
death, personal injury, property damage or financial loss arising out of or
attributable to:
(a) Tenant's operations and the conduct of its
business upon the Leased Premises; or
(b) Any liability to any taxing authority resulting
from or in any way relating to any tax abatements, deductions or exemptions
relating to the Leased Premises which are attributable to Tenant's occupancy of
the Leased Premises.
(c) Tenant shall indemnify, defend and save and
hold Landlord harmless from and against any and all liabilities, losses,
damages, claims, fines, causes of action, attorney's fees and court costs, due
to death, personal injury, property injury, property damage or financial loss
arising out of or attributable to the presence on the Leased Premises of any
hazardous or regulated substance or product, including but not limited to crude
oil products and asbestos, under any applicable federal or state law in effect
as of the date of execution of this Lease.
If Landlord is made a party to any suit or action for damages arising
from the negligence or actions of Tenant, its employees, invities and/or agents,
Tenant shall assume all of the burden, cost and expense of the defense re [sic]
settlement of any such cause or action, including reasonable attorney's fees in
connection therewith, and Tenant shall promptly pay any judgement which may be
obtained therein against Landlord.
12. Condemnation.
12.1. Total. If, during the term of the Lease, all or a
substantial part of the Leased Premises should be taken for any public or
quasi-public use under any governmental law, ordinance or regulation or by right
of eminent domain or should be sold to the condemning authority under threat of
condemnation, this Lease shall terminate and the rents payable hereunder shall
be abated during the unexpired portion of this lease effective as of the date of
taking by the condemning authority.
12.2. Partial. If less than a substantial part of the Leased
Premises shall be so taken or sold, this Lease shall not terminate but Landlord
shall forthwith, at its sole expense, restore and reconstruct the Leased
Premises, providing such restoration and reconstruction shall make the same
reasonably tenantable and suitable for the uses for which the same are hereby
leased. If the use of the Leased Premises shall be impaired by such taking or
sale, the rents payable hereunder during the unexpired portion of this lease
shall be adjusted equitably. If, in the option of Landlord and Tenant, such
restoration and reconstruction cannot be completed within 180 days following the
date of such taking or sale, Landlord or Tenant may elect to terminate this
lease by giving prior written notice thereof to the other party.
12.3. Condemnation Awards. Landlord and Tenant shall each be
entitled to pursue, receive and retain separate condemnation awards, and
portions of the lump sum awards, as may be allocated to their respective
interests in any condemnation proceedings. The termination of this lease shall
not affect the rights of Landlord and Tenant to such awards.
13. Holding Over. Should Tenant hold over the Leased Premises, or any
part thereof, after the expiration of the term of this Lease, unless otherwise
agreed in writing, such holding over shall constitute and be construed as
tenancy from month to month only, at a monthly rental equal to the rents paid
for the last month of the term of this Lease. Nothing herein shall be deemed to
be Landlord's consent to such holding over.
14. Default by Tenant.
14.1. Events. The following events shall be deemed to be
events of default by Tenant under this Lease:
(a) If Tenant shall fail to make any of the payments
required hereunder and such failure shall continue for a period of 15 days after
written notice thereof to Tenant;
(b) If Tenant shall fail to comply with any term,
condition or covenant of this Lease, other than the payments set forth above,
and shall not cure such failure within 30 days after written notice thereof to
Tenant, or if such failure cannot reasonably be cured within the said 30 days
and tenant shall not have commenced to cure such failure within said 30 days and
thereafter proceeded with reasonable diligence and good faith to cure such
failure.
14.2. Remedies. Upon the occurrence of any such event of
default, Landlord shall have the option to pursue any one or more of the
following remedies:
(a) Terminate this Lease, in which event Tenant
shall immediately surrender the Leased Premises to Landlord, and if Tenant fails
so to do, Landlord may, without prejudice to any other remedy which landlord may
have for possession or arrearages in rents, enter upon and take possession of
the Leased Premises and expel or remove any agent, representative or employees
of Tenant or any other person who may be occupying the Leased Premises or any
part thereof, by force if necessary, without being liable for persecution [sic]
or any claim for damages thereof;
(b) Enter upon and take possession of the Leased
Premises and expel or remove any agent, representative or employees of Tenant
and any other person who may be occupying the same or any part thereof, by
force if necessary, without being liable for persecution or any claim for
damages thereof, and relet the Leased Premises and receive the rents therefor;
and Tenant agrees to pay to Landlord on demand any deficiency that may arise
by reason of such reletting and the reasonable expenses incurred by Landlord in
connection with such reletting; or
(c) Enter upon the Leased Premises by force if
necessary without being liable for prosecution or any claim for damages thereof,
and do whatever Tenant is obligated to do under the terms of this lease, and
Tenant shall reimburse Landlord on demand for expenses which Landlord may incur
in thus effecting compliance with Tenant's obligations under this Lease.
14.3. No Waiver. Pursuit of any of the foregoing remedies
shall not preclude pursuit of any of the other remedies herein provided or any
other remedies provided by law, nor shall pursuit of any remedy herein provided
constitute a forfeiture or waiver of any rent due to Landlord hereunder or of
any damages accruing to Landlord by reason of the violation of the terms,
conditions and covenants herein contained.
15. Assignment and Subleasing.
15.1. By Tenant. Tenant may not assign this Lease or sublet
the Leased Premises or any portion thereof, without obtaining the prior written
consent of Landlord which consent will not be withheld unreasonably; provided,
however, no consent shall be required for an assignment or sublease to a
corporation or other business entity owned or controlled by, or under common
control with, Tenant; provided further, however, no such permitted assignment or
sublease shall relieve Tenant of its obligations hereunder unless Landlord
otherwise consents in writing.
15.2. By Landlord. Subject to the provisions of Section
hereof, Landlord may assign or transfer all or any part of its interest in this
Lease.
16. Alterations, Additions and Improvements.
16.1. In General. Except as otherwise set forth in this Lease,
Tenant shall not make any alterations, additions or improvements (collectively
hereinafter referred to as "Improvements") to the Leased Premises without the
prior written consent of Landlord. Consent for nonstructural Improvements shall
not be reasonably [sic] withheld by Landlord. All Improvements so made shall
become the property of Landlord at the termination of this Lease.
16.2. Manufacturing and Warehousing Housing. Notwithstanding
the foregoing, Landlord acknowledges that Tenant is occupying the Leased
Premises initially for the purpose of the manufacture and sale of doors and
general office and/or supply and warehouse facilities relating thereto, and
Tenant intends to make substantial improvements to the Leased Premises to
accommodate its intended use thereof. Landlord hereby consents to the remodeling
and construction of improvements contemplated by Tenant to prepare the Leased
Premises for the Tenant's intended use thereof; provided, however, that all such
remodeling and construction be accomplished in a good and workmanlike manner, in
compliance with all applicable construction and local codes and ordinances, and
that the value of the Leased Premises shall not be depreciated thereby.
16.3. Machinery and Equipment. Tenant may, at any time and at
its sole expense, erect or install machinery and equipment in or on the Leased
Premises. Provided that Tenant is not then in default of any material term or
condition in this Lease, Tenant shall have the right to remove all such
machinery and equipment upon termination of this Lease; provided, however,
Tenant shall repair any damage done to the Leased Premises by such removal.
Tenant shall have a period of up to 30 days after the termination of this Lease
to remove all such items, and Tenant shall continue to pay rent at the monthly
rental rate then in effect until Tenant has completed such removal process or
notified Landlord that Tenant has abandoned any remaining items. All such items
remaining on the Leased premises after the expiration of such 30 day period
shall become the property of Landlord. All fixtures and permanent improvements
erected or installed on the Leased Premises shall become the property of
Landlord and shall not be removed.
16.4. Signs. Tenant may erect and install such signs on or
attached to the Leased Premises as Tenant desires, provided that Tenant shall at
all times comply with all applicable laws, ordinances and regulations relating
thereto, and Tenant shall remove all such signs at the termination of this lease
and repair any damage resulting from such removal.
16.5. Mechanics' Lien. Notwithstanding anything herein which
might be deemed to be to the contrary, Tenant shall at all times protect and
preserve the Leased Premises from and against any mechanics' lien created in
connection with, or resulting from, any improvements to the Leased Premises by
Tenant. Tenant reserves the right to contest any claim by any person who might
be entitled to a mechanics' lien against the Leased Premises, at Tenant's sole
xxxx [sic] and expense. In the event of any such contest, Tenant does not have
to pay the contested amount so long as Tenant diligently pursues such contest in
accordance with applicable law; provided, however, in the event any mechanics'
lien is filed against the Leased Premises, Tenant shall file a bond to indemnify
Landlord and the Leased Premises against the lien in accordance with the
applicable provision of the Alabama Property Code prior to the time that any
action to enforce the mechanics' lien may be taken by the claimant.
17. Compliance with Law. During the term hereof, Tenant shall comply
with all governmental laws, ordinances and regulations applicable to the use of
the Leased Premises and shall promptly comply with all governmental orders and
directives for the correction, prevention and abatement of nuisances in or upon,
or connected with the Leased Premises, all at Tenant's sole expense.
18. Quiet Enjoyment.
18.1. Landlord's Warranty. Landlord warrants that it owns the
Leased Premises, that it has full right and power to execute and preform this
Lease and that Tenant, on payment of the rents and performance of the covenants
herein contained, shall peaceably and quietly have, hold and enjoy the Leased
Premises during the full term of this Lease.
19. Option to Purchase. At any time during the term of this Lease,
Tenant shall have the option to purchase the Leased Premises and the property
leased by Roadway Express on the terms and conditions set forth herein. Tenant
may exercise this option by giving Landlord written notice of its election to do
so in accordance with the notice requirements set forth in Section 2.3. In such
event, the purchase price for the Leased Premises shall be $530,000. Within 15
days after receipt of Tenant's notice exercising this option, Landlord shall
cause Lawyers Title Insurance Corporation (or other title insurance approved by
Tenant) to furnish a commitment for title insurance reflecting the status of
title to the leased Premises. If Tenant objects to any of the matters affecting
title to the Leased Premises, Tenant shall notify Landlord in writing within 15
days after Tenant's receipt of the title insurance commitment, and Landlord
shall attempt to cure such objections. If Landlord is unable to cure any such
objections within 15 days after receipt of Tenant's objections, Tenant may
terminate its election to purchase the Leased Premises (in which event, Tenant
may then exercise its right to renew this Lease pursuant to Section ) or Tenant
may waive such uncured objections and proceed to purchase the Leased Premises.
Unless Landlord and Tenant otherwise agree, the closing of the sale of the
Leased Premises shall occur at the title company within 30 days after the
termination of this Lease. At the closing: (i) Tenant shall pay the full
purchase price in cash or by certified cashiers check, and (ii) Landlord shall
execute and deliver a general warranty deed conveying title to the Leased
Premises to Tenant free and clear of any liens created or caused by Landlord and
shall cause the title company to deliver to Tenant, at Landlord's sole cost and
expense, a title insurance policy issued by Lawyers Title Insurance Corporation
(or another title insurance company approved by Tenant) insuring title to such
property subject only to the matters reflected on the title insurance commitment
which remain in effect after the title curative process described above. Tenant
shall pay rent at the rate then in effect with respect to the Leased Premises
through the closing date. Each party shall be responsible for the normal and
customary closing costs paid by a buyer and seller at a closing of this type;
provided, however, Tenant shall be responsible for all ad valorem taxes and
insurance provided in this Lease. If Tenant does not exercise this option to
purchase the Leased Premises during the initial term of this Lease, but does
renew this Lease for the renewal term, Tenant shall have the option to purchase
the Leased Premises at any time during the renewal term on the same terms and
conditions as set forth above, except that the purchase price shall be equal to
the product obtained by multiplying $530,000 by a fraction, the numerator of
which is the CPI Index for November 2000 and the denominator is the CPI Index
for December 1995, provided that the purchase price shall not be less than
$630,000.
20. Rights of First Refusal. If at any time during the term of this
Lease, Landlord intends to sell the Leased Premises pursuant to the terms of a
bona fide offer ("Offer") from a third party, Landlord shall notify Tenant in
writing of such intent and such notice shall include terms and conditions of the
Offer. Thereafter, Tenant shall have a right of first refusal to purchase the
Leased Premises on the same terms and conditions as set forth in the offer,
provided however, that if Tenant fails to exercise such right of first refusal
by notifying Landlord in writing of its election to do so within 30 days after
Tenant's receipt of Landlord's notice of the offer, as aforesaid, this right of
first refusal shall terminate and be of no further force or effect. If Tenant
exercises its right of first refusal pursuant hereto, the sale of the Leased
Premises on the terms and conditions set forth in the offer shall be closed
within 45 days of the date Landlord receives Tenant's notice to exercise
pursuant hereto. In the event that Tenant does not exercise its right of first
refusal in accordance with the terms of this Section 20, if the Leased Premises
are not sold pursuant to the terms of the Offer within 90 days after the date of
expiration of the Tenant's right of first refusal as foresaid, the Leased
Premises may not thereafter be sold pursuant to that Offer or any other offer
without first offering the Leased Premises to the Tenant pursuant to this
Section 20. In the event that the Leased Premises are sold to any third party
pursuant to the terms of any offer, the Leased Premises shall be transformed
subject to the terms and conditions of this Lease, including but not limited to
Sections and hereof.
21. Environmental Remediation. Tenant agrees it is satisfied with the
environmental condition of the Leased Premises at the commencement of this Lease
and that it shall not use any hazardous materials in violation of any laws in
its operation on the Leased Premises and will keep the Leased Premises at all
times free of any hazardous materials. Upon vacation of the Leased Premises,
Tenant, at its sole cost, shall provide an exit Phase I Audit and such
additional environmental work as required by Landlord to show the building and
Leased Premises to be in substantially the same environmental condition as
provided to Tenant based on the Environmental Laws at the time of the expiration
of this Lease.
Tenant, at its sole expense, shall be responsible for any environmental
remediation attributable to Tenant's operation that is necessary to deliver the
building and Leased Premises back to Landlord in substantially the same
environmental condition as when occupied by Tenant.
22. Waiver of Default. No waiver by the parties hereto of any default
or breach of any term, condition or covenant of this Lease shall be deemed to be
a waiver of any subsequent default or breach of the same or any other term,
condition or covenant contained herein.
23. Successors. The terms, conditions and covenants contained in this
Lease shall apply to, inure to the benefit of, and be binding upon the parties
hereto and their respective successors in interest.
24. Notices. Any notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered when delivered personally or
(whether actually received or not) when deposited in the United States mail,
postage prepaid, certified or registered mail, return receipt requested,
addressed to the parties hereto at the respective addresses set out opposite
their names below, or at such other address as they have theretofore specified
by written notice delivered in accordance herewith:
(a) If to Landlord:
Winfield Industrial Properties, Inc.
Xx. 0 Xxx 000
Xxxxxxxx, Xxxxxxx 00000
(b) If to Tenant:
Superior Door Company, Inc.
X.X. Xxx 00
Xxxxxxxx, Xxxxxxx 00000
25. Amendment. This Lease may not be amended except in a writing
executed by both Landlord and Tenant.
26. Entire Agreement. This Lease constitutes the sole agreement of
Landlord and Tenant and supersedes any prior understanding or written or oral
agreements respecting the subject matter.
27. Attorney Fees. Tenant agrees to pay all costs of collection,
including a twenty-five (25%) percent attorney's fees, if all or any part of the
rent reserved herein is collected after maturity with the aid of any attorney;
also to pay reasonable attorney's fees in the event it becomes necessary for the
Landlord to employ an attorney to force Tenant to comply with any of the
covenants, obligations or conditions imposed by this Lease or any renewal
thereof.
28. Memorandum of Lease Agreement. Due to the length of this Lease, a
duplicate original copy hereof will not be recorded in the appropriate records
of Xxxxxx County, Alabama, but instead Landlord or Tenant is authorized to
execute, record and/or file a memorandum of Lease Agreement which may by
reference incorporate all of the terms hereof.
THUS EXECUTED on the dates set forth below, and EFFECTIVE for
all purposes as of the last such date.
LANDLORD:
WINFIELD INDUSTRIAL PROPERTIES
Date: November 29 , 1995 By /s/ Xxxx X. Xxxxxx
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Its President
TENANT:
SUPERIOR DOOR COMPANY, INC.
Date: November 29 , 1995 By /s/ Xxx X. Xxxxxx
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