Re: Further Improvements & Combined Lease
Exhibit 10.5
August 6,
2008
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Att: Xx. Xxxxxx X.
Xxxx
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Xx. Xxxx
Xxxxxxxxxx
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| Xx. Xxx Xxxx | |
| PO Box 900 | |
| St. Xxxxxxx, MO 63302 |
Re:
Further Improvements & Combined Lease
Xxxx X
000 Xxxxxxx Xxxx.
Savannah,
GA. 31408
Gentlemen:
Per your
request, please accept the following additional improvements & revised lease
terms updating the agreement outlined in our letter of May 5, 2008. In addition
to the improvements agreed to via the letter of May 5, 2008, Kole Warehouses
Inc. agrees to make the following improvements to Unit A, 000 Xxxxxxx
Xxxxxxxxx:
*Paint
warehouse walls. To include patch of holes & caulk of cracks in block
walls
*Install
two (2) new insulated roll-up doors at rear of warehouse
*Add
concrete bumpers to rear loading ramp
*Add
extra office. To include electrical, trim, lighting & paint to
match
For
consideration of the additional improvements as outlined above, LMI Aerospace
Inc. agrees to the following revised lease rates commencing upon availability of
the new addition & expiring on 12/31/2015:
*Years
1-3 86,200
sq. ft. at $5.55
*Years
4-5 86,200
sq. ft. at $5.65
*Years
6-7 86,200
sq. ft. at $5.75
All other
terms & conditions as outlined in the May 5, 2008, letter remain the
same.
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Agreed
this ___ day of August 2008.
Witness:
________________________
Witness:
________________________
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Kole
Warehouses, Inc.
By:
___________________________
Xxxx
Xxxx
LMI
Aerospace, Inc.
By:
____________________________
Vice
President
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The
revised lease rate on the work as detailed in the plans and outlined above will
commence upon occupancy of the new addition and would expire on
12/31/2015.
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Years
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1-3
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86,200
sq. feet at $5.50
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Years
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4-5
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86,200
sq. feet at $5.60
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Years
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6-7
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86,200
sq. feet at $5.70
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Additionally
the charges for taxes, insurance and common area maintenance would be changed to
$4,660.00 per month for the combined space. This charge may vary from year to
year based on actual costs.
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Agreed
this 7th day of May 2008.
Witness:
________________________
Witness:
________________________
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Kole
Warehouses, Inc.
By:
___________________________
Xxxx
Xxxx
LMI
Aerospace, Inc.
By:
____________________________
Xxxxxx
X. Xxxx, Vice President
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1,000 Sq.
Ft Corporate Office Space
462.50/00 1-3
mo
470.84 4-5
mo
479.17/00 6-7
mo
STANDARD INDUSTRIAL LEASE
AGREEMENT
THIS
LEASE, made this ____ day of September 2003 by and between Kole Warehouses,
Inc., a Georgia corporation, hereinafter referred to as "Landlord"; and
Xxxxxxx'x Metal, Inc., a Missouri corporation, hereinafter referred to as
"Tenant";
WITNESSETH:
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Premises
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1.
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For
and in consideration of the rents, covenants, agreements, and stipulations
hereinafter set forth, to be paid, kept and performed by Tenant, Landlord
hereby leases and rents to Tenant, and Tenant hereby leases and takes upon
the terms and conditions hereinafter set forth, the property commonly
known as 000 Xxxxxxx Xxxx, Xxxxx E & F, Pooler, GA, and being more
particularly described on Exhibit "A" hereto (hereinafter called the
"Premises"). This Lease is subject to all encumbrances, easements,
covenants and restrictions of
record.
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Term
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2.
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To
have and to hold for a term of three (3) years to commence five (5) days
after Landlord has notified Tenant that the Initial Improvements as
outlined in Exhibit C, Section 3 have been completed and the Premises are
ready for occupancy and to end at midnight on the date which is thirty-six
(36) months thereafter. Notwithstanding the foregoing, Tenant shall have
rent-free reasonable access to the Premises prior to the term in order to
install Tenant’s fixtures and otherwise make the Premises ready for
Tenant’s occupancy, provided same does not unreasonably interfere with the
Initial Improvements. Tenant shall have two (one year) options to renew
this Lease Agreement on the same terms and conditions, except rent, upon
ninety (90) days prior written notice to Landlord. Rent shall increase by
two percent (2%) at the beginning of each renewal
term.
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Rental
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3.
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(a)
Tenant shall pay to Landlord monthly rental of $10,320.00 due on the first
day of each month, in advance, without offset or demand, commencing on
September 1, 2003. All payments of rental shall be sent to Kole
Warehouses, Inc., 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000 , or such
other address provided to Tenant by Landlord in accordance with the notice
provisions hereof. Tenant has paid to Landlord $10,320.00 representing the
first month's rent (for the month of September 2003) due hereunder. In the
event Tenant fails to pay rental or any other payment called for under
this Lease within ten (10) days of the due date (subject to the notice and
cure provisions of Section 17), Tenant shall pay a late charge equal to
five percent (5%) of the unpaid amount. Landlord and Xxxxxx agree that
such late charge is intended to compensate Landlord for additional
administrative charges and other damages incurred by Landlord on account
of such late payment and not as a penalty, but as liquidated damages
therefor. Landlord and Tenant agree that the actual damages to be suffered
by Landlord in such event shall be difficult, if not impossible to
ascertain, and that such late charge is a reasonable estimate of such
charges and damages.
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| (b) Tenant has deposited $10,320.00 (the "Security Deposit") with Landlord to secure Xxxxxx’s performance of its obligations hereunder. If Tenant defaults hereunder, then Landlord may, without prejudice to Landlord's other remedies, apply part or all of the Security Deposit to cure Tenant’s default. If Landlord so uses part or all of the Security Deposit, Tenant shall, within ten (10) days after written demand, pay Landlord the amount necessary to restore the Security Deposit to its original amount. Landlord shall not be required to pay any interest on said Security Deposit and Landlord may commingle the Security Deposit with other funds. If Landlord sells the Premises, the Security Deposit shall be transferred to the purchaser and Landlord shall be relieved of any further liability in relation to the Security Deposit provided the transferee has agreed (in a writing delivered to Tenant) to be bound by the terms hereof. Upon the termination of this Lease, Landlord may use the Security Deposit to cure any defaults of Tenant or to reimburse Landlord for expenses of repairing, restoring or cleaning the Premises beyond normal wear and tear (subject, however, to the provisions of Section 6 relating to certain HVAC equipment). In the event all or any portion of the Security Deposit remains after paying for such items, the remaining amount shall be returned to Tenant together with a complete accounting therefor, within thirty (30) days. |
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Utility
Bills
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4.
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Tenant
shall place all utility bills in its name as appropriate to its business.
Tenant shall pay all such bills, along with all charges and assessments
pertaining to utilities serving the Premises, including, but not limited
to, water and sewer, natural gas, electricity, fire protection (including
sprinkler testing charges) and charges for trash removal. If Tenant does
not pay such charges when due, Landlord may do so. Tenant shall pay the
amount paid by Landlord-to-Landlord, as additional rental, within ten (10)
days of written demand therefor by Landlord given in accordance with the
notice provisions hereof.
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Mortgagee's
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Rights
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5.
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Tenant’s
rights as to the Premises shall be subject and subordinate to any mortgage
or deed to secure debt which shall be self-operative. Nevertheless, Xxxxxx
agrees to execute and deliver such documentation as may be required by any
such mortgagee to effect or memorialize any such subordination within ten
(10) days of demand therefor. If requested, Xxxxxx shall execute such
mortgagee's form of subordination, non-disturbance and attornment
agreement.
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Repairs
by
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Tenant
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6.
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Tenant
shall not allow the Premises to fall out of repair or deteriorate.
Specifically, Tenant, at its sole cost, shall keep and maintain the
interior of the Premises, including all plate glass and exterior doors
pertaining to the Premises in good repair (except the structural
components of the building in which the Premises are situated, which shall
be repaired, maintained and replaced by Landlord and further except any
major component of the HVAC system that has “worn out”), including all
systems pertaining to water, fire protection, drainage, sewer, electrical,
heating, ventilation, air conditioning and lighting, but only to the
extent same exclusively serve the Premises and are situated within the
Premises. Major components of the HVAC system shall include the
compressor, evaporation fan motor, heat exchanger or coils. Xxxxxx agrees
to return the Premises to Landlord in good operating condition upon the
expiration or earlier termination of the term of this Lease, ordinary wear
and tear and casualty damage excepted. Tenant shall not cause the Premises
to become subject to any lien, charge or encumbrance whatsoever. Tenant
shall have no authority, express or implied, to create any lien, charge or
encumbrance upon the interest of the Landlord in the Premises. Tenant
shall, at its sole cost, maintain a regularly scheduled preventive
maintenance and service contract with a maintenance contractor acceptable
to Landlord for the repair, maintenance and servicing of all heating and
air-conditioning systems and equipment that exclusively serve the
Premises. Upon written request by Xxxxxx and at Xxxxxx’s sole cost,
Xxxxxxxx will arrange for any repair which is Xxxxxx’s responsibility
pursuant to the terms of this Lease to be performed by Xxxxxxxx's
employees, agents or contractors. Tenant shall pay, as additional rent,
the cost of such requested repair within ten (10) days of receipt of a
bill therefor from Landlord.
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Repairs
by
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Landlord
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7.
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Except
for damage caused by Tenant, its agents, employees, contractors and
invitees, Landlord shall, in accordance with Exhibit C, keep in good repair
the roof, all structural elements, mechanical systems (to the extent same
do not solely serve the Premises and are not situated within the Premises,
and exclusive of major HVAC components unless the same shall be deemed to
have "worn out"), and all common areas of the building and land (including
without limitation, all paving, driveways, parking lots, walks, lawn
maintenance and landscaping) where the Premises are situated. Tenant shall
promptly notify Landlord of the need for any repairs which are Landlord's
responsibility hereunder, Landlord shall be under no duty to make any
repairs hereunder unless Landlord receives notice of the need for such
repairs; however, this sentence shall not affect Landlord's maintenance
obligations.
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Modifications/
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Alterations
to
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the
Premises
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8.
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Tenant
shall make no modifications, alterations or improvements to the Premises,
cut any openings or penetrations in the roof or install any satellite or
communications antennas or other structures without the prior written
consent of Landlord, which consent shall not be unreasonably withheld,
delayed or conditioned. Any modifications or alterations consented to by
Landlord shall be completed in a good, workmanlike and lien-free manner in
accordance with all applicable codes and regulations. Upon written request
by Xxxxxx and at Xxxxxx’s sole cost, Xxxxxxxx will arrange for any
modification, alteration or improvement consented to by Landlord to be
performed by Landlord's employees, agents or contractors. Tenant shall
pay, as additional rent, the cost of such modification, alteration or
improvement within ten (10) days of receipt of a bill therefor from
Landlord.
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Return
of
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Premises
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9.
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Xxxxxx
agrees to return the Premises to Landlord at the expiration or prior
termination of this Lease broom clean and in the same condition and repair
as when first received, natural wear and tear, damage by storm, fire,
lightning, earthquake or other casualty excepted. Upon Xxxxxxxx's written
request, Xxxxxx agrees to remove any alterations installed by or for
Tenant after the commencement of the term of this Lease that Landlord
determines are special purpose improvements that are not likely to be
usable by a successor tenant. Tenant shall remove its personal property
from the Premises at the expiration or prior termination of this Lease.
Tenant shall repair any damage caused by any such
removal.
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Destruction
of
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/Damage
to
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Premises
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10.
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If
the Premises are totally destroyed by storm, fire, lightning, earthquake
or other casualty, this Lease shall terminate as of the date of such
destruction and rental shall be abated as of such date. If the Premises
are damaged, but not wholly destroyed by any of such casualties, rental
shall xxxxx in such proportion as use of the Premises has been destroyed,
and Landlord shall restore the Premises to substantially the same
condition as existed before such casualty as speedily as practicable,
whereupon full rental shall recommence; provided, however, that if the
damage shall be so extensive that the same cannot be reasonably repaired
and restored within four (4) months from date of the casualty, then either
Landlord or Tenant may terminate this Lease by giving written notice to
the other party within thirty (30) days from the date of such casualty. In
the event of such termination, rental shall be abated as of the date of
such casualty. In no event shall Landlord be responsible for repairing or
restoring any personal property of Tenant or any alterations or
improvements made by or for Tenant, nor shall Tenant have any right to
terminate this Lease if the casualty in question was caused by Tenant, its
agents, employees, contractors or
invitees.
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Indemnity
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11.
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Except
for damage caused solely by Xxxxxxxx's negligence or misconduct, Xxxxxx
agrees to indemnify, defend and save harmless Landlord against all claims,
losses, liabilities, costs and expenses (including attorney's fees and
costs of litigation) suffered by Landlord by reason of the use or
occupancy of the Premises by Xxxxxx. Unless caused solely by Xxxxxxxx's
negligence or misconduct, Landlord shall not be liable to Tenant’s
employees, agents, contractors or invitees for any injury to a person or
damage to property on or about the Premises, or any damage caused by the
improvements becoming out of repair, the failure or cessation of any
utility or by any leakage of gas, oil, water or steam or electricity
emanating from the Premises. Xxxxxxxx hereby indemnifies and agrees to
defend and save harmless Tenant against all claims, losses, liabilities,
costs and expenses (including attorneys fees and costs of litigation)
suffered by Tenant by reason of (i) Landlord's breach of its obligations
hereunder; and (ii) any pre-existing environmental conditions at the
Premises or the land where the Premises are situated, including without
limitation, those matters disclosed in the environmental site assessment
furnished to, and approved by, Tenant prior to Tenant having entered the
Premises. Landlord shall have its most recent environmental assessment
updated immediately prior to Tenant’s taking occupancy of the Premises
(and such updated assessment shall also be certified to Tenant), whereupon
said assessment shall serve as the "baseline" to determine which
environmental conditions pre-dated, and which conditions arose during,
Xxxxxx’s occupancy of the Premises.
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Governmental
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Orders
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12.
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Tenant
agrees, at its own expense, to promptly comply with all requirements of
any applicable law, ordinance, statute or regulation applicable to the
Premises or Tenant’s operations in the Premises provided that if the cost
of any improvements, alterations or equipment required in connection with
such compliance exceeds $1,000.00 during the term hereof, such excess
costs shall be amortized over the useful life of the improvement,
alteration or equipment, and only such portion thereof as is allocable to
the remaining portion of the term hereof shall be charged to
Tenant.
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Condemnation
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13.
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If
the entire Premises or such portion thereof as will make the Premises
unusable for the purpose herein leased shall be condemned by any legally
constituted authority for any public use or purpose, or sold under threat
of condemnation, then this Lease shall terminate as of the date of such
condemnation or sale and rental shall be accounted for between Landlord
and Tenant as of such date. In the event of a condemnation that does not
result in the termination of this Lease, rental shall be abated in a fair
and equitable manner and Landlord, to the extent of condemnation proceeds
actually received by Landlord, shall restore the Premises to the extent
practicable. All condemnation awards or sales proceeds in lieu thereof
shall belong to Landlord; provided, however, Tenant shall be entitled to
file a claim for loss of its personal property and moving expenses,
provided the filing of such claim does not affect Xxxxxxxx's condemnation
claim.
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Assignment
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14.
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Tenant
may not assign this Lease or any interest thereunder or sublet the
Premises in whole or in part or allow all or a portion of the Premises to
be used by a third party without the prior written consent of Landlord
which consent shall not be unreasonably withheld, delayed, or conditioned.
If Tenant is a corporation, partnership, limited liability company or
other entity, the transfer of more than fifty percent (50%) of the
ownership interests of Tenant or the transfer of a lesser percentage which
results in a transfer of control of Tenant, whether in one transaction or
a series of related transactions, shall constitute an assignment for
purposes of this Lease, except that such a transfer of same to a company
affiliated with Tenant shall not be violative of this Section. Any
assignee (and if Landlord so elects, any subtenant) shall become liable
directly to Landlord for all obligations of Tenant hereunder. No such
assignment or sublease nor any subsequent amendment of the Lease shall
release Tenant or any guarantor of Tenant’s obligations
hereunder.
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Hazardous
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Substances
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15.
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Landlord
hereby represents and warrants to Tenant that no Hazardous Materials have
been stored, handled, treated, released, or brought upon or disposed of,
except in strict compliance with all applicable laws, ordinances
regulations and that Hazardous Materials are currently present on the
Premises or the parcel or parcels of land upon which the Premises are
situated (except as has been disclosed in the environmental site
assessment described in Section 11, above). Landlord hereby indemnifies,
defends and saves Xxxxxx harmless from any and all claims, judgments,
damages, penalties, fines, costs (including, without limitation, fees of
consultants, attorneys, experts and court costs), liabilities or losses in
the event of the breach of the foregoing representation and/or warranty.
Tenant covenants that, without first obtaining Landlord's written consent,
that neither Tenant, nor any of its agents, employees, contractors or
invitees shall cause or permit any Hazardous Materials to be stored,
handled, treated, released or brought upon or disposed of on the Premises.
Landlord hereby consents to the use in the Premises of the Hazardous
Materials described on Exhibit B hereto. Tenant shall comply with any and
all applicable laws, ordinances, rules, regulations and requirements
respecting the storage, handling, treatment, release, disposal, presence
or use of permitted Hazardous Materials in, on or about the Premises. As
used herein, the term "Hazardous Materials" means asbestos,
polychlorinated biphenyls, oil, gasoline or other petroleum based liquids,
any and all materials or substances deemed hazardous or toxic or regulated
by applicable laws, including but not limited to substances defined as
hazardous under the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, 42 U.S.C. § 9601 et seq., the Resource
Conservation and Response Act, as amended, 42 U.S.C. § 6901 et seq. (or any state
counterpart to the foregoing statutes) or determined to present the
unreasonable risk of injury to health or the environmental under the Toxic
Substances Control Act, as amended, 15 U.S.C. § 2601 et seq. Tenant shall indemnify,
defend and hold Landlord harmless from and against any and all claims,
judgments, damages, penalties, fines, costs (including without limitation,
consultants' fees, experts' fees, attorney's fees and court costs),
liabilities or losses resulting from the storage, handling, treatment,
release, disposal, presence or use of Hazardous Materials in, on or about
the Premises that occur during the term of this Lease. Without limiting
the generality of the foregoing indemnity, in the event Landlord has a
good faith reason to believe that the covenant set forth in this paragraph
has been violated by Tenant, Landlord shall he entitled, at Tenant’s sole
expense, to take such actions as Landlord deems necessary in order to
assess, contain, delineate and/or remediate any contamination by such
Hazardous Materials. Any sums expended by Landlord shall be reimbursed by
Xxxxxx, as additional rent, within thirty (30) days of demand therefor by
Landlord which shall be accompanied by a copy of said report certified to
Landlord and Tenant by its author. Upon the expiration or earlier
termination of this Lease, Tenant, upon request by Landlord, shall cause
to be performed such environmental studies of the Premises by an
environmental consultant approved by Landlord as are necessary to
determine whether any Hazardous Materials have been stored, handled,
treated, released, brought upon or disposed of on the Premises during the
term of this Lease in violation of the terms hereof. If Tenant fails to
cause any such study to be performed, Landlord may do so, at Xxxxxx’s
expense. The obligations of this Paragraph 15 shall survive the expiration
or earlier termination of this
Lease.
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Removal
of
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Fixtures
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16.
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Provided
Tenant is not then in default hereunder, Tenant may remove all fixtures
and equipment which Xxxxxx has placed in the Premises, provided Tenant
repairs all damages to the Premises caused by such removal, but in no
event shall Tenant remove heating, ventilating, air conditioning,
plumbing, electrical and lighting systems and fixtures or dock levelers.
In the event this Lease is terminated for any reason, any property
remaining in or upon the Premises more than ten (10) days thereafter, at
the option of Landlord, may either be deemed to become property of
Landlord or Landlord may dispose of such property as Landlord deems proper
with no obligation to Tenant.
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Default;
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Remedies
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17.
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In
the event (i) any payment of rental or other sum due hereunder is not paid
as and when due and Tenant fails to cure such default within ten (10) days
after written demand from Landlord (but in no event shall Landlord be
required to give more than two (2) such written notices in any twelve
month period; thereafter a default shall exist if a payment is not paid as
and when due); (ii) Tenant shall fail to comply with any term, provision,
condition, or covenant of this Lease, other than an obligation requiring
the payment of rent or other sums hereunder and shall not cure such
failure within twenty (20) days after notice to the Tenant of such failure
to comply, provided that such cure period shall be extended while Tenant
is diligently pursuing a cure; or (iii) Tenant or any guarantor shall file
a petition under any applicable federal or state bankruptcy or insolvency
law or have any involuntary petition filed thereunder against it (which is
not dismissed or bonded against within 90 days), then Landlord shall have
the option to do any one or more of the following:
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| (a) Terminate this Lease, in which event Xxxxxx shall immediately surrender the Premises to Landlord. Xxxxxx agrees to indemnify Landlord for all loss, damage and expense that Landlord may incur solely and directly by reason of such termination; provided, however, that upon Xxxxxx’s surrender of the Premises to Landlord, the lease termination shall be deemed to have been completed, and Tenant shall no longer be liable in any way to Landlord except with respect to any damage or environmental conditions caused by Tenant during prior to said termination. | ||
| (b) Without terminating this Lease, terminate Tenant’s right of possession, whereupon rental shall continue to accrue and be owed by Tenant hereunder. Thereafter, at Xxxxxxxx's option, Landlord may enter upon and relet all or a portion of the Premises (or relet the Premises together with any additional space) for a term longer or shorter than the remaining term hereunder and otherwise on terms satisfactory to Landlord. Tenant shall be liable to Landlord for the deficiency, if any, between Xxxxxxx's rent hereunder and all net sums received by Landlord on account of such reletting (after deducting all reasonable costs incurred by Landlord in connection with any such reletting, including without limitation, brokerage commissions and reasonable attorney's fees). | ||
| (c) Xxxxxx a dispossessory action against Tenant, in which event Tenant shall remain liable for all amounts owed hereunder, including amounts accruing hereunder from and after the date that a writ of possession is issued. | ||
| (d) Perform any unperformed obligation of Tenant. Any sums expended by Landlord shall be repaid by Xxxxxx, as additional rent, within ten (10) days of demand therefor by Landlord. |
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Pursuit
of any of the foregoing remedies shall not preclude pursuit of any other
remedies herein provided or any other remedies provided by law. In the
event Landlord places the enforcement of all or any part of this Lease in
the hands of an attorney on account of Xxxxxx’s default, Xxxxxx agrees to
pay Landlord's cost of collection, including reasonable attorney's fees,
whether suit is actually filed or not.
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In the event of a default by Landlord that is
not cured by Landlord within twenty (20) days of written notice thereof
from Tenant, Tenant, may, but shall not be obligated to, cure same and
deduct the reasonable costs thereof from any sums to be paid to Landlord
hereunder; provided, however, that such cure period shall be extended
while Landlord is diligently pursuing a cure of such
default.
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Entry
by
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Landlord
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18.
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Landlord
may post a sign stating that the Premises are "For Lease" or "For Sale"
six (6) months prior to the termination of this Lease. Landlord may enter
the Premises at reasonable hours during the term of this Lease to exhibit
same to prospective purchasers (and during the last 3 months of the
then-current term of the Lease) or tenants and to make repairs required of
Landlord under the terms hereof, or to make repairs to Landlord's
adjoining property, if any.
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Estoppel
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Certificates
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19.
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Xxxxxx
agrees to furnish within ten (10) days of receipt of request from Landlord
or Xxxxxxxx's mortgagee a written statement certifying as to the
then-current status of the Lease. Such estoppel certificate shall address
matters of the type customarily included in estoppel certificates
requested and obtained by institutional lenders and landlords. The notice
and cure provisions of paragraph 17 shall not apply to Tenant’s
obligations under this paragraph
19.
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| No Estate in | ||
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Land
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20.
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This
Lease shall create the relationship of landlord and tenant between
Landlord and Tenant; no estate shall pass out of Landlord; Xxxxxx has only
a usufruct, not subject to levy and sale, and not assignable by Xxxxxx
except as provided in Paragraph 14
above.
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Holding
Over
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21.
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If
Tenant remains in possession of the Premises after expiration of the term
hereof, with Landlord's acquiescence and without any express written
agreement of parties, Tenant shall be a month-to-month tenant upon all the
same terms and conditions as contained in this Lease, except that the
rental rate shall become one hundred fifteen percent (115%) the amount in
effect at the end of the term, and there shall be no renewal of this Lease
by operation of law. Such month-to-month tenancy is terminable upon thirty
(30) days notice by either party to the other. Tenant waives any right
that it may have to additional notice pursuant to applicable law. If
Tenant remains in possession of the Premises after the expiration of the
term hereof without Landlord's acquiescence, Tenant shall be a tenant at
sufferance subject to immediate eviction. In such event, in addition to
paying Landlord any damages resulting from such holdover, Tenant shall pay
rental at the rate of one and one-half times the amount in effect at the
end of the term of the Lease.
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Miscellaneous
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22.
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All
rights, powers and privileges conferred hereunder upon parties hereto
shall be cumulative but not restrictive to those given by law. No failure
of either party to exercise any power given to any party hereunder, or to
insist upon strict compliance by the parties with their respective
obligations hereunder, and no custom or practice of the parties at
variance with the terms hereof shall constitute a waiver of a party's
right to demand exact compliance with the terms hereof. Time is of the
essence of this Lease. Subject to the terms of paragraph 14 above, this
Lease shall be binding upon and shall inure to the benefit of the
respective successors and assigns of Landlord and Tenant. Tenant shall pay
and be liable for all rental, sales and use taxes, and other similar
taxes, if any, levied or imposed by any city, state, county or other
governmental authority. Such payments shall be paid concurrently with the
payment of rental or other sum due hereunder upon which the tax is based.
This Lease contains the entire agreement of the parties hereto as to the
Premises, and no representations, inducements, promises or agreements,
oral or otherwise, between the parties, not embodied herein, shall be of
any force or effect. If any term, covenant or condition of this Lease or
the application thereof to any person, entity or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this Lease, or
the application of such term, covenant or condition to persons, entities
or circumstances other than those which or to which used may be held
invalid or unenforceable, shall not be affected thereby, and each term,
covenant or condition of this Lease shall be valid and enforceable to the
fullest extent permitted by law. The circulation of one of more drafts of
this Lease shall not constitute a reservation of the Premises or an offer
to lease the Premises to Tenant. Neither party shall be bound hereunder
until such time as both parties have signed this Lease. In the event
either party resorts to the employ of an attorney in connection with the
interpretation or enforcement of this Lease, the successful party therein
shall be entitled to recover its reasonable attorneys' fees, expenses and
costs of suit for the other party.
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Notices
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23.
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Any
notice given pursuant to this Lease shall be in writing and sent by
certified mail, return receipt requested, by hand delivery, by facsimile
transmission or by reputable overnight courier to:
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| (a) Landlord: Kole Warehouses, Inc., 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000; Fax Number: 000-000-0000, or at such other address or to such other facsimile number as Landlord may designate in writing to Tenant. | ||
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(b)
Tenant: Xxxxxxx'x Metal, Inc., attention: Xxxxxx X. Xxxx, Vice President,
PO Box 900, St. Xxxxxxx, MO 00000-0000; Fax Number: 000-000-0000, with
copy to Xxxxxxx X. Xxxxxx, Esq., at Xxxxxx, Xxxxxxx & Xxxxxx, X.X.,
000 X. Xxxxxx 00xx xxxxx, Xx. Xxxxx, XX 00000, or at such other address or
to such other facsimile number as Tenant may designate in writing to
Landlord.
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||
| Any notice sent in the manner set forth above shall be deemed sufficiently given for all purposes hereunder on the third business day after said notice is deposited in the mail if sent by certified mail, upon receipt if sent by hand delivery or reputable overnight courier, or if sent by facsimile, on the date such notice is transmitted (and a confirmation of successful transmission is generated by the sender's facsimile machine), provided a copy of such notice is sent within two (2) business days by regular mail to the recipient's address set forth above. |
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Brokerage
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24.
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Each
of Landlord and Tenant covenants and agrees to indemnify and hold the
other harmless from any and all loss, liability, damage, claim, judgment,
cost and expense (including without limitation attorney's fees and
litigation costs) that may be incurred or suffered by the other because of
any claim for any fee, commission or similar compensation with respect to
this Lease, made by any broker, agent or finder claiming by, through or
under the indemnifying party, whether or not such claim is
meritorious.
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Signs
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25.
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Tenant
may erect a building standard sign (as determined by Landlord) on or about
the Premises subject to Landlord's approval of the sign and its location
which approval shall not be unreasonably withheld, delayed, or
conditioned. Prior to the expiration of the term of this Lease, Tenant
shall remove any such sign and repair any damage to the building
occasioned by the installation and/or removal of such
sign.
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Use of
Premises
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26.
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The
Premises shall be used for warehousing, light assembly, light
manufacturing, distribution, and general office use and no other purpose.
The Premises shall not be used for any illegal purposes, nor in any manner
to create any nuisance or trespass, vitiate Landlord's insurance or
violate any restrictive covenants encumbering the building or Landlord's
rules and regulations applicable thereto. Outside storage or outside
manufacturing are prohibited without Landlord's consent; notwithstanding
the foregoing, incidental temporary outdoor storage of pallets or dunnage
by Tenant shall be permitted, and Landlord represents and warrants the
foregoing uses of the property are not prohibited by any applicable
statute, ordinance or regulation.
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Insurance
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27.
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(a)
Tenant will carry, at Tenant’s expense, all-risk insurance coverage on all
equipment, inventory, fixtures, furniture, appliances and other personal
property on the Premises. Tenant shall procure, maintain and keep in full
force and effect at all times during the term of this Lease commercial
general liability insurance with respect to the Premises and the conduct
and operation of Tenant’s business therein, naming landlord and its
mortgagees as additional insured parties, with limits of not less than
$1,000,000 for death or bodily injury to one or more persons in a single
occurrence and not less than $1,000,000 for property damage. Tenant shall
increase limits to $2,000,000 for death or bodily injury to one or more
persons in a single occurrence and $2,000,000 for property damage on or
before January 31, 2004. Such general liability insurance policy shall
contain a broad form contractual liability endorsement covering Xxxxxx’s
indemnities in favor of Landlord provided hereunder.
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| (b) Landlord will carry "all risk" insurance coverage on the Premises in an amount deemed appropriate by Landlord. Tenant shall pay Landlord, as additional rent, its pro rata share of all sums paid by Landlord for such insurance coverage. Upon being notified by Xxxxxxxx of said sums, Xxxxxx will remit to Landlord said amount within thirty (30) days. | ||
| (c) To the full extent permitted by law, Landlord and Tenant each waives all right of recovery against the other and its officers, employees, and agents for, and agrees to release the other and its officers, employees and agents from liability for, loss or damage to the extent such loss or damage is covered by valid and collectible insurance in effect at the time of such loss or damage; provided, however, that the foregoing release by each party is conditioned upon the releasing party's insurer endorsing the releasing party's insurance policy so as to permit such waiver without affecting the coverage thereunder. If such endorsement is not obtained or maintained by either party, then such party's release shall be deemed to be rescinded until such endorsement is provided by such insurer. | ||
| (d) All insurance required to be carried by Tenant shall be affected under enforceable policies issued by insurers approved by Landlord. At least fifteen (15) days prior to the expiration date of any policy procured by Xxxxxx, the original renewal policy for such insurance shall be delivered by Tenant to Landlord. Within fifteen (15) days after the premium on any such policy shall become due and payable, Landlord shall be furnished with satisfactory evidence of its payment. The original policy or policies shall be delivered to landlord prior to the commencement of the term of this Lease. All such policies shall contain an agreement by the insurers that such policies shall not be canceled or materially modified without at least thirty (30) days prior written notice to the Landlord and to the holder of any mortgage to whom loss hereunder may be payable. If Tenant provides any insurance required by this Lease in the form of a blanket policy, Tenant shall furnish satisfactory proof that such blanket policy complies in all respects with the provisions of this Lease and that the coverage thereunder is at least equal to the coverage that would be provided under a separate policy covering only the Premises. |
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Ad
Valorem
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28.
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Tenant
is leasing 28,800 square feet of a 151,290 square foot building. Tenant’s
pro rata share is therefore nineteen percent (19%). Landlord will pay all
ad valorem taxes and assessments levied against the building each year of
the Lease term. Tenant shall pay Landlord, as additional rent, its pro
rata share of sums paid by Landlord for ad valorem taxes and assessments
during a base year of 2003, within thirty (30) days of Tenant’s receipt of
a written invoice therefor. Tenant shall not be responsible for any
increases in taxes during the initial term or the renewal periods
described in Section 2, above.
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Parking
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29.
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Tenant
and its employees, customers and invitees shall have a non-exclusive right
to use in common with other tenants the parking areas designated by
Landlord as serving the Premises. Such use shall be subject to rules and
regulations as maybe prescribed by Landlord from time to time which shall
not interfere with Xxxxxx’s use of the Premises. Tenant shall not use more
than its pro rata share of such parking spaces. In no event shall Landlord
be responsible for enforcing Tenant’s parking rights against other tenants
or third parties.
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Exhibits
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30.
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The
following exhibits are attached hereto and made a part
hereof:
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| Exhibit A | ||
| Exhibit B | ||
| Exhibit C |
IN WITNESS WHEREOF, the
parties have hereunto set their hands and seals, effective the day and year
first above written.
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___________________________________
Witness
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LANDLORD:
By:
________________________________
Title:
_______________________________
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|
___________________________________
Witness
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TENANT:
By:
________________________________
Title:
_______________________________
|
