LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease"), dated as of June 28, 1988, is made
and entered into by and between J & R Sales, a Washington general partnership,
whose address is: 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 ("Landlord") and
XXXXXXX'X METAL, INC., a Missouri corporation whose address is: 0000 Xxxxx
Xxxxxxx 00, Xx. Xxxxxxx, Xxxxxxxx 00000, Attn: Xxxxxx X. Xxxx ("Tenant").
RECITALS
A. Landlord is the owner of the property located at 000 "X" Xxxxxx
X.X., Xxxxxx, Xxxxxxxxxx and the improvements, fixtures and mechanical systems
located thereon (the "Building").
B. Landlord desires to lease to Tenant and Tenant desires to lease from
Landlord the southerly 18,364 square feet of the Building as more particularly
outlined and described on Exhibit A attached hereto (the "Premises"), on the
terms and subject to the conditions below.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the above recitals, the covenants
and agreements herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Premises. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord the Premises on the terms and subject to the conditions herein.
All personal property of Tenant located or to be located on the Premises,
including, without limitation, Tenant owned trade fixtures, shall remain the
property of Tenant.
2. Term. The term of this Lease shall be for two years (the "Initial
Term") commencing August 1, 1988 (the "Commencement Date") and expiring on
midnight, July 31, 1990. Tenant shall be allowed to enter into possession of the
Premises prior to the Commencement Date, without being obligated to pay rent, in
order to install Tenant's equipment and fixtures.
3. Renewal Option. Tenant is hereby granted one option to extend the
term of this Lease for two years. To exercise such option, Tenant shall give
written notice to Landlord of its intention to extend the term of this Lease at
least ninety (90) days prior to the expiration of the Initial Term. All of the
terms and conditions of this Lease shall remain in full force and effect during
any such extended term except as the expiration date may change by the
expiration of such option and the rent which shall be adjusted in accordance
with Section 5 below.
4. Rent During Initial Term. Tenant agrees to pay to Landlord as fixed
annual rent during the Initial Term, the sum of Forty-Four Thousand One Hundred
Dollars ($44,100.00) in equal monthly installments of Three Thousand Six Hundred
Seventy-Five Dollars ($3,675.00).
5. Rent During Extension. The fixed annual rent payable by Tenant
during the extended term of this Lease shall be Forty-Eight Thousand Nine
Hundred Sixty Dollars ($48,960.00) payable in equal monthly installments of Four
Thousand Eighty Dollars ($4,080.00).
6. Additional Rent. In addition to the fixed annual rent, Tenant shall
pay to Landlord additional rent with respect to each lease year in accordance
with the following provisions:
(a) Definitions.
(i) "Common Areas" means all areas provided for the common or
joint use and benefit of the occupants of the Building and their employees,
agents, customers and invitees including, without limitation, parking areas,
landscaped areas and common walkways. The term Common Area does not include
structural portions of the Building including the walls, roof and foundation.
(ii) "Expenses" shall mean real estate taxes and those expenses
paid or incurred by or in behalf of Landlord for operating and maintaining the
Common Areas of the Building and the personal property used in the operation
thereof, including the cost of utilities servicing the Building (except for
those utilities which are separately metered to the Premises or to other
occupants of the Building), insurance, janitorial service and security service.
Expenses shall not include the cost of finish work for other tenants of the
Building, painting of the Building, repairs or replacements to the fence and
gate around the Building, parking lot repairs, new landscape work, alterations
of the Building, demolition of or alterations to the old brick building adjacent
to the Building, depreciation charges, interest and principal payments on
mortgages, real estate brokerage or leasing commissions.
(b) Computation and Payment. Tenant shall pay to Landlord, as
additional rent for each lease year, an amount equal to Tenant's pro rata share
of Expenses. Tenant's pro rata share of Expenses shall be equal to a fraction,
the numerator of which is the number of square feet comprising the Premises and
the denominator of which is the number of square feet comprising the Building.
It is agreed that such fraction is equal to Thirty-Eight and 3/10 percent
(38.3). With respect to any Expense for which Landlord desires to be reimbursed
by Tenant for Tenant's pro rata share thereof, Landlord shall deliver to Tenant
a statement of the amount to be paid by Tenant together with copies of invoices
received by Landlord relative to such Expense. Tenant shall pay to Landlord its
pro rata share of any such Expense within fifteen (15) days after the receipt of
the statement therefor.
7. Utilities. Tenant shall pay when due all charges for utilities
services which are separately metered to the Premises. Landlord shall not be
liable for any interruption in the supply of any utility to the Premises not
caused or reasonably preventable by Landlord.
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8. Use of Premises. Tenant may use the Premises for any lawful purpose,
including, without limitation, the manufacturing of aircraft parts and airframe
subassemblies. Landlord represents that use of the Premises for the
manufacturing of aircraft parts and airframe subassemblies is permitted under
all applicable zoning and land use laws and regulations and by all private deed
restrictions affecting the Premises.
9. Signs. Tenant may erect, install and maintain such sign or signs
upon and within the area of the Premises as Tenant shall from time to time deem
necessary in the operation of its business. All such signs shall comply with all
applicable laws, rules and ordinances.
10. Authorization and Repairs. Throughout the term of this Lease,
Tenant shall have the right, at its cost, to make such alterations, additions,
changes and improvements to the interior of the Premises as Tenant shall from
time to time deem reasonably necessary or desirable for the operation of its
business subject to the prior written approval of Landlord which approval shall
be not be unreasonably withheld or delayed. In addition, Landlord shall
reimburse Tenant for one-half of Tenant's cost of making improvements to the
Premises (including expanding the office area and electrical supply); provided,
however, that Landlord's portion of such costs shall not exceed Fifteen Thousand
Dollars ($15,000.00). Landlord shall reimburse Tenant for such costs by means of
a credit against the fixed rent due hereunder in the amount of Six Hundred
Twenty-Five Dollars ($625.00) per month until Tenant has been fully reimbursed
as provided herein. In the event Landlord sells, conveys or otherwise transfers
the Building, Landlord shall pay to Tenant, in cash, the balance, if any, owed
by Landlord to Tenant as a result of Tenant's improvements to the Premises.
Prior to the Commencement Date, Landlord shall, at Landlord's expense, repair
the damaged truck delivery doors, roof leaks, fences and gates, paint and clean
the existing office area and provide a fully operational Premises.
11. Repairs and Maintenance. Throughout the term hereof, Tenant shall,
at its expense, maintain the Premises in as good as condition as received. Upon
the expiration or earlier termination of this Lease, Tenant shall surrender to
Landlord the Premises in as good as condition as received, ordinary wear and
tear and casualty losses excepted. Landlord shall be responsible for repairing,
replacing as needed and maintaining the roof, the exterior walls and the
structural portions of the Premises. In addition, Landlord, at Landlord's cost,
shall repair the floor area where the footing wall has been removed along the
northern column line. Such floor area should be leveled out to provide good
access to the smaller rectangular portion of the Premises (Northeast corner).
Any alterations to the Premises required to be made as a result of changes in
applicable building codes, shall be made by Landlord, at Landlord's cost.
12. Insurance. Tenant shall maintain, at its cost, liability insurance
insuring against any and all liability of the Tenant with respect to the
Premises arising out of the maintenance, use or occupancy thereof with limits of
coverage not less than One Million Dollars ($1,000,000.00) for personal injury
and not less than Five Hundred Thousand Dollars ($500,000.00) for property
damage. All such policies of insurance shall name Landlord as an additional
insured. Tenant, upon the request of Landlord, shall furnish to Landlord a
current certificate of such insurance. Such certificate shall contain a
provision indicating that the insurance company will use its best efforts to
provide Landlord with fifteen (15) days notice prior to the termination or
modification of such insurance.
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13. Attornment, Subordination and Nondisturbance.
(a) Tenant shall, in the event any proceedings are brought for
the foreclosure of any mortgage made by Landlord covering the Building or the
Premises, attorn to the purchaser or the foreclosing mortgage holder upon any
such foreclosure or sale and recognize such party as the landlord under this
Lease.
(b) This Lease and all rights of Tenant hereunder are and shall
be subject and subordinate to all mortgages which may now or hereafter affect
all or any portion of the Premises; provided that so long as Tenant is not in
default under this Lease, Tenant's possession of the Premises will not be
disturbed and Tenant shall have the right to continue to occupy the Premises
upon the same terms and conditions as are contained in this Lease and any such
mortgage or other instrument subordinating this Lease to a mortgage shall so
provide.
14. Assignment and Subletting. Tenant shall not assign this Lease or
sublet the Premises without obtaining the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed. Notwithstanding
anything to the contrary in the foregoing, Tenant may merge with or into another
entity without the necessity of obtaining Landlord's consent thereto.
15. Damage or Destruction.
(a) Partial Damage. In the event the Premises are damaged or
destroyed by fire or other casualty, Landlord shall repair and restore those
portions of the Premises so damaged or destroyed substantially to the condition
thereof immediately prior to such damage or destruction. Landlord shall not be
obligated to repair or restore Tenant's trade fixtures, equipment, inventory or
other installations or improvements of Tenant.
(b) Substantial Damage. Notwithstanding anything to the contrary
in the foregoing, in the event the Premises are damaged or destroyed by fire or
other casualty and Landlord and Tenant determine that the Premises cannot be
restored within 90 days after the date of such damage or destruction, either
party may, at its option, terminate this Lease upon twenty (20) days notice to
the other party given within thirty (30) days after the occurrence of any damage
or destruction.
(c) Restoration. If the Premises are damaged or destroyed and can
be repaired or restored within ninety (90) days after the date thereof, Landlord
shall commence its obligation to repair and restore the Premises promptly and
shall prosecute the same to completion diligently and in good faith. The rent
payable by Tenant under this Lease shall be equitably abated during any period
during which all or any portion of the Premises are unable to be used by Tenant
based upon the portion of the Premises which cannot be used by Tenant.
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16. Condemnation. In the event that the entire Premises are taken under
the power of eminent domain, this Lease will terminate as of the date possession
is taken by the condemning authority. In the event that more than ten percent
(10%) of the square feet of the Premises is taken under the power of eminent
domain, Tenant shall have the option to terminate this Lease as of the date
possession is taken by the condemning authority by the delivery of notice
thereof to Landlord not less than thirty (30) days prior to the date that such
portion of the Premises is to be taken. In the event that this Lease is
terminated as aforesaid, neither party shall have any further rights or
obligations hereunder thereafter and the rent and any other amounts payable by
either of the parties hereunder shall be prorated as of the date of termination.
In the event that this Lease is not terminated as aforesaid, the rent payable by
Tenant hereunder shall be proportionately reduced by the number of square feet
taken. All damages awarded for any such taking under the power of eminent
domain, whether for the whole or any part of the Premises, shall belong to and
be the property of Landlord; provided, however, Tenant may make a separate claim
for loss or damage to Tenant's trade fixtures and removable personal property
and for the cost of relocation.
17. Default and Remedies.
(a) Default. Each of the following events shall constitute a
default by Tenant in the performance of its obligations under this lease:
(i) the failure of Tenant to make any payment of rent
when due and such failure is not cured within ten (10) days after the receipt of
written notice from Landlord thereof;
(ii) the failure of Tenant to perform or observe any of
the other terms or conditions of this Lease to be observed or performed by
Tenant and such failure is not cured within thirty (30) days after the receipt
of written notice thereof from Landlord; or
(iii) Tenants abandons the Premises.
(b) Remedies. If Tenant shall default in the performance of its
obligations under this Lease, Landlord may exercise any one or more of the
following remedies, to the extent permitted by law, or any other remedy
permitted under applicable law:
(i) Landlord may terminate this Lease upon the delivery
of notice thereof to Tenant and Landlord shall have the right to immediate
possession of the Premises and Tenant shall peacefully surrender the Premises to
Landlord; or
(ii) Landlord, without terminating this Lease, shall have
the right to recover possession of the Premises and Tenant shall peacefully
surrender the Premises to Landlord. Landlord shall relet the Premises as agent
of Tenant, for a term to expire prior to, at the same time as, or subsequent to
the expiration of the term of this Lease. In the event of such reletting,
Landlord shall receive the rents therefor, applying the same first, to the
repayment of reasonable expenses as Landlord may have incurred in connection
with said resumption of possession, preparing for reletting and reletting
(including, without limitation, reasonable attorneys' fees), and, second, to the
payment of damages in amounts equal to the rent and additional rent due
hereunder and to the cost of performing the obligations of Tenant as provided in
this Lease. Tenant, regardless of whether Landlord has relet the Premises, shall
pay to Landlord damages equal to the rent and additional rent herein agreed to
be paid by Tenant less the proceeds of the reletting, if any, and such rent
shall be due and payable by Tenant on the date on which rent is due hereunder.
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18. Tenant's Equipment. Tenant may install such items of equipment and
trade fixtures in or about the Premises as are required for the conduct of
Tenant's business and such shall remain Tenant's property and, at Tenant's
election, may be removed upon the termination or expiration of the term of this
lease; provided, however, that Tenant shall repair any physical damages to the
Premises caused by the removal thereof.
19. Quiet Enjoyment. During the term of this Lease, so long as Tenant
observes and performs all of the terms and conditions of this Lease to be
observed and performed by Tenant, Landlord covenants that the peaceful
possession and quiet enjoyment by the Tenant of the Premises will not be
disturbed.
20. Miscellaneous.
(a) This Lease shall be binding upon and inure to the benefit of
Landlord and Tenant and their respective successors and assigns.
(b) Each party represents and warrants to the other that it has
not directly or indirectly dealt with any broker or agent relative to this Lease
or had its attention called to the Premises by any broker or agent except for
Xxxxxx, Xxxxxxxx & Xxxxxx, Inc. whose commission shall be paid for by Landlord.
Each party to this Lease agrees to indemnify, defend and hold the other parties
harmless from and against any and all claims for commissions arising out of the
execution and delivery of this Lease.
(c) Any notice, demand or other document to be given under this
Lease shall be in writing and shall be delivered personally or sent by United
States registered or certified mail, return receipt requested, postage prepaid,
and addressed to the party at their address as indicated on the first page of
this Lease and the same shall be deemed delivered upon receipt if personally
delivered or two business days after deposit in the mails, if mailed. A party
may change its address for receipt of notices by service of a notice of such
change in accordance herewith.
(d) Any controversy which shall arise between Landlord and Tenant
regarding the rights, duties or liabilities hereunder of either party shall be
settled by arbitration in accordance with the rules of the American Arbitration
Association in King County, Washington. The award of the arbitrator shall be
binding, final and conclusive on the parties and judgment may be entered thereon
in any court. The non-prevailing party shall reimburse the prevailing party for
its reasonable attorneys' fees and costs incurred in connection with any
litigation or arbitration proceeding commenced under this Lease.
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(e) Landlord hereby agrees to indemnify, defend and hold Tenant
harmless from and against any and all actions, claims, causes of action,
damages, penalties, losses and expenses of any kind (including, without
limitation, attorneys' fees and costs) which may be brought against or incurred
by Tenant as a result of the underground fuel storage tanks located at the
Premises and/or the Building including, without limitation, any costs associated
with the cleanup or removal of such storage tanks or the restoration of the
Premises relative thereto.
(f) The dual gas space heating unit ("Gas Heater") split by the
demising wall of the Premises shall be repaired and maintained by Landlord. In
the event Tenant desires to use the Gas Heater, Tenant shall notify Landlord
thereof and, upon such notice, Tenant shall have the right to use the Gas Heater
to heat the Premises. In the event Tenant uses the Gas Heater to heat the
Premises, Tenant shall proportionately share the cost of the use and maintenance
thereof with the other party or parties using the Gas Heater based upon the
amount of use of the Gas Heater by each of the parties.
(g) This Lease may be executed in any number of counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this
lease as of the day and year first above written.
"LANDLORD"
J & R SALES
/s/ Xxxxxxx X. Xxxxx
By:
Xxxxxxx X. Xxxxx, General Partner
"TENANT"
XXXXXXX'X METAL, INC.
/s/ Xxxxxx X. Xxxx
By:
Xxxxxx X. Xxxx, President
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FIRST AMENDMENT TO LEASE AGREEMENT
This First Amendment to Lease Agreement (this "Amendment"), dated as of
August 1, 1989 is made and entered into by and between J & R Sales, a Washington
general partnership ("Landlord") and Xxxxxxx'x Metal, Inc., a Missouri
corporation ("Tenant").
RECITALS
A. Landlord and tenant, entered into that certain Lease Agreement (the
"Lease") dated as of June 28, 1988, relative to the lease of space at the
property located at 000 "X" Xxxxxx, X.X. Xxxxxx, Xxxxxxxxxx.
B. Landlord and Tenant desire to amend the Lease on the terms and
subject to the conditions below.
C. Unless indicated to the contrary, all capitalized terms in this
Amendment shall have the meaning given to them in the Lease.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the above recitals, the covenants
and agreements herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Premises. The description of the Premises contained on Exhibit A to
the Lease is hereby deleted and the description of the Premises contained on
Exhibit A-1 attached hereto is substituted in place therefor. The Premises, as
redefined, consists of 26,964 square feet of space in the Building.
2. Term. The first sentence of Paragraph 2 of the Lease is hereby
deleted and the following substituted in place therefor.
"The term of this Lease shall be for three years and five months (the
"Initial Term") commencing August 1, 1988 (the "Commencement Date") and
expiring on midnight, December 31, 1991."
3. Renewal Option. The first sentence of paragraph 3 of the Lease is
hereby deleted and the following substituted in place therefor:
"Tenant is hereby granted two (2) successive options to extend the term
of this Lease each for a period of one (1) year."
4. Rent During Initial Term. Paragraph 4 of the Lease is hereby deleted
in its entirety and the following substituted in place therefor:
"Rent During Initial Term. Tenant agrees to pay to Landlord as fixed
annual rent during the Initial Term, the following amounts in
accordance with the following schedule:
Monthly Installments
Lease Period Annual Rent Of Rent
------------ ----------- --------------------
08/1/88-07/31/89 $44,100.00 $3,675.00
08/1/89-07/31/90 $71,184.96 $5,932.08
08/1/90-12/31/91 $74,420.64 $6,201.72"
5. Rent During Extension. Paragraph 5 of the Lease is hereby deleted in
its entirety and the following substituted in place therefor:
"Rent During Extension. The fixed annual rent payable by Tenant during
any extended term of this Lease shall be Seventy-Four Thousand Four
Hundred Twenty and 64/100 Dollars ($74,420.64) payable in equal monthly
installments of Six Thousand Two Hundred One and 72/100 dollars
($6,201.72)."
Monthly Installments
Lease Period Annual Rent Of Rent
------------ ----------- --------------------
01/1/92-12/31/92 $76,523.88 $6,376.99
01/1/93-12/31/93 $78,627.00 $6,552.25
6. Additional Rent. The third sentence of subparagraph 6(b) of the
Lease is hereby deleted and the following substituted in place therefor:
"It is agreed that such fraction is equal to Fifty-Six and 2/10 percent
(56.2%)."
7. Demolition. Landlord shall, at its cost, demolish, clear, pave and
fence the area adjacent to the Building currently occupied by the approximately
4,000 square foot brick block building. Such work shall be performed as promptly
as possible by Landlord following the date of this Lease and shall be completed
no later than November 30, 1989.
8. Parking. Tenant, and its employees, agents and invitees shall have
the exclusive right to park in the areas in the parking lot adjacent to the
Building which are in front of the Premises and in the area formerly occupied by
the brick block building to be demolished pursuant to Section 7 of this
Amendment.
9. Office Remodeling. With respect to the additional space being added
to the Premises in this Amendment, Landlord shall, at its cost, clean, paint and
replace the carpeting in the approximately 360 square feet of office space
located in such new space. Tenant shall have the right to approve the paint and
carpeting. Such work shall be performed as promptly as possible after the date
of this Amendment.
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10. Demising Walls. Tenant shall have the right, without the necessity
of obtaining Landlord's consent, to demolish, cut holes in or otherwise alter
the non-load bearing demising walls between the 18,364 square feet of space
previously occupied by Tenant and the additional 8,600 square feet of space
being added to the Premises by this Amendment.
11. Overhead Heater. Landlord shall install, at its expense, a new
overhead heater to replace the worn out overhead heater located in the
additional space being added to the Premises by this Amendment.
12. Miscellaneous.
(a) This Amendment shall be binding upon and inure to the
benefit of Landlord and Tenant and their respective successors and assigns.
(b) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Landlord and Tenant have signed this Amendment as
of the day and year first above written.
"LANDLORD"
J & R SALES
/s/ Xxxxxxx X. Xxxxx
By:
Printed Name: Xxxxxxx X. Xxxxx
Title: Partner
"TENANT"
XXXXXXX'X METAL, INC.
/s/ Xxxxxx X. Xxxx
By:
Printed Name: Xxxxxx X. Xxxx
Title: President
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SECOND AMENDMENT TO LEASE AGREEMENT
This Second Amendment to Lease Agreement (this "Amendment"), dated as
of June 15, 1993 is made and entered into by and between J & R Sales, a
Washington general partnership ("Landlord"), and Xxxxxxx'x Metal, Inc., a
Missouri corporation ("Tenant").
RECITALS
A. Landlord and Tenant entered into that certain Lease Agreement dated
as of June 28, 1988, and a First Amendment to Lease Agreement dated as of August
1, 1989 (the "First Amendment"), relative to the lease of space at the property
located at 000 "X" Xxxxxx X.X., Xxxxxx, Xxxxxxxxxx (together, the "Lease").
B. Landlord and Tenant desire to amend the Lease on the terms and
subject to the conditions below.
C. Unless indicated to the contrary, all capitalized terms in this
Amendment shall have the meaning given to them in the Lease.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the above recitals, the covenants
and agreements herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Term. The first sentence of Paragraph 2 of the Lease is hereby
deleted and the following substituted in place therefor:
"The term of this Lease shall be for ten years (the "Initial Term")
commencing August 1, 1988 (the "Commencement Date") and expiring on
midnight, December 31, 1998."
2. Renewal Option. The parties hereby reaffirm the renewal option
contained in paragraph 3 of the First Amendment.
3. Rent During Initial Term. Paragraph 4 of the Lease is hereby deleted
in its entirety and the following substituted in place therefor:
"Rent During Initial Term. Tenant agrees to pay to Landlord as fixed
annual rent during the Initial Term, the following amounts in
accordance with the following schedule:
Monthly Installments
Lease Period Annual Rent Of Rent
------------ ----------- --------------------
08/1/88-07/31/89 $44,100.00 $3,675.00
08/1/89-07/31/90 $71,184.96 $5,932.08
08/1/90-12/31/91 $74,420.64 $6,201.72
01/1/92-12/31/92 $76,523.88 $6,376.99
01/1/93-12/31/93 $78,627.00 $6,552.25
01/1/94-12/31/98 $87,363.36 $7,280.28
4. Rent During Extension. Paragraph 5 of the Lease is hereby deleted in
its entirety and the following substituted in place therefor:
"Rent During Extension. The fixed rent payable by Tenant during any
extended term of this Lease shall be mutually negotiated."
5. Option to Purchase. During the term of this Lease Landlord hereby
grants Tenant an option to purchase the property of which the Premises are a
part (the "Property") pursuant to the terms of this paragraph. A description of
the Property is contained in Exhibit A attached hereto. Landlord hereby agrees
that if, during the Lease Term, Landlord lists the Property for sale, within
five (5) days of the date the Property is so listed Landlord shall give a
written notice to Tenant advising Tenant that the Property is listed for sale.
If Tenant elects to exercise its option to purchase, Tenant shall so notify
Landlord in writing within thirty (30) days of the date on which Tenant received
the notice that the Property is listed for sale.
(a) If Tenant exercises its option, the purchase price will be
95% of the fair market value of the Property, as may be agreed upon by Tenant
and Landlord in writing. If no agreement is reached regarding the purchase
price, the price shall be determined by an appraiser selected by mutual
agreement of Landlord and Tenant, or if no agreement is reached regarding an
appraiser, each party may select a qualified appraiser and if the appraised
values are within ten percent (10%) of each other, the appraised values shall be
averaged and the amount so determined shall be the purchase price for the
Property. If the appraised values are not within ten percent of each other, the
two appraisers shall select a third appraiser and the value determined by such
third appraiser shall be the purchase price for the Property. If Landlord and
Tenant agree on an appraiser (or if it is necessary to use a third appraiser)
the appraisal fees shall be shared equally by Landlord and Tenant. If Landlord
and Tenant each select a separate appraiser, Landlord and Tenant shall each pay
the fees charged by their respective appraisers. In the event the purchase price
is determined by appraisal, Landlord and Tenant agree that the following
criteria shall be applied by each appraiser in determining the fair market value
of the Property:
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(i) The appraiser shall take into account the fact that the
Property is used as a manufacturing facility.
(ii) The appraiser may take into account the highest and best use
of the Property.
(iii) If the appraiser takes into account the capitalization of
rents for the Property, the rental rate used by the appraiser shall be the fair
rental value of the Property based on its use as a manufacturing facility. The
rentals paid by Tenant hereunder shall not be considered by the appraiser as the
fair rental value of the Property unless the appraiser independently determines
that the rent paid by Tenant is in fact the fair rental value.
6. Right of First Refusal to Purchase. During the term of this Lease
Landlord hereby grants Tenant a right of first refusal to purchase the Property
as provided in this paragraph 6. If Landlord receives a bona fide, executed
written offer to purchase the Property which Landlord desires to accept, then
Landlord shall deliver notice thereof to Tenant along with a copy of such offer.
For a period of fifteen (15) days from the date of delivery of such notice,
Tenant shall have the right, exercisable by written notice to Landlord, to
purchase the Property for the price and on the terms and conditions contained in
such offer, provided that Tenant may substitute equivalent cash for any form of
payment proposed in such offer. If Tenant does not exercise this right of first
refusal within said fifteen (15) day period, the offer may be accepted by
Landlord; provided, however, if the sale of the Property pursuant to the offer
is not closed within six months of the date of said offer, Tenant shall again
have the right of first refusal herein described.
7. Surfacing of Parking Strip. Landlord hereby agrees to
surface the parking strip described in Exhibit B hereto, in the
manner specified in Exhibit C hereto, before June 1, 1994.
8. Miscellaneous.
(a) This Amendment shall be binding upon and inure to the benefit
of Landlord and Tenant and their respective successors and assigns.
(b) This Amendment may be executed in two counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, Landlord and Tenant have signed this Amendment as
of the day and year first above written.
"LANDLORD"
J & R SALES
/s/ Xxxxxxx X. Xxxxx
By:
Printed Name: Xxxxxxx X. Xxxxx
Title: Managing Partner
"TENANT"
XXXXXXX'X METAL, INC.
/s/ Xxxxxx X. Xxxx
By:
Printed Name: Xxxxxx X. Xxxx
Title: President
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THIRD AMENDMENT TO LEASE AGREEMENT
This Third Amendment to Lease Agreement (this "Amendment"), dated as of
July 18, 1994, is made and entered into by and between J & R Sales, a Washington
general partnership ("Landlord"), and Xxxxxxx'x Metal, Inc., a Missouri
corporation ("Tenant").
RECITALS
A. Landlord and Tenant entered into that certain Lease Agreement dated
as of June 28, 1988, as amended by a First Amendment to Lease Agreement dated as
of August 1, 1989 and a Second Amendment to Lease Agreement dated as of June 15,
1993, relative to the lease of space at the property located at 000 "X" Xxxxxx
X.X., Xxxxxx, Xxxxxxxxxx (together, the "Lease").
B. Landlord and Tenant desire to amend the Lease on the terms and
subject to the conditions below.
C. Unless indicated to the contrary, all capitalized terms in this
Amendment shall have the meaning given to them in the Lease.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the above recitals, the covenants
and agreements herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Expiration Date. The expiration date of the Initial Term is hereby
changed from December 31, 1998 to December 31, 1999.
2. Premises. Commencing January 1, 1995 and ending on the expiration
date of the Initial Term, Tenant agrees to lease from Landlord and Landlord
agrees to lease to Tenant the balance of the space in the building, constituting
an additional 17,536 square feet of space, (the "Additional Space") which shall
be added to and included in the Premises.
3. Rent During Initial Term. Notwithstanding any provision contained in
the Lease to the contrary, Tenant agrees that the fixed annual rent payable by
Tenant to Landlord from January 1, 1995 until the expiration of the Initial Term
shall be $160,200.00, payable in equal monthly installments in the amount of
$13,350.00.
4. Delivery of Space. Unless the Additional Space has been subleased by
Tenant to Xxxx XxXxxxx & Co. ("McNiven") as contemplated pursuant to Section 5
hereof, Landlord shall deliver possession of the Additional Space to Tenant on
January 1, 1995 in "broom-clean" condition, with the office area repainted and
with all plumbing, electrical, HVAC and other equipment, fixtures and systems
serving the Additional Space in good working order. In the event that Landlord
is delayed in so delivering possession of the Additional Space to Tenant due to
any failure by McNiven to vacate the Additional Space at the end of the term of
its lease therefor, Landlord shall not be liable for any damages incurred by
Tenant as a result thereof provided that Landlord is making a diligent effort to
cause McNiven to vacate the Additional Space. In the event of any such delay,
the provisions of Section 2 hereof shall not take effect until Landlord has
delivered possession of the Additional Space to Tenant in accordance with the
requirements of this Section 4 and if Landlord has failed to so deliver
possession to Tenant by April 1, 1995, Tenant shall have the right at any time
thereafter (but prior to the delivery by Landlord to Tenant of possession of the
Additional Space, as aforesaid) to terminate this Third Amendment by delivery of
written notice thereof to Landlord. In the event of any such termination,
neither Landlord nor Tenant shall have any further rights, obligations or
liabilities under or pursuant to this Third Amendment, but the Lease shall,
nevertheless, be and remain in full force and effect.
5. Sublease to McNiven. Tenant hereby acknowledges that it has been
informed by Landlord that McNiven may desire to continue to occupy the
Additional Space during part or all of the first quarter of 1995, and Tenant
hereby agrees to offer to sublease the Additional Space to McNiven pursuant to
the terms and conditions of the sublease attached hereto as Exhibit A (the
"Sublease"). In the event that McNiven does not accept such offer by executing
the Sublease on or before November 1, 1994, Tenant shall have no further
obligation to sublease the Additional Space to McNiven.
6. Guarantee of Sublease.
(a) In the event that Tenant and McNiven enter into the Sublease,
Landlord hereby guarantees to Tenant the full and prompt payment of rent and any
and all other sums and charges payable by McNiven under the Sublease, and
further hereby guarantees the full and complete and timely performance and
observance of all the covenants, terms, conditions and agreements therein
provided to be performed and observed by McNiven. Landlord hereby covenants and
agrees that if default shall at any time be made by McNiven in the payment of
any such rent or any and all other sums and charges payable by McNiven under the
Sublease, of if McNiven should default in the full and complete performance and
observance of any of the terms, covenants provisions or conditions contained in
the Sublease, Landlord will forthwith pay such rent and other such sums and
charges to Tenant and will forthwith faithfully perform and fulfill all of such
terms, covenants, conditions and provisions, and will forthwith pay to Tenant
all damages that may arise in consequence of any default by McNiven under the
Sublease, including without limitation, all reasonable attorneys' fees incurred
by Tenant in connection with any such default and/or the enforcement of this
Section 6.
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(b) The foregoing guarantee is an absolute and unconditional guarantee
of payment and of performance. It shall be enforceable against Landlord without
the necessity for any suit or proceeding on the Tenant's part of any kind or
nature whatsoever against the Landlord and without the necessity of any notice
of nonpayment, nonperformance or nonobservance or of any other notice or demand,
all of which Landlord hereby expressly waives. Landlord hereby expressly agrees
that the obligations of Landlord hereunder shall in nowise be terminated,
affected, diminished or impaired by reason of the assertion or the failure to
assert by the Tenant against McNiven and/or Landlord of any of the rights or
remedies reserved to the Tenant pursuant to the provisions of the Sublease.
(c) Notwithstanding any provision to the contrary contained in the
Lease, Tenant shall have the right to offset against any installments of rent or
other sums or charges payable by Tenant to Landlord pursuant to the Lease, as
amended hereby, any amount or amounts that may be payable from time to time by
Landlord to Tenant pursuant to this Section 6.
7. Miscellaneous.
(a) This Amendment shall be binding upon and inure to the benefit of
Landlord and Tenant and their respective successors and assigns.
(b) This Amendment may be executed in two counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, Landlord and Tenant have signed this Amendment as
of the day and year first above written.
"LANDLORD"
J & R SALES
/s/ Xxxxxxx X. Xxxxx
By:
Printed Name: Xxxxxxx X. Xxxxx
Title: Partner
"TENANT"
XXXXXXX'X METAL, INC.
/s/ Xxxxx X. Xxxx
By:
Printed Name: Xxxxx X. Xxxx
Title: Vice President - General Manager
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EXHIBIT A
SUBLEASE
THIS SUBLEASE is made as of July 25, 1994, by and between XXXXXXX'X
METAL, INC., a Missouri corporation ("Sublandlord"), and XXXX XxXXXXX & CO., a
Washington corporation ("Subtenant").
RECITALS:
A. Sublandlord leases approximately 26,964 square feet of space in the
building commonly known as 000-000 "X" Xxxxxx, X.X., Xxxxxx, Xxxxxxxxxx (the
"Building") pursuant to a Lease Agreement, dated as of June 28, 1988, as amended
by a First Amendment to Lease Agreement, dated as of August 1, 1989, and a
Second Amendment to Lease Agreement, dated as of June 15, 1993, between J & R
Sales, a Washington general partnership ("Prime Landlord"), as landlord, and
Sublandlord, as tenant.
B. Sublandlord and Prime Landlord have entered into a Third Amendment
to Lease Agreement, dated as of July 18, 1994, further amending the aforesaid
Lease Agreement, pursuant to which Sublandlord has leased the balance of the
space in the Building, constituting an additional approximately 17,536 square
feet of space (the "Additional Space"), effective as of January 1, 1995. A copy
of the aforesaid Lease Agreement, as amended by the aforesaid First Amendment to
Lease Agreement, Second Amendment to Lease Agreement and Third Amendment to
Lease Agreement, is attached hereto as Exhibit A and is hereinafter called the
"Prime Lease."
C. The Additional Space is currently occupied by Subtenant pursuant to
a lease between Subtenant and Prime Landlord that expires on December 31, 1994.
D. Subtenant desires to sublease the Additional Space from Sublandlord
on the terms and conditions set forth below.
STATEMENT OF AGREEMENT:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Term/Termination. Sublandlord hereby leases to Subtenant and
Subtenant hereby leases from Sublandlord the Additional Space for a term
commencing on January 1, 1995 and ending on June 30, 1995; provided that either
party shall have the right to terminate this Sublease at any time by delivery of
written notice thereof to the other party not less than thirty (30) days prior
thereto.
2. Rent. The base annual rent for the Additional Space shall be
$63,129.60, payable in monthly installments in the amount of $5,260.80. Each
such monthly installment shall be payable in advance on or before the first day
of each month of the term hereof without set off, deduction, discount or
abatement in lawful money of the United States of America.
3. Additional Rent. In addition to base rent, Subtenant shall pay to
Sublandlord 39.41% of all amounts which Sublandlord is obligated to pay to Prime
Landlord pursuant to Section 6 of the Prime Lease with respect to any Expenses
(as defined therein) paid or incurred by Prime Landlord during or with respect
to any period within the term of this Sublease. Any and all such payments shall
be made by Subtenant to Sublandlord within fifteen (15) days following the
delivery by Sublandlord to Subtenant of an invoice therefor.
4. Use/Condition. Subtenant shall use and occupy the Additional Space
for office and warehouse purposes and for no other purpose. Subtenant accepts
the Additional Space in its "as is" condition, and Subtenant acknowledges and
agrees that Sublandlord is not required to alter or modify the Additional Space
in any way for Subtenant.
5. Alterations. Subtenant shall not alter or modify the Additional
Space in any way without the prior written consent of Sublandlord.
6. Incorporation of Terms of Prime Lease. Except as herein otherwise
provided (expressly or by other provision made), all of the terms, covenants,
provisions, conditions and limitations of the Prime Lease, except Sections 3, 4,
5, 8, 10, 14 and 20 thereof, are hereby incorporated by reference in and are
hereby made and shall be deemed to be terms, covenants, provisions, conditions
and limitations applicable to the Sublease herein for and during the entire term
of this Sublease as fully and to the same extent as though each and every one of
said terms, covenants, provisions, conditions and limitations were set forth at
length herein, it being understood that all references in the Prime Lease to
"Tenant" shall be deemed to refer to Subtenant herein. Subtenant hereby agrees
to and hereby assumes the obligation to perform faithfully and to be bound by
all of such terms, covenants, provisions, conditions and limitations of the
Prime Lease for the periods covered by this Sublease.
7. Insurance. Subtenant shall provide the same insurance for the
Additional Space as that required of Sublandlord under the Prime Lease. Wherever
the Prime Lease requires Sublandlord to name the Prime Landlord as an additional
insured, then Subtenant shall be required by this Sublease to name the Prime
Landlord and the Sublandlord as additional insureds.
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8. Assignment/Subleasing. Subtenant shall have no right to assign or
sublet the Additional Space without the consent of the Sublandlord.
9. Brokerage. Each party warrants and represents to the other that it
has not dealt with any broker or finder in respect to this Sublease. Each party
hereby agrees to indemnify and hold the other harmless from and against any
liability that the other may sustain or incur by reason of its breach of the
foregoing representation and warranty.
10. Compliance with Prime Lease. Subtenant agrees that it will not do
or permit to be done any act or thing which will cause or constitute a breach of
the Prime Lease or which would give the Prime Landlord under the Prime Lease the
right to cancel or terminate the Prime Lease. Sublandlord shall not be liable to
the Subtenant for any default or failure on behalf of the Prime Landlord in the
performance of its covenants and obligations under the Prime Lease.
11. Quiet Enjoyment. Sublandlord covenants and agrees with Subtenant
that upon Subtenant's paying the rents and observing and performing all of the
terms, covenants, provisions, conditions and limitations of this Sublease
(including the terms of the Prime Lease to the extent that the same are the
obligations of Subtenant hereunder) on the Subtenant's part to be observed and
performed, Subtenant may peaceably and quietly enjoy the Additional Space
subject, nevertheless, to the terms, covenants, provisions, conditions,
limitations of this Sublease and the Prime Lease.
12. Representations and Warranties. Subtenant acknowledges that neither
Sublandlord, nor any party on its behalf, has made any statements, warranties or
representations with respect to the Additional Space or to the Building of which
the same are a part, except as expressly set forth in this Sublease.
13. Notices. All notices required or permitted to be given by either
party to the other under this Sublease shall be effective only if given in
writing and delivered personally by certified mail or registered mail, return
receipt requested, addressed to the party to whom the notice is directed at that
address noted below or to such other address as either party may, from time to
time, designate by notice given to the other party pursuant to this paragraph.
Notice shall be deemed to have been given upon receipt if delivered personally
or as of the date of mailing as shown on the post office receipt therefor.
If to Sublandlord: Xxxxxxx'x Metal, Inc.
000 "X" Xxxxxx, X.X.
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxx
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If to Subtenant: Xxxx XxXxxxx & Co.
c/o J & R Sales
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: X. Xxxxxxxx
14. Litigation Costs. In the event either party to this Sublease
institutes legal proceedings against the other, the prevailing party in such
proceeding shall be reimbursed for all of its costs and attorney's fees incurred
therein by the losing party.
15. Subrogation. Each party hereby waives subrogation against the other
party for any claims or actions based upon any loss or damage caused by fire,
explosion or other casualty (not limited to the foregoing) relating to the
Additional Space or property therein.
16. Entire Agreement, Amendments and Waivers. This Sublease contains
the entire agreement and understanding of the parties in respect to the subject
matter hereof, and the same may not be amended, modified or discharged nor may
any of its terms be waived except by an instrument in writing signed by the
party to be bound thereby.
17. Interpretation.
(a) The Exhibit(s) hereto are incorporated herein by reference
and made a part hereof.
(b) The headings and captions herein are inserted for
convenient reference only and the same shall not limit or construe the
paragraphs or sections to which they apply or otherwise affect the
interpretation hereof.
(c) This Sublease and any document or instrument executed
pursuant hereto may be executed in any number of counterparts each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(d) The provisions of Sections 3 and 9 and any other
provisions hereunder which by their nature are to be performed subsequent to the
termination or expiration of the term of this Sublease shall survive any such
termination or expiration.
IN WITNESS WHEREOF, this Sublease has been executed by the parties as
of the day and year first above written.
SUBLANDLORD:
XXXXXXX'X METAL, INC.
By:___________________________
Its ________________________
SUBTENANT:
XXXX XxXXXXX & CO.
By:____________________________
Its ________________________
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