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EXHIBIT 6.6
LEASE AGREEMENT
This Lease made as of this 10th day of February, 1998, between Stolthaven
Houston Inc., a Connecticut Corporation, hereinafter referred to as "Landlord"
and Total Building Systems, Inc., a Texas Corporation, hereinafter referred to
as "Tenant."
1. Premises The premises shall consist of approximately 45,494 square feet
located at 00000 Xxxxxxxxxxx Xxxx., Xxxxxxx, Xxxxx including 9,000 S.F. office,
19,560 S.F. warehouse/shop, 9,734 S.F. covered dock, and 7,200 S.F. shed on
approximately 5 acres, as more particularly described on Exhibit "A" attached
hereto (the "Premises").
II. Term The term of this Lease shall be for a period of 59 months and 19
days commencing on the 10th day of February, 1998, and terminating on the 31st
day of January, 2003. Rights of cancellation and/or renewal and extension of
this Lease, if any are applicable, shall be as defined in the Special Conditions
Section XXX, Item 2.
III. Rental Tenant agrees to pay and Landlord agrees to accept as monthly
rental for the Premises the following sum to be paid monthly in advance on or
before the 1st day of each month for and during the term hereof the first full
monthly rental payment to be due on or before February 1, 1998:
2/10/98 - 2/28/98 $9,160/Month (prorated rent)
3/l/98 - 8/23/98 $13,500/Month
8/24/98 - 1/31/99 $22,260/Month (including Xxxxx space - see Section XXX(6)
2/l/99 - 1/31/01 $23,160/Month
2/1/01 - 1/31/02 $23,160/Month
2/l/02 - 1/31/03 $23,160/Month + CPI Adjustment*
Option I -2/l/03 - 1/31/04 Previous Year Lease Rate + CPI Adjustment*
Option 2 - 2/1/04 -1/31/05 Previous Year Lease Rate + CPI Adjustment*
Option 3 - 2/1/05 - 1/31/06 Previous Year Lease Rate + CPI Adjustment*
Option 4 - 2/1/06 - 1/31/07 Previous Year Lease Rate + CPI Adjustment*
Option 5 - 2/l/07 - 1/31/08 Previous Year Lease Rate + CPI Adjustment*
Should Tenant remain on the Premises without Landlord's approval and fail to
vacate the Premises upon termination of the Lease, the Lease shall be on a
month-to-month tenancy and the rental shall increase to three times the monthly
rental paid during the primary term.
* The annual increase calculated as the "CPI Adjustment" shall be defined
on the attached Exhibit B.
IV. Deposit Upon execution of this Lease, Tenant shall deposit with
Landlord $13,500 as a Security Deposit as security for the full performance by
Tenant of all its obligations under this Lease. If at any time during the Term,
or an extension thereof, Tenant shall be in default or otherwise fail to perform
all of its obligations hereunder, then, without notice, Landlord may appropriate
all or a part of the Security Deposit to defray any and all reasonably necessary
expenses incurred by Landlord in curing such default or completing such
obligations, and not as liquidated damages. If Tenant is not in default at the,
termination of this Lease, Landlord shall return the Security Deposit to Tenant
less any sums so expended by Landlord. Landlord's obligation respecting the
Security Deposit is that of a debtor, not a trustee.
V. Uses The Tenant shall use the Premises for the construction and/or
assembly of buildings and for no other purpose without the written consent of
the Landlord (which consent shall not be unreasonably withheld), and will not do
or permit anything to be done on the Premises which shall increase Landlord's
insurance premium or result in cancellation thereof, or which shall in any way
conflict with any laws, statutes, ordinances and governmental rules relating to
Tenant's use of the Premises. Tenant shall be solely responsible for obtaining
any permits or approvals, governmental or otherwise, necessary to conduct
activities contemplated by this Lease and shall not conduct unlawful activities
on the leased premises or discharge pollutants of any type into the sanitary
sewer or other drains and/or sewer lines or into the ambient air, surface
waters, groundwater or the Premises or adjacent property in violation of any
law, regulation or governmental order. Any bulk storage of flammable fluids must
be maintained in flashproof metal tanks and/or protected by a dike or firewall.
Tenant shall strictly comply with the federal and state immigration laws and
laws governing imports and exports of goods to and from foreign countries.
VI. Services Except as may be provided in Section XXX, Paragraph 10 A-D,
hereto, Tenant shall be responsible for all utilities for the Premises,
including the cost of water and electricity required by Tenant to operate within
the Premises. Tenant shall be responsible for janitorial and trash removal,
including the cost of installing trash receptacle suitable for Tenant's needs.
VII. Rail Cars N/A
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VIII. Maintenance and Repair
A. Tenant has inspected the Premises and accepts the Premises (including
all cranes, equipment and machinery situated in or on the land and/or building
included in the term "Premises") "as is, where is," "with all faults" in their
present condition.
B. Tenant shall keep the Premises in the same state of repair as when the
premises were received, at its own expense, excepting for ordinary wear and
tear, obsolescence and damage by fire, act of God or the elements and such
repairs as under this Lease, if any, that Landlord is required to make. On the
last day of the term hereof, Tenant will surrender the Premises to the Landlord
swept broom-clean, in the same state of repair as when the Premises were
received, reasonable wear and tear, obsolescence and damage by fire, acts of God
or the elements or damage which the Landlord is required to repair hereunder
excepted.
C. The Landlord, at its own expense, will maintain in good order and
repair all structural portions of the Premises, including the roof and exterior
walls unless such structures are damaged by Tenant, its officers, employees,
invitees or sub-contractors in which latter event such repairs will be made by
Landlord at Tenant's cost. Tenant agrees to promptly pay within ten (10) days of
receipt of billing by Landlord for all repairs so made for Tenant's account.
IX Altercations, Fixtures and Personal Property
A. Tenant may, from time to time at its own expense, make such alteration,
improvements, repairs and additions to and upon the Premises and install thereon
such fixtures, equipment, furniture and property as it may consider advisable
for the conduct of its business. Tenant will not, without the prior written
consent of the Landlord, make or suffer to be made any alteration, improvement
or addition which will affect the structural portions of the Premises. Landlord
agrees that it will not unreasonably withhold consent to the making of such
alterations, improvements or additions. Tenant shall not cause any liens to be
placed upon the Premises and shall immediately take steps to secure release of
any lien which may arise as a result of Tenant's use.
B. All fixtures, equipment, furniture and personal property installed by
or at the expense of the Tenant which may be removed without material damage to
the Premises shall remain the property of the Tenant and may be removed by
Tenant at any time during or at the expiration of the term hereof or earlier
termination of this Lease as long as Tenant is not then in default in
performance of this Lease.
X. Assignment and Subleasing While the Tenant shall not mortgage, pledge
or encumber this lease, Tenant shall have the right to sublease to Tenants which
are approved by the Landlord. Such approval by Landlord shall not be
unreasonably withheld or delayed more than five business days. If a sublease is
approved by Landlord, the Tenant will remain fully liable for the performance of
the Tenant's obligations under the Lease, and the sublease would be expressly
subject to the terms and conditions of the lease between Landlord and Tenant.
Copies of all approved, fully executed subleases, shall be furnished to the
Landlord.
XI. Right of Entry The Landlord shall have the right to enter the
Premises, provided that such entry shall not interfere with the business of the
Tenant. .Landlord shall have the right to exhibit the Premises to prospective
purchasers and tenants. All such rights of entry shall be subject to the
security regulations of the Tenant.
XII. Quiet Enjoyment The Landlord shall put Tenant in possession of the
Premises and the appurtenances thereof at the beginning of the Term hereof, and
the Tenant, upon paying the rent and observing the other covenants and
conditions herein, shall peaceably and quietly hold and enjoy the Premises
during the Term or any extension thereof. The Landlord shall warrant and defend
the Tenant in the enjoyment and peaceful- possession of the Premises during the
term of this Lease and any extension period.
XIII Holding Over If the Tenant remains in the Premises with Landlord's
approval beyond the expiration of this Lease, or as it may be renewed or
extended, such holding over in itself shall not constitute a renewal or
extension of this Lease, but in such event, a tenancy from month-to-month on all
the terms and conditions set forth in this Lease at a monthly rental equal to
125% of the monthly rental in effect on the date of expiration shall arise
subject to termination by Landlord or Tenant by not less than ten (10) days
prior written Notice of Termination, such termination to be effective as of the
date specified in the Notice.
XIV. Sale by Landlord In the event of a sale or conveyance by the Landlord
of the Premises, the same shall operate to release the Landlord of any liability
upon any of the covenants and conditions, express or implied, herein contained
in favor of the Tenant arising after such sale or conveyance-, and in such
event, Tenant agrees to look solely to the successor in interest of the Landlord
in
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and to this Lease. In the event that the Landlord elects to partition the
subject property of which the premises is a part (approx. 77,000 S.F. on 10
acres) and sell only the Premises to a "disinterested third party" (not a
subsidiary or partner of the Landlord), then the Tenant will have the first
right of refusal to purchase the Premises under the same terms as the third
party offer. This right of first refusal shall not apply to a proposed sale of
the entire 99.7144-acre tract of which the Premises is a part or any portion
thereof including more land in addition to the Premises. Tenant must respond in
writing to the Landlords notification of such third party offer within five
calendar days. If Tenant fails to respond, or responds by stating that Tenant
does not desire to purchase the Premises then this right of first refusal shall
terminate. If the sale to such third party is not consummated in substantial
compliance with the terms as presented to Tenant for acceptance, the right of
first refusal shall remain in force and effect.
XV. Successors This Lease shall inure to the benefit of and be binding
upon the parties hereto, their respective representatives, successors and
assigns.
XVI. Notices Any notice required or desired to be given under this Lease
shall be in writing with copies directed as indicated herein and shall be
personally served or given by mail. Any notice given by mail shall be deemed to
have been given when forty-eight (48) hours have elapsed from the time when such
notice was deposited in the United States mails, certified and postage prepaid,
addressed to the party to be served with a copy as indicated herein at the last
address given by that party to the other party under the provisions of this
part. For purposes of mailing notices, at the date of the execution of this
Lease the addresses for such notification are:
Landlord: Stolthaven Houston Inc.
00000 Xxxxxxxxxxx Xxxx.
X.X. Xxx 00000
Xxxxxxx, Xxxxx 00000-0000
Contact: Xx. Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Tenant: Total Building Systems, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Contact: Xxxxxxx X. XxXxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
XVII. Tenant's Default The Landlord shall have the right to terminate this
Lease or to terminate Tenant's right of possession without terminating this
Lease in the event that:
A. Any monthly rent is not paid within ten (10) days after the due date
thereof, or any other charge due hereunder is not paid when due, and such rent
payment or other charge continues to remain unpaid for a period of ten (10) days
after written notice of such nonpayment is given by the Landlord to Tenant.
B. Tenant fails to correct or cure its breach of any covenant or
agreement of the Tenant contained in this Lease, except with respect to
nonpayment of rent and other charges due hereunder, within thirty (30) days
after Landlord has notified Tenant in writing of any such breach thereof.
C. A proceeding is commenced to declare Tenant bankrupt or insolvent or
any assignment of Tenant's property is made for the benefit of creditors, or a
receiver or trustee is appointed for Tenant or Tenant's property or business,
and, such proceeding is not dismissed or such a receiver/trustee not removed
within a period of sixty (60) days thereafter.
XVIII Eminent Domain - Condemnation
A. If the whole or any part of the Premises or the building in which the
Premises are located shall be taken by any public domain or condemnation and
this Lease remains in full force and effect, on the date of the taking the
monthly rent shall be reduced by an amount that is in the same ratio to the
monthly rent as the value of the area of the portion of the Premises taken bears
to the total value of the Premises immediately before the date of taking,
B. Rent shall be abated or reduced during the period from the date of the
taking until the completion of the restoration, if any, but all other
obligations of the Tenant under this Lease shall remain in full force and
effect. The abatement or reduction of rent shall be based on the extent to which
the restoration interferes with the Tenant's use of the Premises. Should the
premises or building taken be such that Landlord considers restoration to be
impossible or inappropriate, Landlord shall so notify Tenant and this Lease
shall be terminated as of the date of such notice.
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C. All damages awarded for such taking shall accrue to the account of the
Landlord, except any award provided to or on behalf of the Tenant in connection
with the loss of its leasehold interest or for removal and reinstallation of
fixtures, loss of business or moving expenses shall accrue tot he account of the
Tenant.
XIX. Taxes
A. Tenant shall pay before delinquency all taxes, assessments, license
fees and other charges ("Taxes") that are levied and assessed against the
Tenant's personal property installed or located in or on the Premises, and that
become payable during the Term of the Lease.
B. Landlord shall pay all real property taxes and general and special
assessments ("Real Property Taxes") on the Premises; provided, however, Tenant
shall pay all increases in Real Property Taxes over and above those Real
Property Taxes levied and assessed against the Premises for the base year which
is the tax fiscal year 1998. Landlord shall notify tenant of Tenant's share of
the Real Property Taxes and together with such notice shall furnish Tenant with
a copy of the tax statement, including the tax statement for the base year, and
an explanation of the basis of the charge to the Tenant. Tenant shall reimburse
Landlord for Tenant's share of the increases in the Real Property Taxes not
later than ten (10) days before the taxing authorities' delinquent date or ten
(10) days after receipt of the tax statement., whichever is later, except that
Tenant shall have the right, at its election and expense, to contest, in the
name of the Landlord, any tax, levy or assessment for which Tenant may be
required to reimburse Landlord in whole or in part so long as the contesting
thereof is not prejudicial to the Landlord, and landlord covenants and agrees to
execute any documents necessary to perfect Tenant's rights of contest herein
contained. Tenant shall have the right to allow any assessment or any other
charge Tenant is required to pay hereunder to go to bond or to otherwise defer
payment thereon for the maximum lawful period.
C. Tenant agrees to pay to Landlord all sales and use taxes due on the
lease of tangible personal property by the Tenant and taxable services provided
by the Lessor, (such as repairs and maintenance made to real or personal
property, utility services, rail switching services, etc.) If any, or provide
the Landlord with a valid sales and use tax Resale Certificate, Exemption
Certificate or a direct pay permit number. These sales and use taxes shall be in
addition to the rental amount provided by Paragraph III above.
XX. Damage or Destruction
A. If during the Term, the Premises totally or partially destroyed from
any cause, rendering the Premises totally or partially inaccessible or unusable,
Landlord, at its election, can either terminate this Lease or restore the
Premises and, if restored, this Lease shall continue in full force and effect.
If the existing laws do not permit the restoration, either party can terminate
this Lease immediately by giving written notice to the other party.
B. In case of damage or destruction, there shall be an abatement or
reduction of rent from the date of destruction to date of substantial completion
of restoration, based on the extent to which the destruction interferes with
Tenant's use of the Premises. Should such damage occur, Landlord, at its
election , may give Tenant written notice of termination of this Lease or
Landlord may restore the Premises.
XXI Insurance During the term of this Lease, Tenant shall maintain at its
sole and expense:
A. Workers' Compensation Insurance which shall comply with all
requirements of the workers' compensation laws of the State of Texas and shall
include coverage for U.S. Longshoremen's and Harbor Worker's benefits where
employees shall be subject to these provisions. In addition, Tenant shall
maintain Employer's Liability Insurance in an amount not less than $100,000 per
person.
B. Liability Insurance - Comprehensive General Liability and Automobile
Liability coverage in amounts not less than $1,000,000.combined single limits.
Landlord shall be endorsed to the policy(ies) as an additional insured. The
policy(ies) shall not contain any Intra-Insured exclusions as between Insured
persons or organizations, but shall include coverage for insured liability
assumed under this Lease as an "Insured Contract" for the performance of
Tenant's indemnity obligations under this Lease.
C. Personal Property Insurance - covering Tenant's personal property and
Tenant Owned Alterations in, on or about the Premises in amounts not less than
80% of the actual cash value of the personal property and Owned Alterations.
D. In addition to meeting the required limits of insurance in this
Lease, Tenant shall deliver to the Landlord certificate or certificates of
insurance evidencing the existence and amounts of, the Insurance
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required under Sections XXI.A., B. and C. The certificate or certificates must
evidence that the following terms are applicable to such insurance, such
evidence being CLEARLY STATED ON CERTIFICATE SUBMITTED TO THE LANDLORD.
1. Showing Stotlhaven Houston, Inc. as an additional insured under the
General Liability and Automobile Liability policies with respect to any
insured liability arising out of this Lease. A copy of the policy
endorsements naming Stolthaven Houston Inc. as additional insured must be
submitted to the Landlord.
2. In the event of material change in, or cancellation of, this
insurance, the company will notify Stolthaven Houston Inc. at least thirty
(30) days prior to the effective date of such change or cancellation. All
policies maintained under this provision shall be endorsed to provide
thirty (30) days prior written notice of cancellation to Landlord;
provided, however, that if cancellation is due to non-payment of premium,
only ten (10) days prior written notice shall be required.
3. Tenant and Landlord each hereby releases the other and their
respective employees, agents, and every person claiming by, through or
under either of them, from any and all liability and responsibility for any
loss or damage to any property (real or personal) caused by fire or any
other insured peril covered by insurance policies for the benefit of either
party, even if such loss or damage shall have been caused by the fault or
negligence of the other party, their employees or agents. All policies of
insurance maintained under this Section XXI shall include waiver of
subrogation endorsement in favor of Landlord.
INSURANCE CERTIFICATES EVIDENCING SUCH POLICIES SHALL BE DELIVERED TO LANDLORD
UPON OCCUPANCY OF THE PREMISES, it being expressly understood that failure to
maintain insurance is a material breach of contract and time being of the
essence. In the event that any insurance as required herein is provided on a
"claim-made" basis, such insurance shall provide for a retroactive date not
later than the commencement of such Lease. If the purchase of an "optional
extension period," "optional claims reporting period" or other similarly titled
clause is necessary to maintain coverage as required hereunder, such clause
shall provide insurance for all occurrences as required herein. The limits of
said Insurance required by this Lease or as carried by Tenant shall not,
however, limit the liability of Tenant nor relieve Tenant of any obligation
hereunder. All insurance to be carried by Tenant shall be primary to and not
contributory with any similar insurance carried by the Landlord, whose Insurance
will be considered excess insurance only.
XXII. Indemnification Tenant agrees to indemnify and save harmless Landlord
from any claims, costs and expenses (including attorney's fees) for personal
injury or property damage which may be made against the Landlord which arises
out of use of the Premises by Tenant or any agent, employee, contractor or guest
of Tenant, unless such claim is due to the sole negligence of Landlord.
XXIII. Remedies
A. Upon the occurrence of any of such events of default described in
Article XVII hereof, Landlord shall have the option to pursue any one or more of
the following remedies without any notice or demand whatsoever:
(1) Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails to do so, Landlord
may, without prejudice to any other remedy which it may have for possession
or arrearage in rent, enter upon and take possession of the Premises and
expel or remove Tenant and any other person who may be occupying such
Premises or any part thereof, by force if necessary, without being liable
for prosecution or any claim of damages therefor.
(2) Enter upon and take possession of the Premises and expel or remove
Tenant and any other person who may be. occupying such Premises or any part
thereof, by force if necessary, without being liable for prosecution or any
claim for damages therefor, and relet the Premises and receive the rent
therefor.
(3) Enter upon the Premises, by force if necessary, without being
liable for prosecution or any claim for damages therefor, and do whatever
Tenant is obligated to do under the terms of -this Lease; and, Tenant
agrees to reimburse Landlord on demand for any expenses which Landlord may
incur in thus effecting compliance with Tenant's obligations under this
Lease, and Tenant further agrees that Landlord shall not be liable for any
damages resulting to the Tenant from such action, whether caused by the
negligence of Landlord or otherwise.
(4) Alter all locks and other security devices at the Premises without
terminating this Lease.
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(5) Terminate deliveries of water, gas or electricity which Landlord
may be providing hereunder, without terminating the Lease.
(6) Deny rail or road access to Tenant and its representatives and
prohibit the removal of Tenant's personal property on which Landlord has or
may perfect a statutory or Landlord's lien arising from such default
without terminating the Lease.
In the event Landlord may elect to regain possession of the Premises by a
forcible detainer proceeding, Tenant hereby specifically waives any statutory
notice which may be required prior to any such proceeding, and agrees that
Landlord's execution of this Lease is, in part, consideration for this waiver.
In the event Tenant fails to pay any installment of rent hereunder as and when
such installment is due, to help defray the additional cost to Landlord for
processing such late payments Tenant shall pay to Landlord on demand a late
charge in an amount equal to five percent (5%) of such installment; and the
failure to pay such amount within ten (10) days after demand therefor shall be
an event of default hereunder. The provision for such late charge shall be in
addition to all of Landlord's other rights and remedies hereunder or at law and
shall not be construed as liquidated damages or as limiting Landlord's remedies
in any manner.
B. Exercise by Landlord or any one or more remedies hereunder granted or
otherwise available shall not be deemed to be an acceptance by Landlord of
surrender of the Premises by Tenant, whether by agreement or by operation of
law, it being understood that such surrender can be effected only by the written
agreement of Landlord and Tenant. No such alteration of locks or other security
devices and no removal or other exercise of dominion by Landlord over the
property of Tenant or others at the Premises shall be deemed unauthorized or
constitute a conversion, Tenant hereby consenting, after any event of default,
to the aforesaid exercise of dominion over Tenant's property within the
Premises. All claims for damages by reason of such re-entry and/or repossession
and/or alteration of locks or other security devices are hereby waived, as are
all claims for damages by reason of any distress warrant, forcible detainer
proceedings, sequestration proceedings or other legal process. Tenant agrees
that any reentry by Landlord may be pursuant to judgement obtained in forcible
detainer proceedings or other legal proceedings or without the necessity for any
legal proceedings, as Landlord may elect, and Landlord shall not be liable in
trespass or otherwise.
C. In the event Landlord elects to terminate the Lease by reason of any
event of default, then notwithstanding such termination, Tenant shall be liable
for and shall pay to Landlord, at the address specified for notice to Landlord
herein, the sum of all rental and other indebtedness accrued to date of such
termination, plus, as damages, an amount equal to the difference between (i) the
total rental hereunder for the remaining portion of the lease term (had such
term not been terminated by Landlord prior to the date of expiration stated in
Article 11) and (ii) the then present value of the then fair rental values of
the premises for such period.
D. In the event that Landlord elects to repossess the Premises without
terminating the Lease, then Tenant shall be liable for and shall pay to
Landlord, at the address specified for notice to Landlord herein, all rental and
other indebtedness accrued to the date of such repossession, plus rental
required to be paid by Tenant to Landlord during the remainder of the lease term
until the date of expiration of the term as stated in Article II diminished by
any net sums (if any) thereafter received by Landlord through reletting the
Premises during said period (after deducting expenses incurred by Landlord as
provided in subparagraph E of Article XXIII hereof). In no event shall Tenant be
entitled to any excess of any rental, obtained by reletting over and above the
rental herein reserved. Actions to collect amounts due from Tenant to Landlord
under this subparagraph may be brought from time to time, on one or more
occasions, without the necessity of Landlord's waiting until expiration of the
lease term.
E. In case of any event of default or breach by Tenant, or threatened or
anticipatory breach or default, Tenant shall also be liable for and shall pay to
Landlord, at the address specified for notice to Landlord herein, in addition to
any sum provided to be paid above, brokers' fees incurred by Landlord in
connection with reletting the whole or any part of the premises; the costs of
removing and storing Tenant's or other occupants property; the costs of
repairing, altering, remodeling or otherwise putting the Premises into condition
acceptable to a new tenant or tenants; and all reasonable expenses incurred by
Landlord in enforcing or defending Landlord's rights and/or remedies including
reasonable attorney's fees which shall be not less than fifteen percent (15%) of
all sums then owing by Tenant to Landlord whether suit is actually filed or not.
F. In the event of termination or repossession of the Premises for an
event of default, Landlord shall not have any obligation to relet or to attempt
to relet the Premises, or any portion thereof, or to collect rental after
reletting; and in the event of reletting, Landlord may relet the whole or any
portion of the Premises for any period to any tenant and for any use and
purpose.
G. If Tenant should fail to make any payment or cure any default
hereunder within the time herein permitted, Landlord, without being under any
obligation to do so and without thereby waiving such
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default, may make such payment and/or remedy such other default for the account
of Tenant (and enter the Premises for such purpose), and thereupon Tenant shall
be obligated to, and hereby agrees, to pay Landlord upon demand, all costs,
expenses and disbursements ~including reasonable attorney's fees) incurred by
Landlord in taking such remedial action.
H. In the event of any default by Landlord, Tenant's exclusive remedy
shall be an action for damages (Tenant hereby waiving the benefit of any laws
granting it a lien upon the property of Landlord and/or upon rent due Landlord),
but prior to any such action Tenant will give Landlord written notice specifying
such default with particularity, and Landlord shall thereupon have thirty days
in which to cure any such default. Unless and until Landlord fails to so cure
any default after such notice, Tenant shall not have any remedy or cause of
action by reason thereof. All obligations of Landlord hereunder will be
construed as covenants, not conditions; and all such obligations will be binding
upon Landlord only during the period of its possession of the Premises and not
thereafter. The term "Landlord" shall mean only the owner, for the time being of
the interest in the Premises, and in the event of the transfer by such owner of
its interest in the Premises, such owner shall thereupon be released and
discharged from all covenants and obligations of the Landlord thereafter
accruing, but such covenants and obligations shall be binding during the lease
term upon each new owner for the duration of such owner's ownership.
Notwithstanding any other provision hereof, Landlord shall not have any personal
liability hereunder. In the event of any breach or default by Landlord in any
term or provision of this Lease, Tenant agrees to look solely to the equity or
interest then owned by Landlord in the Premises; however, in no event shall any
deficiency judgement or any money judgement of any kind be sought or obtained
against any part Landlord.
1. In the event that Landlord shall have taken possession of the Premises
pursuant to the authority herein granted, then Landlord shall have the right to
keep in place and use all of the furniture, fixtures and equipment at the
Premises, including that which is owned by or leased to Tenant at all times
prior to any foreclosure thereon by Landlord or repossession thereof by any
lessor thereof or third party having a lien thereon. Landlord shall also have
the right to remove from the Premises (without the necessity of obtaining a
distress warrant, writ of sequestration or other legal process) all or any
portion of such furniture, fixtures, equipment and other property located hereon
and to place same in storage at any Premises within the County in which the
Premises is located; and in such event, Tenant shall be liable to Landlord for
costs incurred by Landlord in connection with such removal and storage. Landlord
shall also have the right to relinquish possession of all or any portion of such
furniture, fixtures, equipment and other property to any person ("Claimant")
claiming to be entitled to possession thereof who presents to Landlord a copy of
any instrument represented to Landlord by Claimant to have been executed by
Tenant (or any predecessor of Tenant) granting Claimant the right under various
circumstances to take possession of such furniture, fixtures, equipment or other
property, without the necessity on the part of Landlord to inquire into the
authenticity of said instrument's copy of Tenant's or Tenant's predecessor's
signature thereon and without the necessity of Landlord making any nature of
investigation or inquiry as to the validity of the factual or legal basis upon
which Claimant purports to act; and Tenant agrees to indemnify and hold Landlord
harmless from all cost, expense, loss, damage and liability incident to
Landlord's relinquishment of possession of all or any portion of such furniture,
fixtures, equipment or other property to Claimant. The rights of Landlord herein
stated shall be in addition to any and all other rights which Landlord has or
may hereafter have at law or in equity; and Tenant stipulates and agrees that
the rights herein granted Landlord are commercially reasonable.
XXIV Landlord's Lien N/A
XXV. Consequential Damages In no event will Landlord be liable for any
special, indirect or consequential damages, including without limitation, loss
of revenue or profit, loss of production, loss of market or loss of sales by
Tenant due to any interruption in or reduction of any service or utility
provided to Tenant by Landlord, regardless of whether such service or utility
was either expressly provided for or implied under this Lease.
XXVI. Severability In case any one or more of the provisions contained in
this Lease shall for any reason be held to be invalid, illegal, or unenforceable
in any respect, such invalidity, illegality, or unenforceability shall not
affect any other provision thereof and this Lease shall be construed as if such
invalid, illegal, or unenforceable provision had never been contained herein.
XXVII. Commission Landlord agrees to pay Colliers Xxxxxx Xxxxxx, Inc. as
defined under a separate agreement as compensation for negotiating this Lease.
XXVIII. Rules and Regulations N/A
XXIX. Cranes The existing overhead cranes constitute a portion of the
Premises and Tenant shall have the exclusive use of the cranes. Tenant
acknowledges that the cranes have been checked by Tenant, are satisfactory to
Tenant and are adequate for the lifts required for Tenant's operations.~Tenant
agrees to make any repairs necessary to keep the cranes operational and in a
safe condition during the term of the Lease at Tenant's sole cost and expense to
return the cranes to the Landlord in good working order. LANDLORD DOES NOT
WARRANT THE CONDITION OR USE OF THE CRANES FOR
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TENANT'S PURPOSES SINCE LANDLORD HAS NO CONTROL OVER SUCH UTILIZATION AND
LANDLORD EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO
THE CRANES. Tenant agrees to hold Landlord harmless from and against any claims,
demands or causes or action which may be asserted by any agent, employee,
contractor or guest of
Tenant in the event of financial loss or personal injuries resulting from or
attributable to the use of the crane.
XXX. Special Conditions
1. Premises are provided in their as-is, where-is condition.
2. Provided that Tenant is not in default under this Lease, Tenant shall have
the right to extend the term of this lease for five (5) consecutive
one-year periods. Tenant shall give Landlord written notice of its intent
to exercise any such one-year extension, such notice to be received by
Landlord at least ninety (90) days prior to the expiration of the initial
term of this Lease or any extension term. If Tenant fails to timely
exercise any such extension, this Lease shall expire in accordance with the
terms hereof at the end of the initial term or the extension term then in
effect.
Anytime during the (5) 1-year option periods, the Landlord may terminate
the lease upon six (6) months written notice. However, it is agreed that
the Landlord shall not terminate the option period of the lease simply for
an increase in the rental rate over the rates defined in Section III.
Furthermore, provided that Tenant is not then in default under this Lease,
Tenant shall have a one-time option to terminate this Lease after the first
thirty-six (36) months of this Lease and at least ninety (90) days prior to
the proposed termination date, and must pay to Landlord, as a condition to
such termination, the sum of Fifty Thousand Dollars ($50,000.00) prior to
such termination date, which sum shall be in addition to monthly rental and
other sums due under this Lease until the termination date.
3. Tenant may use the gravel road on the east edge of the property on a
non-exclusive basis where Tenant will be solely responsible for the
maintenance of the road and securing the gate. It is expressly understood
and agreed by Tenant that Landlord has no right to use that portion of the
gravel road not located on Landlord's property, and that Tenant shall be
responsible for obtaining any consents or agreements necessary for Tenant
to use any extension of the gravel road not located on Landlord's property.
4. Tenant acknowledges that pursuant to a Lease Agreement (the "Xxxxx Lease")
dated August 14, 1997, between Landlord and Xxxxx Cooperage of Houston,
Inc. ("Xxxxx"), Xxxxx has a non-exclusive easement to use a portion of the
Premises which is the subject of this Lease. The portion of the Premises
encumbered by such non-exclusive easement is shown on Exhibit A. Landlord
agrees that it shall use its reasonable efforts to have Xxxxx release
this-non-exclusive easement right-, provided, however, that the premises
shall be subject to such non-exclusive easement and the right of Xxxxx to
use same until a release is obtained from Xxxxx.
5. Tenant, at Tenant's sole cost and expense, may erect fencing to partition
the Premises from the premises currently leased to Xxxxx (the "Xxxxx
Premises"). The Xxxxx Premises are shown on Exhibit B attached hereto and
made a part hereof. It is understood and agreed, however, that until Xxxxx
releases any rights that it may have to use "Gate 3" as an entrance to the
Xxxxx Premises, Tenant must provide Xxxxx with access to the Xxxxx Premises
through any fence erected by Tenant. Landlord agrees to use reasonable
efforts to have Xxxxx release its rights to use Gate 3.
6. Upon the expiration or termination of the Xxxxx Lease, Tenant must lease
that portion of the Xxxxx Premises consisting of 31,344 square feet of the
warehouse and 1,000 square feet of office space at a rental rate of $8,760
per month. Such space shall become part of the Premises and shall be
governed by the terms and provisions of this Lease. Landlord and Tenant
agree that they shall enter into an Amendment to this Lease evidencing that
such square footage is part of the Premises and setting forth the new
monthly rental payments to be made by Tenant within ten (10) days after the
expiration or termination of the Xxxxx Lease.
7. It is understood and agreed by Tenant that the use of "Gate 3" to the
Premises, being the main access gate, is non-exclusive and that Landlord
and its other tenants (whether current
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or future tenants), and the servants, agents, employees, contractors, and
invitees of Landlord and such other tenants, shall have the right to use "Gate
3" on a non-exclusive basis with Tenant.
Tenant acknowledges and agrees that a portion of the Premises consists of
property currently leased by Landlord to Shipside Crating Company pursuant to a
Lease Agreement dated June 19, 1997 (the "Shipside Lease"). Landlord agrees that
it shall terminate the Shipside Lease and that Tenant will be delivered
possession of the premises covered by the Shipside Lease within sixty (60) days
after the commencement of the term of this Lease. Until Tenant is delivered
possession of the premises covered by the Shipside Lease, the full monthly
rental payment due Landlord under the terms of this Lease shall be reduced by
the amount of $2,900.00 each month (to be prorated for any partial month). Upon
delivery to
Tenant of possession of the premises covered by the Shipside Lease, the
full monthly rental payments set forth in Section III of this Lease shall
be applicable.
9. Landlord hereby reserves unto itself, its successors and assigns, the right
to install pipelines, utility apparatus, and other equipment within a ten
foot (10') wide strip of land running adjacent to the fence located along
the westerly property line of the Premises, together with the right to
enter upon the Premises, to the extent necessary, for the purpose of
repairing, replacing, removing, and maintaining such pipelines, utility
apparatus, and other equipment.
10. Tenant shall be responsible for the following utilities:
A. Electricity - Currently, electrical service is in the name of
Landlord, with Landlord collecting from Xxxxx the amount of the
electric xxxx. Tenant shall have the electrical service for the
Premises put in its name. Tenant acknowledges that the Premises and
the premises occupied by Xxxxx are not separately metered. Landlord
shall obtain an agreement from Xxxxx wherein Xxxxx shall pay its share
of the electric xxxx, such share to be an amount equal to the average
amount paid by Xxxxx over the five months preceding receipt of the
current electric xxxx.
B. Water and sanitary sewer - Water for domestic use within the
Premises is supplied by waterwell and will be provided at no charge.
This water supply is nonpotable., Tenant may', if it so desires and at
Tenant's sole cost and expense, install lines that will connect with
the potable water lines of Landlord. Upon any such installation and
connection, Tenant shall pay a monthly fee for the use of Landlord's
potable water facilities in the amount of $2.50 for each 1,000 gallons
(or portion thereof) of metered water used by Tenant during such
month. Tenant shall be obligated to construct and install at ,Tenant's
sole cost and expense lines that will contleci with Landlord's
sanitary sewer facilities. The location of such lines shall be
determined by the mutual agreement of Landlord and Tenant. Upon
connection with Landlord's sanitary sewer facilities, Tenant shall pay
a monthly fee for the use of the Landlord's sewage facilities in the
amount of $.50 for each 1,000 gallons (or portion thereon of metered
water used by Tenant during such month.
C. Natural gas - Currently, natural gas service is in the name of
Landlord, with Landlord collecting from Xxxxx the amount of the
natural gas xxxx. Tenant shall have the natural gas service for the
Premises put in its own name. Tenant acknowledges that the Premises
and the premises occupied by Xxxxx are not separately metered.
Landlord shall obtain an agreement with Xxxxx whereby Xxxxx agrees to
pay an amount equal to one-tenth of the monthly xxxx.
D. Telephone - To be obtained by Tenant.
11. Tenant has the right (but not the obligation) to incur expenses up to
$15,000 to install new water and sewer lines (according to Landlord
specifications), repair the existing overhead cranes and repair-overhead
doors where such repairs shall be completed within 90 days of the
commencement of this lease. If such expenses exceed $15,000, the
Landlord-will agree to split the additional expenses 50/50 where the
Landlord's share of the expenses shall not exceed $2,500. Landlord agrees
to make payment to Tenant for Landlord's share of such costs within thirty
(30) days after receipt of invoices evidencing the costs incurred by
Tenant.
Notwithstanding the above, the Tenants obligations to make repairs shall be
as defined in Section VIII of this lease.
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XXXI. Entire Agreement. This Agreement (including the Special Conditions,
if any, provided in Article XXX next above) constitutes the entire agreement of
Landlord and Tenant with respect to the matters covered hereby and those
provisions of all prior agreements between the parties or entities owned or
controlled in whole or in part by any party hereto are, to the extent such prior
agreements relate to matters covered hereby, merged into this Agreement, and the
terms of this Agreement shall in all respects be controlling over such portions
of any such prior agreements.
In the event that this document is not executed and returned to Landlord within
fife business days from the date of delivery to the Tenant this contract offer
shall become null and void.
IN WITNESS WHEREOF, the parties have hereunto set their hands.
STOLTHAVEN HOUSTON INC. TOTAL BUILDING SYSTEMS, INC.
BY: /s/ Xxxxxxx X. Rurchi By: /s/ Xxxxxxx X. Xxxxx
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ITS: Terminal Manager ITS: General Counsel
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-LANDLORD- -TENANT-
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Exhibit A
[diagram of building]
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