Exhibit 10.58
Xxxxxxxx Xxxx Company
COMMERCIAL LEASE AGREEMENT
C-S-K LOUISVILLE,
A TEXAS LIMITED PARTNERSHIP
(LESSOR)
AND
ALLIED SASH AND DOOR, INC.,
A KENTUCKY OPERATION
(LESSEE)
STANDARD INDUSTRIAL LEASE AGREEMENT Approximately 86,400 square feet
XXXXXXXX XXXX COMPANY LIC Building #6
COMMERCIAL 87 0000 Xxxxxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between C-S-K
Louisville, a Texas limited partnership hereinafter referred to as "Lessor", and
Allied Sash and Door, Inc., a Kentucky corporation hereinafter referred to as
"Lessee";
W I T N E S S E T H:
1. PREMISES AND TERM. In consideration of the mutual obligations of Lessor
and Lessee set forth herein, Lessor leases to Lessee, and Lessee hereby takes
from Lessor the Premises situated within the County of Jefferson, State of
Kentucky, more particularly described on EXHIBIT "A" attached hereto and
incorporated herein by reference (the "Premises"), together with all rights,
privileges, easements, appurtenances, and amenities belonging to or in any way
pertaining to the Premises, to have and to hold, subject to the terms, covenants
and conditions in this Lease. The term of this Lease shall commence on the
commencement date hereinafter set forth and shall end on the last day of the
month that is One Hundred Twenty (120) months after the commencement date.
A. EXISTING BUILDING. If no improvements are to be constructed to the
Premises, the commencement date shall be 1 April 1990. Lessee acknowledges that
(i) it has inspected and accepts the Premises, (ii) the buildings and
improvements comprising the same are suitable for the purpose for which the
Premises are leased, (iii) the Premises are in good and satisfactory condition,
and (iv) no representations as to the repair of the Premises, nor promises to
alter, remodel or improve the Premises have been made by Lessor (unless
otherwise expressly set forth in this Lease).
B. BUILDING TO BE CONSTRUCTED OR SHELL SPACE. If the Premises or part
thereof are to be constructed, the commencement date shall be deemed to be the
date upon which the Premises and other improvements to be erected in accordance
with the plans and specifications described on EXHIBIT "B" attached hereto and
incorporated herein by reference (the "Plans") have been substantially
completed. As used herein, the term "substantially completed" shall mean that in
the opinion of the architect or space planner that prepared the Plans, such
improvements have been completed in accordance with the Plans and the Premises
are in good and satisfactory condition, subject only to completion of minor
punch list items. As soon as such improvements have been substantially
completed, Lessor shall notify Lessee in writing that the commencement date has
occurred. Within ten (10) days thereafter, Lessee shall submit to Lessor in
writing a punch list of items needing completing or correction. Lessor shall use
its best efforts to complete such items within thirty (30) days after the
receipt of such notice. In the event Lessee, its employees, agents or
contractors cause construction of such improvements to be delayed, the
commencement date shall be deemed to be the date that, in the opinion of the
architect or space planner that prepared the Plans, substantial completion would
have occurred if such delays had not taken place.
2. BASE RENT, SECURITY DEPOSIT AND ESCROW PAYMENTS.
A. Lessee agrees to pay to Lessor rent for the Premises, in advance,
without demand, deduction or set off, at the rate of [See ADDENDUM 1.] Dollars
($__________) per month during the term hereof. One such monthly installment,
plus the other monthly charges set forth in Paragraph 2C below shall be due and
payable on the date hereof and a like monthly installment shall be due and
payable on or before the first day of each calendar month succeeding the
commencement date, except that all payments due hereunder for any fractional
calendar month shall be prorated.
B. Lessee agrees to pay its proportionate share (as defined in Paragraph
22B below) of (i) Taxes (hereinafter defined) payable by Lessor pursuant to
paragraph 3A below, (ii) the cost of utilities payable pursuant to paragraph 8
below, (iii) the cost of maintaining insurance pursuant to paragraph 9 below,
(iv) the cost of any common area charges payable by Lessee in accordance with
paragraph 4 below and (v) the cost of security provided to the Premises as set
forth in paragraph 23 below. During each month of the term of this Lease, on the
same day that rent is due hereunder, Lessee shall escrow with Lessor an amount
equal to 1/12 of the estimated annual cost of its proportionate share of such
items. Lessee authorizes Lessor to use the funds deposited with Lessor under
this Xxxxxxxxx 0X to pay such costs. The initial monthly escrow payments are
based upon the estimated amounts for the year in question, and shall be
increased or decreased annually to reflect the projected actual cost of all such
items. If the Lessee's total escrow payments are less than Lessee's actual
proportionate share of all such items, Lessee shall pay the difference to Lessor
within ten (10) days after demand. If the total escrow payments of Lessee are
more than Lessee's actual proportionate share of all such items, Lessor shall
retain such excess and credit it against Lessee's next annual escrow payments.
The amount of the monthly rental and the initial monthly escrow payments are as
follows:
(1) Base Rent as set forth in Paragraph 2A... See ADDENDUM I.
(2) Tax Escrow Payment....................... $288.00
(3) Insurance Escrow Payment................. $144.00
(4) Utility Charge........................... -0-
(5) Common Area Charge....................... $576.00
(6) Security Services........................ -0-
(7) Other (drainage) ........................ $144.00
Monthly Payment Total............... Total of 1 through 7
3. TAXES.
A. Lessor agrees to pay all taxes, assessments and governmental charges
of any kind and nature (collectively referred to herein as "Taxes") that accrue
against the Premises, and/or the land and/or improvements of which the Premises
are a part. If at any time during the term of this Lease, there shall be levied,
assessed or imposed on Lessor a capital levy or other tax directly on the rents
received therefrom and/or a franchise tax, assessment, levy or charge measured
by or based, in whole or in part, upon such rents from the Premises and/or the
land and improvements of which the Premises are a part, then all such taxes,
assessments, levies or charges, or the part thereof so measured or based, shall
be deemed to be included within the term "Taxes" for the purposes hereof. The
Lessor shall have the right to employ a tax consulting firm to attempt to assure
a fair tax burden on the building and grounds within the applicable taxing
jurisdiction. Lessee agrees to pay its proportionate share of the cost of such
consultant.
B. Lessee shall be liable for all taxes levied or assessed against any
personal property or fixtures placed in the Premises. If any such taxes are
levied or assessed against Lessor or Lessor's property and (i) Lessor pays the
same or (ii) the assessed value of Lessor's property is increased by inclusion
of such personal property and fixtures and Lessor pays the increased taxes,
then, upon demand, Lessee shall pay to Lessor such taxes.
4. LESSOR'S REPAIRS.
A. Lessor, at its own cost and expense, shall maintain the roof,
foundation and the structural soundness of the exterior walls of the building of
which the Premises are a part in good repair, reasonable wear and tear excluded.
The term "walls" as used herein shall not include windows, glass or plate glass,
doors, special store fronts or office entries. Lessee shall immediately give
Lessor written notice of defect or need for repairs, after which Lessor shall
have reasonable opportunity to repair same or cure such defect.
X. Xxxxxx reserves the right to perform the paving, common area and
landscape replacement and maintenance, exterior paining, common sewage line
plumbing and any other items that are otherwise Lessee's obligations under
Paragraph 5A, in which event Lessee shall be liable for its proportionate share
of the cost and expense of such repair, replacement, maintenance and other such
items.
C. Lessee agrees to pay its proportionate share of the cost of (i)
maintenance and/or landscaping of any property that is a part of the building
and/or project of which the Premises are a part, (ii) maintenance and/or
landscaping of any property that is maintained or landscaped by any property
owner or community owner association that is named in the restrictive covenants
or deed restrictions to which the Premises are subject, and (iii) operating and
maintaining any property, facilities or services provided for the common use of
Lessee and other lessees of any project or building of which the Premises are a
part.
5. LESSEE'S REPAIRS.
A. Lessee, at its own cost and expense, shall (i) maintain all parts of
the premises, landscape and ground surrounding the Premises (except those for
which Lessor is expressly responsible hereunder) in good condition, (ii)
promptly make all necessary repairs and replacements, (iii) keep the parking
areas, driveways and alleys surrounding the Premises in a clean and sanitary
condition, and (iv) maintain any spur track servicing the Premises. Lessee
agrees to sign a joint maintenance agreement with the railroad company servicing
the Premises if requested by the railroad company. Lessor shall have the right
to coordinate all repairs and maintenance of any rail tracks serving or intended
to serve the Premises and, if Lessee uses such rail tracks, Lessee shall
reimburse Lessor from time to time, upon demand, for its proportionate share of
the costs of such repairs and maintenance and any other sums specified in any
agreement respecting such tracks to which Lessor is a party.
B. Lessee and its employees, customers and licensees shall have the
exclusive rights to use any parking areas that have been designated for such use
by Lessor in writing, subject to (i) all rules and regulations promulgated by
Lessor and (ii) rights of ingress and egress of other lessees. Lessor shall not
be responsible for enforcing Lessee's parking rights against any third parties.
Lessee agrees not to use more spaces than so provided.
C. Lessee, at its own cost and expense, shall enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
approved by Lessor for servicing all hot water, heating and air conditioning
systems and equipment within the Premises. The service contract must include all
services suggested by the equipment manufacturer in its operations/maintenance
manual and must become effective within thirty (30) days of the date Lessee
takes possession of the Premises.
6. ALTERATIONS. Lessee shall not make any alterations, additions or
improvements to the Premises without the prior written consent of Lessor.
Lessee, at its own cost and expense, may erect such shelves, bins, machinery and
trade fixtures as it desires provided that (a) such items do not alter the basic
character of the Premises or the building and/or improvements of which the
Premises are a part; (b) such items do not overload or damage the same; (c) such
items may be removed without injury to the Premises; and (d) the construction,
erection or installation thereof complies with all applicable governmental laws,
ordinances, regulations and with Lessor's specifications and requirements. All
alterations, additions, improvements and partitions erected by Lessee shall be
and remain the property of Lessee during the term of this Lease. All shelves,
bins, machinery and trade fixtures installed by Lessee shall be removed on or
before the earlier to occur of the date of termination of this Lease or vacating
the Premises, at which time Lessee shall restore the Premises to their original
condition. All alterations, installations, removals and restoration shall be
performed in a good and workmanlike manner so as not to damage or alter the
primary structure or structural qualities of the buildings and other
improvements situated in the Premises or of which the Premises are a part.
7. SIGNS. Any signage Lessee desires for the Premises shall be subject to
Lessor's written approval and shall be submitted to Lessor prior to the
commencement date of this Lease. Lessee shall repair, paint, and/or replace the
building facia surface to which its signs are attached upon vacation of the
Premises, or the removal or alteration of its signage. Lessee shall not (i) make
any changes to the exterior of the Premises, (ii) install any exterior lights,
decorations, balloons, flags, pennants, banners or painting, or (iii) erect or
install any signs, windows or door lettering, placards, decorations or
advertising media of any type which can be viewed from the exterior of the
Premises, without Lessor's prior written consent. All signs, decorations,
advertising media, blinds, draperies and other window treatment or bars or other
security installations visible from outside the Premises shall conform in all
respects to the criteria established by Lessor.
8. UTILITIES. Lessor agrees to provide normal water and electricity service
to the Premises. Lessee shall pay for all water, gas, heat, light, power,
telephone, sewer, sprinkler charges and other utilities and services used on or
at the Premises, together with any taxes, penalties, surcharges or the like
pertaining to the Lessee's use of the Premises, and any maintenance charges for
utilities. Lessor shall have the right to cause any of said services to be
separately metered to Lessee, at Lessee's expense. Lessee shall pay its pro rata
share, as reasonably determined by Lessor, of all charges for jointly metered
utilities. Lessor shall not be liable for any interruption or failure of utility
service on the Premises.
0.XXXXXXXXX.
A. Lessor shall maintain insurance covering the buildings situated on
the Premises or of which the Premises are a part in an amount not less than
eighty percent (80%) of the "replacement cost" thereof insuring against the
_______ of Fire, Lightning, Extended Coverage, Vandalism and Malicious Mischief.
B. Lessee, at its own expense, shall maintain during the term of this
Lease a policy or policies of worker's compensation and comprehensive general
liability insurance, including personal injury and property damage, with
contractual liability endorsement, in the amount of Five Hundred Thousand
Dollars ($500,000.00) for property damage and One Million Dollars
($1,000,000.00) per occurrence for personal injuries or deaths of persons
occurring in or about the Premises. Lessee, at its own expense, also shall
maintain during the term of this Lease, fire and extended coverage insurance
covering the replacement cost of (i) all alterations, additions, partitions and
improvements installed or placed on the Premises by Lessee or by Lessor on
behalf of Lessee and (ii) all of Lessee's personal property contained within the
Premises. Said policies shall (i) name Lessor as an additional insured and
insure Lessor's contingent liability under this Lease (except for the worker's
compensation policy, which instead shall include waiver of subrogation
endorsement in favor of Lessor), (ii) be issued by an insurance company which is
acceptable to Lessor, and (iii) provide that said insurance shall not be
cancelled unless thirty (30) days prior written notice shall have been given to
Lessor. Said policy or policies or certificates thereof shall be delivered to
Lessor by Lessee upon commencement of the term of the Lease and upon each
renewal of said insurance.
C. Lessee will not permit the Premises to be used for any purpose or in
any manner that would (i) void the insurance thereon, (ii) increase the
insurance risk, or (iii) cause the disallowance of any sprinkler credits,
including, without limitation, use of the Premises for the receipt, storage or
handling of any product, material or merchandise that is explosive or highly
inflammable. If any increase in the cost of any insurance on the Premises or the
building of which the Premises are a part is caused by Lessee's use of the
Premises, or because Lessee vacates the Premises, then Lessee shall pay the
amount of such increase to Lessor.
10. FIRE AND CASUALTY DAMAGE.
A. If the Premises or the building of which the Premises are a part
should be damaged or destroyed by fire or other peril, Lessee immediately shall
give written notice to Lessor. If the buildings situated upon the Premises or of
which the Premises are a part should be totally destroyed by any peril covered
by the insurance to be provided by Lessor under Paragraph 9A above, or if they
should be so damaged thereby that, in Lessor's estimation, rebuilding or repairs
cannot be completed within one hundred eighty (180) days after the date of such
damage, this Lease shall terminate and the rent shall be abated during the
unexpired portion of this Lease, effective upon the date of the occurrence of
such damage.
B. If the Buildings situated upon the Premises or of which the Premises
are a part, should be damaged by any peril covered by the insurance to be
provided by Lessor under Paragraph 9A above, and in Lessor's estimation,
rebuilding or repairs can be substantially completed within one hundred eighty
(180) days after the date of such damage, this Lease shall not terminate, and
Lessor shall restore the Premises to substantially its previous condition,
except that Lessor shall not be required to rebuild, repair or replace any part
of the partitions, fixtures, additions and other improvements that may have been
constructed, erected or installed in, or about the Premises or for the benefit
of, or by or for Lessee. If such repairs and rebuilding have not been
substantially completed within one hundred eighty (180) days after the date of
such damage, Lessee, as Lessee's exclusive remedy, may terminate this Lease by
delivering written notice of termination to Lessor in which event the rights and
obligations hereunder shall cease and terminate.
C. Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises requires that the insurance proceeds be applied to such indebtedness,
then Lessor shall have the right to terminate this Lease by delivering written
notice of termination to Lessee within fifteen (15) days after such requirement
is made known by any such holder, whereupon all rights and obligations hereunder
shall cease and terminate.
D. Anything in this Lease to the contrary notwithstanding, Lessor and
Lessee hereby waive and release each other of and from any and all rights of
recovery, claim, action or cause of action, against each other, their agents,
officers and employees, for any loss or damage that may occur to the Premises,
improvements to the building of which the Premises are a part, or personal
property (building contents) within the building and/or Premises, for any reason
regardless of cause or origin. Each party to this Lease agrees immediately after
execution of this Lease to give each insurance company, which has issued to it
policies of fire and extended coverage insurance, written notice of the terms of
the mutual waivers contained in this subparagraph, and if necessary to have the
insurance policies properly endorsed.
11. LIABILITY AND INDEMNIFICATION. Except for any claims, rights of
recovery and causes of action that Lessee has released, Lessor shall hold Lessee
harmless and defend Lessee against any and all claims or liability for any
injury or damage to any person in, on or about the Premises or any part thereof
and/or the building of which the Premises are a part, when such injury or damage
shall be caused by the act, neglect, fault of, or omission of any duty with
respect to the same by Lessor, its agents, servants and employees. Except for
any claims, rights of recovery and causes of action that Lessor has released,
Lessee shall hold Lessor harmless from and defend Lessor against any and all
claims or liability for any injury or damage (i) to any person or property
whatsoever occurring in, on or about the Premises or any part thereof and/or of
the building of which the Premises are a part, including without limitation
elevators, stairways, passageways or hallways, the use of which Lessee may have
in accordance with this Lease, when such injury or damage shall be caused by the
act, neglect, fault of, or omission of any duty with respect to the same by
Lessee, its agents, servants, employees, or invitees, (ii) arising from the
conduct of management of any work done by the Lessee in or about the Premises,
(iii) arising from transactions of the Lessee, and (iv) all costs, counsel fees,
expenses and liabilities incurred in connection with any such claim or action or
proceeding brought thereon. The provisions of this Paragraph 11 shall survive
the expiration or termination of this Lease with respect to any claims or
liability occurring prior to such expiration or termination.
12. USE. The Premises shall be used only for the purpose of receiving,
storing, shipping and selling (other than retail) products, materials and
merchandise made and/or distributed by Lessee and for such other lawful purposes
as may be incidental thereto. Outside storage, including without limitation,
storage of trucks and other vehicles, is prohibited without Lessor's prior
written consent. Lessee shall comply with all governmental laws, ordinances and
regulations applicable to the use of the Premises, and promptly shall comply
with all governmental orders and directives for the correction, prevention and
abatement of nuisances in or upon, or connected with, the Premises, all at
Lessee's sole expense. Lessee shall not permit any objectionable or unpleasant
odors, smoke, dust, gas, noise or vibrations to emanate from the Premises, nor
take any other action that would constitute a nuisance or would disturb,
unreasonably interfere with, or endanger Lessor or any other lessees of the
building in which the Premises are a part.
13. INSPECTION. Lessor and Lessor's agents and representatives shall have
the right to enter the Premises any reasonable time during business hours, to
inspect the Premises and to make such repairs as may be required or permitted
pursuant to this Lease. During the period that is six (6) months prior to the
end of the Lease term, upon telephonic notice to Lessee, Lessor and Lessor's
representatives may enter the Premises during business hours for the purpose of
showing the Premises. In addition, Lessor shall have the right to erect a
suitable sign on the Premises stating the Premises are available. Lessee shall
notify Lessor in writing at least thirty (30) days prior to vacating the
Premises and shall arrange to meet with Lessor for a joint inspection of the
Premises prior to vacating. If Lessee fails to give such notice or to arrange
for such inspection, then Lessor's inspection of the Premises shall be deemed
correct for the purpose of determining Lessee's responsibility for repairs and
restoration of the Premises.
14. ASSIGNMENT AND SUBLETTING.
A. Lessee shall not have the right to assign, sublet, transfer or
encumber this Lease, or any interest therein, without the prior written consent
of Lessor. Any attempted assignment, subletting, transfer or encumbrance by
Lessee in violation of the terms and covenants of this Paragraph shall be void.
Notwithstanding the foregoing, Lessee shall have the right to assign this Lease
to any affiliate (as such term is defined in the Securities Act of 1933)
provided that such assignment is in form satisfactory to Lessor. Any assignee,
sublessee or transferee of Lessee's interest in this Lease (all such assignees,
sublessees and transferees being hereinafter referred to as "Transferees"), by
assuming Lessee's obligations hereunder, shall assume liability to Lessor for
all amounts paid to persons other than Lessor by such Transferees in
contravention of this Paragraph. No assignment, subletting or other transfer,
whether consented to by Lessor or not or permitted hereunder shall relieve
Lessee of its liability hereunder. If an event of default occurs while the
Premises or any part thereof are assigned or sublet, then Lessor, in addition to
any other remedies herein provided, or provided by law, may collect directly
from such Transferee all rents payable to the Lessee and apply such rent against
any sums due Lessor hereunder. No such collection shall be construed to
constitute a novation or a release of Lessee from the further performance of
Lessee's obligations hereunder.
B. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. ss. 101 et. seq. (the "Bankruptcy
Code"), any and all monies or other consideration payable or otherwise to be
delivered in connection with such assignment shall be paid or delivered to
Lessor, shall be and remain the exclusive property of Lessor and shall not
constitute property of Lessee or the estate of Lessee within the meaning of the
Bankruptcy Code. Any and all monies or other considerations constituting
Lessor's property under the preceding sentence not paid or delivered to Lessor
shall be held in trust for the benefit of Lessor and be promptly paid or
delivered to Lessor.
C. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed, without further act or deed,
to have assumed all of the obligations arising under this Lease on and after the
date of such assignment. Any such assignee shall upon demand execute and deliver
to Lessor an instrument confirming such assumption.
15. CONDEMNATION. If more than eighty percent (80%) of the Premises are
taken for any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof and the taking prevents or materially interferes with the use of the
Premises for the purpose for which they were leased to Lessee, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective on the date of such taking. If less than eighty percent (80%)
of the Premises are taken for any public or quasi-public use under any
governmental law, ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof, this Lease shall not terminate, but the rent
payable hereunder during the unexpired portion of this Lease shall be reduced to
such extent as may be fair and reasonable under all of the circumstances. All
compensation awarded in connection with or as a result of any of the foregoing
proceedings shall be the property of Lessor and Lessee hereby assigns any
interest in any such award to Lessor; provided, however, Lessor shall have no
interest in any award made to Lessee for lose of business or goodwill or for the
taking of Lessee's fixtures and improvements, if a separate award for such items
is made to Lessee.
16. HOLDING OVER. At the termination of this Lease by its expiration or
otherwise, Lessee immediately shall deliver possession to Lessor with all
repairs and maintenance required herein to be performed by Lessee completed. If,
for any reason, Lessee retains possession of the Premises after the expiration
or termination of this Lease, unless the parties hereto otherwise agree in
writing, such possession shall be subject to termination by either Lessor or
Lessee at any time upon not less than ten (10) days advance written notice, and
all of the other terms and provisions of this Lease shall be applicable during
such period, except that Lessee shall pay Lessor from time to time, upon demand,
as rental for the period of such possession, an amount equal to double the rent
in effect on the termination date, computed on a daily basis for each day of
such period. No holding over by Lessee, whether with or without consent of
Lessor, shall operate to extend this Lease except as otherwise expressly
provided. The preceding provisions of this Paragraph 16 shall not be construed
as consent for Lessee to retain possession of the Premises in the absence of
written consent thereto by Lessor.
17. QUIET ENJOYMENT. Lessor covenants that on or before the commencement
date it will have good title to the Premises, free and clear of all liens and
encumbrances, excepting only the lien for current taxes not yet due, such
mortgage or mortgages as are permitted by the terms of this Lease, zoning
ordinances and other building and fire ordinances and governmental regulations
relating to the use of such property, and easements, restrictions and other
conditions of record. If this Lease is a sublease, then Lessee agrees to take
the Premises subject to the provisions of the prior Leases. Lessor represents
that it has the authority to enter into this Lease and that so long as Lessee
pays all amounts due hereunder and performs all other covenants and agreements
herein set forth, Lessee shall peaceably and quietly have, hold and enjoy the
Premises for the term hereof without hindrance or molestation from Lessor,
subject to the terms and provisions of this Lease.
18. EVENTS OF DEFAULT. The following events (herein individually referred
to as "event of default") each shall be deemed to be events of nonperformance by
Lessee under this Lease:
A. Lessee shall fail to pay any installment of the rent herein reserved
when due, or any other payment or reimbursement to Lessor required herein when
due, and such failure shall continue for a period of five (5) days from the date
such payment was due.
B. The Lessee or any guarantor of the Lessee's obligations hereunder
shall (i) become insolvent; (ii) admit in writing its inability to pay its
debts; (iii) make a general assignment for the benefit of creditors; (iv)
commence any case, proceeding or other action seeking to have an order for
relief entered on its behalf as a debtor or to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or of any substantial part of its property; or (v) take any action to
authorize or in contemplation of any of the actions set forth above in this
Paragraph.
C. Any case, proceeding or other action against the Lessee or any
guarantor of the Lessee's obligations hereunder shall be commenced seeking (i)
to have an order for relief entered against it as debtor or to adjudicate it a
bankrupt or insolvent; (ii) reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts under any law
relating to bankruptcy, insolvency, reorganization or relief debtors; (iii)
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property, and such case, proceeding or
other action (a) results in the entry of an order for relief against it which it
is not fully stayed within seven (7) business days after the entry thereof or
(b) shall remain undismissed for a period of forty-five (45) days.
D. Lessee shall (i) vacate all or a substantial portion of the Premises
or (ii) fail to continuously operate its business at the Premises for the
permitted use set forth herein, whether or not Lessee is in default of the
rental payments due under this Lease.
X. Xxxxxx shall fail to discharge any lien placed upon the Premises in
violation of Paragraph 21 hereof within twenty (20) days after any such lien or
encumbrance is filed against the Premises.
X. Xxxxxx shall fail to comply with any term, provision or covenant of
this Lease (other than those listed in this Paragraph 118), and shall not cure
such failure within twenty (20) days after written notice thereof to Lessee.
19. REMEDIES.
A. Upon each occurrence of an event of default, Lessor shall have the
option to pursue any one or more of the following remedies without any notice or
demand:
(1) Terminate this Lease; and/or
(2) Enter upon and take possession of the Premises without terminating
this Lease; and/or
(3) Alter all locks and other security devices at the Premises with or
without terminating this Lease, and pursue, at Lessor's option, one
or more remedies pursuant to this Lease, Lessee hereby specifically
waiving any state or federal law to the contrary;
and in any such event Lessee immediately shall surrender the Premises to Lessor,
and if Lessee fails so to do, Lessor, without waiving any other remedy it may
have, may enter upon and take possession of the Premises and expel or remove
Lessee and any other person who may be occupying such Premises or any part
thereof, without being liable for prosecution of any claim of damages therefor.
B. If Lessor terminates this Lease, at Lessor's option, Lessee shall be
liable for and shall pay to Lessor, the sum of all rental and other payments
owed to Lessor hereunder accrued to the date of such termination, plus, as
liquidated damages, an amount equal to (1) the present value of the total rental
and other payments owed hereunder for the remaining portion of the Lease term,
calculated as if such term expired on the date set forth in Paragraph 1, less
(2) the then present fair market rental value of the Premises for such period,
which because of the difficulty of ascertaining such value Lessor and Lessee
stipulate and agree, shall in no event be deemed to exceed seventy-five percent
(75%) of the rental amount set forth in Paragraph 2 above.
C. If Lessor repossesses the Premises without terminating the Lease,
Lessee, at Lessor's option, shall be liable for and shall pay Lessor on demand
all rental and other payments owed to Lessor hereunder, accrued to the date of
such repossession, plus all amounts required to be paid by Lessee to Lessor
until the date of expiration of the term as stated in Paragraph 1, diminished by
all amounts received by Lessor through reletting the Premises during such
remaining term (but only to the extent of the rent herein reserved). Actions to
collect amounts due by Lessee to Lessor under this subparagraph may be brought
from time to time, on one or more occasions, without the necessity of Lessor's
waiting until expiration of the Lease term.
D. Upon an event of default, in addition to any sum provided to be paid
herein, Lessee also shall be liable for and shall pay to Lessor (i) brokers'
fees incurred by Lessor in connection with reletting the whole or any part of
the Premises; (ii) the costs of removing and storing Lessee's or other
occupant's property; (iii) the costs of repairing, altering, remodeling or
otherwise putting the Premises into condition acceptable to a new Lessee or
Lessees; and (iv) all reasonable expenses incurred by Lessor in enforcing or
defending Lessor's rights and/or remedies. If either party hereto institute any
action or proceeding to enforce any provision hereof by reason of any alleged
breach of any provision of this Lease, the prevailing party shall be entitled to
receive from the losing party all reasonable attorneys' fees and all court costs
in connection with such proceeding.
E. In the event Lessee fails to make any payment due hereunder when
payment is due, to help defray the additional cost to Lessor for processing such
late payments, Lessee shall pay to Lessor 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 additional event
of default hereunder. The provision for such late charge shall be in addition to
all of Lessor's other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Lessor's remedies in any manner.
F. Exercise by Lessor of any one or more remedies hereunder granted or
otherwise available shall not be deemed to be an acceptance of surrender of the
Premises by Lessor, whether by agreement or by operation of Lessee and Lessor
further agree that forbearance by Lessor to enforce its rights pursuant to the
Lease at law or in equity, shall not be a waiver of Lessor's right to enforce
one or more of its rights in connection with any subsequent default.
G. In the event of termination and/or repossession of the Premises for
an event of default, Lessor shall use reasonable efforts to relet the Premises
and to collect rental after reletting; provided, that, Lessee shall not be
entitled to credit or reimbursement of any proceeds in excess of the rental owed
hereunder. Lessor may relet the whole or any portion of the Premises for any
period, to any Lessee and for any use and purpose.
H. If Lessor fails to perform any of its obligations hereunder within
thirty (30) days after written notice from Lessee specifying such failure,
Lessee's exclusive remedy shall be an action for damages. Unless and until
Lessor fails to so cure any default after such notice, Lessee shall not have any
remedy or cause of action by reason thereof. All obligations of Lessor hereunder
will be construed as covenants, not conditions; and all such obligations will be
binding upon Lessor only during the period of its possession of the Premises and
not thereafter. The term "Lessor" shall mean only the owner, for the time being
of 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 Lessor 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, Lessor shall not have any personal liability hereunder. In the event of
any breach or default by Lessor in any term or provision of this Lease, Lessee
agrees to look solely to the equity or interest then owned by Lessor in the
Premises or of the building of which the Premises are a part; however, in no
event, shall any deficiency judgment or any money judgment of any kind be sought
or obtained against any Lessor.
I. If Lessor repossesses the Premises pursuant to the authority herein
granted, then Lessor shall have the right to (i) keep in place and use or (ii)
remove and store all of the furniture, fixtures and equipment at the Premises,
including that which is owned by or leased to Lessee at all times prior to any
foreclosure thereon by Lessor or repossession thereof by any Lessor thereof or
third party having a lien thereon. Lessor also shall have the right to
relinquish possession of all or any portion of such furniture, fixtures,
equipment and other property to any person ("Claimant") who presents to Lessor a
copy of any instrument represented by Claimant to have been executed by Lessee
(or any predecessor of Lessee) 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 Lessor to inquire into the
authenticity or legality of said instrument. The rights of Lessor herein stated
shall be in addition to any and all other rights that Lessor has or may
hereafter have at law or in equity; and Lessee stipulates and agrees that the
rights herein granted Lessor are commercially reasonable.
J. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Lessee to or on behalf of Lessor under this Lease, whether or not
expressly denominated as rent, shall constitute rent.
K. This is a contract under which applicable law excuses Lessor from
accepting performance from (or rendering performance to) any person or entity
other than Lessee.
20. MORTGAGES. Lessee accepts this Lease subject and subordinate to any
mortgages and/or deeds of trust now or at any time hereafter constituting a lien
or charge upon the Premises or the improvements situated hereon or the building
of which the Premises are a part; provided, however, that if the mortgagee,
trustee or holder of any such mortgage or deed of trust elects to have Lessee's
interest in this Lease superior to any such instrument, then by notice to Lessee
from such mortgagee, trustee or holder, this Lease shall be deemed superior to
such lien, whether this Lease was executed before or after said mortgage or deed
of trust. Lessee, at any time hereafter on demand, shall execute any
instruments, releases or other documents that may be required by any mortgagee
for the purpose of subjecting and subordinating this Lease to the lien of any
such mortgage.
21. MECHANIC'S LIENS. Lessee has no authority, express or implied, to
create or place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind the interest of Lessor or Lessee in the Premises or to
charge the rentals payable hereunder for any claim in favor of any person
dealing with Lessee, including those who may furnish materials or perform labor
for any construction or repairs. Lessee covenants and agrees that it will pay or
cause to be paid all sums legally due and payable by it on account of any labor
performed or materials furnished in connection with any work performed on the
Premises and that it will save and hold Lessor harmless from any and all loss,
cost or expense based on or arising out of asserted claims or liens against the
leasehold estate or against the right, title and interest of the Lessor in the
Premises or under the terms of this Lease. Lessee agrees to give Lessor
immediate written notice of the placing of any lien or encumbrance against the
Premises.
22. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires. The captions inserted
in this Lease are for convenience only and in no way define, limit or otherwise
describe the scope or intent of this Lease, or any provision hereof, or in any
way affect the interpretation of this Lease.
B. In the event the Premises constitute a portion of a multiple
occupancy building, Lessee's "proportionate share," as used in this Lease, shall
mean a fraction, the numerator of which is the space contained in the Premises
and the denominator of which is the entire space contained in the building.
C. The terms, provisions and covenants and conditions contained in this
Lease shall run with the land and shall apply to, inure to the benefit of, and
be binding upon, the parties hereto and upon their respective heirs, executors,
personal representatives, legal representatives, successors and assigns, except
as otherwise herein expressly provided. Lessor shall have the right to transfer
and assign, in whole or in part, its rights and obligations in the building and
property that are the subject of this Lease. Each party agrees to furnish to the
other, promptly upon demand, a corporate resolution, proof of due authorization
by partners, or other appropriate documentation evidencing the due authorization
of such party to enter into this Lease.
X. Xxxxxx shall not be held responsible for delays in the performance of
its obligations hereunder when caused by material shortages, acts of God or
labor disputes.
E. Lessee agrees, from time to time, within ten (10) days after request
of Lessor, to deliver to Lessor, or Lessor's designee, a Certificate of
Occupancy and an estoppel certificate stating that this Lease is in full force
and effect, the date to which rent has been paid, the unexpired term of this
Lease and such other factual matters pertaining to this Lease as may be
requested by Lessor. It is understood and agreed that Lessee's obligation to
furnish such estoppel certificates in a timely fashion is a material inducement
for Lessor's execution of this Lease.
F. This Lease constitutes the entire understanding and agreement of the
Lessor and Lessee with respect to the subject matter of this Lease, and contains
all of the covenants and agreements of Lessor and Lessee with respect thereto.
Lessor and Lessee each acknowledge that no representations, inducements,
promises or agreements, oral or written, have been made by Lessor or Lessee, or
anyone acting on behalf of Lessor or Lessee, which are not contained herein, and
any prior agreements, promises, negotiations, or representations not expressly
set forth in this Lease are of no force or effect. This Lease may not be
altered, changed or amended except by an instrument in writing signed by both
parties hereto.
G. All obligations of Lessee hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation, all payment obligations with respect to taxes and insurance and all
obligations concerning the condition and repair of the Premises. Upon the
expiration or earlier termination of the term hereof, and prior to Lessee
vacating the Premises, Lessee shall pay to Lessor any amount reasonably
estimated by Lessor as necessary to put the Premises, including without
limitation, all heating and air conditioning systems and equipment therein, in
good condition and repair, reasonable wear and tear excluded. Lessee shall also,
prior to vacating the Premises, pay to Lessor the amount, as estimated by
Lessor, of Lessee's obligation hereunder for real estate taxes and insurance
premiums for the year in which the Lease expires or terminates. All such amounts
shall be used and held by Lessor for payment of such obligations of Lessee
hereunder, with Lessee being liable for any additional costs therefor upon
demand by Lessor, or with any excess to be returned to Lessee after all such
obligations have been determined and satisfied as the case may be. Any security
deposit held by Lessor shall be credited against the amount due from Lessee
under this Paragraph 22C.
H. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease than in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added, as a
part of this Lease, a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
I. All references in this Lease to "the date hereof" or similar
references shall be deemed to refer to the last date, in point of time, on which
all parties hereto have executed this Lease.
J. Lessee represents and warrants that it has dealt with no broker,
agent or other person in connection with this transaction or that no broker,
agent or other person brought about this transaction, other than as may be
referenced in a separate written agreement executed by Lessee, and delivered to
Lessor, and Lessee agrees to indemnify and hold Lessor harmless from and against
any claims by any other broker, agent or other person claiming a commission or
other form of compensation by virtue of having dealt with Lessee with regard to
this leasing transaction.
K. If and when included with the term "Lessor", as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of a notice
specifying the individual at some specific address for the receipt of notices
and payments to Lessor. If and when included within the term "Lessee", as used
in this instrument, there is more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Lessee. All parties
included within the terms "Lessor" and "Lessee", respectively, shall be bound by
notices given in accordance with the provisions of Paragraph 25 hereof to the
same effect as if each had received such notice.
23. SECURITY SERVICE. Lessee agrees to pay the proportionate share of the
cost of monitoring, repair and maintenance of the burglar alarm systems, water
flow detection systems and other protective security equipment installed on the
Premises and/or the building of which the Premises are a part, including the
cost of any license or permit or user charge required for such security systems.
Lessor has entered into an agreement with a third party for the monitoring,
maintenance and repair. Lessor shall not be liable to Lessee for any damages,
costs or expenses which occur for any reason in the event such security system
is not properly installed, monitored or maintained.
24. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivering of notice or the making of any payment by
Lessor to Lessee or with reference to the sending, mailing or delivering of any
notice or the making of any payment by Lessee to Lessor shall be deemed to be
complied with when and if the following steps are taken:
(a) All rent and other payments required to be made by Lessee to Lessor
hereunder shall be payable to Lessor at the address for Lessor set forth
below or at such other address as Lessor may specify from time to time by
written notice delivered in accordance herewith. Lessee's obligation to
pay rent and any other amounts to Lessor under the terms of this Lease
shall not be deemed satisfied until such rent and other amounts have been
actually received by Lessor. In addition to base rental due hereunder, all
sums of money and all payments due Lessor hereunder shall be deemed to be
additional rental owed to Lessor.
(b) All payments required to be made by Lessor to Lessee hereunder
shall be payable to Lessee at the address set forth below, or at such
other address within the continental United States as Lessee may specify
from time to time by written notice delivered in accordance herewith.
(c) Any written notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered whether actually
received or not when deposited in the United States Mail, postage prepaid,
Certified or Registered Mail, addressed to the parties hereto at the
respective addresses set out below, or at such other address as they have
theretofore specified by written notice delivered in accordance herewith.
25. ADDITIONAL PROVISIONS. See __________ attached hereto and incorporated
by reference herein.
26. LESSOR'S LIEN. In addition to any statutory lien for rent in Lessor's
favor, Lessor shall have and Lessee hereby grants to Lessor a continuing
security interest for all rentals and other sums of money become due hereunder
from Lessee, upon all goods, wares, equipment, fixtures, furniture, inventory,
and other personal property of Lessee now or hereafter situated at 0000 Xxxxxxxx
Xxxxxxxx, and such property shall not be removed therefrom without the consent
of Lessor until all arrearages in rent as well as any and all other sums of
money then due to Lessor hereunder shall first have been paid and discharged. In
the event any of the foregoing described property is removed from the Premises
in violation of the covenant in the preceding sentence, the security interest
shall continue in such property and all proceeds and products, regardless of
location. Upon a default hereunder by Lessee in addition to all other rights and
remedies, Lessor shall have all rights and remedies under the Uniform Commercial
Code, including without limitation, the right to sell the property described in
this Paragraph at public or private sale upon five (5) days notice by Lessor.
Lessee hereby agrees to execute such other instruments, necessary or desirable
under applicable law to perfect the security interest hereby created. Lessor and
Lessee agree that this Lease and security agreement serves as a financing
statement and that a copy, photographic or other reproduction of this portion of
this Lease may be filed of record by Lessor and have the same force and effect
as the original. This security agreement and financing statement also covers
fixtures located at the premises subject to this Lease and legally described in
Exhibit "A" attached hereto and incorporated herein by reference and is to be
filed for record in the real estate records. The record owner of this property
is
EXECUTED BY LESSOR, this 29th day of March, 1990.
C-S-K LOUISVILLE,
a Texas limited partnership
Attest/Witness
/s/ Xxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxx, Xx.
------------------------- ----------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Office Coordinator Title: Authorized Agent
-------------------------
ADDRESS:
C-S-K Louisville, a Texas Limited
Partnership
c/o Xxxxxxxx Xxxx Company
000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
EXECUTED BY LESSEE, this 29th day of March, 1990.
ALLIED SASH AND DOOR, INC.
a Kentucky corporation
Attest/Witness
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------- ----------------------------
Name: Xxxxx X. Margin
Title: Operations Manager Title: General Manager
-------------------------
ADDRESS:
Allied Sash and Door, Inc.
a Kentucky corporation
0000 Xxxxxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
ADDENDUM I.
Addendum to a Lease Agreement by and between
C-S-K Louisville, a Texas Limited Partnership ("Lessor"),
and
Allied Sash and Door, Inc., a Kentucky corporation ("Lessee"),
dated March 29, 1990 (the "Lease")
2A. Base Rent, Security Deposit and Escrow Payments:
Base Rent as set forth in Paragraph 2A shall be paid as follows:
Months 1 through 36 $1.23/r.s.f. per annum
Months 37 through 60 $1.28/r.s.f. per annum
Months 61 through 72 $1.32/r.s.f. per annum
Months 73 through 84 $1.36/r.s.f. per annum
Months 85 through 96 $1.40/r.s.f. per annum
Months 97 through 108 $1.44/r.s.f. per annum
Months 109 through 120 $1.48/r.s.f. per annum
End of Addendum
ADDENDUM II
Lessor agrees to rehabilitate roof in 1990.
End of Addendum II
