Drew - Shoals
02/15/96
AGREEMENT OF LEASE
LEASE dated the 15 day of February, 1996 between Thomas Family
Partnership, Ltd., an Alabama limited partnership ("Landlord"), with an address
at Route #5, P. O. Box 274, Haleyville, AL 35565, and Shoals Acquisition Corp.,
a Delaware corporation with an address at 4381 Green Oaks Boulevard, Arlington,
Texas 76016 ("Tenant").
ARTICLE I
DEMISED PREMISES
1.1 Demised Premises. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, subject to the provisions of this Lease, the premises (the
"Demised Premises") owned by Landlord and described on Schedule A annexed
hereto.
ARTICLE II
TERM
2.1 Initial Term. The initial term ("Initial Term") of this Lease shall
begin on February 15, 1996 (the "Commencement Date") and shall terminate (unless
extended as provided herein) upon the earlier to occur of February 14, 2001 or
the date this Lease terminates pursuant to the provisions hereof. For purposes
of this Lease, "Term" shall mean the Initial Term and the Extension Period, if
any.
2.2(a) Extensions; Grace Period. The Term of this Lease may be extended
for one (1) five (5) year period ("Extension Period") if Tenant, at least three
(3) months prior to the expiration of the Initial Term notifies Landlord in
writing of its intention to extend the Term of this Lease. All provisions of
this Lease shall apply to such Extension Period.
2.2(b) If Tenant fails to give Landlord the notice provided for in Section
2.2(a), Landlord shall give Tenant a written reminder notice of that fact not
less than thirty (30) days after the date established in Section 2.2(a) as the
deadline for Tenant's extension notice. Notwithstanding the provisions of
Section 2.2(a), Tenant shall have the right to extend this Lease by giving
written notice to Landlord not later than the thirtieth (30th) day following
Tenant's receipt of Landlord's reminder notice under this Section.
ARTICLE III
RENT
3.1(a) Fixed Annual Rent - Initial Period. During the Initial Term of
this Lease, Tenant shall pay to Landlord at Landlord's address first set forth
above (or to such other person or at such other address as Landlord may direct
from time to time by written notice) "Fixed Annual Rent" of $____________.
(b) If Tenant extends the term of this Lease as provided in Section
2.2 hereof, the Fixed Annual Rent during the Extension Period shall be adjusted
to reflect changes in the cost of living. The rental adjustment shall be made
utilizing the "Consumer Price Index-Seasonally Adjusted U.S. City Average For
All Items For All Urban Consumers" (1982-84=100) ("CPI"), published monthly in
the "Monthly Labor Review" by the Bureau of Labor Statistics of the United
States Department of Labor. If the CPI is discontinued, comparable statistics
on the purchasing power of the consumer dollar published by the Bureau of Labor
Statistics of the United States Department of Labor shall be used for making the
computations. If such statistics are not available, the index most comparable
as determined by the Landlord and Tenant shall be used.
The Fixed Annual Rent for the Extension Period shall be an amount
determined by multiplying the Fixed Annual Rent for the Initial Term which is
$_____________ by a fraction, the numerator of which shall be the CPI for the
month of November, 2000 ("New CPI") and the denominator of which shall be the
CPI for the month of February, 1996 ("Old CPI"). However, in no event shall
such adjustment cause the Fixed Annual Rent to decrease below $__________ per
year.
3.2 Late Payment Penalty. If Tenant has not paid the Fixed Rent payment
due within the ten (10) days of the date upon which it is due, then Tenant shall
pay a late payment charge in an amount equal to two percent (2%) of such unpaid
rent.
ARTICLE IV
REAL ESTATE TAXES; OTHER CHARGES
4.1(a) Landlord's Tax Obligations. During the Term of this Lease,
Landlord shall pay any and all of the "real estate taxes" attributable to the
Demised Premises. For these purposes, real estate taxes shall mean the
regularly imposed taxes commonly levied by municipal, county, or district
governmental authorities against the owners of real property, including all
special assessments for improvements.
4.1(b) Landlord shall furnish Tenant with reasonably satisfactory evidence
of payment of all real estate taxes within twenty (20) days after receipt of
Tenant's written request for such evidence, or within twenty (20) days after the
tax due date for the tax payment(s), whichever is later.
4.2 Tenant's Right to Cure. In the event that Landlord shall fail to pay
the real estate taxes when due with respect to the Demised Premises, and
Landlord shall fail to make such payments within ten (10) days following notice
from Tenant of such delinquency, Tenant, at its option, may pay such delinquent
taxes, including interest and penalties, and Tenant may thereafter offset its
next Fixed Rental payments to the extent of such payments.
4.3 Other Charges. Tenant agrees to pay for its own utilities, water, its
heat and air conditioning, and, if and to the extent that the Demised Premises
are served by a sewer system, any sewer "taxes" or sewer use charges (but not
sewer entrance fees) measured by the consumption of water in the Demised
Premises or measured by the area thereof, or by some other means reasonably
related to Tenant's use of such sewer system.
ARTICLE V
ACCEPTANCE, USE AND RESTRICTIONS
5.1 Use. Tenant may use the Demised Premises for any lawful purpose.
5.2 Tenant's Acceptance of Property. No rights, easements, or licenses
are acquired by the Tenant by implication or otherwise except as expressly set
forth in the provisions of this Lease. To the best of Landlord's knowledge, the
Demised Premises are in good condition. The Demised Premises are in good
working order and are sufficient for the conduct of the business heretofore
conducted in the Demised Premises. Tenant accepts the Demised Premises on such
conditions.
ARTICLE VI
REPAIRS AND ALTERATIONS
6.1(a) Tenant's Repairs and Maintenance. During the term hereof, Tenant
agrees to make all repairs (including replacements and alterations where
necessary) necessary to keep the Demised Premises in good order, repair and
condition, except those which Landlord is required to make hereunder.
6.1(b) Repairs and Tenant's Negligence. Tenant also agrees to make all
repairs to the Demised Premises (including replacements and alterations where
necessary) necessitated by any negligence or abuse of Tenant, its agents,
employees, licensees, or contractors.
6.2 Landlord's Repairs. Landlord agrees that, during the Term hereof,
Landlord shall be responsible to maintain, repair and keep (including
replacements and alterations where necessary) the exterior and structure of the
Demised Premises in good order, repair and condition, which shall include
(without limitation) the following: (i) the outside walls and exterior faces
thereof; (ii) the roof and all roof covering and components; (iii) foundations
and floor slab; (iv) the gutters, downspouts and roof drain systems; (v) all
structural members including but not limited to door frames and window frames;
and (vi) all wiring, plumbing, pipes, conduits and other water, sewerage,
heating, ventilation and air conditioning systems, utility and sprinkler
fixtures and equipment serving the Demised Premises. The wiring in the Demised
Premises is or shall be brought into compliance with applicable laws and
regulations at Landlord's sole expense as soon as reasonably practicable.
6.3 Governmental Requirements. Subject to Article XIII hereof, Landlord
shall make all repairs and alterations necessary to comply with governmental
requirements unless such requirements become applicable to the Demised Premises
solely because of (i) a use thereof by Tenant for a purpose other than the
conduct of the manufacturing business currently operated in the Demised
Premises, or (ii) an alteration or modification desired and effected by Tenant
(other than by virtue of a default by Landlord hereunder) which, but for such
modification or alteration by Tenant, would not require compliance with such
changed law.
6.4 Alterations and Decoration. Tenant shall have the right, from time
to time, to redecorate the Demised Premises, to add or remove mezzanines,
partitions, windows, doors, doorways and loading docks, and to make such other
interior and/or exterior, structural and/or nonstructural installations,
changes, modifications and alterations in, on or to such parts of the Demised
Premises as Tenant shall deem expedient or desirable for its purposes; provided
that such installations, alterations and changes shall not adversely affect the
structural integrity of the Demised Premises unless Tenant shall have obtained
Landlord's prior approval, which approval shall not be unreasonably withheld or
delayed for such structural alteration. At least twenty (20) days prior to
Tenant's commencing any alteration which would affect the structural integrity
of the Demised Premises, Tenant shall provide Landlord with reasonably detailed
plans showing the proposed alteration in question, and Landlord shall respond
to Tenant's request in writing within twenty (20) days thereafter. All
permanent improvements shall belong to Landlord and become a part of the
Demised Premises.
6.5 Licenses and Permits. Tenant covenants that it will procure any
license or permit required by law for any use made of the Demised Premises.
Landlord hereby represents that it has a Certificate of Occupancy, if required
by local governmental authorities, permitting occupancy of the Demised Premises
by Tenant. If Landlord does not have a Certificate of Occupancy, Landlord
will, at Landlord's own expense, take such actions as are necessary to obtain a
Certificate of Occupancy necessary to conduct the manufacturing business
currently operated in the Demised Premises.
6.6 Tenant's Work. Tenant agrees to pay promptly when due, the entire
cost of, and to diligently pursue, any work undertaken by Tenant in, on or to
any part of the Demised Premises (Tenant reserving the right, however, in good
faith to contest its liability for such costs); to secure the discharge of
record of, or bond within twenty (20) days of Tenant's receipt of notice by
Landlord, any lien imposed with respect to such work; to procure and pay for
all necessary insurance (including builder's risk, so-called) and permits
before undertaking such work (Landlord agreeing to execute promptly and without
charge to Tenant any instrument of approval which may be required in connection
with any such permit); and to do all of such work in a good and workmanlike
manner, employing materials of good quality and complying with all applicable
governmental requirements.
ARTICLE VII
INDEMNIFICATION; LIABILITY INSURANCE
7.1(a) Indemnification by Tenant. During the term of this Lease,
Tenant shall indemnify and hold Landlord harmless from any and all loss, claims
and damage (and all expenses incurred in connection therewith, including
reasonable counsel fees) incurred by any person or property on the Demised
Premises (unless such loss resulted from the act or negligence of Landlord, its
employees, agents, licensees or contractors or by a default in the proper
performance of Landlord's obligations under this Lease, in which event Landlord
shall indemnify and hold Tenant harmless with respect to such loss, claim or
damage).
7.1(b) Indemnification by Landlord. During the term of this Lease,
Landlord shall indemnify and hold Tenant harmless from any and all loss, claims
and damage (and all expenses incurred in connection therewith, including
reasonable counsel fees) incurred by any person or property on the Demised
Premises (unless such loss resulted from the act or negligence of Tenant, its
employees, agents, licensees or contractors or by a default in the proper
performance of Tenant's obligations under this Lease, in which event Tenant
shall indemnify and hold Landlord harmless with respect to such loss, claim or
damage).
7.2 Tenant's Liability Insurance. During the term of the Lease, Tenant
shall maintain with respect to the Demised Premises liability insurance of not
less than $1,000,000.00 for bodily injury (single limit) and property damage
insurance of not less than $1,000,000.00, both as provided in comprehensive
general liability forms with contractual liability endorsement attached,
insuring against injury to persons and damage to property.
7.3 Certificates. Tenant shall deliver to Landlord appropriate
certificates of insurance evidencing that Tenant has obtained the policies
which Tenant is required to maintain under this Lease. The insurance required
hereunder may be maintained under a "blanket policy" but no insurance policy
required to be maintained by Tenant shall be canceled or materially changed
without at least thirty (30) days' prior written notice to the Landlord and
each such certificate shall so provide. All insurance required hereunder shall
be maintained with responsible insurance companies qualified to do business in
the state in which the Demised Premises are located. Certificates for
liability insurance will show Landlord as an additional insured, as its
interest may appear.
ARTICLE VIII
TENANT'S FIXTURES AND EQUIPMENT
8.1 Fixtures and Equipment. All furniture, furnishings, fixtures and
equipment, and all other installations, alterations and improvements placed in
or on or made in, on or to the Demised Premises by or at the expense of Tenant
(or by or at the expense of anyone occupying space in the Demised Premises) and
which may be removed without substantial physical injury to the Demised
Premises shall remain the property of Tenant or such occupant, and Tenant (or
such occupant) may remove the same or any part thereof at any time or times
during the Term hereof. Tenant shall, however, repair any damage to the
Demised Premises occasioned by such installation or removal. Any such property
which shall not have been removed from the Demised Premises within sixty (60)
days after the end of the Term shall be deemed to have become Landlord's
property.
ARTICLE IX
FIRE AND CASUALTY; INSURANCE; EMINENT DOMAIN
9.1(a) Fire Insurance. During the term of this Lease, Tenant shall
maintain with respect to the Demised Premises, fire insurance in an amount not
less than the full replacement cost thereof. For the purposes of this Section
the Demised Premises shall be deemed to include, without limitation,
improvements to the Demised Premises which may, from time to time, be made
(whether by Tenant or others), to the extent the same are customarily insurable
as a part of the Demised Premises. In the event of loss, if the Lease is not
terminated as provided in this Section 9, the proceeds of all such insurance
shall be applied to the restoration of the Demised Premises; but any surplus
proceeds shall belong to Tenant. Unless the proceeds are paid by the insurer
to a savings or commercial bank, insurance company or similarly publicly
regulated lender holding a first mortgage covering the Demised Premises, the
portion of any settlement proceeds which exceeds $25,000.00 shall be paid to a
corporate fiduciary (reasonably acceptable to Landlord and Tenant) as Escrowee.
If Tenant elects to terminate the Lease as provided in Section 9.2(a)(i)
hereof, all insurance proceeds shall be paid directly to Landlord, except to
the extent of Tenant's insurable interest. The settlement proceeds shall be
paid over to Landlord in installments as the work of restoration progresses,
but if the settlement proceeds are less than the cost of the restoration work,
none of such proceeds shall be paid over to Landlord until Landlord has paid,
on account of the restoration work, an amount equal to the deficiency.
9.1(b) Landlord as Additional Insured. Each policy of insurance
maintained by Tenant with respect to the Demised Premises or with respect to
any property or improvements therein shall name Landlord as an additional
insured in the policy(ies) as its interest may appear.
9.1(c) Adjustment of Tenant's Policies. If Landlord is named as an
insured in any policy maintained by Tenant, without the consent of Tenant
Landlord shall have no right to participate in the adjustment of any loss
thereunder, except as to liability proceeds payable to Landlord as the person
damaged, nor shall Landlord be entitled to receive any of the proceeds of such
insurance, except that Tenant shall promptly endorse to Landlord's order
(without recourse) any check or other form of payment made solely on account of
any loss suffered by Landlord.
9.1(d) Certificates. During the term of this Lease, Tenant shall deliver
to landlord a certificate of each policy (and of each endorsement thereon)
which is required by this Article. No such policy shall be canceled or
materially changed without at least thirty (30) days' prior written notice to
Landlord, and each certificate shall so provide.
9.2(a)(i) Demised Premises Damaged; Abatements. If at any time during
the Term, (x) the Demised Premises shall be destroyed or damaged by fire or
other casualty, or (y) as a result of fire or casualty, a right appurtenant, or
access, to the Demised Premises shall be impaired or destroyed or (z) the whole
or any part of the Demised Premises, or a right appurtenant to or access
thereto, shall be appropriated by a taking by eminent domain (whether or not by
public authority) or by act of or pursuant to public authority (with or without
a formal taking), then Tenant shall promptly notify Landlord of any such damage
to the Demised Premises, its appurtenances or access and Landlord shall
promptly notify Tenant of any taking or proposed taking. In any such event, if
such destruction, damage or taking either totally or substantially damages or
destroys the Demised Premises or substantially interferes with Tenant's
operations at the Demised Premises, then, at Tenant's sole discretion, Tenant
may either (i) terminate this Lease without penalty, or (ii) agree to continue
this Lease for the duration of its Term in which event the rent and the other
charges payable by Tenant shall be abated as set forth herein.
9.2(a)(ii). In the event that such damage, destruction or taking does not
substantially interfere with or affect Tenant's operations at the Demised
Premises, this Lease shall continue, but Tenant shall be entitled to a rent
abatement which reasonably reflects the temporary or permanent loss of the use
of a portion of the Demised Premises.
9.2(a)(iii). In the event that Tenant elects to continue this Lease, or
if this Lease shall be continued pursuant to subparagraph 9.2(a)(ii), then the
Landlord shall repair any and all damage, and restore the Demised Premises (and
Tenant shall pay to Landlord any insurance proceeds as set forth in paragraph
9.1(a)), and the rent shall be abated as set forth herein. Such abatement
shall be effective as of the date on which the destruction, damage or
appropriation occurred and shall continue in effect until Landlord has restored
the Demised Premises (including leasehold improvements) to their prior
condition, and for an additional ninety (90) days, or, if this Lease is
terminated because of the destruction, damage or appropriation, until the
termination date; except that any abatement which results from a taking by
eminent domain or an act of or pursuant to public authority shall continue in
effect for the balance of the Term, appropriately reduced in amount to reflect
the effect of Landlord's restoration work. Landlord and Tenant shall promptly
enter into an agreement reflecting any such permanent abatement.
9.2(a)(iv). Landlord, within sixty (60) days after the occurrence of such
damage, destruction or appropriation, shall commence to repair and restore the
Demised Premises to their condition prior to such damage, destruction or
appropriation, and shall diligently proceed with the work of repair and
restoration, in a good and workmanlike manner, using good materials, so that
such work shall be substantially completed as expeditiously as practicable.
9.2(b) Landlord's Notice & Tenant's Response Time. Landlord shall give
Tenant written notice in reasonable detail of each taking and each act of or
pursuant to public authority described in this Article IX, Tenant's termination
rights under Section 9.2(a) shall be exercised by written notice to Landlord
sent within thirty (30) days after receipt of Landlord's notice of the relevant
facts, or, if Landlord fails to give Tenant the required notice, within ninety
(90) days after Tenant's first receipt of notice of the relevant facts from a
responsible source.
9.2(c) Tenant's Continuing Occupancy Rights. Notwithstanding the
termination of this Lease under this Section 9.2, Tenant, at its election, may
nevertheless (to the extent permitted by law) continue to occupy the Demised
Premises, enjoy and exercise all of its rights and privileges under this Lease
for all (or for such part as Tenant elects) of the period between the taking or
act and the date on which the authority which made the taking or performed the
act shall evict Tenant, or the date on which Tenant or those having business
with it in the Demised Premises shall be prohibited from having access to the
Demised Premises. During such period of occupancy, to the extent permitted by
law, so long as Landlord shall have the right to collect rent or use and
occupancy charges for the Demised Premises, the obligations of Landlord and
Tenant under this Lease shall continue in effect, as if the Lease had not been
terminated, except that (i) the Term of this Lease shall be the period
described above in this Section 9.2; (ii) the rent and other charges payable by
Tenant shall be abated in accordance with the provisions of this Section 9.2;
and (iii) Tenant shall receive full credit against any payments due to Landlord
hereunder for all sums paid or payable by Tenant to the taking authority. If
after any such termination, any such taking or appropriation shall become
ineffective for any reason, then at Tenant's election to be exercised by
written notice to Landlord within thirty (30) days thereafter, this Lease shall
continue in full force and effect.
9.3 Awards. Landlord reserves to itself all rights to damages accruing
to Landlord's estate as the result of any such taking or act, and Tenant
reserves to itself all rights to damages accruing as a result of such taking,
including damages payable for Tenant's loss of its equipment, fixtures and
leasehold improvements installed by Tenant or anyone claiming under Tenant.
9.4 Refund of Unearned Rent. If this Lease is terminated under this
Article, Landlord shall promptly refund to Tenant all unearned rent and other
charges paid in advance by Tenant or any overpayment to Landlord made by
Tenant.
ARTICLE X
LANDLORD'S REMEDIES
10.1 Termination for Tenant's Default. Upon the occurrence of the
earliest to occur of the following (individually, "Event of Default"), (a)
Tenant shall fail, when due, to pay rent or any other sum due to Landlord under
this Lease, and such failure shall continue for more than ten (10) days after
receipt of notice from Landlord setting forth the amount of such delinquency;
or (b) Tenant shall fail to perform or observe any other term or condition
contained in this Lease and on the part of Tenant to be performed or observed
for a period of more than thirty (30) days after Tenant's receipt of written
notice from Landlord of such failure (unless such default, by its nature, may
not be cured within thirty (30) days, and Tenant shall promptly within such
thirty-day period commence to cure such default and thereafter diligently
prosecutes the cure to completion), or (c) the filing by or against Tenant in
any court pursuant to any statute, either of the United States or of any state,
of a petition in bankruptcy or insolvency, or for reorganization, or for any
arrangement or for appointment of a receiver or trustee of all or a portion of
Tenant's property; provided, that if the action or proceeding be against
Tenant, the same shall not be an event of default if the petition shall be
dismissed within thirty days after the commencement thereof; or (d) the
dissolution or liquidation of Tenant, voluntary or involuntary, or the taking
of possession of any of Tenant's property by execution and levy or attachment;
or (e) the abandonment of the Demised Premises by Tenant, Landlord, at its
option, may terminate this Lease on ten (10) days written notice to Tenant. In
addition to any other right or remedy which Landlord may have under the Lease,
upon such termination, Landlord shall have the right of reentry and may remove
all persons and property from the Demised Premises, but only by summary or
other legal proceedings.
10.2 Tenant's Damage Payments. If this Lease is terminated as a result
of an Event of Default, Tenant shall continue to be liable for the monthly
Fixed Rent payments due hereunder for the remainder of the Term and shall pay,
at such other times as required by this Lease, the payments required of Tenant
under this Lease which would have been due had this Lease not terminated, but
Landlord shall use reasonable diligence to relet the Demised Premises, and the
net proceeds of such reletting (after deducting reasonable expenses) shall be
credited against the amounts payable by Tenant under this Section. If Tenant
defaults, beyond grace and notice periods, with respect to the payments due
hereunder, Landlord may bring one or more actions or proceedings for the
recovery of all remaining payments due hereunder, whether or not such payments
then are due and owing, and the commencement or maintenance of any one or more
such actions shall not preclude Landlord from bringing other or subsequent
actions for any such further defaults. In no event shall Tenant have liability
for whatsoever for any consequential or indirect damages of Landlord, whether
proximately or remotely related to a default by Tenant.
ARTICLE XI
TITLE AND ZONING
11.1 Landlord's Title Warranties. Landlord hereby warrants and
represents to Tenant as follows:
(a) Title. Landlord is the record owner of the Demised Premises in
fee simple absolute.
(b) Encumbrances. If any easement, encumbrance or restriction
(whether contained in deeds, leases or other instruments or agreements),
whether or not of record, interferes with Tenant's use of the Demised Premises
as intended herein, either (i) Landlord shall, at its own expense and within
ninety (90) days after notice from Tenant, remove such easement, encumbrance or
restriction, or (ii) Tenant shall have the right to terminate the Lease. In
the event that Landlord desires to obtain a mortgage on the Demised Premises,
Landlord shall obtain Tenant's consent thereto, which shall not be unreasonably
withheld or delayed, provided that such mortgage (i) is not superior to this
Lease or the Tenant obtains an appropriate non-disturbance agreement, and (ii)
the sum of any debt service payable on the Mortgage and projected real estate
taxes does not exceed the Fixed Rate payable hereunder.
(c) First Lien. Except as provided in Section 11.1(b), this Lease is
and shall remain prior in record interest to every lien on the Demised Premises
except real estate taxes which have been assessed, but which are not yet due
and payable.
(d) Authority. Landlord and each person executing this Lease on
behalf of Landlord (or in any representative capacity) have full right and
lawful authority to execute this Lease.
(e) Right to Use. There is no legal impediment, including any matter
relating to zoning, fire, health, safety or environmental protection law, or
otherwise) to the use of the Demised Premises for the purposes intended by
Tenant and in accordance with the provisions of this Lease, or to the exercise
and enjoyment by Tenant of its rights and privileges under this Lease.
(f) Compliance with Law. Except as set forth in the Phase Reports, as
of Commencement Date, Landlord has complied with all federal, state and local
environmental laws, ordinances and regulations applicable to the Demised
Premises (as a building rather than for any particular use) so that the
business conducted by Tenant from the Demised Premises may be operated in a
normal manner and without interference from any person or entity on account of
any failure to comply with any of the same, but nothing in this Section 11.1(e)
shall be deemed to restrict the business or businesses which Tenant, from time
to time, may be entitled to conduct in the Demised Premises pursuant to this
Lease.
(g) No Inconsistent Agreements. Landlord will not make or enter into
any agreement or lease which is inconsistent with any of Tenant's rights or
privileges under this Lease. During the Term, Landlord will not enter into any
future lease or occupancy agreement with respect to the Demised Premises,
whether or not such lease or agreement would be effective as of a date
following the expiration of the Initial Term or any Extension Period.
Landlord acknowledges that Tenant has relied on each of the foregoing
warranties and representations in executing this Lease, and that each of the
same is material.
11.2 Tenant's Remedies. (a) If any warranty or representation contained
in Section 11.1 shall prove to be materially false, (b) if by virtue of a
change in applicable law after the date hereof, Tenant's right to the conduct a
business of the kind now conducted in the Demised Premises is prohibited, or,
(c) if Landlord's failure to perform any of its obligations under this Lease or
any of its obligations to any governmental authority having jurisdiction over
the Demised Premises shall prevent or materially adversely affect Tenant's use
and enjoyment of the Demised Premises, in any such case, Tenant shall have the
right to terminate this Lease thereafter upon thirty (30) days written notice
to Landlord; provided, however, that Landlord shall have thirty (30) days after
notice of such default by Tenant to Landlord (except that as to non-monetary
defaults which are not of a nature that they can be cured within such thirty
(30) day period and as to which cure is commenced within such thirty (30) day
period and diligently prosecuted to completion) to cure such defaults, in which
event the Lease will continue, but Tenant shall not be liable for Fixed Rent
for the period which Landlord was in default.
ARTICLE XII
RIGHT OF FIRST REFUSAL
12.1(a) Landlord's Notice. In the event that, during the Term of this
Lease, Landlord shall desire to sell the Demised Premises, then Landlord shall
notify ("Landlord's Notice") the Tenant of its intention to sell the Demised
Premises and the terms and conditions on which Landlord is willing to complete
such sale. Within thirty (30) days of the receipt of Landlord's Notice,
Tenant, in its discretion, may notify the Landlord in writing ("Tenant's
Notice") that it is willing to purchase the Demised Premises on the terms and
conditions set forth in the Landlord's Notice.
12.1(b) Closing. If the Tenant delivers the Tenant's Notice, then
Landlord shall sell the Demised Premises to Tenant on the terms and conditions
set forth in Landlord's Notice; provided that, unless Tenant otherwise agrees,
(i) Landlord shall convey the Demised Premises to Tenant by means of a warranty
deed, (ii) title to the Demised Premises shall be insurable by a reputable
title insurer at normal rates, and (iii) in no event shall the closing occur
after the expiration of the Term of the Lease.
12.1(c) Waiver. In the event that Tenant does not timely deliver the
Tenant's Notice to Landlord, Landlord shall have the right to sell the Demised
Premises to a third party on the terms and conditions set forth in Landlord's
Notice; provided, however, that if such sale does not close within six (6)
months from the delivery of the Landlord's Notice to Tenant, then any future
sale shall be subject to the provisions of this Article XII.
ARTICLE XIII
ENVIRONMENTAL MATTERS
13.1(a) Environmental Law Representations. (i) Landlord represents and
warrants, that to the best of Landlord's knowledge and belief after due
inquiry, except as shown in the Phase Reports described in Schedule B annexed
hereto, that (A) there are no "Hazardous Materials" (as hereinafter defined)
contained within, upon or under the Demised Premises, and the Demised Premises
is in compliance with all applicable "Environmental Laws" (as hereinafter
defined) and (B) neither Landlord, nor any former owner or occupant of the
Demised Premises has used Hazardous Materials on, from, or affecting the
Demised Premises (or any part thereof) in any manner which violates any
Environmental Laws. Landlord and Tenant agree that during the Term, they will
not allow Hazardous Materials to be maintained on the Demised Premises in
violation of any Environmental Laws. Landlord further covenants and agrees
that unless this Lease specifically imposes an obligation on Tenant, should the
appropriate federal or state environmental agencies, or any other governmental
authority, require the remediation of the hazardous materials, including those
items described in the Phase Reports, Landlord shall diligently prosecute to
completion all actions necessary to remove all such Hazardous Materials
described in the Phase Reports or caused by Landlord, to the extent required by
law. All such work shall be performed at Landlord's sole cost and expense, in
a first class, workmanlike manner, and in accordance with all requirements of
any federal, state or municipal governmental authorities having jurisdiction.
(ii) Tenant represents, warrants, covenants and agrees that it will not
maintain, store, use, handle or sell any Hazardous Materials in the Demised
Premises, except in compliance with applicable Environmental Laws. In the
event of any breach of its obligations under this Section 13.1(a)(ii), should
the appropriate federal or state environmental agencies, or any other
governmental authority require the remediation of the hazardous materials, the
Tenant shall diligently prosecute to completion all actions necessary to remove
all such Hazardous Materials, to the extent required by law. All such work
shall be performed at Tenant's sole cost and expense, in a first class,
workmanlike manner, and in accordance with all requirements of any federal,
state or municipal governmental authorities having jurisdiction.
13.1(b) Environmental Laws. For purposes of this Article XIII,
"Environmental Laws" shall mean all federal, state or local laws, ordinances,
rules, regulations, or policies whether now or hereafter enacted governing the
use, clean-up, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of Hazardous Materials, including, without
limitation: (1) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. Sec. 9601, et seq.) as amended by the
Superfund Amendment and Reauthorization Act; (2) the Hazardous and Solid Waste
Amendments of 1984, P.L. 98-616 (42 U.S.C. Sec. 699); (3) the Hazardous
Materials Transportation Act (49 U.S.C. Sec. 1801, et seq.); (4) the Resource
Conservation and Recovery Act of 1976 (42 U.S.C. Sec. 6901, et seq.); (5) the
Toxic Substances Control Act; the applicable environmental laws of the State
where the Demised Premises are located; and any amendments thereto and any
regulations adopted and publications promulgated pursuant thereto, or any other
federal, state or local environmental laws, ordinances, rules, regulations or
policies, whether now or hereafter enacted.
13.1(c) Hazardous Materials. "Hazardous Materials" shall mean any
hazardous wastes or hazardous substances as defined in the Environmental Laws,
including, without limitation, any asbestos, PCB's, any toxic, noxious, or
radioactive substances, methane, volatile hydrocarbons, industrial solvents,
petroleum products, or any other materials or substances which could cause or
constitute a health, safety or other environmental hazard to any person or
property.
13.2(a)(i) Environmental Indemnification. Landlord and Tenant each shall
indemnify and hold the other party, its subsidiaries, affiliates, agents,
servants, employees, officers, directors, shareholders, partners and trustees
from and against any and all actions, orders, claims, loss or damage (including
reasonable attorneys' fees), arising out of any breach or violation of any of
the foregoing environmental obligations by such party or any of its agents,
servants, employees, invitees or contractors.
13.2(b) Abatement. In the event that, as a result of the presence of
Hazardous Materials for which Landlord has responsibility under this Lease (i)
Tenant shall be unable to conduct its normal business operations within the
Demised Premises, (ii) Tenant shall be prohibited from conducting its normal
business operations within the Demised Premises or any portion thereof, (iii)
normal business operations within the Demised Premises or normal pedestrian and
vehicular access to the Demised Premises shall be materially interfered with as
a result of any work of removal, repair, restoration or other construction work
performed in connection with the removal of any such Hazardous Materials, and
in any such event, the rent and other charges payable under this Lease shall be
equitably abated during such time as any such interference or prohibition
remains in effect, and Landlord shall forthwith refund to Tenant all unearned
rent and other charges paid in advance by Tenant. If such interference or
prohibition shall continue in effect for a period of two (2) months, Tenant
shall have the right to terminate this Lease by written notice sent to Landlord
at any time after the expiration of such two (2) month period, but before the
interference or prohibition is ended. Landlord shall promptly initiate and
diligently prosecute to completion any action which may be necessary to abate
the condition(s) which gave rise to the interference or prohibition.
13.3 Notices. Landlord and Tenant each agree to provide the other with
copies of notices pertaining to any governmental proceedings or actions under
any Environmental Law (including requests or demands for entry onto the Demised
Premises for purposes of inspection regarding the handling, disposal, or
clean-up of Hazardous Materials, including penalties, fines or assessments for
compliance costs), within ten (10) business days after receipt thereof.
Landlord and Tenant agree to cooperate with each other and provide such
documents, affidavits and information as may be reasonably necessary for each
of the parties to comply with all Environmental Laws.
ARTICLE XIV
MISCELLANEOUS
14.1 Termination. Tenant shall have the right to terminate this Lease at
any time upon not less than sixty (60) days notice to Landlord.
14.2 Self Help Rights. If either Landlord or Tenant defaults in making
any payment to or for the benefit of the other (whether required by this Lease
or otherwise) or in the performance of any other obligation imposed on it by
this Lease, after written notice thereof, then the aggrieved party (without
waiving any claim of breach or for damages) at any time thereafter may make
such payment or cure such other default for the account of the defaulting
party. The reference in the immediately preceding sentence to Landlord or
Tenant, as appropriate, giving the other notice and time to cure shall in no
event be deemed to be a requirement duplicative of notice and cure provisions
provided under another provision of this Lease. If necessary to protect the
interest of either party in the Demised Premises, or to prevent the
interruption or further interruption of the conduct of business in the Demised
Premises, or to prevent injury to persons or damage to property, either party
may cure a default by the other prior to the expiration of the waiting period
but after oral or written notice to the other party.
14.3 Covenant of Quiet Enjoyment. Landlord covenants with Tenant that,
if Tenant shall pay the rent and perform all of the other obligations imposed
on it herein within applicable grace periods, Tenant shall and may peaceably
and quietly have, hold, occupy and enjoy the Demised Premises and all of
Tenant's rights and privileges hereunder without interference of any kind.
14.4 Force Majeure. The time for the performance of any act required to
be done by either party shall be extended by a period equal to any delay caused
by or resulting from act of God, war, civil commotion, fire, casualty, labor
difficulties, shortages of labor or materials or equipment, governmental
regulation, act or default of the other party, or other causes beyond such
party's reasonable control, whether such time be designated by a fixed date, a
fixed time or otherwise.
14.5 Landlord's Right of Entry. Tenant agrees that it will permit
Landlord to enter the Demised Premises at reasonable times to show the same to
prospective purchasers and lenders and to exercise Landlord's rights and
discharge Landlord's obligations under this Lease. Landlord agrees that no
entry by it shall result in unreasonable interference with the conduct of
business in the Demised Premises and that if any such entry shall require or
result in the suspension of Tenant's business, the rent and other charges
payable by Tenant hereunder shall be abated in the same manner and to the same
extent as provided in the case of damage by fire. Landlord further agrees that
no forcible entry will be made except to prevent injury to persons or
substantial damage to property and that, except to prevent injury to persons or
substantial damage to property, no entry will be made outside of Tenant's
business hours except after written, oral or telegraphic notice (as may be
appropriate in the circumstances) to Tenant's manager at the Demised Premises
or other agent designated by Tenant from time to time to receive such notice.
Whenever a forced entry or entry without notice is carried out by Landlord,
Landlord shall promptly after such entry notify Tenant by oral or telegraphic
notice to Tenant's manager or other agent designated by Tenant, from time to
time, to receive such notice.
14.6 End of Term. At the end of the Term, Tenant shall peaceably deliver
the Demised Premises to Landlord, in good order, repair and condition,
reasonable wear and tear excepted, except for damage by casualty or eminent
domain. Tenant shall not be required to remove or undo any installation,
alteration or addition made in, on or to the Demised Premises.
14.7 Holdover. Unless Tenant has renewed this Lease as provided in
Section 2.2, if Tenant continues in occupancy of the Demised Premises after the
end of the Term, such occupancy shall not be deemed to extend or renew the Term
of this Lease. Such occupancy shall be deemed a tenancy at will, from month to
month, upon the terms herein contained except that if holdover is in excess of
thirty (30) days, Fixed Annual Rent shall be at an annual rate equal to 150% of
the Fixed Annual Rent payable under Article III of this Lease, pro rated and
payable in arrears at the end of each month for the period of such occupancy.
Landlord agrees, however, that Tenant shall not be required to give any prior
notice of the termination of such tenancy at will or of Tenant's occupancy
under this Section.
14.8 Waiver; Consents; Remedies Cumulative. Neither the failure of a
non-defaulting party to protest any act or omission on the part of the other
party (however long the same may continue), nor the payment or acceptance of
rent, nor the performance of any obligation on behalf of a defaulting party,
shall be deemed to be a waiver of any rights hereunder or of the right to
recover the amount of any payment or the cost of any performance made or done
under protest, whether or not such protest was made in writing. No waiver by
either party shall be effective unless in writing and signed by the party
asserted to have made such waiver. No waiver of any breach of any provision of
this Lease shall be deemed a waiver of a breach of any other provision of this
Lease or a consent to any subsequent breach of the same or any other provision.
If any action by either party shall require the consent or approval of the
other party, the grant of such consent or approval on any one occasion shall
not be deemed a consent to or approval of that action on any subsequent
occasion or of any other action on the same or any subsequent occasion. Each
right and remedy which either party may have under this Lease or by operation
of law shall be distinct and separate from every other such right and remedy;
all such rights and remedies shall be cumulative (except as may be specified to
the contrary in this Lease) and none of them shall be deemed inconsistent with
or exclusive of any other, whether or not exercised; and any two or more or all
of such rights and remedies may be exercised at the same time or successively.
14.9 Intentionally Omitted.
14.10 Tenant's Business Activities. Nothing contained in this Lease
shall be deemed or construed to impose any affirmative obligation on Tenant to
make any particular use of the Demised Premises, or any use thereof at all; or
to restrict Tenant's business activities outside of the Demised Premises.
14.11 Costs of Performance. Wherever this Lease requires the performance
of an act by either party, such party shall perform the act at its own cost and
expense, unless expressly provided to the contrary.
14.12 Notices. Except as otherwise provided in this Lease, all notices
required hereunder shall be in writing and shall be sent by certified mail,
return receipt requested or by a nationally-recognized courier (such as Federal
Express). Any written notice shall be deemed to have been received within
three (3) business days of mailing or upon delivery by such courier. Notices
for Landlord shall be sent to Landlord at the address first set forth above,
with a simultaneous copy to Spain & Gillon, LLC, 2117 Second Avenue North,
Birmingham, Alabama 35203, Attention: John P. McKleroy, Jr., Esq. Notices
for Tenant shall be sent to Shoals Acquisition Corp., 4381 Green Oaks
Boulevard, Arlington, Texas 76016, Attention: David L.Webster, with a
simultaneous copy, delivered in the same manner to Berlack, Israels & Liberman
LLP, 120 West 45th Street, New York, New York 10036, Attention: Harvey F.
Milman, Esq. Either party, by written notice to the other, may designate other
(and additional) addresses to which notices shall be sent. Notwithstanding any
assignment or subletting, any notice to the holder of Tenant's interest
hereunder alleging default must be sent simultaneously to the Tenant named
herein, and Landlord shall always accept payment or performance from the Tenant
named herein. Landlord's fax number is (205) 381-0143; Tenant's fax number is
(817) 478-8649.
14.13 "Landlord" and "Tenant" Defined. The word "Landlord" shall be
deemed to include each successive holder of the lessor's interest in this
Lease, and the word "Tenant" each successive holder of the lessee's interest in
this Lease, and the provisions of this Lease shall be binding on and
enforceable by the parties and their respective heirs, devisees, personal
representatives, successors and assigns, as appropriate.
14.14 "No Partnership" Clause. No provision of this Lease shall be
deemed to render Landlord and Tenant as partners or participants in any
partnership, joint venture or any other type of joint enterprise.
14.15 Brokerage Claims. Landlord and Tenant each agree to indemnify and
hold the other party harmless against any and all claims and related expenses
(including reasonable legal fees) asserted by any broker for compensation
related to the execution of this Lease or the negotiations therefor.
14.16 Estoppel Certificates. Upon the reasonable request of either
party, at any time or from time to time, Landlord and Tenant agree to execute,
acknowledge and deliver to the other, within twenty (20) days after request, a
written instrument, duly executed and acknowledged, (a) certifying that this
Lease has not been modified and is in full force and effect or, if there has
been a modification of this Lease, that this Lease is in full force and effect
as modified, stating such modifications, (b) specifying the dates to which the
fixed rent and additional rent have been paid, (c) stating whether or not, to
the knowledge of the party executing such instrument, the other party hereto is
in default, and, if such party is in default stating the nature of such
default, (d) whether or not there are then existing any set-offs or defenses
against the enforcement of any of the obligations hereunder upon the part of
Landlord or Tenant, as the case may be, to be performed or complied with (and,
if so, specifying the same), and (e) such other reasonable matters relating to
this Lease or the relationship of the parties hereunder.
14.17 Recording. Either Landlord or Tenant, at its option, shall have
the right to record this Lease, or a memorandum thereof, in the appropriate
recording office located in the county where the Demised Premises are located
and each of the parties hereto agrees that it will execute such instruments as
are reasonably required to effect such recording.
14.18 Severability. In the event any sentence, paragraph, or Article of
this Agreement is declared by a court of competent jurisdiction to be void,
such sentence, Paragraph, or Article shall be deemed severed from the remainder
of the Agreement and the balance of the Agreement shall remain in effect.
14.19 Caption. Titles or captions contained in this Agreement are
inserted only as a matter of convenience and for reference. Such titles and
captions in no way define, limit, extend, or describe the scope of this
Agreement nor the intent of any provisions.
14.20 Gender. Whenever required by the context hereof, the singular
shall include the plural, and vice versa; the masculine gender shall include
the feminine and neuter gender, and vice versa; the word "person" shall include
a natural person as well as a corporation, partnership, firm, or other form of
association.
14.21 Entire Understanding. This Agreement embodies and constitutes the
entire understanding between the parties with respect to the transaction
contemplated herein and all prior agreements, understandings, representations,
and statements, oral or written, are merged into this Agreement. Neither this
Agreement, nor any provision hereof, may be waived, modified, amended,
discharged or terminated except by an instrument signed by the party against
whom the enforcement of such waiver, modification, amendment, discharge, or
termination is sought, and then only to the extent set forth in such instrument
and as permitted by this Agreement.
14.22 Applicable Law. The Agreement shall be governed by and construed
in accordance with the laws of the state where the Demised Premises are
located.
14.23 Mechanic's Liens. Tenant shall have no right to encumber or
subject the interest of Landlord in the Demised Premises to any mechanics',
materialman's, or other liens of any nature whatsoever, and upon the filing of
any such lien, the failure of Tenant to have the same cancelled or bonded
promptly shall constitute a default hereunder and entitle Landlord at its
option to take any action provided for elsewhere in this Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Lease under seal
as of the day and year first above written.
WITNESS: LANDLORD:
THOMAS FAMILY PARTNERSHIP, LTD., an
Alabama limited partnership
_________________________ By: __________________________________
Name: Lecil V. Thomas
Title: General Partner
ATTEST: TENANT:
SHOALS ACQUISITION CORP.
_________________________ By: __________________________________
Name:
Title:
STATE OF _______________ )
) ss.:
COUNTY OF _____________ )
On the 15 day of February, 1996, before me personally came Lecil
V. Thomas, to me known, who, being by me duly sworn, did depose and say that he
is the General Partner of Thomas Family Partnership, Ltd., an Alabama limited
partnership described in, and which executed the foregoing instrument; that he
had the authority to sign same and did so as the act and deed of said limited
partnership.
Notary Public
STATE OF ____________ )
) ss.:
COUNTY OF __________ )
On the 15 day of February, 1996, before me personally came
______________ to me known, who, being by me duly sworn, did depose and say
that he is the ___________ of Shoals Acquisition Corp., a corporation described
in, and which executed the foregoing instrument; that he had the authority to
sign same and did so as the act and deed of said corporation.
Notary Public