Exhibit 10.19
Sub-ITEM (a)
Page 1 of 8
COMMERCIAL LEASE
Agreement of Lease, made as of this 1st day of May, 2000, by and
between S J LIMITED PARTNERSHIP, ("Landlord"), and SOUTHWEST STAINLESS, L.P.
("Tenant").
A. Landlord and Tenant desire to hereby enter into a Commercial Lease
for the demised premises described therein as 7311 Galveston Rd.
#800, Houston, TX. ("Leased Premises") including a 12,500-sq. ft.
tilt wall concrete building with 5500 sq. ft. concrete outside
storage.
NOW THEREFORE, in consideration of the mutual covenants contained in the lease
and herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Landlord and Tenant agree as
follows:
1. The Landlord leases to the Tenant the Leased Premises for the term
of ten (10) years from the first day of May, 2000 to the thirtieth
(30th) day of April, 2010, at an annual rental of Ninety-Three
Thousand Six Hundred and no/100 Dollars ($93,600.00), payable at the
office of the Landlord in equal monthly installments of Seven
Thousand Eight Hundred and no/100 Dollars ($7800.00), in advance, on
the first of each month, the first payment to be made on the 1st day
of May, 2000; With an annual increase by amount equal to %
increase in CPI-U, in no event more than 3%.
a.) Provided it is not then in default under the Lease. Tenant may
extend the term up to three (3) times for one (1) year per extension
by written notice of its election to do so given to Landlord at
least ninety (90) days prior to the current expiration date. The
extended term will be on all of the terms and conditions of this
Lease.
2. The Tenant agrees:
(a) That it will pay the said rent at the times and in the manner
aforesaid.
(b) That it will during the said term insure and keep insured the
said building from loss or damage by fire in at least the sum
of $450,000.00 by insurance companies of recognized
responsibility licensed to do business in this state, and that
it will pay all the premiums necessary for those purposes
within ten (10) days after the same shall become due and will
promptly deliver to the Landlord the policies of insurance and
the receipts from such premiums: Provided, that if the Tenant
shall at any time fail to insure or keep insured as aforesaid,
the Landlord may do all things necessary to effect or maintain
such insurance, and any reasonable moneys expended by it for
that purpose shall be payable by the Tenant on demand, may be
recovered as rent in arrears. Any policies obtained by Tenant
will name Landlord as an additional named insured.
(c) That it will keep all and singular the said building and
premises, including the plumbing in such repair as the same
are at the commencement of the said term or may be put in
during the continuance thereof, reasonable wear and tear and
damage by fire or other unavoidable casualty only excepted,
and will promptly replace all glass thereof broken during the
said term by other of the same size and quality. It is
Page 2 of 8
the intent of the parties that Tenant will only be required to
make repairs or replacements which are not structural in
nature.
(d) That it will not injure, or deface or suffer to be injured or
defaced the premises or any part thereof.
(e) Tenant agrees to indemnify and save harmless Landlord and its
parents, subsidiaries, affiliates, directors, officers,
employees, servants, attorneys and representatives from any
and all claims of action, damages, fines, judgments,
penalties, cost (including environmental clean-up costs and
response costs), liabilities, expenses or losses (including
without limitation, reasonable attorney's fees and expenses of
litigation) arising during or after the Term: (a) as a result
of any violation by Tenant of any applicable federal, state of
local environmental laws of regulations, as now or hereinafter
in effect, regulating, relating to or imposing liability or
imposing standards of conduct concerning any Hazardous
Materials; or (b) as a result of the presence, disturbance,
discharge, release, removal or cleanup of Hazardous Materials
or as a result of environmental contamination or other similar
conditions which existed after commencement of the Term and
which was caused by or brought onto the Premises by Tenant or
Tenant's agents, contractors, employees, licensees and
invitees; or (c) as a result of any violation by Tenant of the
accessibility or path of travel requirements imposed by ADA;
or (d) as a result of any of Tenant's representations and
warranties being untrue. These indemnities will survive the
expiration, cancellation or termination of the Lease;
provided, however, that Tenant will not be liable for the acts
of any other tenants of said property.
(f) That it will use the premises for storage, distribution and
sale of any and all products sold by the Tenant or for any
other lawful purpose. Tenant will not make or suffer any
unlawful, improper, or offensive use of the premises, or any
use or occupancy thereof contrary to any law of the state or
any ordinance of the said city now or hereafter made, or which
shall be injurious to any person or property, or which shall
be liable to endanger or affect any insurance on the said
building or to increase the premium thereof.
(g) That it will not assign, underlet, or part with the possession
of the whole or any part of the premises without first
obtaining the written consent of the Landlord. Provided
however, Tenant may (a) sublet all or part of the Premises to
any corporation, the majority of whose shares are owned by
Tenant, during the period of such majority ownership only or
(b) assign this Lease to any corporation which owns more than
fifty percent (50%) of Tenant's issued and outstanding shares,
or which succeeds to the entire business of Tenant through
purchase, merger, consolidated or reorganization, or to any
affiliate sharing common majority ownership with the Tenant.
Subtenants or assignees will become liable directly to
Landlord for all obligations of Tenant hereunder, without
relieving Tenant's liability.
(h) That the Landlord at all reasonable times may, with not less
than 24 hour notice to tenant, enter to view the premises and
to make repairs which the Landlord may see fit to make, or to
show the premises to person who may wish to lease.
Page 3 of 8
(i) That at the expiration of the said term it will peaceably
yield up to the Landlord the premises and all erections and
additions made upon the same, in good repair in all respect,
reasonable use and wear and damage by fire and other
unavoidable casualties excepted, as the same now are or may be
put in by the Landlord. Provided however, Tenant may (if not
in default hereunder) prior to the expiration of this Lease,
or any extension thereof, remove all personal property,
fixtures and equipment which Tenant has placed in the
Premises, provided that during such removal Tenant will make
all reasonable repairs necessary to return the Premises to its
original condition, reasonable wear and tear excepted.
(j) That all property of any kind that may be on the premises
during the continuance of this lease shall be at the sole risk
of the Tenant, and that the Landlord shall not be liable to
the Tenant or any other person for any injury, loss, or damage
to property or to any person on the premises unless caused by
the negligence or willful neglect of the Landlord.
(k) That no assent, express or implied, by the Landlord to any
bleach of any of the Tenant's covenants, shall be deemed to be
a waiver of any succeeding breach of the same covenant.
(l) That Tenant agrees to accept possession of the demised
premises in their present condition.
3. The Landlord covenants that the Tenant shall peaceably hold and
enjoy the premises.
4. If the Tenant shall fail to pay rent reserved hereunder or any part
thereof after Fifteen (15) days' written notice of same, or shall
default in the performance of any other covenant or condition of
this lease after thirty (30) days' written notice of same, the
Landlord, by its agents and servants, may immediately, or at any
time thereafter, re-enter the demised premises, either by summary
proceedings or by any suitable action or proceeding at law, without
being liable to indictment, prosecution or damage therefor, and the
Tenant, shall remain liable to the Landlord for the deficiency, if
any, between Tenant's rent hereunder and the price obtained by
Landlord on re-letting, and also in case of any such re-entry the
Tenant shall pay to the Landlord on demand, as additional damages,
all legal and other expenses incurred in removing the Tenant, the
commissions for re-letting the demised premises and collecting rent,
the cost of redecorating, refinishing, and repairing the demised
premises and such other expenses as the Landlord may incur in
connection therewith. Upon any such re-entry, the Landlord, at its
option, may re-let the demised premises or any part or parts
thereof, for the remainder of the demised terms or any part or parts
thereof, or for a period extending beyond the date for the
expiration of this lease and receive the rents therefor; and the
rents collected for the balance of the agreed term of the Tenant on
any such re-letting may be applied to pay any of the aforesaid items
of "additional damages" remaining unpaid and to the fulfillment and
performance of the other covenants of the Tenant hereunder, and the
net avails thereof shall be applied by the Landlord on account of
any rent unpaid by the Tenant for the remainder of the demised term;
but the Tenant, however, shall pay to the Landlord upon each such
rent days the amount of any and all deficiencies then existing. In
any case, Landlord will use best efforts to mitigate Tenant's
damages. No
Page 4 of 8
termination of this Lease prior to the normal ending thereof, by
lapse of time or otherwise, will affect Landlord's right to collect
rent for the period prior to the termination thereof. Pursuit of any
of the foregoing remedies will not preclude pursuit of any other
remedies provided by law.
5. In case the premised or any part thereof shall at any time during
the said term be destroyed or damaged by fire or other unavoidable
casualty so as to be unfit for occupancy and use, and so that the
premises cannot be rebuilt or restored by the Landlord within ninety
(90) days thereafter, then this lease shall terminate; but if the
premises can be rebuilt or restored within ninety (90) days, the
Landlord will at its own expense and with due diligence so rebuild
or restore the premises, and a just and proportionate part of the
rents hereby reserved shall be paid by the Tenant until the premises
shall have been so rebuilt or restored.
6. In the event the whole or a substantial part of the premises shall
be taken by the city or state or other public authority for any
public use, then this lease shall terminate from the time when
possession of the whole or of the part so taken shall be required
for such public use, and the rents, properly apportioned, shall be
paid up to the time. Provided, however, such termination will be
without prejudice to the rights of either Landlord or Tenant to
recover compensation and damage caused by condemnation from the
condemnor. If is further understood and agreed that neither Tenant
nor Landlord will have any rights in any award made to the other by
any condemnation authority.
7. The agreements, conditions, covenants and terms herein contained
shall in every case, apply to, be binding upon and inure to the
benefit of the respective parties hereto, their heirs, executors,
administrators, successors and assigns, with the same force and
effect, as if specifically mentioned in each instance where a party
hereto is named, provided, however, that no assignment or
under-letting by Tenant in violation of the provisions of this
lease, shall vest in any such assignee or under-tenant any right or
title in or to the leasehold estate hereby created.
8. Tenant hereby especially covenants and agrees that this lease shall
be subject and subordinate to any mortgage or mortgages now on the
demised premises. Provided, however, as a condition to such
subordination, Landlord must secure from each mortgagee a
nondisturbance agreement acceptable to Tenant providing that in the
event of a foreclosure, the mortgagee will recognize the validity of
this Lease and, provided that Tenant is not in default, will not
disturb tenant's possession or its rights under this lease.
9. Any notice to be given under the terms of this lease by either
party to the other party shall be in writing, and may be effected by
personal delivery or sent by registered or certified mail, return
receipt requested, postage prepaid, to the respective parties at the
following addresses:
Page 5 of 8
Landlord: S J Limited Partnership
7311 Galveston Rd, #710
Houston TX 77034
Tenant: Southwest Stainless, L.P.
20 North Orange Ave., Suite 200
Orlando, Florida 32801
Attn: Mark Scimeca, Esquire, Associate General Counsel
Phone: (407) 841-4755; Fax: (407) 649-3018
10. This lease shall be construed and enforced in accordance with the
laws of the State of Texas.
11. As used in this lease, whenever the context so indicates, the gender
of all words shall include the masculine, feminine and neuter and
the number of all words include the singular and plural.
12. This lease, including any exhibits hereto, constitutes the entire
agreement between the parties pertaining to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings of the parties in connection therewith. No covenants,
representations or conditions not expressed in this lease shall be
binding upon the parties or shall affect or be effective to
interpret, change or restrict the provisions of this Agreement.
13. No modification, cancellation or surrender of this lease shall be
effective unless in writing signed by the Landlord and Tenant by
their duly authorized officers.
14. If any provision of this lease is or may be held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless survive and continue in full
force and effect without being impaired or invalidated in any way.
15. Landlord warrants as of the commencement date of this Lease that the
Premises are structurally sound and that all electrical, lighting,
utility, fire safety, HVAC, and all operating systems are in good
working condition and are not in need of repair.
16. Tenant will have the right, at its expense, to undertake a Phase I
and or Phase II Environmental Site Assessment or equivalent (the
"Environmental Report") with respect to the Premises. In the event
that the results of such Environmental Report are unsatisfactory to
Tenant, in its sole discretion, then tenant will have the right, at
any time within forty-five (45) days after commencement of the term
of this Lease to terminate this Lease immediately upon written
notice to Landlord.
17. Landlord agrees to maintain and keep in good repair the roof,
exterior wails, structural supports (Including foundations),
exterior doors of any and all buildings located on the Premises,
and all water or sewer pipes located underground or in the slab,
sidewalks, parking lots, driveways and other vehicular access and
maneuvering areas. Landlord will also be responsible for any repairs
or replacements which are structural in nature, which are
extraordinary or capital in nature, which will increase the value of
the
Page 6 of 8
Premises subsequent to the end of then term, and any other repairs
not expressly delegated to Tenant in this Lease. Landlord will also
promptly clean up and dispose of any Hazardous Materials found on,
in or under any portion of the Premises, remediate the Premises to
comply with any and all environmental laws applicable thereto, and
pay for all clean up and disposal cost at no cost to Tenant, unless
directly caused by Tenant, its employees, agents or contractors.
Notwithstanding anything to the contrary set forth elsewhere in this
Lease, in the event the installation of sprinkler and fire
protection systems on Premises is required by applicable law,
ordinances, regulations or governmental requirements for Tenant's
current or future use of the Premises at any time during the term of
this Lease or any renewals thereof, Landlord, at Landlord's sole
expense and without materially interfering with Tenant's operations
on the Premises, shall immediately install on the Premises, and
subsequently maintain, repair, modify and replace as necessary to
comply with applicable law, ordinances, regulations and governmental
requirements, all such required sprinkler and fire protection
systems.
18. Landlord agrees to indemnify and save harmless Tenant and its
parents, subsidiaries, affiliates, directors, officers, employees,
agents, servants, attorneys and representatives from any and all
claims, causes of action, damages, fines, judgments, penalties,
costs (including environmental clean-ups costs and response costs),
liabilities, expenses or losses (including without limitation,
reasonable attorney's fees and expenses of litigation) arising
during or after the Lease term: (a) as a result of any violation by
Landlord or prior owners or occupants of the Premises of any
applicable federal, state or local environmental laws or regulation,
as now or hereinafter in effect, regulating, relating to or imposing
liability or imposing standards of conduct concerning any Hazardous
Materials; or (b) as a result of presence, disturbance, discharge,
release, removal or cleanup of Hazardous Materials or as a result of
environmental contamination or other similar conditions which
existed prior to commencement of the Lease term; or (c) as a
result of any violation of the accessibility or path of travel
requirements imposed by ADA; or (d) as a result of any Landlord's
representations and warranties being untrue. These indemnities will
survive the expiration, cancellation or termination of the Lease.
19. Landlord will pay all real property taxes which may be assessed by
any lawful authority against the Premises. Amended to tenant
responsibility 5/15/00.
20. Should Landlord fail to perform any of its obligations hereunder,
Landlord will have a period of thirty (30) days after its receipt of
writing notice from Tenant of a failure of performance within which
to commence a cure of that failure. Failure of Landlord to commence
that cure within the 30-day period or to effect that cure within
30-day period will be an event of default under this Lease and
Tenant may, at its option, elect to: (a) terminate this Lease upon
thirty (30) days written notice to Landlord; (b) bring an action to
require specific performance of Landlord's obligations; (c) provide
Landlord with an additional period of time within which to effect
that cure; (d) commence such cure itself, and Tenant may either, at
its option, offset any expenses it incurs in effecting such cure
against the rent and other charges due and payable by Tenant
hereunder, or require that Landlord immediately reimburse Tenant for
its expenses; provided, however, in the event of an emergency,
Tenant may immediately effect a cure of Landlord's failure
Page 7 of 8
should Landlord fail to act immediately to do so, without the
requirements of any by Tenant to Landlord; and/or (e) pursue any
other remedies provided herein or providing by law.
21. Landlord warrants that Landlord owns the Premises in fee simple and
has the right to enter into this Lease; that the Premises are free
from liens and encumbrances except for utility easements and
unviolated restrictive covenants which do not materially adversely
affect Tenant's intended use of the Premises; that the Premises has
legal, direct, pedestrian and vehicular access to and from and abuts
one or more publicly dedicated roads; that the Premises are in
compliance with all applicable laws, regulations and ordinances;
that all computerized elements (defined to include all computer
hardware and software and all equipment and systems containing or
utilizing computer hardware and software) that are located within,
operate within, benefit or serve all or any portion of either the
Premises of any common areas appurtenant to or necessary to the
normal use and operation of the Premises (the "Computerized
Elements") are able to (a) accurately and properly recognize,
manipulate and compare (in the normal functioning of such
Computerized Elements) all dates, including without limitation the
Year 2000 as a Leap Year and all dates thereafter, and (b)
accurately and properly perform calculations and functions that rely
on the ability to recognize, manipulate or compare such dates, and
(c) operate in accordance with the specifications and manuals for
such Computerized Elements (such Computerized Elements may include,
by way of example and not limitation, elevators, security systems,
access gates, utility systems, fire protection systems, telephone
systems, lighting systems and HVAC systems); to the best of
Landlord's knowledge, that past and current uses of the Premises
comply with federal, state and local environmental laws and
regulations; that Landlord has not received a citation from any
regulatory agency for noncompliance with environmental laws; that,
other than the following matters: NONE, Landlord has no knowledge of
fuel storage tanks or of hazardous, toxic, dangerous, or
carcinogenic materials, substances or contaminants, formaldehyde,
polychlorinated biphenyls ("PCBs"), lead, lead dust, asbestos,
asbestos containing materials (ACMs"), oil, gasoline, other
petroleum products or byproducts, radon or other similar materials
or substance (collectively "Hazardous Materials") on, in or under
the Premises and has no knowledge of any contamination present on,
in or under the Premises; and covenants that Tenant, provided it
performs all of its obligations under this Lease, will peaceably and
quietly enjoy the Premises during the Lease term without any
disturbance from Landlord, anyone claiming by, through or under
Landlord, or any other party, except as otherwise specifically
provided in this Lease.
22. If Tenant remains in possession of the Premises after expiration of
the term hereof, with Landlord's acquiescence and without any
express agreement of the parties, Tenant will be a tenant-at-will at
the rental rate in effect at end of the Lease; and there will be no
renewal of this Lease by operation of law. This Lease will not be
recorded, but the parties agree to execute a Memorandum of this
Lease for recording purposes which will set forth the commencement
date, the term of the Lease and all extensions, a legal description
of the location of the Premises and a description of Tenant's rights
under this Lease including, without limitation, all rights of first
refusal and options to purchase provided hereunder, if any. If
Tenant records the Memorandum of Lease, Tenant agrees
Page 8 of 8
to pay all recording fees and taxes required by reason of the
recording of the Memorandum of Lease.
2.3. Landlord and Tenant shall each indemnify, defend and save the other
harmless from and against any broker commissions, or fees or claim
for commissions or fees arising under the indemnifying party which
indemnification will expressly survive the termination of this
Lease.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to Commercial
Lease to be executed effective the date first above written.
WITNESSES: LANDLORD:
"SJ LIMITED PARTNERSHIP"
/s/ Stefanie Soboleski By: /s/ David Jans
------------------------------ ---------------------------------
Printed: Stefanie Soboleski Printed: David Jans
---------------------- ----------------------------
Title: Partner
------------------------------
/s/ Jason Thrash
-----------------------------
Printed: Jason Thrash
---------------------
WITNESSES: "TENANT"
SOUTHWEST STAINLESS L.P.
By: Z & L ACQUISITION CORP., its
General Partner
/s/ Mark Scimeca By: /s/ J. Stephen Zeph
----------------------------- ---------------------------------
Printed: Mark Scimeca Printed: J. Stephen Zeph
--------------------- ----------------------------
/s/ Gloria Jean Smith Title: Assistant Treasurer
--------------------- ------------------------------
Printed: Gloria Jean Smith
--------------------
Exhibit 10.19
Sub-ITEM (b)
Page 1 of 9
COMMERCIAL LEASE
Agreement of Lease, made as of this is 1st day of June 2000, by and
between S J LIMITED PARTNERSHIP, ("Landlord"), and SOUTHWEST STAINLESS, L.P.
("Tenant").
A. Landlord and Tenant desire to hereby enter into a Commercial Lease
for the demised premises described therein as 7311 Galveston Rd.
#510, Houston, TX. ("Leased Premises") including a 12,500-sq. ft.
machine shop, of concrete tilt-wall construction, with 3000-sq. ft.
of office and 19,000 sq. ft concreted outside storage.
B. The following list of machinery is included in this lease:
1-42" Bullard vertical turret lathe - Serial no. 111651
1-24" Bullard vertical turret lathe - Serial no. 101749
1-20" Monarch horizontal lathe - Serial no. 35217
2-12" Sharp horizontal lathes - Serial no. 4025 & K5069
1- Acer milling machine - Serial no. 030011661
1- Doall horizontal band saw - Serial no. 52799972
1- Goff 4 ft. Rotoblaster - Serial no. 199-50-759
NOW THEREFORE, in consideration of the mutual covenants contained in the lease
and herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Landlord and Tenant agree as
follows:
1. The Landlord leases to the Tenant the Leased Premises for the term
of seven (7) years and 11 months from the first day of June (1st)
2000 to April 30, 2010, at an annual rental of Ninety-Six Thousand
Two Hundred Forty no/100 Dollars ($96,240.00), payable at the office
of the Landlord in equal monthly installments of Eight Thousand
Twenty and no/100 Dollars ($8,020.00), in advance, on the first of
each month, the first payment to be made on the 1st day of June,
2002; With an annual increase by amount equal to % increase in
CPI-U, in no event more than 3%.
a.) Provided it is not then in default under the Lease, Tenant may
extend the term up to three (3) times for one (1) year per extension
by written notice of its election to do so given to Landlord at
least ninety (90) days prior to the current expiration date. The
extended term will be on all of the terms and conditions of this
Lease.
2. The Tenant agrees:
(a) That it will pay the said rent at the times and in the manner
aforesaid.
(b) That it will during the said term insure and keep insured the
said building from loss or damage by fire in at least the sum
of $450,000.00 by insurance companies of recognized
responsibility, licensed to do business in this state, and
that it will pay all the premiums necessary for those purposes
within ten (10) days after the same shall become due and will
promptly deliver to the Landlord the policies of insurance and
the receipts from such premiums: Provided, that if the Tenant
shall at any time fail to insure or keep insured as aforesaid,
the Landlord may do all things necessary to effect or maintain
such insurance, and any reasonable moneys expended by it for
that purpose shall be payable by the Tenant on demand, may be
recovered as rent
Page 2 of 9
in arrears. Any policies obtained by Tenant will name Landlord
as an additional named insured.
(c) That it will keep all and singular the said building and
premises, including the plumbing in such repair as the same
are at the commencement of the said term or may be put in
during the continuance thereof, reasonable wear and tear and
damage by fire or other unavoidable casualty only excepted,
and will promptly replace all glass thereof broken during the
said term by other of the same size and quality. It is
the intent of the parties that Tenant will only be required to
make repairs or replacements, which are not structural in
nature.
(d) That it will not injure, or deface or suffer to be injured or
defaced the premises or any part thereof.
(e) Tenant agrees to indemnify and save harmless Landlord and its
parents, subsidiaries, affiliates, directors, officers,
employees, servants, attorneys and representatives from any
and all claims of action, damages, fines, judgments,
penalties, cost (including environmental clean-up costs and
response costs), liabilities, expenses or losses (including
without limitation, reasonable attorney's fees and expenses of
litigation) arising during or after the Term: (a) as a result
of any violation by Tenant of any applicable federal, state of
local environmental laws of regulations, as now or hereinafter
in effect, regulating, relating to or imposing liability or
imposing standards of conduct concerning any Hazardous
Materials; or (b) as a result of the presence, disturbance,
discharge, release, removal or cleanup of Hazardous Materials
or as a result of environmental contamination or other similar
conditions which existed after commencement of the Term and
which was caused by or brought onto the Premises by Tenant or
Tenant's agents, contractors, employees, licensees and
invitees; or (c) as a result of any violation by Tenant of the
accessibility or path of travel requirements imposed by ADA;
or (d) as a result of any of Tenant's representations and
warranties being untrue. These indemnities will survive the
expiration, cancellation or termination of the Lease;
provided, however, that Tenant will not be liable for the acts
of any other tenants of said property.
(f) That it will use the premises for storage, distribution and
sale of any and all products sold by the Tenant or for any
other lawful purpose. Tenant will not make or suffer any
unlawful, improper, or offensive use of the premises, or any
use or occupancy thereof contrary to any law of the state or
any ordinance of the said city now or hereafter made, or which
shall be injurious to any person or property, or which shall
be liable to endanger or affect any insurance on the said
building or to increase the premium thereof.
(g) That it will not assign, underlet, or part with the possession
of the whole or any part of the premises without first
obtaining the written consent of the Landlord. Provided
however, Tenant may (a) sublet all or part of the Premises to
any corporation, the majority of whose shares are owned by
Tenant, during the period of such majority ownership only or
(b) assign this Lease to any corporation which owns more than
fifty percent (50%) of Tenant's issued and outstanding shares,
or which succeeds to the entire business of Tenant through
purchase, merger, consolidated or
Page 3 of 9
reorganization, or to any affiliate sharing common majority
ownership with the Tenant, Subtenants or assignees will become
liable directly to Landlord for all obligations of Tenant
hereunder, without relieving Tenant's liability.
(h) That the Landlord at all reasonable times may, with not less
than 24 hour notice to tenant, enter to view the premises and
to make repairs which the Landlord may see fit to make, or to
show the premises to person who may wish to lease.
(i) That at the expiration of the said term it will peaceably
yield up to the Landlord the premises and all erections and
additions made upon the same, in good repair in all respect,
reasonable use and wear and damage by fire and other
unavoidable casualties excepted, as the same now are or may be
put in by the Landlord. Provided however, Tenant may (if not
in default hereunder) prior to the expiration of this Lease,
or any extension thereof, remove all personal property,
fixtures and equipment which Tenant has placed in the
Premises, provided that during such removal Tenant will make
all reasonable repairs necessary to return the Premises to its
original condition, reasonable wear and tear excepted.
(j) That all property of any kind that may be on the premises
during the continuance of this lease shall be at the sole risk
of the Tenant, and that the Landlord shall not be liable to
the Tenant or any other person for any injury, loss, or damage
to property or to any person on the premises unless caused by
the negligence or willful neglect of the Landlord.
(k) That no assent, express or implied, by the Landlord to any
breach of any of the Tenant's covenants, shall be deemed to be
a waiver of any succeeding breach of the same covenant.
(l) That Tenant agrees to accept possession of the demised
premises in their present condition.
3. The Landlord covenants that the Tenant shall peaceably hold and
enjoy the premises.
4. If the Tenant shall fail to pay rent reserved hereunder or any part
thereof after Fifteen (15) days' written notice of same, or shall
default in the performance of any other covenant or condition of
this lease after thirty (30) days' written notice of same, the
Landlord, by its agents and servants, may immediately, or at any
time thereafter, re-enter the demised premises, either by summary
proceedings or by any suitable action or proceeding at law, without
being liable to indictment, prosecution or damage therefor, and the
Tenant, shall remain liable to the Landlord For the deficiency, if
any, between Tenant's rent hereunder and the price obtained by
Landlord on re-letting, and also in case of any such re-entry the
Tenant shall pay to the Landlord on demand, as additional damages,
all legal and other expenses incurred in removing the Tenant, the
commissions for re-letting the demised premises and collecting rent,
the cost of redecorating, refinishing, and repairing the demised
premises and such other expenses as the Landlord may incur in
connection therewith. Upon any such re-entry, the Landlord, at its
option, may re-let the demised premises or any part or parts
thereof, for the remainder of the demised terms or any part or parts
thereof, or for a period extending beyond the date for
Page 4 of 9
the expiration of this lease and receive the rents therefor; and the
rents collected for the balance of the agreed term of the Tenant on
any such re-letting may be applied to pay any of the aforesaid items
of "additional damages" remaining unpaid and to the fulfillment and
performance of the other covenants of the Tenant hereunder, and the
net avails thereof shall be applied by the Landlord on account of
any rent unpaid by the Tenant for the remainder of the demised term;
but the Tenant, however, shall pay to the Landlord upon each such
rent days the amount of any and all deficiencies then existing. In
any case, Landlord will use best efforts to mitigate Tenant's
damages. No termination of this Lease prior to the normal ending
thereof, by lapse of time or otherwise, will affect Landlord's right
to collect rent for the period prior to the termination thereof.
Pursuit of any of the foregoing remedies will not preclude pursuit
of any other remedies provided by law.
5. In case the premised or any part thereof shall at any time during
the said term be destroyed or damaged by fire or other unavoidable
casualty so as to be unfit for occupancy and use, and so that the
premises cannot be rebuilt or restored by the Landlord within ninety
(90) days thereafter, then this lease shall terminate; but if the
premises can be rebuilt or restored within ninety (90) days, the
Landlord will at its own expense and with due diligence so rebuild
or restore the premises, and a just and proportionate part of the
rents hereby reserved shall be paid by the Tenant until the premises
shall have been so rebuilt or restored.
6. In the event the whole or a substantial part of the premises shall
be taken by the city or state or other public authority for any
public use, then this lease shall terminate from the time when
possession of the whole or of the part so taken shall be required
for such public use, and the rents, properly apportioned, shall be
paid up to the time. Provided, however, such termination will be
without prejudice to the rights of either Landlord or Tenant to
recover compensation and damage caused by condemnation from the
condemnor. If is further understood and agreed that neither Tenant
nor Landlord will have any rights in any award made to the other by
any condemnation authority.
7. The agreements, conditions, covenants and terms herein contained
shall in every case, apply to, be binding upon and inure to the
benefit of the respective parties hereto, their heirs, executors,
administrators, successors and assigns, with the same force and
effect, as if specifically mentioned in each instance where a party
hereto is named, provided, however, that no assignment or
under-letting by Tenant in violation of the provisions of this
lease, shall vest in any such assignee or under-tenant any right or
title in or to the leasehold estate hereby created.
8. Tenant hereby especially covenants and agrees that this lease shall
be subject and subordinate to any mortgage or mortgages now on the
demised premises. Provided, however, as a condition to such
subordination. Landlord must secure from each mortgagee a
nondisturbance agreement acceptable to Tenant providing that in the
event of a foreclosure, the mortgagee will recognize the validity of
this Lease and, provided that Tenant is not in default, will not
disturb tenant's possession or its rights under this lease.
Page 5 of 9
9. Any notice to be given under the terms of this lease by either party
to the other party shall be in writing, and may be effected by
personal delivery or sent by registered or certified mail, return
receipt requested, postage prepaid, to the respective parties at the
following addresses:
Page 6 of 9
Landlord: S J Limited Partnership
7311 Galveston Rd, #710
Houston TX 77034
Tenant: Southwest Stainless, L.P., c/o Hughes Supply, Inc.,
Attn.: Legal Dept.
20 North Orange Ave., Suite 200
Orlando, Florida 32801
This lease shall be construed and enforced in accordance with the laws of
the State of Texas.
10. As used in this lease, whenever the context so indicates, the gender
of all words shall include the masculine, feminine and neuter and
the number of all words include the singular and plural.
11. This lease, including any exhibits hereto, constitutes the entire
agreement between the parties pertaining to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings of the parties in connection therewith. No covenants,
representations or conditions not expressed in this lease shall be
binding upon the parties or shall affect or be effective to
interpret, change or restrict the provisions of this Agreement.
12. No modification, cancellation or surrender of this lease shall be
effective unless in writing signed by the Landlord and Tenant by
their duly authorized officers.
13. If any provision of this lease is or may be held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless survive and continue in full
force and effect without being impaired or invalidated in any way.
14. Landlord warrants as of the commencement date of this Lease that the
Premises are structurally sound and that all electrical, lighting,
utility, fire safety, HVAC, and all operating systems are in good
working condition and are not in need of repair.
15. Tenant will have the right, at its expense, to undertake a Phase I
and or Phase II Environmental Site Assessment or equivalent (the
"Environmental Report") with respect to the Premises. In the event
that the results of such Environmental Report are unsatisfactory to
Tenant, in its sole discretion, then tenant will have the right, at
any time within forty-five (45) days after commencement of the term
of this Lease to terminate this Lease immediately upon written
notice to Landlord.
16. Landlord agrees to maintain and keep in good repair the roof,
exterior wails, structural supports (Including foundations),
exterior doors of any and all buildings located on the Premises, and
all water or sewer pipes located underground or in the slab,
sidewalks, parking lots, driveways and other vehicular access and
maneuvering areas. Landlord will also be responsible for any repairs
or replacements which are structural in nature, which are
extraordinary or capital in nature, which will increase the value of
the Premises subsequent to the end of then term, and any other
repairs not expressly
Page 7 of 9
delegated to Tenant in this Lease. Landlord will also promptly clean
up and dispose of any Hazardous Materials found on, in or under any
portion of the Premises, remediate the Premises to comply with any
and all environmental laws applicable thereto, and pay for all clean
up and disposal cost at no cost to Tenant, unless directly caused by
Tenant, its employees, agents or contractors. Notwithstanding
anything to the contrary set forth elsewhere in this Lease, in the
event the installation of sprinkler and fire protection systems on
Premises is required by applicable law, ordinances, regulations or
governmental requirements for Tenant's current or future use of the
Premises at any time during the term of this Lease or any renewals
thereof, Landlord, at Landlord's sole expense and without materially
interfering with Tenant's operations on the Premises, shall
immediately install on the Premises, and subsequently maintain,
repair, modify and replace as necessary to comply with applicable
law, ordinances, regulations and governmental requirements, all such
required sprinkler and fire protection systems.
17. Landlord agrees to indemnify and save harmless Tenant and its
parents, subsidiaries, affiliates, directors, officers, employees,
agents, servants, attorneys and representatives from any and all
claims, causes of action, damages, fines, judgments, penalties,
costs (including environmental clean-ups costs and response costs),
liabilities, expenses or losses (including without limitation,
reasonable attorney's fees and expenses of litigation) arising
during or after the Lease term (a) as a result of any violation by
Landlord or prior owners or occupants of the Premises of any
applicable federal, state or local environmental laws or regulation,
as now or hereinafter in effect, regulating, relating to or imposing
liability or imposing standards of conduct concerning any Hazardous
Materials; or (b) as a result of presence, disturbance, discharge,
release, removal or cleanup of Hazardous Materials or as a result of
environmental contamination or other similar conditions which
existed prior to commencement of the Lease term; or (c) as a
result of any violation of the accessibility or path of travel
requirements imposed by ADA; or (d) as a result of any Landlord's
representations and warranties being untrue. These indemnities will
survive the expiration, cancellation or termination of the Lease.
18. Upon receipt from Landlord of real property tax bills for the
Premises, Tenant will pay all real property taxes which may be
assessed by any lawful authority against the Premises. Tenant shall
have the right to appeal any real property tax assessment. Landlord
shall cooperate reasonably with Tenant in connection with any such
appeal. Any such appeal shall be at Tenant's sole expense. Landlord
shall deliver all tax notices and bills for the premises to Tenant
within 10 days of Landlord's receipt thereof.
19. Should Landlord fail to perform any of its obligations hereunder,
Landlord will have a period of thirty (30) days after its receipt of
writing notice from Tenant of a failure of performance within which
to commence a cure of that failure. Failure of Landlord to commence
that cure within the 30-day period or to effect that cure within
30-day period will be an event of default under this Lease and
Tenant may, at its option, elect to: (a) terminate this Lease upon
thirty (30) days written notice to Landlord; (b) bring an action to
require specific performance of Landlord's obligations; (c) provide
Landlord with an additional period of time within which to effect
that cure; (d) commence such cure itself, and Tenant may either, at
its option, offset any expenses it incurs in effecting such cure
against the rent and other charges due and payable by Tenant
hereunder, or require that Landlord immediately reimburse Tenant for
its expenses; provided, however, in the event of an emergency,
Tenant may immediately effect a cure of Landlord's failure should
Landlord fail to act immediately to do so, without the requirements
of any by
Page 8 of 9
Tenant to Landlord; and/or, (e) pursue any other remedies provided
herein or providing by law.
20. Landlord warrants that Landlord owns the Premises in fee simple and
has the right to enter into this Lease; that the Premises are free
from liens and encumbrances except for utility easements and
unviolated restrictive covenants which do not materially adversely
affect Tenant's intended use of the Premises; that the Premises has
legal, direct, pedestrian and vehicular access to and from and abuts
one or more publicly dedicated roads; that the Premises are in
compliance with all applicable laws, regulations and ordinances;
that all computerized elements (defined to include all computer
hardware and software and all equipment and systems containing or
utilizing computer hardware and software) that are located within,
operate within, benefit or serve all or any portion of either the
Premises of any common areas appurtenant to or necessary to the
normal use and operation of the Premises (the "Computerized
Elements") are able to (a) accurately and properly recognize,
manipulate and compare (in the normal functioning of such
Computerized Elements) all dates, including without limitation the
Year 2000 as a Leap Year and all dates thereafter, and (b)
accurately and properly perform calculations and functions that rely
on the ability to recognize, manipulate or compare such dates, and
(c) operate in accordance with the specifications and manuals for
such Computerized Elements (such Computerized Elements may include,
by way of example and not limitation, elevators, security systems,
access gates, utility systems, fire protection systems, telephone
systems, lighting systems and HVAC systems); to the best of
Landlord's knowledge, that past and current uses of the Premises
comply with federal, state and local environmental laws and
regulations; that Landlord has not received a citation from any
regulatory agency for noncompliance with environmental laws; that,
other than the following matters: NONE, Landlord has no knowledge of
fuel storage tanks or of hazardous, toxic, dangerous, or
carcinogenic materials, substances or contaminants, formaldehyde,
polychlorinated biphenyls ("PCBs"), lead, lead dust, asbestos,
asbestos containing materials (ACMs"), oil, gasoline, other
petroleum products or byproducts, radon or other similar materials
or substance (collectively "Hazardous Materials") on, in or under
the Premises and has no knowledge of any contamination present on,
in or under the Premises; and covenants that Tenant, provided it
performs all of its obligations under this Lease, will peaceably and
quietly enjoy the Premises during the Lease term without any
disturbance from Landlord, anyone claiming by, through or under
Landlord, or any other party, except as otherwise specifically
provided in this Lease.
21. If Tenant remains in possession of the Premises after expiration of
the term hereof, with Landlord's acquiescence and without any
express agreement of the parties, Tenant will be a tenant-at-will at
the rental rate in effect at end of the Lease; and there will be no
renewal of this Lease by operation of law. This Lease will not be
recorded, but the parties agree to execute a Memorandum of this
Lease for recording purposes which will set forth the commencement
date, the term of the Lease and all extensions, a legal description
of the location of the Premises and a description of Tenant's rights
under this Lease including, without limitation, all rights of first
refusal and options to purchase provided hereunder, if any. If
Tenant records the Memorandum of Lease, Tenant agrees to pay all
recording fees and taxes required by reason of the recording of the
Memorandum of Lease.
Page 9 of 9
22. Landlord and Tenant shall each indemnify, defend and save the other
harmless from and against any broker commissions, or fees or claim
for commissions or fees arising under the indemnifying party which
indemnification will expressly survive the termination of this
Lease; provided, however, that upon execution of the Lease by both
parties, Landlord shall pay to Mohr Partners, Inc. a commission
equal to 4.5% of the sum of all base rent (excluding add-ons & CPI
increases) payable under this Lease.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to Commercial
Lease to be executed effective the date first above written.
WITNESSES: LANDLORD:
"SJ LIMITED PARTNERSHIP"
/s/ Stefanie Soboleski By: /s/ David Jans
------------------------------ ---------------------------------
Printed: Stefanie Soboleski Printed: David Jans
---------------------- ----------------------------
Title: President
------------------------------
/s/ Keneth D. Owen
------------------------------
Printed: Keneth D. Owen
----------------------
WITNESSES: "TENANT"
SOUTHWEST STAINLESS, L.P., a DE
limited partnership
By: Z & L ACQUISITION CORP., a DE
corporation, its General Partner
/s/ Mark Scimeca By: /s/ J. Stephen Zeph
------------------------------ ---------------------------------
Printed: Mark Scimeca Printed: J. Stephen Zeph
---------------------- ----------------------------
/s/ Barbara K. Winslow Title: Assistant Treasurer
---------------------- ------------------------------
Printed: Barbara K. Winslow
----------------------
July 10, 2002
VIA FAX: 713-941-2735
SJ Limited Partnership
7311 Galveston Rd., #710
Houston, Texas 77034
Re: Br. 9026 - Commercial Lease for 7311 Galveston Road, #510, Houston, Texas
by and between SJ Limited Partnership, as Landlord, and Southwest
Stainless, L.P., as Tenant, dated June 1, 2002 (the "Lease").
Dear Landlord:
Per my conversation with Dave Jans this morning, this letter shall serve to
confirm the agreement of Landlord and Tenant to amend the Lease to extend by
three (3) weeks the forty-five (45) day Tenant environmental due diligence
period provided for in Paragraph 15 of the Lease. Please sign below and fax a
signed copy of this letter back to me at 407-649-3018 at your earliest
convenience today. Thank you very much for your assistance and cooperation in
this regard.
Sincerely,
Mark Scimeca
Associate General Counsel
The foregoing is accepted and agreed to by:
SOUTHWEST STAINLESS, L.P. SJ LIMITED PARTNERSHIP
By: Z&L Acquisition Corp.,
Its sole General Partner By:________________________
By:__________________________________ Printed:___________________
Benjamin P. Butterfield, Secretary
November 11, 2002
VIA FACSIMILE TO (713) 941-2735
AND CERTIFIED MAIL
RETURN RECEIPT REQUESTED
SJ Limited Partnership
7311 Galveston Rd., #710
Houston, Texas 77034
Re: Br. 9090: Commercial Lease dated June 1, 2002 by and between SJ
Limited Partnership, as Landlord, and Southwest Stainless, L.P., as
Tenant, for property located at 7311 Galveston Road, #510, Houston,
Texas (the "Lease").
Dear Landlord:
This letter amendment to Lease shall serve to confirm the agreement of Landlord
and Tenant to modify the Lease as follows:
1. The Lease is hereby amended by deleting the first paragraph in Item 1 in
its entirety and replacing it with the following:
1. The landlord leases to the Tenant the Leased Premises for the term of
seven (7) years and eleven (11) months from the first day of June (1st)
2002 to April 30, 2010 at an annual rental of Ninety-Three Thousand Six
Hundred and no/100 Dollars ($93,600.00), payable at the office of the
Landlord in equal monthly installments of Seven Thousand Eight Hundred and
no/100 ($7,800.00), in advance, on the first of each month, the first
payment to be made on the 1st day of June, 2002; with an annual increase
by amount equal to % increase in CPI-U, in no event more than 3%.
Paragraph 1a.) shall remain unchanged.
2. Except as modified hereby, the Lease shall remain unchanged and in full
force and effect.
Please indicate the acceptance and agreement of Landlord to this letter
amendment to Lease by having Landlord sign below and faxing a signed copy of
this letter to my attention at (407) 649-3018. Thank you for your assistance
with this matter.
SJ Limited Partnership
November 11, 2002
Page Two
Sincerely,
Mark Scimeca
Assistant Secretary and
Associate General Counsel
MDS:js
cc: Mike Stanwood (via fax)
Dave Jans (via fax)
George Urquiola (via inter-office mail)
Jeff Bulejcik (via inter-office mail)
The foregoing is accepted and agreed to by:
SOUTHWEST STAINLESS, L.P.
By: Z&L Acquisition Corp.,
Its sole General Partner
By:______________________________
Printed:_________________________
Title:___________________________
Date:____________________________
SJ LIMITED PARTNERSHIP
By:______________________________
Printed:_________________________
Title:___________________________
Date:____________________________