Exhibit 10.58
STANDARD COMMERCIAL LEASE
ARTICLE 1. BASIC LEASE TERMS
1.1 Parties. This lease agreement ("Lease") is entered into this 2nd
day of January, 1996 by and between Xxxxx X. Xxxxxxxx, an individual
("Landlord") and Thermal Line Windows, L.L.P, a Minnesota limited liability
partnership ("Tenant").
1.2 Premises. In consideration of the rents, terms, provisions and
covenants of this Lease, Landlord hereby leases, lets and demises to Tenant
the following described premises ("Premises") as illustrated on Exhibit A
attached hereto, approximately 24,750 sq. ft. of warehouse space and -0- sq.
ft. of finished tech space and -0- sq. ft. of office space (24,750 total sq.
ft.) located at 0000 00xx Xxx., XX, Xxxxxx, XX 00000 ("Building") which
consists of approximately 49,500 sq. ft. in Mandan, ND, Minnesota, as legally
described on Exhibit B attached hereto.
1.3 Term. Subject to the conditions set forth herein, the term of
this Lease shall commence on January 2, 1996 (the "Commencement Date") and
shall terminate Sixty (60) months thereafter on December 31, 2000, unless
sooner terminated as hereinafter provided.
1.4 Base Rent. Base rent is:
MONTH MONTHLY BASE RENT
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1-60 $ 6,187.50 for first 6 months
$12,375.00, thereafter.
1.5 Addresses.
LANDLORD'S ADDRESS: TENANT'S BUILDING ADDRESS:
------------------- --------------------------
Xxxxx X. Xxxxxxxx 0000 00xx Xxx., XX
Xxx 000 Xxxxxx, XX 00000
Xxxxxx, XX 00000
TENANT'S ADDRESS FOR NOTICES:
-----------------------------
Same
1.6. Permitted Use. Manufacturing, assembly and warehouse.
1.7 Security Deposit. $ -0-
1.8 Pro-Rata Share. 50% subject to adjustment as provided in
Section 2.2 hereof.
ARTICLE 2. RENT
2.1 Base Rent. Tenant agrees to pay monthly as base rent during the
term of this lease the sum of money set forth in Section 1.4 of this Lease,
which amount shall be payable to Landlord at the address shown above. One
monthly installment of rent shall be due and payable on the date of execution
of this Lease by Tenant for the first month's rent and a like monthly
installment shall be due and payable on or before the first day of each
calendar month succeeding the Commencement Date during the term of this
Lease; provided, if the Commencement Date should be a date other than the
first day of a calendar month, the monthly rental set forth above shall be
prorated to the end of that calendar month, and all succeeding installments
of rent shall be payable on or before the first day of each succeeding
calendar month during the term of this Lease. Tenant shall pay, as additional
rent, all other sums due under this Lease. Notwithstanding anything in this
Lease to the contrary, if Landlord, for any reason whatsoever (other than
Tenant's default), cannot deliver possession of the Premises to the Tenant on
the Commencement Date, this Lease shall not be void or voidable, nor shall
Landlord be liable to Tenant for any loss or damage resulting therefrom, nor
shall the expiration of the term be extended, but all rent shall be abated
until Landlord delivers possession. All base rent, additional rent and other
sums payable by Tenant pursuant to this Lease are payable without demand and
without any reduction, abatement, counterclaims or setoff.
2.2 Operating Expenses. Tenant shall also pay as additional rent
Tenant's pro rata share of the operating expenses of Landlord for the
Building and/or project of which the Premises are a part. Landlord may
invoice Tenant monthly for Tenant's pro rata share of the estimated
operating expenses for each calendar year, which amount shall be adjusted
from time-to-time by Landlord based upon anticipated operating expenses.
Within nine(9) months following the close of each calendar year, Landlord
shall provide Tenant an accounting showing in reasonable detail all
computations of additional rent due under this Section. In the event the
accounting shows that the total of the monthly payments made by Tenant
exceeds the amount of additional rent due by Tenant under this Section, the
accounting shall be accompanied by evidence of a credit to Tenant's account.
In the event the accounting shows that the total of the monthly payments made
by Tenant is less than the amount of additional rent due by Tenant under this
Section, the accounting shall be accompanied by an invoice for the additional
rent. Notwithstanding any other provision in this Lease, during the year in
which the Lease terminates, Landlord, prior to the termination date, shall
have the option to invoice Tenant for Tenant's pro rata share of the
operating expenses based upon the previous year's operating expenses. If this
Lease shall terminate on a day other than the last day of a calendar year,
the amount of any additional rent payable by Tenant applicable to the year in
which the termination shall occur, shall be pro rated on the ratio that the
number of days from the commencement of the calendar year to and including
such termination date bears to 355. Tenant agrees to pay any additional rent
due under this Section within ten (10) days following receipt of the invoice
or accounting showing additional rent due. Tenant's pro rata share set forth
in Section 1.8 shall be equal to a
percentage based upon a fraction the numerator of which is the total area of
the Premises as set forth in Article 1 and the denominator of which shall be
the net rentable area of the Building.
2.3 Definition of Operating Expenses. The term "operating expenses"
includes all expenses incurred by Landlord with respect to the maintenance
and operation of the Building of which the Premises are a part, including,
but not limited to, the following: maintenance, repair and replacement costs;
electricity, fuel, water, sewer, gas and other common Building utility
charges; signage; equipment used for maintenance and operation of the
Building; security charges; security, window washing and janitorial services;
trash and snow removal; landscaping and pest control; all services, supplies,
repairs, replacements or other expenses for maintaining and operating the
Building or project including parking and common areas; improvements made to
the Building which are required under any governmental law or regulation that
was not applicable to the Building at the time it was constructed;
installation of any device or other equipment which improves the operating
efficiency of any system within the Premises and thereby reduces operating
expenses; all other expenses which would generally be regarded as operating,
repair, replacement and maintenance expenses; all real property taxes and
installments of special assessments, including dues and assessments by means
of deed restrictions and/or owners' associations which accrue against the
Building during the term of this Lease and legal fees incurred in connection
with actions to reduce the same; and all insurance premiums Landlord is
required to pay or deems necessary to pay, including fire and extended
coverage, rent loss and public liability insurance, with respect to the
Building.
2.4 Late Payment Charge. If the monthly rental payment or any other
payment due from Tenant to Landlord is not received by Landlord on or before
the due date thereof, Landlord shall be entitled to exercise any remedy for
nonpayment provided in this Lease and, in addition, if such payment is not
received on or before five (5) days after the due date, a late payment charge
of five percent (5%) of such past due amount shall become due and payable by
Tenant in addition to such amounts owed under this Lease.
2.5 Increase in Insurance Premiums. If an increase in any insurance
premiums paid by Landlord for the Building is caused by Tenant's use of the
Premises or if Tenant vacates the Premises and causes an increase in such
premiums, then Tenant shall pay as additional rent the amount of such
increase to Landlord.
2.6 Security Deposit. The security deposit set forth in Section 1.7
shall be held by Landlord for the performance of Tenant's covenants and
obligations under this Lease, it being expressly understood that the security
deposit shall not be considered an advance payment of rental or a measure of
Landlord's damage in case of default by Tenant. Upon the occurrence of any
event of default by Tenant or breach by Tenant of Tenant's covenants under
this Lease, Landlord may, from time to time, without prejudice to any other
remedy, use the security deposit to the extend necessary to make good any
arrears of rent, or to repair any damage or injury, or pay any expense or
liability incurred by Landlord as a result of the event of default or breach
of covenant, and any remaining balance of the security deposit shall be
returned by Landlord to Tenant upon termination of this Lease. If any portion
of the security deposit is so used or
applied, Tenant shall upon ten (10) days written notice from Landlord,
deposit with Landlord by cash or cashier's check an amount sufficient to
restore the security deposit to its original amount.
2.7 Holding Over. In the event that tenant does not vacate the
Premises upon the expiration or termination of this Lease, Tenant shall be a
tenant at will for the holdover period and all of the terms and provisions of
this Lease shall be applicable during that period, except that Tenant shall
pay Landlord as base rental for the period of such holdover an amount equal
to two (2) times the base rent which would have been payable by Tenant had
the holdover period been a part of the original term of this Lease, together
with all additional rent as provided in this Lease. Tenant agrees to vacate
and deliver the Premises to Landlord upon Tenant's receipt of notice from
Landlord to vacate. The rental payable during the holdover period shall be
payable to Landlord on demand. No holding over by Tenant, whether with or
without the consent of Landlord, shall operate to extend the term of this
Lease.
ARTICLE 3. OCCUPANCY AND USE
3.1 Use. Tenant warrants and represents to Landlord that the
Premises shall be used and occupied only for the purpose as set forth I
Section 1.6. Tenant shall occupy the Premises, conduct its business and
control its agents, employees, invitees and visitors in such a manner as is
lawful, reputable and will not create a nuisance. Tenant shall not permit any
operation which emits any odor or matter which intrudes into other portions
of the Building, use any apparatus or machine which makes undue noise or
causes vibration in any portion of the Building or otherwise interfere with,
annoy or disturb any other leisure in its normal business operations or
Landlord in its management of the Building. Tenant shall neither permit any
waste on the Premises nor allow the Premises to be used in any way which
would in the opinion of Landlord, be extra hazardous on account of fire or
which would in any way increase or render void the fire insurance on the
Building.
3.2 Signs. No sign of any type or description shall be erected,
placed or painted in or about the Premises or project except those signs
submitted to Landlord in writing and approved by Landlord in writing, and
which signs are in conformance with Landlord's sign criteria, established for
the project, attached hereto as Exhibit E.
3.3 Compliance with Laws, Rules and Regulations. Tenant, at Tenant's
sole cost and expense, shall comply with all laws, ordinances, orders, rules
and regulations of state, federal, municipal or other agencies or bodies
having jurisdiction over the use, condition or occupancy of the Premises.
Tenant will comply with the rules and regulations of the Building adopted by
Landlord, including those attached hereto as Exhibit F. Landlord shall have
the right at all times to change and amend the rules and regulations in any
reasonable manner as may be deemed advisable for the safety, care,
cleanliness, preservation of good order and operation or use of the Building
or the Premises. All changes and amendments to the rules and regulations of
the Building will be sent by Landlord to Tenant in writing and shall
thereafter be carried out and observed by Tenant.
3.4 Warranty of Possession. Landlord warrants that it has the right
and authority to execute this Lease, and Tenant, upon payment of the required
rents and subject to the terms, conditions, covenants and agreements
contained in this Lease, shall have possession of the Premises during the
full term of this Lease as well as any extension or renewal thereof. Landlord
shall not be responsible for the acts or omissions of any other lessee, other
than Homeworks Supply, Inc., or third party that may interfere with Tenant's
use and enjoyment of the Premises.
3.5 Right of Access. Landlord or its authorized agents shall at any
and all reasonable times have the right to enter the Premises to inspect the
same, to show the Premises to perspective purchasers or lessees, and to
alter, improve or repair the Premises or any other portion of the Building.
Tenant hereby waives any claim for damages for injury or inconvenience to or
interference with Tenant's business, any loss of occupancy or use of the
Premises, and any other loss occasioned thereby. Landlord shall at all times
have and retain a key with which to unlock all of the doors in, upon and
about the Premises. Tenant shall not change Landlord's lock system or in any
other manner prohibit Landlord from entering the Premises. Landlord shall
have the right to use any and all means which Landlord may deem proper to
open any door in an emergency without liability therefor. Tenant shall permit
Landlord to erect, use, maintain and repair pipes, cables, conduits,
plumbing, vents and wires in, to and through the Premises as often and to the
extent that Landlord may, now or hereafter deem to be necessary or
appropriate for the proper use, operation and maintenance of the Building.
3.6 Acceptance. The commencement by Tenant of any business in the
Premises shall constitute an acknowledgement that the Premises are in the
condition called for in this Lease and that Landlord has performed all of
Landlord's work.
ARTICLE 4. UTILITIES AND SERVICE
4.1 Building Services. Tenant shall pay when due, all charges for
utilities furnished to or for the use or benefit of Tenant or the Premises.
Tenant shall have no claim for rebate of rent on account of any interruption
in service.
4.2 Theft or Burglary. Landlord shall not be liable to Tenant for
losses to Tenant's property or personal injury caused by criminal acts or
entry by unauthorized persons into the Premises or the Building.
ARTICLE 5. REPAIRS AND MAINTENANCE
5.1 Landlord Repairs. Landlord shall not be required to make any
improvements, replacements or repairs of any kind or character to the
Premises or the Building during the term of this Lease except as are set
forth in this Section. Landlord shall maintain only the roof, foundation,
parking and common areas, the structural soundness of the exterior walls,
doors, corridors, and other structures serving the Premises, provided, that
Landlord's cost of maintaining, replacing and repairing the items set forth
in this Section are operating expenses subject to the addition rent
provisions in Section 2.2 and 2.3. Landlord shall not be liable to Tenant,
except as expressly provided in this Lease, for any damage or inconvenience,
and Tenant
shall not be entitled to any abatement or reduction of rent by reason of any
repairs, alterations or additions made by Landlord under this Lease.
5.2 Tenant Repairs. Tenant shall, at all times throughout the term
of this Lease, including renewals and extensions, and at its sole expense,
keep and maintain the Premises in a clean, safe, sanitary and first class
condition and in compliance with all applicable laws, codes, ordinances,
rules and regulations. Tenant's obligations hereunder shall include, but not
be limited to, the maintenance, repair and replacement, if necessary, of all
heating, ventilation, air conditioning, lighting and plumbing fixtures and
equipment, fixtures, motors and machinery, all interior walls, partitions,
doors and windows, including the regular painting thereof, all exterior
entrances, windows, doors and docks and the replacement of all broken glass.
When used in this provision, the term "repairs" shall include replacements or
renewals when necessary, and all such repairs made by the Tenant shall be
equal in quality and class to the original work. The Tenant shall keep and
maintain all portions of the Premises and the sidewalk and areas adjoining
the same in a clean and orderly condition, free of accumulation of dirt,
rubbish, snow and ice. If Tenant fails, refuses or neglects to maintain or
repair the Premises as required in this Lease after notice shall have been
given Tenant, in accordance with this Lease, Landlord may make such repairs
without liability to Tenant for any loss or damage that may accrue to
Tenant's merchandise, fixtures or other property or to Tenant's business by
reason thereof, and upon completion thereof, Tenant shall pay to Landlord all
costs plus fifteen percent (15%) for overhead incurred by Landlord in making
such repairs upon presentation to Tenant of xxxx therefor.
5.3 Tenant Damages. Tenant shall not allow any damage to be
committed on any portion of the Premises or Building or common areas, and at
the termination of this Lease, by lapse of time or otherwise, Tenant shall
deliver the Premises to Landlord in as good condition as existed at the
Commencement Date of this Lease, ordinary wear and tear excepted. The cost
and expense of any repairs necessary to restore the condition of the Premises
shall be borne by the Tenant.
ARTICLE 6. ALTERATIONS AND IMPROVEMENTS
6.1 Landlord Improvements. If construction to the Premises is to be
performed by Landlord prior to or during Tenant's occupancy, Landlord will
complete the construction of the improvements to the Premises in accordance
with plans and specifications agreed to by Landlord and Tenant, which plans
and specifications are made a part of this Lease by reference. Within seven
(7) days of receipt of plans and specifications, Tenant shall execute a copy
of the plans and specifications and, if applicable, change orders setting
forth the amount of any costs to be borne by Tenant. In the event Tenant
fails to execute the plans and specifications and change order within the
seven (7) day period, Landlord may, at its sole option, declare this Lease
cancelled or notify Tenant that the base rent shall commence on the
completion date even though the improvements to be constructed by Landlord
may not be complete. Any changes or modification to the approved plans and
specifications shall be made and accepted by written change order or
agreement signed by Landlord and Tenant and shall constitute an amendment to
this Lease.
6.2 Tenant Improvements. Tenant shall not make or allow to be made
any alterations or physical additions in or to the Premises without first
obtaining the written consent of Landlord, which consent may in the sole and
absolute discretion of Landlord be denied. Any alterations, physical
additions or improvements to the Premises made by Tenant shall at once become
the property of Landlord and shall be surrendered to Landlord upon the
termination of this Lease; provided, however, Landlord, at its option, may
require Tenant to remove any physical additions and/or repair any alterations
in order to restore the Premises to the condition existing at the time Tenant
took possession, all costs of removal and/or alterations to be borne by
Tenant. This clause shall not apply to moveable equipment or furniture owned
by Tenant, which may be removed by Tenant at the end of the term of this
Lease if Tenant is not then in default and if such equipment and furniture
are not then subject to any other rights, liens and interests of Landlord.
ARTICLE 7. CASUALTY AND INSURANCE
7.1 Substantial Destruction. If all or a substantial portion of the
Premises or the Building should be totally destroyed by fire or other
casualty, or if the Premises or the Building should be damaged so that
rebuilding cannot reasonably be completed within one hundred eighty (180)
working days after the date of written notification by Tenant to Landlord of
the destruction, or if insurance proceeds are not made available to Landlord,
or are inadequate, for restoration, this Lease shall terminate at the option
of Landlord by written notice to Tenant within sixty (60) days following the
occurrence, and the rent shall be abated for the unexpired portion of the
Lease, effective as of the date of the written notification.
7.2 Partial Destruction. If the premises should be partially damaged
by fire or other casualty, and rebuilding or repairs can reasonably be
completed within one hundred eighty (180) working days from the date of
written notification by Tenant to Landlord of the destruction, and insurance
proceeds are adequate and available to Landlord for restoration, this Lease
shall not terminate, and Landlord shall at its sole risk and expense proceed
with reasonable diligence to rebuild or repair the Building or other
improvements to substantially the same condition in which they existed prior
to the damage. If the Premises are to be rebuilt or repaired and are
untenantable in whole or in part following the damage, and the damage or
destruction was not caused or contributed to by act or negligence of Tenant,
its agents, employees, invitees or those for whom Tenant is responsible, the
rent payable under this Lease during the period for which the Premises are
untenantable shall be adjusted to such an extent as may be fair and
reasonable under the circumstances. In the event that Landlord fails to
complete the necessary repairs or rebuilding within one hundred eighty (180)
working days from the date of written notification by Tenant to Landlord of
the destruction, Tenant may at its option terminate this Lease by delivering
written notice of termination to Landlord, whereupon all rights and
obligations under this Lease shall cease to exist.
7.3 Property Insurance. Landlord shall not be obligated in any way
or manner to insure any personal property (including, but not limited to, any
furniture, machinery, goods or supplies) of Tenant upon or within the
Premises, any fixtures installed or paid for by Tenant upon or within the
Premises, or any improvements which Tenant may construct on the Premises.
Tenant shall maintain property insurance on its personal property and shall
also maintain plate glass insurance. Tenant shall have no right in or claim
to the proceeds of any policy of insurance maintained by Landlord even if the
cost of such insurance is borne by Tenant as set forth in Article 2.
7.4 Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant hereby waive and release each other of
and from any and all right of recovery, claim, action or cause of action,
against each other, their agents, officers and employees, for any loss or
damage that may occur to the Premises, the improvements of the Building or
personal property within the Building, by reason of fire or the elements,
regardless of cause or origin, including negligence of Landlord or Tenant and
their agents, officers and employees. Landlord and Tenant agree immediately
to give their respective insurance companies which have issued policies of
insurance covering all risk of direct physical loss, written notice of the
terms of the mutual waivers contained in this Section.
7.5 Hold Harmless. Landlord shall not be liable to Tenant's
employees, agents, invitees, licensees or visitors, or to any other person,
for an injury to person or damage to property on or about the Premises caused
by any act or omission of Tenant, its agents, servants or employees, or of
any other person entering upon the Premises under express or implied
invitation by Tenant, or caused by the improvements located on the Premises
becoming out of repair, the failure of cessation of any service provided by
Landlord (including security service and devices), or caused by leakage of
gas, oil, water or stream or by electricity emanating from the Premises.
Tenant agrees to indemnify and hold harmless Landlord of and from any loss,
attorney's fees, expenses or claims arising out of any such damage or injury.
7.6 Public Liability Insurance. Tenant shall during the term hereof
keep in full force and effect at its expense a policy or policies of public
liability insurance with respect to the Premises and the business of Tenant,
on terms and with companies approved in writing by Landlord, in which both
Tenant and Landlord shall be covered by being named as insured parties under
reasonable limits of liability not less than $1,000,000, or such greater
coverage as Landlord may reasonably require, combined single limit coverage
for injury or death. Such policy or policies shall provide that thirty (30)
days written notice must be given to Landlord prior to cancellation thereof.
Tenant shall furnish evidence satisfactory to Landlord at the time this Lease
is executed that such coverage is in full force and effect.
ARTICLE 8. CONDEMNATION
8.1 Substantial Taking. If all or a substantial part of the Premises
are taken for any public or quasi-public use under any governmental law,
ordinance or regulation, or by right of eminent domain or by purchase in lieu
thereof, and the taking would prevent or materially interfere with the use of
the Premises for the purpose for which it is then being used, this Lease
shall terminate and the rent shall be abated during the unexpired portion of
this Lease effective on the date physical possession is taken by the
condemning authority. Tenant shall have no claim to the condemnation award or
proceeds in lieu thereof, except that Tenant shall be entitled to a separate
award for the cost of removing and moving its personal property.
8.2 Partial Taking. If a portion of the Premises shall be taken for
any public or quasi-public use, under any governmental law, ordinance or
regulation, or by right of eminent domain or by purchase in lieu thereof, and
this Lease is not terminated as provided in Section 8.1 above, the rent
payable under this Lease during the unexpired portion of the term shall be
adjusted to such an extent as may be fair and reasonable under the
circumstances. Tenant shall have no claim to the condemnation award or
proceeds in lieu thereof, except that Tenant shall be entitled to a separate
award for the cost of removing and moving its personal property.
ARTICLE 9. ASSIGNMENT OR SUBLEASE
9.1 Landlord Assignment. Landlord shall have the right to sell,
transfer or assign, in whole or in part, its rights and obligations under
this Lease and in the Building. Any such sale, transfer or assignment shall
not operate to release Landlord from any and all liabilities under this Lease
arising after the date of such sale, assignment or transfer.
9.2 Tenant Assignment. Tenant may assign, in whole or in part, this
Lease, or allow it to be assigned, in whole or in part, by operation of law
or otherwise (including without limitation by transfer of a majority interest
of stock, merger, or dissolution, which transfer of majority interest of
stock, merger or dissolution shall be deemed an assignment) or mortgage or
pledge the same, or sublet the Premises, in whole or in part, without the
prior written consent of Landlord. In no event shall such assignment or
sublease ever release Tenant or any guarantor from any obligation or
liability hereunder. No assignee or sublessee of the Premises or any portion
thereof may assign or sublet the Premises or any portion thereof.
9.3 Conditions of Assignment. If Tenant desires to assign or sublet
all or any part of the Premises, it shall so notify Landlord at least thirty
(30) days in advance of the date on which Tenant desires ot make such
assignment or sublease. Tenant shall provide Landlord with a copy of the
proposed assignment or sublease and such information as Landlord might
request concerning the proposed sublessee or assignee to allow Landlord to
make informed judgments as to the financial condition reputation, operations
and general desirability of the proposed sublessee or assignee. Within
fifteen (15) days after Landlord's receipt of Tenant's proposed assignment or
sublease and all required information concerning the proposed sublessee or
assignee, Landlord shall have the following options: (1) cancel this Lease as
to the Premises or portion thereof proposed to be assigned or sublet; (2)
consent to the proposed assignment or sublease (or a combination of the rent
payable under such assignment or sublease plus any bonus or any other
consideration or any payment incident thereto) exceeds the rent payable under
this Lease for such space, Tenant shall pay to Landlord all such excess rent
and other excess consideration within ten (10) days following receipt thereof
by Tenant or (3) refuse, in its sole and absolute discretion and judgment, to
consent to the proposed assignment or sublease, which refusal shall be deemed
to have been exercised unless Landlord gives Tenant written notice providing
otherwise. Upon the occurrence of an event of default, if all or any part of
the Premises are then assigned or sublet, Landlord, in addition to any other
remedies provided by this Lease or provided by law, may, at its option,
collect directly from the assignee or sublessee all rents becoming due to
Tenant by reason of the assignment of sublease, and Landlord shall
have a security interest in all properties on the Premises ot secure payment
of such sums. Any collection directly by Landlord from the assignee or
sublessee shall not be construed to constitute a novation or a release of
Tenant or any guarantor from the further performance of its obligations under
this Lease.
9.4 Rights of Mortgage. Tenant accepts this Lease subject and
subordinate to any recorded mortgage presently existing or hereafter created
upon the Building and to all existing recorded restrictions, convenants,
easements and agreements with respect to the Building. Landlord is hereby
irrevocably vested with full power and authority to subordinate Tenant's
interest under this Lease to any first mortgage lien hereafter placed on the
Premises and Tenant agrees upon demand to execute additional instruments
subordinating this Lease as Landlord may require. If the interests of
Landlord under this Lease shall be transferred by reason of foreclosure or
other proceedings for enforcement of any first mortgage or deed or trust on
the Premises, Tenant shall be bound to the transferee (sometimes called the
"Purchaser") at the option of the Purchaser, under the terms, covenants and
conditions of this Lease for the balance of the term remaining, including any
extensions or renewals, with the same force and effect as if the Purchaser
were Landlord under this Lease, and if requested by the purchaser, Tenant
agrees to attorn to the Purchaser, including the first mortgagee under any
such mortgage if it be the Purchaser, as its Landlord. Notwithstanding the
foregoing, Tenant shall not be disturbed in its possession of the Premises so
long as Tenant is not in default hereunder.
9.5 Tenant's Statement. Tenant agrees to furnish from time to time
within ten (10) days after receipt of a request from Landlord or Landlord's
mortgagee, a statement certifying, if applicable, the following: Tenant is in
possession of the Premises; the Premises are acceptable; the Lease is in full
force and effect; the Lease is unmodified; Tenant claims no present charge,
lien, or claim of offsets against rent the rent is paid for the current
month, but is not prepaid for more than one month and will not be prepaid for
more than one month in advance; there is no existing default by reason of
some act or omission by Landlord and such other matters as may be reasonably
required by Landlord or Landlord's mortgagee. Tenant's failure to deliver
such statement, in addition to being a default under this Lease, shall be
deemed to establish conclusively that this Lease is in full force and effect,
except as declared by Landlord, that Landlord is not in default of any of its
obligations under this Lease, and that Landlord has not received more than
one month's rent in advance. Tenant agrees to furnish, from time to time,
within ten (1) days after receipt of a request from Landlord, a current
financial statement of Tenant, certified as true and correct by Tenant.
ARTICLE 10. LIENS
{THIS ARTICLE WAS INTENTIONALLY OMITTED}
ARTICLE 11. DEFAULT AND REMEDIES
11.1 Default by Tenant. The following shall be deemed to be events
of default ("Default") by Tenant under this Lease: (1) Tenant shall fail to
pay when due any installment of rent or any other payment required pursuant
to this Lease; (2) Tenant shall abandon any substantial portion of the
Premises; (3) Tenant shall fail to comply with any term, provision or
covenant of this Lease, other than the payment of rent, and the failure is
not cured within ten (10) days after written notice to Tenant (4) Tenant
shall file a petition or if an involuntary petition is filed against Tenant,
or becomes insolvent, under any applicable federal or state bankruptcy or
insolvency law or admit that it cannot meet its financial obligations as they
become due; or a receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant; or Tenant shall make a transfer in
fraud of creditors or shall make an assignment for the benefit of creditors;
or (5) Tenant shall do or permit to be done any act which results in a lien
being filed against the Premises or the Building and/or project if which the
Premises are a part.
In the event that an order for relief is entered in any
case under Title 11, U.S.C. (the "Bankruptcy Code") in which Tenant is the
debtor and: (A) Tenant as debtor-in-possession, or any trustee who may be
appointed in the case (the "Trustee") seeks to assume the Lease, then Tenant,
or Trustee if applicable, in addition to providing adequate assurance
described in applicable provisions of the Bankruptcy Code, shall provide
adequate assurance to Landlord of Tenant's future performance under the Lease
by depositing with Landlord a sum equal to the lesser of twenty-five percent
(25%) of the rental and other charges due for the balance of the Lease term
of six (6) months rent ("Security"), to be held (without any allowance for
interest thereon) to secure Tenant's obligations under the Lease, and (B)
Tenant, or Trustee if applicable, seeks to assign the Lease after assumption
of the same, then Tenant, in addition to providing adequate assurance
described in applicable provisions of the Bankruptcy Code, shall provide
adequate assurance to Landlord of the proposed assignee's future performance
under the Lease by deposing with Landlord a sum equal to the Security to be
held (without any allowance or interest thereon) to secure performance under
the Lease. Nothing contained herein expresses or implies, or shall be
construed to express or imply, that Landlord is consenting to assumption
and/or assignment of the Lease by Tenant, and Landlord expressly reserves all
of its rights to object to any assumption and/or assignment of the Lease.
Neither Tenant nor any Trustee shall conduct or permit the conduct of any
"fire", "bankruptcy", "going out of business" or auction sale in or from the
Premises.
11.2 Remedies for Tenant's Default. Upon the occurrence of a Default
as defined above, Landlord may elect either (i) to cancel and terminate this
Lease and this Lease shall not be treated as an asset of Tenant's bankruptcy
estate; or (ii) to terminate Tenant's right to possession only without
canceling and terminating Tenant's continued liability under this Lease.
Notwithstanding the fact that initially Landlord elects under (ii) to
terminate Tenant's right to possession only, Landlord shall have the
continuing right to cancel and terminate this Lease by giving three (3) days
written notice to Tenant of such further election, and shall have the right
to pursue any remedy at law or in equity that may be available to Landlord.
In the event of election under (ii) to terminate Tenant's
right to possession only, Landlord may at Landlord's option, enter into the
Premises and take and hold possession thereof, without such entry into
possession terminating this Lease or releasing Tenant in whole or in part
from Tenant's obligation to pay all amounts hereunder for the full stated
term. Upon such reentry, Landlord may remove all persons and property from
the Premises and such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of Tenant, without
becoming liable for any loss or damage which may be occasioned thereby. Such
reentry shall be conducted in the following manner: without resort to
judicial process or notice of any kind if Tenant has abandoned or voluntarily
surrendered possession of the Premises; and, otherwise, by resort to judicial
process. Upon and after entry into possession without termination of the
Lease, Landlord may, but is not obligated to, relet the Premises, or any part
thereof, to any one other than the Tenant, for such time and upon such terms
as Landlord, in Landlord's sole discretion, shall determine. Landlord may
make alterations and repairs to the Premises to the extent deemed by Landlord
necessary or desirable.
Upon such reentry, Tenant shall be liable to Landlord as
follows:
A. For all attorneys' fees incurred by Landlord in
connection with exercising any remedy hereunder;
B. For the unpaid installments of base rent, additional
rent or other unpaid sums which were due prior to such reentry, including
interest and late payment fees, which sums shall be payable immediately;
C. For the installments of base rent, additional rent, and
other sums falling due pursuant to the provisions of this Lease for the
period after reentry during which the Premises remain vacant, including late
payment charges and interest, which sums shall be payable as they become due
hereunder.
D. For all expenses incurred in releasing the Premises,
including leasing commissions, attorneys' fees, and costs of alteration and
repairs, which shall be payable by Tenant as they are incurred by Landlord;
and
E. While the Premises are subject to any new lease or
leases made pursuant to this Section, for the amount by which the monthly
installments payable under such new lease or leases is less than the monthly
installment for all charges payable pursuant to this Lease, which
deficiencies shall be payable monthly.
Notwithstanding Landlord's election to terminate Tenant's
right to possession only, and notwithstanding any reletting without
termination, Landlord, at any time thereafter, may elect to terminate this
Lease, and to recover (in lieu of the amounts which would thereafter be
payable pursuant to the foregoing, but not in diminution of the amounts
payable as provided above before termination), as damages for loss of bargain
and not as a penalty, an aggregate sum equal to the amount by which the
rental value of the portion of the term unexpired at the time of such
election is less than an amount equal to the unpaid base rent, percentage
rent, and additional rent and all other charges which would have been payable
by Tenant for the unexpired portion of the term of this Lease, which
deficiency and all expenses incident thereto, including commissions,
attorneys' fees, expenses of alterations and repairs, shall be due to
Landlord as of the time Landlord exercises said election, notwithstanding
that the term had not expired. If
Landlord, after such reentry, leases the Premises, then the rent payable
under such new lease shall be conclusive evidence of the rental value of the
unexpired portion of the term of this Lease.
If this Lease shall be terminated by reason of the bankruptcy or
insolvency of Tenant, Landlord shall be entitled to recover from Tenant or
Tenant's estate, as liquidated damages for loss of bargain and not as a
penalty, the amount determined by the immediately preceding paragraph.
11.3 Landlord's Right to Perform For Account of Tenant. If Tenant
shall be in Default under this Lease, Landlord may cure the Default at any
time for the account and at the expense of Tenant. If Landlord cures a
Default on the part of Tenant, Tenant shall reimburse Landlord upon demand
for any amount expended by Landlord in connection with the cure, including,
without limitation, attorney's fees and interest.
11.4 Interest and Attorney's Fees. In the event of a Default by
Tenant: (1) if a monetary default, interest shall accrue on any sum due and
unpaid at the rate of the lesser of eighteen percent (18%) per annum or the
highest rate permitted by law and, if Landlord places in the hands of an
attorney the enforcement of all or any part of this Lease, the collection of
any rent due or to become due or recovery of the possession of the Premises.
Tenant agrees to pay Landlord's costs of collection, including reasonable
attorney's fees for the services of the attorney, whether suit is actually
filed or not.
11.5 Additional Remedies, Waivers, Etc.
A. The rights and remedies of Landlord set forth herein
shall be in addition to any other right and remedy now and hereafter provided
by law. All rights and remedies shall be cumulative and not exclusive of each
other. Landlord may exercise its rights and remedies at any times, in any
order, to any extent, and as often as Landlord deems advisable without regard
to whether the exercise of one right or remedy precedes, concurs with or
succeeds the exercise of another.
B. A single or partial exercise of a right or remedy shall
not preclude a further exercise thereof, or the exercise of another right or
remedy from time to time.
C. No delay or omission by Landlord in exercising a right
or remedy shall exhaust or impair the same or constitute a waiver of, or
acquiesce to, a Default.
D. No waiver of a Default shall extend to or affect any
other Default or impair any right or remedy with respect thereto.
E. No action or inaction by Landlord shall constitute a
waiver of a Default.
F. No waiver of a Default shall be effective unless it is
in writing and signed by Landlord.
ARTICLE 12. RELOCATION
{THIS ARTICLE WAS INTENTIONALLY OMITTED}
ARTICLE 13. AMENDMENT AND LIMITATION OF WARRANTIES
13.1 Entire Agreement. IT IS EXPRESSLY AGREED BY TENANT, AS A
MATERIAL CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH
THE SPECIFIC REFERENCES TO WRITTEN EXTRINSIC DOCUMENTS, IS THE ENTIRE
AGREEMENT OF THE PARTIES; THAT THERE ARE AND WERE NO VERBAL REPRESENTATIONS,
WARRANTIES, UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR PROMISES PERTAINING
TO THIS LEASE OR TO THE EXPRESSLY MENTIONED WRITTEN EXTRINSIC DOCUMENTS NOT
INCORPORATED IN WRITING IN THIS LEASE.
13.2 Amendment. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR
EXTENDED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LANDLORD AND TENANT.
13.3 Limitation of Warranties. LANDLORD AND TENANT EXPRESSLY AGREE
THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OR MERCHANTABILITY,
HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING
OUT OF THIS LEASE AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE
EXPRESSLY SET FORTH IN THIS LEASE.
ARTICLE 14. MISCELLANEOUS
14.1 Act of God. Landlord shall not be required to perform any
covenant or obligation in this Lease, or be liable in damages to Tenant, so
long as the performance or non-performance of the covenant or obligation is
delayed, caused or prevented by an act of God, force majeure or by Tenant.
14.2 Successors and Assigns. This Lease shall be binding upon and
inure to the benefit of Landlord and Tenant and their respective heirs,
personal representatives, successors and assigns. It is hereby covenanted and
agreed that should Landlord's interest in the Premises cease to exist for any
reason during the term of this Lease, then notwithstanding the happening of
such event this Lease nevertheless shall remain unimpaired and in full force
and effect, and Tenant hereunder agrees to attorn to the then owner of the
Premises.
14.3 Rent Tax. If applicable in the jurisdiction where the Premises
are issued, Tenant shall pay and be liable for all rental sales and use taxes
or other similar taxes. If any, levied or imposed by any city, state, county
or other governmental body having authority, such payments to be in addition
to all other payments required to be paid to Landlord under the terms of this
Lease. Any such payment shall be paid concurrently with the payment of the
rent, additional rent, operating expenses or other charge upon which the tax
is based as set forth above.
14.4 Captions. The captions appearing in this Lease are inserted
only as a matter of convenience and in no way define, limit, construe or
describe the scope or intent of any Section.
14.5 Notice. All rent and other payments required to be made by
Tenant shall be payable to Landlord at the address set forth in Section 1.5.
All payments required to be made by Landlord to Tenant shall be payable to
Tenant at the address set forth in Section 1.5, or any other address within
the United States as Tenant may specify from time to time by written notice.
Any notice or document required or permitted to be delivered by the terms of
this Lease shall be deemed to be delivered (whether or not actually received)
when deposited in the United States Mail, postage prepaid, certified mail,
return receipt requested, addressed to the parties at the respective
addresses set forth in Section 1.5.
14.6 Submission of Lease. Submission of this Lease ot Tenant for
signature does not constitute a reservation of space or an option to lease.
This Lease is not effective until execution by and delivery to both Landlord
and Tenant.
14.7 Corporate Authority. If Tenant executes this Lease as a
corporation, each of the persons executing this Lease on behalf of Tenant
does hereby personally represent and warrant that Tenant is a duly authorized
and existing corporation, that Tenant is qualified to do business in the
state in which the Premises are located, that the corporation has full right
and authority to enter into this Lease, and that each person signing on
behalf of the corporation is authorized to do so. In the event any
representation or warranty is false, all persons who execute this Lease shall
be liable, individually, as Tenant.
14.8 Hazardous Substances. Tenant shall not bring or permit to
remain on the Premises or the Building, any asbestos, petroleum or petroleum
products, explosives, toxic materials, or substances defined as hazardous
wastes, hazardous materials, or hazardous substances under any federal,
state, or local law or regulation ("Hazardous Materials"). Tenant's violation
of the foregoing prohibition shall constitute a material breach and default
hereunder and Tenant shall indemnify, hold harmless and defend Landlord from
and against any claims, damages, penalties, liabilities, and costs (including
reasonable attorney fees and court costs) caused by or arising out of (i) a
violation of the foregoing prohibition or (ii) the presence or any release of
any Hazardous Materials in, on, under, or about the Premises of the Building
during the term of the Lease in conformance with the requirements of
applicable law. Tenant shall immediately give Landlord written notice of any
suspected breach of this paragraph, upon learning of the presence of any
release of any Hazardous Materials, and upon receiving any notices from
governmental agencies pertaining to Hazardous Materials which may affect the
Premises or the Building. The obligations of Tenant hereunder shall survive
the expiration or earlier termination, for any reason, of this Lease.
14.9 Severability. If any provision of this Lease of the application
thereof to any person or circumstances shall be invalid or unenforceable to
any extent, the remainder of this Lease and the application of such provision
to other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
14.10 Brokerage. Landlord and Tenant each represents and warrants to
the other that there is no obligation to pay any brokerage fee, commission,
finder's fee or other similar charge
in connection with this Lease, other than fees due to
___________________________________ which are the responsibility of
_________________________________. Each party covenants that it will defend,
indemnify and hold harmless the other party from and against any loss or
liability by reason of brokerage or similar services alleged to have been
rendered to, at the instance of, or agreed upon by said indemnifying party.
Notwithstanding anything herein to the contrary, Landlord and Tenant agree
that there shall be no brokerage fee or commission due on expansions, options
or renewals by Tenants.
14.11 Notification to Tenant. Landlord hereby notifies Tenant that
the person authorized to execute this Lease and manage the Premises is The
Xxxxxx Xxxx Company which has been appointed to act as the agent in leasing
management and operation of the Building for owner and is authorized to
accept services of process and receive or give receipts for notices and
demands on behalf of Landlord. Landlord reserves the right to change the
identity and status of its duly authorized agent upon written notice to
Tenant.
14.12 Exhibits. Reference is made to the following Exhibits which
are attached hereto and made a part hereof:
Exhibit A Plan of Demised Premises
Exhibit B Legal Description
Exhibit C Standard Tenant Finish Specifications
Exhibit D Schedule of Additional Leasehold Improvements
Exhibit E Sign Restrictions
Exhibit F Rules and Regulations
ARTICLE 15. SIGNATURES
SIGNED effective the day and year first above written:
LANDLORD TENANT
THERMAL LINE WINDOWS, L.L.P.,
A Minnesota limited liability partnership
/S/ XXXXX X. XXXXXXXX BY: Blizzard Enterprises, Inc.,
--------------------- a Minnesota corporation
XXXXX X. XXXXXXXX
By: /S/ XXXXXX X. XXXX
---------------------------
XXXXXX X. XXXX, President
ARTICLE 16. ADDITIONAL PROVISIONS
16.1 Landlord grants Tenant the option to renew this lease for a
five (5) year term at the same Base Rent by providing Landlord 120 days
notice prior to lease termination.
16.2 Landlord grants Tenant the option to lease the remainder of the
Building now leased and occupied by Homeworks Supply if and when such space
becomes available.
Tenant agrees to exercise this option within thirty (30) days of
notice by Landlord that Homeworks Supply has vacated the space.
Tenant agrees to pay Base Rent of $6,187.50 per month for such
space. At the time the option space is occupied, this Lease is deemed amended
to read:
Article 1.2: 49,500 square feet total
Article 1.4: $12,375
Article 1.8: 100%
EXHIBIT A
PLAN OF DEMISED PREMISES
EXHIBIT B
LEGAL DESCRIPTION
EXHIBIT C
STANDARD TENANT FINISH SPECIFICATIONS
EXHIBIT D
SCHEDULE OF ADDITIONAL LEASEHOLD IMPROVEMENTS
EXHIBIT E
SIGN RESTRICTIONS
EXHIBIT F
RULES AND REGULATIONS
June 4, 1996
The Mandan City Commission met in regular session at 5:30 pm on June
4, 1996 in the Ed "Bosh" Xxxxxxxxx Room at City Hall. Commissioners present
were Kelsch, Christensen, Xxxxx, Xxxxx and Mayor Dykshoorn. Department Heads
present were Attorney Xxxxxxxxx, Chief Xxxx, Chief Gartner, Engineer Little,
Assessor Xxxxx, and Auditor Xxxxxx. Absent was Director of Public Works
Xxxxxx.
Commissioner Xxxxxx moved, seconded by Commissioner Xxxxxxxxxxx to
approve the May 21, 1996 meeting minutes. Upon vote, the motion received
unanimous approval of the Board.
Under Old Business was a discussion regarding a request to allow
manufactured housing in R-7 zoning. This item was before the Board on April
30, 1996 and at that time, Engineer Little recommended a change in the
residential zoning regulations to reflect some criteria in regard to the
square footage, footprint, etc. Assessor Xxxxx presented two examples on
zoning changes from Xxxxxxxxx and Bismarck, on manufactured housing and
recommended proceeding forward in drafting a similar ordinance. Commissioner
Xxxxx moved, seconded by Commissioner Xxxxxxxxxxx to refer the item to the
City Attorney, Building Inspector and City Engineer, to draft an ordinance
concerning zoning changes in connection with manufactured housing and forward
it to the Planning and Zoning Commission for review. Upon vote, the motion
received unanimous approval of the Board.
Under New Business was a discussion concerning the paving grades to
be used on Falcon Drive. Xxx Manchester, Xxxxx Engineering, noted three
available options: (1) to drain the proposed area, design the street with a
gravity flow, and no storm sewer, (22) construct the street and build a storm
sewer system, (3) same as option number two, except that the storm sewer will
go out the twenty foot easement with a new discharge point to the Missouri
River. Xxxx Xxxxxxxxxx, 0000 00xx Xxxxxx SE, noted he had met with the
developer and engineer and have come up with a plan to remove the water from
his property. He also stated that he is confident that it will work. Xxxxxx
Xxxxxxxx, 0000 Xxxxxx Xxxxx, wanted to know how much fill would be needed on
his property. Xxxxxxx Xxxxxxxxx, 0000 Xxxxxx Xxxxx, wanted to know what
everyone's cut will be on their driveway. Xxxxxx Xxxxxxxxx, 0000 Xxxxxx
Xxxxx, was also concerned with the destruction of his front yard. Xxxxx
Xxxxxxxx also owns property in this area. Commissioner Xxxxx moved, seconded
by Commissioner Xxxxxx to approve option (1) with the gravity flow profile,
give Xxxxx Engineering authority to generate the change order which will be
processed if the change order is in line with the estimates, and to approve
the following Resolution extending the boundaries of Xxxxxx Xxxxxxxxxxx
Xxxxxxxx Xx. 00:
"RESOLUTION EXTENDING THE BOUNDARIES OF STREET
IMPROVEMENT DISTRICT NO. 93.
BE IT RESOLVED By the Board of City Commissioners of the City of
Mandan, North Dakota, as follows:
1. It is hereby found, determined and declared that the City of
Mandan did on the 15th day of August, 1995, duly create Xxxxxx Xxxxxxxxxxx
Xxxxxxxx Xx. 00, and defined in the Resolution creating the same, the size,
form and location of the various areas included within said District.
One (1), Xxxxxx Harbor First Subdivision;
AREA 7 - QUAIL STREET SOUTHEAST Lots Eleven (11), Twelve (12) and
Thirteen (13) of Block One (1), Xxxxxx Harbor First Subdivision; and to cause
the following streets to be included therein, namely:
AREA 5: On Falcon Drive from South Bay Drive southwardly to the
terminus of the cul-de-sac;
AREA 6: On Forty-Sixth Street Southeast from South Bay Drive
southwardly to its terminus;
AREA 7: On Quail Street from Forty-sixth Avenue Southeast easterly
to the terminus (cul-de-sac); to be improved by work of the same character to
be done in the same manner, in the same proceedings and under the same
contract heretofore awarded for the construction of the improvements in
Street Improvement District No. 93.
3. It is hereby ordered that Street Improvement District No. 93 be
enlarged so as to include therein all of the above described properties.
4. It is further found, determined and declared that the additional
cost of constructing the improvement proposed for the aforesaid properties
will not exceed the limitations provided in Section 40-22-36 of the North
Dakota Century Code.
/S/ XXXXXX XXXXXXXXX
--------------------
President, Board of City Commissioners
Attest:
/S/ XXXXX XXXXXX
------------------------
City Auditor."
Passed: June 4, 1996.
Upon roll call vote, Commissioners Kelsch, Christensen, Xxxxx, Xxxxx and
President Dykshoorn voted "aye". The motion passed.
Under Public Hearings was to consider an application of Thermal Line
Windows for the remaining portion of the 5 year property tax exemption which
was granted to Homeworks. Assessor Xxxxx noted that the application appears
to be in order. Xxxxx Xxxxxxxx, the Chief Financial Manager, noted the
company is an expansion of an existing business project. There being no
comment from the public, Mayor Dykshoorn closed the public hearing.
Commissioner Xxxxxx moved, seconded by Commissioner Xxxxx to approve the
application as presented. Upon vote, the motion received unanimous approval
of the Board.
Also under Public Hearings was to consider removal of a substandard
structure at 000 Xxxxx Xxxxxxxx. Assessor Xxxxx noted this is a mobile home
at Xxxx Mobile Home Park, that is not livable and has back-taxes against it.
Xx. Xxxx noted the home was abandoned in December of 1995, and is
unhabitable. There being no further comment from the public, Mayor Dykshoorn
closed the public hearing. Commissioner Xxxxx moved, seconded by Commissioner
Xxxxx to approve removal of the structure under the property legal guidance
of Attorney Xxxxxxxxx. Upon vote, the motion received unanimous approval of
the Board.
