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Exhibit 10.13
LEASE
BY AND BETWEEN
OTTO A, LLC
a Nevada limited liability company
"LANDLORD"
and
EAGLE WINDOW & DOOR, INC.
an Iowa corporation
"TENANT"
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TABLE OF CONTENTS
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SECTION PAGE
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ARTICLE I 1
1.1 PREMISES 1
ARTICLE II 1
2.1 DEVELOPMENT AGREEMENT 1
ARTICLE III 2
3.1 TERM 2
3.2 OPTIONS 2
ARTICLE IV 2
4.1 MINIMUM RENT 2
4.2 NET LEASE 3
4.3 LATE CHARGE; DEFAULT INTEREST 3
4.4 SECURITY DEPOSIT 3
ARTICLE V 3
5.1 REAL ESTATE TAXES 3
5.2 PAYMENT 4
5.3 CONTEST 4
ARTICLE VI 4
6.1 CONSTRUCTION BY LANDLORD 4
6.2 PLANS 5
6.3 PUNCH LIST 5
6.4 ADVANCE POSSESSION FOR FIXTURING 5
6.5 PARKING AND OTHER SITE IMPROVEMENTS 6
6.6 DATE OF OCCUPANCY 6
6.7 LIMITED WARRANTY 6
6.8 CERTIFICATE OF COMPLETION 7
6.9 LANDLORD'S INSURANCE 7
ARTICLE VII 7
7.1 LANDLORD'S REPAIRS 7
7.2 TENANT'S REPAIRS 7
7.3 TENANT'S ALTERATIONS 8
7.4 LANDLORD'S ALTERATIONS 9
7.5 ALTERATIONS MANDATED BY LAW 9
ARTICLE VIII 9
8.1 GOVERNMENTAL REGULATIONS 9
ARTICLE IX 9
9.1 UTILITIES 9
9.2 INTERRUPTION OF SERVICE 9
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ARTICLE X 9
10.1 USE OF PREMISES 9
ARTICLE XI 10
11.1 ASSIGNMENT AND SUBLETTING 10
ARTICLE XII 10
12.1 FIXTURES AND EQUIPMENT 10
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ARTICLE XIII 10
13.1 EXTERIOR SIGNS 10
ARTICLE XIV 10
14.1 CASUALTY INSURANCE 10
14.2 LIABILITY INSURANCE. 11
14.3 WAIVER AND INDEMNITY 11
14.4 POLICY REQUIREMENTS 11
ARTICLE XV 12
15.1 NO ABATEMENT OR ADJUSTMENT OF RENT 12
15.2 REPAIRS AND RESTORATION OF PREMISES 12
ARTICLE XVI 13
16.1 TOTAL TAKING 13
16.2 PARTIAL TAKING 13
16.3 RESTORATION 14
16.4 THE AWARD 14
16.5 RELEASE 14
ARTICLE XVII 14
17.1 EVENTS OF DEFAULT BY TENANT; REMEDIES 14
17.2 LANDLORD'S DUTY TO RELET 15
17.3 EVENTS OF DEFAULT BY LANDLORD; REMEDIES 15
17.4 OTHER REMEDIES 16
ARTICLE XVIII 16
18.1 LANDLORD'S SELF-HELP 16
18.2 TENANT'S SELF-HELP 16
ARTICLE XIX 16
19.1 SUBORDINATION 17
19.2 QUIET ENJOYMENT 17
19.3 LANDLORD'S ASSURANCES 17
19.4 TITLE MATTERS 18
ARTICLE XX 18
20.1 HAZARDOUS SUBSTANCES 18
20.2 TENANT'S OBLIGATIONS 18
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20.3 LANDLORD'S OBLIGATIONS 19
ARTICLE XXI 20
21.1 HOLDING OVER 21
21.2 WAIVERS 21
21.3 NOTICES 21
21.4 ATTORNEYS' FEES 21
21.5 FORCE MAJEURE 21
21.6 ESTOPPEL CERTIFICATES 22
21.7 RECORDATION 22
21.8 INVALIDITY OF PARTICULAR PROVISION 22
21.9 CAPTIONS AND DEFINITIONS 22
21.10 BROKERAGE 22
21.11 MORTGAGEE PROTECTION 22
21.12 ENTIRE AGREEMENT 22
21.13 COUNTERPART SIGNATURES 23
21.14 GUARANTY BY AMERICAN ARCHITECTURAL PRODUCTS
CORPORATION 23
21.15 CONTINGENCIES TO LEASE 23
EXHIBITS
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A LEGAL DESCRIPTION OF LAND
B SITE PLAN
C MINIMUM RENT
D CONSTRUCTION DOCUMENTS
E PERMITTED EXCEPTIONS
F MEMORANDUM OF LEASE
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LEASE
THIS LEASE is made as of the 10th day of December, 1999, by and between
OTTO A, LLC, a Nevada limited liability company, having a principal office at
8000 West Spring Mountain Road, Las Vegas, NV 89117 (hereinafter called
"Landlord"), and EAGLE WINDOW & DOOR, INC., an Iowa corporation having a
principal office at 375 East Ninth Street, Dubuque, Iowa 52001 (hereinafter
called "Tenant").
WITNESSETH:
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ARTICLE I
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1.1 PREMISES. Landlord does hereby demise unto Tenant and Tenant does
hereby take from Landlord for the Lease Term (as defined hereafter) the certain
property in Dubuque, Iowa, consisting of a building to be constructed by
Landlord (the "Building"), together with the loading dock area, all entrances,
driveways, parking areas, walks, service drives, utilities serving the Building
and all other site improvements to be constructed in the locations shown on
EXHIBIT B attached hereto and incorporated herein by reference (collectively,
"Improvements") located on land comprising approximately 27 acres, which land is
described in EXHIBIT A, attached hereto and incorporated herein by reference
("Land"). The Improvements shall be constructed pursuant to the provisions of
Article 6 hereof. The Improvements and the Land, together with all licenses,
rights, privileges and easements appurtenant thereto shall be collectively,
"Premises".
ARTICLE II
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2.1 DEVELOPMENT AGREEMENT. Landlord and Tenant acknowledge that the
Premises are subject to the terms and conditions of a Development Agreement
dated as of February 15, 1999, among Landlord, Tenant, and the City of Dubuque,
Iowa ("Development Agreement"). During the Lease Term, Landlord and Tenant shall
comply with the terms and conditions of the Development Agreement imposed upon
each of them, provided that Tenant shall not be liable to Landlord, and same
shall not constitute a breach of this Lease, if Tenant breaches Section 6 of the
Development Agreement. Upon the execution of this Lease and at all times
thereafter until the expiration or earlier termination of this Lease:
(i) Neither Landlord nor Tenant shall, without the prior written
consent of the other, amend or modify, terminate, grant its consent or
approval under the Development Agreement, fail to perform its
obligations under the Development Agreement, or fail to enforce the
obligations of any other party subject to the Development Agreement, if
such failure were to adversely affect the other party's rights
hereunder or otherwise violate the terms and conditions of this Lease;
and
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(ii) To the extent the consent of any party to the Development
Agreement other than Landlord or Tenant is required to any matter, each
party shall use reasonable efforts to obtain all such consents required
under the Development Agreement; and
(iii) Upon written notice from either Tenant or Landlord to the
other, the requested party shall use reasonable efforts to enforce the
terms and conditions of the Development Agreement and exercise all
rights and remedies available to the requested party under the
Development Agreement and/or at law or in equity with respect to the
failure of any other party subject to the Development Agreement to
perform its obligations and/or to comply with the Development Agreement
including without limitation the exercise of self-help rights set forth
in the Development Agreement.
ARTICLE III
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3.1 TERM. The term of this Lease shall commence on the date hereof, and
shall terminate on the last day of the month in which occurs the date twenty
(20) years after the Rent Commencement Date (as hereinafter defined) ("Primary
Term"); provided, however, the term of this Lease may be extended as provided in
Section 3.2. The term "Lease Term" will include and mean the Primary Term and
any extensions thereof as provided in Section 3.2. The phrase "Lease Year" shall
mean a period of twelve (12) consecutive months during the Lease Term with the
exception of the first Lease Year which shall commence on the date hereof and
end on the last day of the month in which occurs the date one calendar year
after the Rent Commencement Date.
3.2 OPTIONS. Tenant shall have the right, at its election, to extend
the Primary Term of this Lease for three (3) consecutive periods of ten (10)
years each. Tenant shall give Landlord written notice of such election to extend
the Lease Term not later than one hundred eighty (180) days prior to the
expiration of the then current Lease Term. Each such option period shall be upon
the same terms and conditions as during the Primary Term hereof, except that:
(i) Tenant shall have no further election to extend the Lease Term
of the Lease beyond the last option period; and
(ii) Tenant shall pay to Landlord Minimum Rent during such option
periods as set forth on EXHIBIT C attached hereto and incorporated by
reference.
If Tenant elects to exercise any such option, the Lease Term shall be
extended automatically for the period of such option period without necessity
for the execution of any instrument to effect the same, and in such event the
phrases the "Lease Term," "the term of this Lease" and "the term hereof" as used
in this Lease shall include such option period. The options of the Tenant to
extend the Lease Term will not expire until thirty (30) days after written
notice from Landlord to Tenant advising Tenant of the date upon which the term
of this Lease shall expire or advising Tenant that a notice exercising an option
to extend the Lease Term provided herein has not been received by Landlord;
which notice may be given by the Landlord to the Tenant no earlier than two
hundred ten (210) days prior to the expiration of the Primary Term or the then
current Lease Term. If Tenant fails to exercise any of the options to extend the
Lease Term, then any subsequent options to extend will also terminate.
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ARTICLE IV
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4.1 MINIMUM RENT. Commencing on the Date of Occupancy ("Rent
Commencement Date") and continuing during the Lease Term, Tenant agrees to pay
Landlord, at such place as Landlord shall from time to time direct by written
notice to Tenant, "Minimum Rent" as set forth on EXHIBIT C. Minimum Rent shall
be payable after the Rent Commencement Date during each Lease Year in advance in
equal monthly installments on the first day of each and every calendar month
during the Lease Term. Minimum Rent shall be prorated for the fractional portion
of any month. Unless otherwise specifically allowed by the terms of this Lease,
Tenant shall pay Minimum Rent to Landlord without demand or notice from
Landlord.
4.2 NET LEASE. This Lease is intended to be fully net to the Landlord
as that term is commonly used. Thus, the Landlord will not be obligated to pay
any of the costs of taxes, maintenance, insurance or any other items related to
the operation of the Premises other than as specifically set forth in this
Lease.
4.3 LATE CHARGE; DEFAULT INTEREST. If any payment of Minimum Rent is
not received by the Landlord within five (5) days after its due date, then the
Tenant shall pay to the Landlord a late charge equal to the greater of (i) 4% or
(ii) the late charge (not to exceed 5%) assessed by Landlord's lender, if any,
to Landlord for late payment of the loans that are secured by the Premises, of
the rent not paid within said five (5) day period. If any amounts due and owing
under this Lease are not paid within thirty (30) days of when due, then the
delinquent amounts, including late charges, shall bear interest at the lesser of
(i) interest at the prime rate ("prime rate" shall mean the prime rate as
published in THE WALL STREET JOURNAL on that day under the section "Money
Rates", and being defined therein as "[t]he base rate on corporate loans at
large U. S. money center commercial banks." If this section of THE WALL STREET
JOURNAL reflects more than one rate as being the "Prime Rate", then the highest
rate shall be the Prime Rate. On days when THE WALL STREET JOURNAL is not
published, the Prime Rate shall be the "Prime Rate" stated in the most recently
published edition of THE WALL STREET JOURNAL) plus two percent (2%) or (ii)
eighteen percent (18%) per annum.
4.4 SECURITY DEPOSIT. Tenant agrees to deposit with Landlord not later
than thirty (30) days prior to the Rent Commencement Date as security for the
performance by Tenant of the terms of this Lease an amount equal to one month's
Minimum Rent. Such sum shall be held by Landlord free of trust, and may be
co-mingled with other (including Landlord's own) funds. Landlord may use or
apply on Tenant's behalf or retain during the Term(s) of the Lease the whole or
any part of the security so deposited to the extent required for the payment of
any rent or other sums as to which Tenant may be in default hereunder or for any
sum which Landlord may expend by reason of Tenant's default in respect of any of
the terms of this Lease, including but not limited to any deficiency or damage
incurred in reletting the Leased Premises. Within thirty (30) days after Tenant
has returned possession of the building to Landlord, Landlord shall reimburse
Tenant for any portion of said security deposit which has not been used or
applied. The covenants in this Section are personal covenants between Landlord
and Tenant and not covenants running with the land, and in no event will
Landlord's mortgagee(s) or any purchaser at a foreclosure sale or a sale in lieu
of foreclosure be liable to Tenant for the return of the security deposit. After
each application from Tenant's security deposit, Tenant shall upon demand
replenish said deposit to the amount hereinabove set forth. Tenant's failure to
replenish security deposit shall constitute default.
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ARTICLE V
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5.1 REAL ESTATE TAXES.
(a) From and after the Date of Occupancy, Tenant shall pay directly
to Landlord as additional rent any Taxes (defined below) imposed upon
the Premises, in accordance with the terms of this 5.1 (a). Tenant
shall pay such Taxes directly to Landlord on the first day of every
month after the Date of Occupancy (unless the Date of Occupancy is the
first day of a month, in which event the first installment shall be
payable with the first installment of Minimum Rent), in equal monthly
installments equal to one twelfth (1/12th) of the amount of Taxes
required to be paid by Landlord, which installments shall not be less
than $40,774.00 per month during the term of the Minimum Assessment
Agreement between Landlord and the Assessor for Dubuque, Iowa. If the
monthly installments paid by Tenant to Landlord in a calendar year are
greater or less than the actual amount of the Taxes required to be paid
by Landlord for that calendar year (excluding any period before the
Date of Occupancy), without regard to penalties or interest charged to
Landlord resulting from Landlord's late payment of Taxes, Tenant shall
be entitled to a credit for the amount of any overpayment of Taxes
against the Taxes next required to be paid by Tenant to Landlord, and
if Tenant has underpaid Taxes for that calendar year, Tenant shall pay
to Landlord the amount of such underpayment within thirty days after
receipt of an invoice from Landlord.
(b) For purposes of this Lease, the term "Taxes" shall include ad
valorem taxes and general and special assessments (except as limited
below), water and sewer rents, and other real estate taxes and
assessments imposed upon the Premises during the term hereof, less any
abatements, refunds, or rebates made thereof or any discounts available
with respect thereto. Notwithstanding the foregoing, "Taxes" shall not
include:
(i) Any interest or penalties payable by Landlord as a result
of Landlord's failure to pay any such Taxes prior to delinquency,
unless resulting from Tenant's failure to pay in accordance with
Section 5.1;
(ii) Any estate, inheritance, succession, capital levy,
corporate franchise, gross receipt, transfer or income tax of
Landlord.
To the extent Tenant is required to pay for any special assessment for
improvements, Tenant's obligation shall be determined by treating the
assessment as payable in as many installments as is lawful.
5.2 PAYMENT. Landlord shall pay the Taxes directly to the taxing
authority and shall send to Tenant a paid receipt therefor no later than the
latter to occur of (i) thirty (30) days after receipt of the applicable tax bill
or (ii) the date such Taxes are due and payable.
5.3 CONTEST. Subject to the prohibitions and restrictions imposed in
the Development Agreement, Tenant shall have the right to prosecute an action to
secure a reduction or abatement of Taxes at its own expense, in the name of
Landlord, and in any such event Landlord shall, at the request of Tenant,
cooperate and join with Tenant at Tenant's expense in said proceedings. If
Landlord shall receive a refund of any portion of the Taxes after payment by
Tenant of the Taxes, Landlord shall pay such portion to Tenant. Any tax contest
pursued by Tenant or Landlord herein shall be pursued in accordance with all
applicable laws, and in no event shall the Premises be subject to any risk of
forfeiture or penalty as a result of any such contest.
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ARTICLE VI
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6.1 CONSTRUCTION BY LANDLORD. The Premises shall be completed and
delivered to Tenant promptly and with due diligence. Landlord shall commence
Landlord's Construction (defined below) with respect to the Premises on or
before the date which is ninety (90) days after the date on which Landlord
acquires the Premises, but in all events Landlord shall commence Landlord's
Construction prior to the date required by the Development Agreement. If
Landlord has not commenced Landlord's Construction with respect to the Premises
on or before such date, then Tenant, without prejudice to Tenant's other rights
and remedies hereunder or at law or in equity, may terminate this Lease if
Landlord's Construction has not been commenced within thirty (30) days after
written notice to Landlord. For purposes of this Article, "commencement" of
Landlord's Construction shall mean the receipt of all required building permits
and the commencement of earthwork on the Premises.
Landlord shall diligently prosecute Landlord's Construction to
completion without interruption or delay, in a good and workmanlike manner,
using new, high quality materials, in accordance with the Plans, and in
compliance with the Development Agreement and all applicable laws and
regulations of federal, state and municipal governments, or any department or
division thereof, including building codes. Landlord, at Landlord's expense,
shall procure all building and other permits and approvals necessary for
performing Landlord's Construction. Landlord shall use its best efforts so that
the Date of Occupancy shall occur on or before the date that is fourteen (14)
months after the closing of the acquisition of the Land by the Landlord (the
"Required Date").
6.2 PLANS. The Premises shall be constructed by Landlord, at its sole
cost and expense, in accordance with the Construction Documents described on
EXHIBIT D attached hereto and incorporated by reference (collectively referred
to as the "Plans"). Landlord, at its sole cost and expense, shall install all
improvements and install all work necessary to complete the Premises in
accordance with the Plans, including any additional work required in order to
obtain an unconditional certificate of occupancy for the Premises and as
otherwise reasonably contemplated within the scope of the specific work set
forth in the Plans ("Landlord's Construction"). The Plans are subject to changes
of type and standards of construction and of arrangement to the extent as shall
be required by applicable laws, codes or ordinances and which are acceptable to
Tenant, and such other deviations as may be approved in writing by Tenant. The
final Plans as approved by Tenant shall constitute a part of this Lease.
If Tenant shall request changes to the Plans after approval of the
Plans, then Tenant shall pay Landlord any and all extra construction costs
resulting from such changes, including the profit and overhead related to such
changes. Any sums required to be paid by Tenant to Landlord shall be paid within
fifteen (15) days after the receipt of an invoice therefor. If any change in the
scope of work is caused by the changes requested by the Tenant, then the
Landlord will be entitled to additional time to complete the work for the time
delay reasonably attributable to the changes in the scope of the work.
6.3 PUNCH LIST. Tenant shall specify all Punch list items and notify
Landlord of such Punch list items within forty-five (45) days after the date
Landlord's Construction is substantially complete. Landlord shall correct all
Punch list items specified by Tenant within thirty (30) days after receipt of
written notice thereof from Tenant. To the extent that any such Punch list items
cannot be corrected within such thirty (30) day period, Landlord shall commence
to correct such Punch list items within such thirty (30) day period and shall
diligently pursue the completion of such Punch list items thereafter.
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6.4 ADVANCE POSSESSION FOR FIXTURING. For a period of ninety (90) days
prior to completion of the Premises by Landlord, Tenant shall have the right to
enter the Premises, rent free, for the purposes of installing equipment, storing
inventory and performing Tenant's construction activities. Tenant's activities
shall not create unreasonable interference with the work of Landlord. Such entry
shall not be construed as an acceptance of the Premises by Tenant under the
provisions of this Lease or as a waiver of any of the provisions hereof.
Landlord shall advise Tenant in writing no fewer than one hundred twenty (120)
days prior to Landlord's projected completion date to allow Tenant to coordinate
its move-in. The control of the Premises prior to the Date of Occupancy shall
remain in the Landlord; thus during any entry onto or into the Premises by
Tenant prior to the Date of Occupancy, Landlord shall have the right to control
the timing, sequencing and manner of Tenant's work to minimize interference with
Landlord's Construction. If any acts or conduct by the Tenant or the
contractors, agents or employees of the Tenant during the advance possession for
fixturing delay the Landlord's Construction, then the Date of Occupancy deadline
will be extended by the number of days of delay so caused and Tenant shall pay
Landlord $2,400 per day for each day occupancy is delayed..
6.5 PARKING AND OTHER SITE IMPROVEMENTS. As of the Date of Occupancy,
Landlord shall complete, at its sole cost and expense, construction of all
on-site and off-site improvements required for the use and operation of the
Premises, substantially as depicted on EXHIBIT B and in accordance with plans
and specifications therefor approved by Tenant, including, but not limited to,
(a) all off-site and on-site land clearance, land balancing and grading,
retaining walls, (b) all necessary road improvements, including acceleration and
deceleration lanes and signalization (if required), (c) all necessary utility
extensions to the Premises; including, but not limited to, all storm sewers,
water mains, storm drains, retention basins, (d) all entrances, exits,
driveways, roadways, service drives, loading docks, parking areas, curbing,
sidewalks, landscaping and (e) all on-site traffic and parking lot striping and
control signs, lighting and any fencing or screening walls required by law,
ordinance or regulation.
6.6 DATE OF OCCUPANCY. The term "Date of Occupancy," as used in this
Lease, shall be the date upon which (i) the Premises shall be substantially
completed in accordance with the Plans and possession thereof shall be tendered
to Tenant and (ii) all of the representations, warranties and covenants set
forth in Article IX and Section 19.3 hereof, shall have been fulfilled and (iii)
a Certificate of Completion has been issued. Subject to delays that are beyond
the reasonable control of the Landlord or that are caused by the Tenant, the
Date of Occupancy shall occur no later than the date that is fourteen (14)
months after the closing of the acquisition of the Land by the Landlord. For
purposes of this Lease, the term "substantially complete" shall mean that
Landlord's Construction has been completed except for minor "Punch list" items
which do not interfere with Tenant's ability to open and operate its facility,
do not hinder the work to be performed by Tenant in and about the Premises and
do not prevent Tenant from operating its business in the ordinary course.
Landlord shall use commercially reasonable efforts to cause the Date of
Occupancy to occur on or before October 1, 2000. Landlord shall pay to Tenant
within ten (10) days after the Date of Occupancy an early move in allowance
equal to the product of (i) $145,875.00 and (ii) the number of months, including
fractional months, not to exceed three months in total, before January 1, 2001
and the Date of Occupancy occurs.
6.7 LIMITED WARRANTY. Landlord shall warrant all work performed by or
for Landlord in the construction of the Premises against defective workmanship
and materials for the period of one (1) year from the Rent Commencement Date.
Landlord shall warrant all work performed by or for Landlord in the construction
of the Premises against latent construction defects for the period of ten (10)
years from the Rent Commencement Date. A latent construction defect is any
damage to the Premises related to faulty or defective workmanship performed or
materials utilized in the construction of a Major Component by or for Landlord.
A Major Component is one of the following: (i) footings or foundations, (ii)
site compaction, (iii) floor slab, (iv) underground or underslab utility and/or
storm
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drainage systems, (v) concrete block/concrete or load bearing walls, (vi) beams,
girders, trusses, joists or column support systems (vii) roof system, (viii)
concrete entranceways and parking lot base materials, and/or (ix) docketing
facilities.
Landlord shall assign to Tenant any and all guarantees and/or
warranties of workmanship and materials which it may receive or which are
required in the Plans with respect to those portions of the Premises required to
be maintained and repaired by Tenant hereunder. If there is a manufacturer's or
suppliers warranty for components installed in the Premises (e.g., roof warranty
or HVAC warranty), then the Tenant will first pursue a warranty claim under the
applicable warranty; provided that if the maker of such warranty does not
immediately fulfill its warranty obligations, then the Landlord will be
responsible for the performance of the warranty work in accordance with and
subject to the terms of the warranty. The terms of this grammatical paragraph
are not intended to extend or expand the scope of warranties provided or
required to be provided by a contractor, subcontractor, supplier or
manufacturer; rather, the terms hereof constitute the absolute and unconditional
covenants, guarantee, and undertaking of Landlord of the timely performance of
the warranty work if the contractor, subcontractor, supplier or manufacturer
fails, refuses, or is unable to timely satisfy a legitimate warranty claim after
notice by Tenant. Landlord shall look solely to the contractor, subcontractor,
supplier or manufacturer for reimbursement of all costs incurred by Landlord
related to any warranty work performed by Landlord.
6.8 CERTIFICATE OF COMPLETION. Landlord shall timely pursue, obtain,
and record the Certificate of Completion described in paragraph 3.4 of the
Development Agreement. Landlord shall comply with, and Landlord shall cause
Landlord's Construction and the Plans to comply with, Section 3 of the
Development Agreement, and Landlord shall not violate Section 3.3 of the
Development Agreement. Notwithstanding the foregoing, Landlord shall have no
responsibility for any improvements or fixtures installed by Tenant unless such
improvements or fixtures were required to be installed by Landlord and were
installed by Tenant as a result of Landlord's failure to do so.
6.9 LANDLORD'S INSURANCE. During the period prior to the Date of
Occupancy, Landlord shall obtain and keep in full force and effect the insurance
required by paragraph 5.4(1) of the Development Agreement and shall comply with
paragraphs 5.4(3) through (5) of the Development Agreement. Tenant shall be
named as an additional insured on all liability policies, and as a loss payee on
all property damage policies, as its interest may appear.
ARTICLE VII
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7.1 LANDLORD'S REPAIRS. Except for the warranty obligations of the
Landlord as set forth in Section 6.7 of this Lease, the Landlord shall have no
obligation to maintain or repair the Premises.
7.2 TENANT'S REPAIRS.
Except for the warranty obligations of the Landlord as set forth in
Section 6.7 of this Lease, commencing on the Date of Occupancy as to the entire
Premises and on the date that the Tenant first enters into the Premises pursuant
to Section 6.4 of this Lease as to the areas occupied by the Tenant for its
fixturing, the Tenant shall be solely responsible for all repairs, replacement
and maintenance to the Premises, including, without limitation:
(i) to the exterior and interior walls, the roof, floor slab,
foundation, any canopies and the structural portions of the Premises;
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(ii) to all utility and building systems which extend beyond the
exterior walls of the Premises or beneath the floor of the Premises,
including without limitation all sewer lines; and
(iii) to the driveways, parking areas, entrance ways and other
portions of the Premises other than the Building.
Throughout the term hereof, Tenant shall repair and maintain the
interior of the Premises in good order and condition, including window glass,
interior walls, floor coverings, doors (including exterior doors and door
frames), all utility and building systems (including sprinkler system), the
heating, ventilating and air conditioning (HVAC) system and the nonstructural
portions of the Premises. Upon the expiration or termination of this Lease,
Tenant shall surrender the Premises to Landlord in good condition and repair,
reasonable wear and tear, damage and destruction (which shall be governed by
Article XV hereof), condemnation, repairs required by the acts or omissions of
Landlord, its agents, employees, or independent contractors excepted. Landlord
agrees to assign to Tenant all warranties, extended warranties and guarantees of
any kind or nature, serving the Premises and which Tenant is required to repair
hereunder.
7.3 TENANT'S ALTERATIONS. Tenant shall have the right, at its sole
expense, from time to time, to redecorate the Premises and to make such
interior, nonstructural alterations, additions, improvements and changes in such
parts thereof as Tenant shall deem expedient or necessary for its purposes;
provided, however, that such alterations, additions, improvements and changes
when completed shall neither impair the structural soundness nor diminish the
value of the Building. Anything contained in this Section 7.3 to the contrary
notwithstanding, Tenant shall not make changes to the structural portions of the
Premises without Landlord's prior written approval, which approval may not be
unreasonably withheld or delayed. If Tenant shall desire to make any
alterations, additions, improvements, or changes for which Landlord's prior
consent is required as provided herein, Tenant shall deliver written notice
thereof to Landlord, and within twenty (20) days thereafter Landlord shall
deliver written notice to Tenant of Landlord's approval or disapproval of such
request. If Tenant does not receive such written notice within such twenty (20)
day period, then Landlord shall be deemed to have approved such request.
Upon the expiration of this Lease, Tenant may, at its option, prior to
the expiration of this Lease, remove all such redecorations, alterations,
additions, improvements and changes; provided that Tenant shall (a) repair any
damage to the Premises caused by such removal and (b) restore the Premises to
the condition existing prior to the performance of such redecorations,
alterations, additions or improvements, reasonable wear and tear, damage and
destruction (which shall be governed by Article XV hereof), condemnation,
repairs required by the acts or omissions of Landlord, its agents, employees, or
independent contractors excepted.
If the Landlord desires to have the Tenant remove any such
redecorations, alterations, additions, improvements and changes, then the
Landlord will so notify the Tenant within thirty days after the termination of
possession of the Premises by the Tenant, in which event the Tenant shall remove
the items specified by the Landlord, and Tenant shall (a) repair any damage to
the Premises caused by such removal and (b) restore the Premises to the
condition existing prior to the performance of such redecorations, alterations,
additions or improvements, reasonable wear and tear, condemnation, repairs
required by the acts or omissions of Landlord, its agents, employees, or
independent contractors excepted. The Landlord will only have the right to
require the Tenant to remove the following categories of items installed by the
Tenant: (i) any items where the aggregate cost of removal and restoration of the
damage caused by such repair will exceed the sum of Fifty Thousand Dollars
($50,000.00), (ii) trade fixtures of the Tenant and (iii) equipment of the
Tenant.
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All such alterations, additions, or improvements shall be done in
accordance with all applicable laws, rules, regulations, and orders, including
applicable building codes; provided, however, that if any such applicable laws,
rules, regulations, orders, or building codes shall require any alterations,
additions, or improvements to portions of the Premises as a result of (a) the
failure of the Premises, as of the Date of Occupancy, to comply with such laws,
rules, regulations, orders, or building codes or (b) Landlord's failure to
perform its obligations related to the Premises as set forth in this Lease or
(c) any environmental condition existing in the Premises as of the Date of
Occupancy, Landlord, at its sole cost and expense, shall perform such
alterations, additions, or improvements. Landlord shall execute and deliver upon
request of Tenant such instrument or instruments embodying the approval of
Landlord which may be required by any public or quasi public authority for the
purpose of obtaining any licenses or permits for the making of such alterations,
additions, improvements, changes and/or installations in, to or upon said
Premises.
7.4 LANDLORD'S ALTERATIONS. Landlord shall not alter the Building or
the Premises except as required to perform its obligations under this Lease.
7.5 ALTERATIONS MANDATED BY LAW. After the Date of Occupancy, if any
alterations, repairs or improvements to the Premises are mandated by law
(including without limitation, the Americans with Disabilities Act, building
codes, fire codes and environmental laws), the Tenant will be solely responsible
for any alterations, repairs or improvements; provided that if any such
alterations, repairs or improvements are required because the Premises did not
comply with such applicable laws on the Date of Occupancy, then to the extent of
the non compliance, the Landlord will be responsible for the costs of the
alterations, repairs and improvements.
ARTICLE VIII
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8.1 GOVERNMENTAL REGULATIONS. Tenant shall comply with any and all
laws, rules, regulations, ordinances, and orders with respect to Tenant's use
and occupancy of the Premises, provided that Tenant shall have the right to
contest the legality of any law, order, rule, regulation or requirement
applicable to Tenant's use of the Premises. Upon the final determination of any
such contest, Tenant shall comply with any such law, order, ordinance, rule,
regulation or requirement to the extent held to be valid or legal.
Notwithstanding anything to the contrary as set forth herein, to the extent
compliance with any such law, order, ordinance, rule, regulation or requirement
is required as a result of (A) the failure of the Building, as of the Date of
Occupancy, to comply with such law, order, ordinance, rule, regulation or
requirement, (B) any default by Landlord under this Lease (including Landlord's
obligations as set forth in Section 6.7 of this Lease), or (C) any environmental
condition existing in the Premises as of the Date of Occupancy (provided that if
such environmental condition is the obligation of Tenant under Section 20.2
below, then such Section shall govern Tenant's liability therefor), then
Landlord, at its sole expense, shall promptly comply with any such law, order,
ordinance, rule, regulation, or requirement, provided that Landlord may contest
the same in the same manner as Tenant herein. Notwithstanding the foregoing,
during the last three (3) years of any extended term of this Lease (if such
option is exercised by the Tenant as set forth in Section 3.2 of this Lease), if
the cost of Tenant's compliance with all requirements of laws, rules, orders,
codes, and regulations exceeds $250,000, Tenant may elect to terminate this
Lease by giving Landlord written notice of Tenant's election to terminate, which
election must be made within ninety (90) days after the date Tenant first is
notified of the requirement, and if Tenant so elects, this Lease will terminate
as of the date that is ninety (90) days after Tenant gives Landlord the notice
required hereby.
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ARTICLE IX
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9.1 UTILITIES. Landlord, at its sole expense, shall cause all utilities
to be metered directly to the Premises, including gas, electricity, and water,
and Landlord shall pay all tap in fees, user fees, connection fees, and other
charges required to be paid to any governmental agency supplying such utility in
order to secure the availability of such utility services for the Premises.
Tenant shall pay all charges for water, gas, heat, electricity, sewer and any
other utility used upon or furnished to the Premises on and after the Date of
Occupancy.
9.2 INTERRUPTION OF SERVICE. If any utility services to the Premises
are interrupted after the Date of Occupancy as a result of the negligent or
intentional acts or omissions of Landlord, its employees, agents or independent
contractors, and such interruption continues for a period of two (2) consecutive
days, then Tenant may abate Minimum Rent and all other charges hereunder until
such services are restored.
ARTICLE X
---------
10.1 USE OF PREMISES. Tenant shall have the right to use and occupy the
Premises for any lawful use, subject to any restrictions lawfully imposed by the
Development Agreement.
ARTICLE XI
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11.1 ASSIGNMENT AND SUBLETTING. Tenant shall not have the right to
assign this Lease and/or to sublet all or any portion of the Premises without
Landlord's prior written consent, which shall not be withheld, delayed or
conditioned unreasonably; provided, however no consent or approval of Landlord
shall be required for an assignment or subletting that involves an affiliate or
subsidiary of Tenant or Guarantor. Tenant shall give Landlord written notice of
any assignment or subletting. If, at any time during the term of this Lease,
Tenant sublets all or any part of the Building or assigns this Lease as provided
herein, Tenant shall nevertheless remain fully liable under all the terms and
conditions of this Lease.
ARTICLE XII
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12.1 FIXTURES AND EQUIPMENT. All equipment, furniture and fixtures
installed by or at the expense of Tenant, in or on the Premises shall remain the
property of Tenant and Tenant shall be obligated to remove the same or any part
thereof prior to the end of the term hereof, and shall make any repairs
occasioned by such removal.
ARTICLE XIII
------------
13.1 EXTERIOR SIGNS. Tenant shall have the right, at its sole expense
and in conformity with applicable laws and ordinances (including variances) to
erect and thereafter, to maintain and/or replace, if it shall so elect, any
signs on the Building or at the Premises as Tenant desires. All such signage
will be removed at the expense of the Tenant upon the termination of the
occupancy of the Premises by the Tenant, and the Tenant shall repair any damage
occasioned by such removal.
ARTICLE XIV
-----------
14.1 CASUALTY INSURANCE.
(a) (i) From and after the Date of Occupancy, Tenant shall insure
or cause to be insured the Premises against damage or destruction by
fire and other casualties insured under a
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comprehensive broad form extended coverage policy, which coverage shall
comply with Section 5.4(2) of the Development Agreement at such times
after the Date of Occupancy that the Development Agreement is in
effect. Such insurance shall be in an amount equal to not less than one
hundred percent (100%) of the replacement value of the Premises,
exclusive of excavation and foundations. All such policies shall bear
endorsements to the effect that Landlord and all other additional
insureds shall be notified not less than thirty (30) days in advance of
any termination, expiration, modification or cancellation thereof and
that the insurer has waived right of recovery from Landlord and
Landlord's Mortgagee. Certificates evidencing the existence thereof
accompanied by a specimen of the policy which is the subject thereof,
shall be promptly delivered to Landlord and Landlord's Mortgagee. The
insurance shall include the rent loss insurance described in Section
14.5 hereof.
(ii) Subject to Article 14.3, Landlord shall not be liable for
any loss or damage to the Premises resulting from fire, explosion
or any other casualty.
(b) All policies of fire and other casualty insurance procured
pursuant to this Article shall list Landlord as an additional insured
and Landlord's Mortgagee, if any, as a loss payee and shall provide for
the release of such insurance proceeds to Tenant solely for restoration
of loss. In case of loss, Tenant is hereby authorized to adjust the
loss and execute proof thereof in the name of all parties in interest,
provided this Lease has not been terminated as a result of such loss.
(c) Tenant shall maintain workers' compensation insurance to the
extent required by the law of the State in which the Premises are
located but Tenant is not required to name Landlord or Landlord's
Mortgagee as an additional named insured under such workmen's
compensation insurance policy.
(d) At any time when Landlord is constructing the Premises or
causing them to be constructed, and until the Date of Occupancy,
Landlord shall cause its general contractor to maintain Builder's Risk
Insurance (in completed value, non-reporting form) in an amount not
less than the actual replacement value of the Improvements, exclusive
of excavation, and such policy shall name Tenant and Landlord's
Mortgagee as loss payees thereunder.
14.2 LIABILITY INSURANCE.
From and after the date Tenant first enters the Premises, including
entry pursuant to Section 6.4 of this Lease ("Entry Date"), and thereafter
throughout the Lease Term, Tenant at its sole expense shall insure or cause to
be insured against all statutory and common law liabilities for damage to
property or injuries, including loss of life, sustained by any person or persons
within the Demised Premises and shall list Landlord and Landlord's Mortgagee, if
any, as additional insureds, as their interests may appear. The insurance
obligation of Tenant shall require a policy or policies with minimum coverage of
TWO MILLION and 00/100ths DOLLARS ($2,000,000.00) with respect to injury to any
one person and THREE MILLION and 00/100ths DOLLARS ($3,000,000.00) with respect
to any one accident or disaster, and ONE MILLION and 00/100ths DOLLARS
($l,000,000,00) with respect to damage to property.
14.3 WAIVER AND INDEMNITY.
(a) Landlord and Tenant hereby release each other from any and all
liability or responsibility (to the other or anyone claiming through or
under them by way of subrogation or otherwise) for any loss or damage
to property caused by fire or any other casualties insured
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against or required to be insured against hereunder (including deductible
portions), even if such fire or other casualty shall have been caused by the
fault or negligence of the other party, or anyone for whom such party may be
responsible, and each party hereby waives any right of subrogation for all or
any insurance maintained by either party. Each party shall cause each insurance
policy carried by it hereunder to be written in such manner to provide that the
insurer waives all right of recovery by way of subrogation against the other
party hereunder in connection with any loss or damage covered by such policy.
(i) Tenant shall indemnify and hold Landlord harmless from any
claims, damages, liabilities and expenses (including attorneys'
fees and costs) for damage or injury to any person or any property
occurring on the Premises, or any part thereof, after the Date of
Occupancy, unless caused by the negligent acts or omissions of
Landlord, its agents, employees, or independent contractors.
(ii) Landlord shall indemnify and hold Tenant harmless from
any and all claims, damages, liabilities and expenses (including
attorneys' fees and costs) for damage or injury to Tenant or any
other person or any property occurring on the Premises, or any
part thereof prior to the Date of Occupancy, unless caused by the
negligent acts or omissions of Tenant, its agents, employees, or
independent contractors.
14.4 POLICY REQUIREMENTS. All policies required to be carried by this
Lease shall bear endorsements to the effect that all additional insureds and/or
loss payees shall be notified not less than thirty (30) days in advance of any
termination, expiration, modification or cancellation thereof and that
the insurer has waived the right of recovery from any such additional insured or
loss payee. Certificates evidencing the existence thereof, accompanied by a
specimen of the policy which is the subject thereof or certificates of
self-insurance shall be promptly delivered to the other party and any other
additional insured, prior to or on the earlier of the Entry Date or the Date of
Occupancy and at least thirty (30) days prior to the termination, expiration,
modification or cancellation of any policy.
14.5 RENTAL LOSS INSURANCE. Tenant shall maintain in force from the
Date of Occupancy, rental loss insurance (for all losses covered by the
insurance Tenant is required to insure against) in an amount equal to the
aggregate annual amount of all Minimum Rent and additional rent payable by
Tenant under this Lease, which rental loss insurance shall cover such losses for
a period of at least 12 months after the date of the fire or other casualty in
question. The amount of such insurance shall be increased from time to time
during the term of this Lease to reflect the then current amount of Minimum Rent
and additional rent due and payable by Tenant. The rental loss insurance policy
or endorsement shall (i) meet the requirements of this Article XIV, (ii) shall
contain a mortgagee noncontribution clause reasonably satisfactory to Landlord,
naming Landlord as the person to which all payments made by such insurance
company shall be paid, (iii) shall be maintained thereafter throughout the term
of this Lease, and (iv) shall be reasonably satisfactory in form and substance
to Landlord and Landlord's mortgagee, if any. Tenant shall pay the premiums for
all insurance policies required under this Lease and/or the Development
Agreement, as same become due and payable.
ARTICLE XV
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15.1 NO ABATEMENT OR ADJUSTMENT OF RENT. If the Premises shall be
damaged or destroyed by fire or other casualty, then Minimum Rent and any other
charges payable hereunder, shall not be abated or adjusted.
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15.2 REPAIRS AND RESTORATION OF PREMISES. If after the Date of
Occupancy (or after the Entry Date as to any damage or destruction caused by the
acts, omissions or conduct of the Tenant or the agents, employees or contractors
of the Tenant) any portion of the Improvements shall be damaged or destroyed
(partially or totally) by fire or any other casualty, Tenant shall promptly
notify Landlord, and Tenant, at its expense shall, within sixty (60) days of the
casualty, diligently commence the application process to secure the proper
permits and licenses required to repair, rebuild or restore the Improvements in
compliance with applicable governmental requirements and upon the issuance of
such permits and licenses shall promptly and with due diligence repair, rebuild
and restore the Improvements as nearly as practicable to the condition existing
just prior to such damage or destruction or repair, rebuild or restore the
Improvements. The repaired, rebuilt or replaced Improvements shall have a fair
market value equal to or greater than their fair market value immediately prior
to the loss and any such repair, rebuilding and restoration shall be made in
accordance with the requirements of Article 7.4 of this Lease.
Anything herein to the contrary notwithstanding, if such
damage or destruction shall have taken place within three years of the then
scheduled expiration date of the current Lease Term, then Tenant may terminate
this Lease as of the date of such damage or destruction by giving written notice
to Landlord within sixty (60) days thereafter and Tenant shall have an
additional sixty (60) days, rent free, within which to remove its property from
the Premises. If Tenant elects to terminate this Lease, all the insurance
proceeds payable under any policy procured pursuant to this Article shall belong
to Landlord and/or Landlord's Mortgagee, if any, as their interests may appear,
except for the portion thereof allocable to fixtures, equipment, furniture, and
improvements installed by Tenant. In the event that this Lease shall be
terminated as above provided during the Lease Term, all unearned Minimum Rent
paid in advance, if any, shall be promptly refunded to Tenant, provided,
however, that Landlord's Mortgagee shall have no obligation to return any monies
which it has applied to the payment of the unpaid principal amount of the Note
and all accrued and unpaid interest thereon. Tenant shall, however, be entitled
to recover any such unearned Minimum Rent from any insurance proceeds, and
Landlord's receipt of the insurance proceeds shall be reduced by such amount.
ARTICLE XVI
-----------
16.1 TOTAL TAKING. If the whole of the Premises shall be taken under
power of eminent domain by any public or private authority, or conveyed by
Landlord to said authority in lieu of such taking, then this Lease shall
terminate as of the date of such taking.
16.2 PARTIAL TAKING.
(a) Landlord (if and only if the award is not sufficient to
restore the Premises and the following apply) or Tenant (in all the
following instances) may, at their respective elections, terminate this
Lease upon the occurrence of any condemnation, or conveyance in lieu of
condemnation, which affects:
(i) Any portion of the Tenant's Building;
(ii) Twenty percent (20%) or more of the Premises; or
(iii) Any portion of the Premises whose condemnation would
materially and adversely affect ingress to and egress from the
Premises, unless substitute means of ingress and egress reasonably
acceptable to Tenant are available for Tenant's use as of the date
possession or control of the condemned portion is obtained by the
appropriating authority.
18
Landlord or Tenant shall give the other notice of their election to
terminate this Lease within thirty (30) days after Landlord has given
notice to Tenant of such pending condemnation. If neither party gives the
other such written notice within such thirty (30) day period, then each
party shall be conclusively deemed to have elected not to terminate this
Lease. Notwithstanding any termination of this Lease hereunder, Tenant, at
its election, may continue to occupy the Premises, subject to the terms and
provisions of this Lease, for all or such part, as Tenant may determine,
for the period between the date of such taking and the date when possession
of the Premises shall be taken by the appropriate authority. If the
Landlord elects to terminate this Lease as set forth in this paragraph,
then within thirty (30) days after receipt of such notice by the Tenant
from the Landlord, the Tenant may notify the Landlord that the Tenant
elects to assume the obligations of restoration of the Landlord as set
forth in Section 16.3 of this Lease. If such notice is given by the Tenant
to the Landlord, then this Lease will not terminate, the Tenant will have
assumed the obligations of the Landlord for the restoration as set forth in
Section 16.3 of this Lease and the Landlord will make available to the
Tenant those portions of the condemnation award that are related to the
costs of such restoration. In addition, if Tenant elects to restore the
Premises, the provisions of Section 16.3 will be modified to deny the
Tenant the right to terminate the Lease.
(b) Notwithstanding anything to the contrary set forth herein, if
any portion of the Premises is condemned or conveyed in lieu of such
condemnation during the last two (2) years of the term hereof, then
Tenant may terminate this Lease upon thirty (30) days written notice to
Landlord. Notwithstanding any termination of this Lease pursuant to the
terms and conditions of this Section 16.2(b), Tenant, at its election,
may continue to occupy the Premises, subject to the terms and
conditions of this Lease, for the period between the date of such
taking and the date when possession of the property to be condemned
shall be taken by the appropriate authority.
16.3 RESTORATION. If this Lease is not terminated under Section 16.2
above, Landlord, at Landlord's sole cost and expense, shall promptly restore the
remaining portions of the Premises and/or the Premises, including any and all
improvements made theretofore, together with the remaining portions of the
parking areas, to an architectural whole in substantially the same condition
that the same were in prior to such taking. If Landlord does not either (a)
obtain a building permit for any repairs or restoration required hereunder
within ninety (90) days of the date of taking, or (b) complete such repairs or
restoration in accordance with this Section 16.3(a) within six (6) months of
such taking, then, in either event, Tenant may at any time thereafter terminate
this Lease upon thirty (30) days written notice thereof to Landlord; provided,
however, that such notice of cancellation shall not be effective if Landlord,
within such thirty (30) day period, shall obtain such permit or complete and
comply as aforesaid, as the case may be. Minimum Rent and any other charges
payable by Tenant hereunder shall be suspended or abated or adjusted until the
completion of such restoration according to the nature and extent of the injury
to the Premises. Upon any condemnation of a portion of the Premises, the Minimum
Rent and any other charges payable by Tenant hereunder shall be proportionately
reduced based upon the floor area of the Tenant's Building remaining after said
taking. Landlord will only have the obligation to restore those portions of the
Premises that were originally included as a part of Landlord's Construction,
and Landlord shall not be obligated to restore any portions of the Premises
constructed by Tenant, including any alterations to the Premises (except to the
extent of Landlord's original construction), nor to restore any furniture,
fixtures and equipment of the Tenant.
16.4 THE AWARD. Unless Tenant exercises its right under Section 16.2 to
restore the Premises, in which case the award shall be the sole property of
Tenant, all compensation awarded for any taking, whether for the whole or a
portion of the Premises, or for any other portion of the Premises,
19
shall be the sole property of Landlord, and Tenant hereby assigns to Landlord
all of Tenant's right and title to and interest in any and all such
compensation; provided, however, Landlord shall not be entitled to and Tenant
shall have the sole right to retain any portion of any award made by the
appropriating authority for (a) the unamortized portion of any leasehold
improvements installed by Tenant in the Premises, (b) the cost of removal of
leasehold improvements, fixtures, and other improvements installed in the
Premises by, or at the expense of, Tenant, (c) relocation expenses, (d) the
value or loss of the leasehold estate, and (e) any separate award made by the
appropriating authority directly to Tenant.
16.5 RELEASE. In the event of any termination of this Lease as the
result of the provisions of this ARTICLE XVI, Minimum Rent and any other
charges, if any, paid in advance by Tenant shall be refunded to Tenant, and the
parties, effective as of such termination, shall be released from all liability
and obligations thereafter arising under this Lease.
ARTICLE XVII
------------
17.1 EVENTS OF DEFAULT BY TENANT; REMEDIES. If Tenant shall at any time
be in default in the payment of Minimum Rent or any other charges hereunder or
in the performance of any of the covenants of this Lease, and Tenant shall fail
to remedy such default within (a) ten (10) days after receipt of written notice
thereof from Landlord if such default is as to payment of Minimum Rent or the
payment of any other charges, or (b) thirty (30) days after receipt of written
notice thereof if such default is nonmonetary (but Tenant shall not be deemed in
default if it commences to remedy such default within said thirty (30) day
period and proceeds therewith with due diligence to completion), or if Tenant
shall be adjudged a bankrupt or shall make an assignment for the benefit of
creditors, or if a receiver of any property of Tenant in or upon the Premises be
appointed in any action, suit or proceeding by or against Tenant and not removed
within one hundred twenty (120) days after appointment, or if the interest of
Tenant in the Premises shall be sold under execution or other legal process,
Landlord may by notice to Tenant, terminate this Lease, in which event Tenant
shall promptly surrender the Premises to Landlord, or without terminating this
Lease, re-enter the Premises by summary proceedings, proceedings in forcible
entry and detainer, eviction, or otherwise, and may dispossess Tenant.
Notwithstanding anything to the contrary contained in this Lease: (i) Landlord
shall not have any right to accelerate the Rent and other amounts payable
hereunder; (ii) Landlord shall not have any right to exercise its remedies
hereunder if Tenant either (a) cures the default prior to the effective date of
the termination of the Lease or (b) as to defaults other than a default in
payment of Minimum Rent, Tenant contests the existence of the default prior to
the effective date of the termination of the Lease in a court of competent
jurisdiction and complies with the final, non-appealable order of any such
court, within thirty (30) days after the entry of the final non-appealable order
(provided that if such default is non-monetary default and is of a character as
to require more than thirty (30) days to cure, Tenant shall have an additional
reasonable period of time to cure such default if Tenant has commenced to cure
such default within said thirty (30) day period and is diligently and
continuously pursuing the remedies or steps necessary to cure or correct such
default); and (iii) in the event of any default by Tenant under this Lease,
Landlord shall in each case use reasonable efforts to mitigate its damages.
17.2 LANDLORD'S DUTY TO RELET. If Landlord elects to terminate Tenant's
right to possession only without terminating this Lease as above provided, then
Tenant shall promptly surrender the Premises to Landlord, and Landlord shall use
reasonable efforts to relet the Premises or any part thereof to any person, firm
or corporation and for such time and upon such terms as Landlord may determine.
Landlord may make repairs, alterations and additions in and to the Premises and
redecorate the same to the extent deemed by Landlord necessary or desirable and
Tenant, upon demand in writing, shall pay the reasonable cost thereof (excluding
tenant improvements for the replacement tenant) together with Landlord's
reasonable expenses of reletting, including any commissions and attorneys' fees
relative
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thereto. If the rents collected by Landlord upon any such reletting are not
sufficient to pay monthly the full amount of the monthly rent and other charges
reserved herein, together with the reasonable costs of such repairs, alterations
(excluding tenant improvements for any replacement tenant), additions,
redecorating, and expenses, Tenant shall pay to Landlord the amount of each
monthly deficiency upon demand in writing.
17.3 EVENTS OF DEFAULT BY LANDLORD; REMEDIES. If Landlord fails to pay
any interest, principal, costs, or other charges upon any mortgage or deed of
trust or other lien or encumbrance affecting the Premises, and to which this
Lease may be subordinate, when any of the same become due, or if Landlord fails
to make any repairs or do any work required of Landlord by the provisions of
this Lease, or if Landlord shall at any time be in default in the observance or
performance of any of the other covenants and agreements required to be
performed and observed by Landlord hereunder, and such failure continues for a
period of thirty (30) days after written notice thereof is given by Tenant to
Landlord, Tenant may bring an action against the Landlord for any damages
proximately caused by Landlord's failure to perform; and/or Tenant may, but
shall not be obligated to, pay the taxes, assessments, interest, principal,
costs and other charges and cure such defaults, all on behalf of and at the
expense of the Landlord, and do all necessary work and make all necessary
payments in connection therewith, included, but not limiting the same to, the
payment of any reasonable fees, costs and charges of or in connection with any
legal action which may have been brought; and/or bring suit for the collection
of any amounts for which Landlord may be in default, or for the performance of
any other covenant or agreement devolving upon Landlord. Landlord shall
reimburse Tenant for the amounts paid by Tenant, including costs and attorneys
fees, together with interest thereon at the then effective Prime Rate (as
published by the Wall Street Journal or similarly authoritative source) plus two
percent (2%). In the event Landlord has not reimbursed Tenant for such amounts
within ten (10) days of receipt of an invoice, then Tenant may withhold the
Minimum Rent and all other charges thereafter becoming due to the Landlord
pursuant to the provisions of this Lease, and may apply the same to the payment
of such indebtedness of Landlord to Tenant until such indebtedness is fully paid
with interest thereon as herein provided. Nothing herein contained shall
preclude Tenant from proceeding to collect the amounts paid by it as aforesaid
without waiting for rental offsets to accrue, and if at the expiration of this
Lease, there shall be any sums owing by Landlord to Tenant, this Lease may, at
the election of Tenant, be extended and continue in full force and effect for so
long as is required to offset such indebtedness against said rentals.
17.4 OTHER REMEDIES. The rights and remedies of Landlord and Tenant as
set forth in ARTICLES XVII and XVIII shall be in addition to other rights and
remedies at law or in equity, provided that such other rights and remedies shall
not be inconsistent with the explicit rights and remedies set forth herein, and
in no event shall Minimum Rent or other charges herein be accelerated.
ARTICLE XVIII
18.1 LANDLORD'S SELF-HELP. If Tenant shall default in the performance
or observance of any agreement or condition in this Lease contained on its part
to be performed or observed and shall not cure such default within any
applicable cure period set forth herein (or if no cure period is specified,
within thirty (30) days after notice by Landlord to Tenant provided that if the
default cannot reasonably be cured within thirty (30) days, then within a
reasonable time after written notice by Landlord to Tenant) Landlord may, at its
option, without waiving any claim for damages for breach of agreement, at any
time thereafter cure such default for the account of Tenant, and any amount paid
or any contractual liability incurred by Landlord in so doing shall be deemed
paid or incurred for the account of Tenant and Tenant agrees to reimburse
Landlord therefor, together with interest thereon at the Prime Rate (as
published in the Wall Street Journal or similar authorative source) plus two
percent (2%), and save Landlord harmless therefrom; provided that Landlord may
cure any such default as aforesaid prior to
21
the expiration of said waiting period, without notice to Tenant, if any
emergency situation exists, or after notice to Tenant, if the curing of such
default prior to the expiration of said waiting period is reasonably necessary
to protect the Premises or Landlord's interest therein, or to prevent injury or
damage to persons or property. If Tenant fails to reimburse Landlord within
thirty (30) days of Landlord's written demand for any amount paid for the
account of Tenant hereunder, said amount, together with all accrued interest,
shall be added to and become due as a part of the next payment of rent due
hereunder.
18.2 TENANT'S SELF-HELP. If Landlord shall breach, or fail to perform
or observe, any agreement or condition in this Lease contained on Landlord's
part to be performed or observed, and if Landlord shall not cure such breach or
failure within thirty (30) days after notice from Tenant specifying such breach
or failure (or, if such breach or failure shall reasonably take more than thirty
(30) days to cure then if Landlord shall not have commenced the same within the
thirty (30) days and diligently prosecuted the same to completion), Tenant may,
at Tenant's option, without waiving any claim for damages for breach of
agreement, at any time thereafter cure such breach or failure for the account of
Landlord and any amount paid or any contractual liability incurred by Tenant in
so doing shall be deemed paid or incurred for the account of Landlord and
Landlord agrees to reimburse Tenant therefor, together with interest thereon at
the Prime Rate (as published in the Wall Street Journal or similar authorative
source) plus two percent (2%), and save Tenant harmless therefrom; provided that
Tenant may cure any such breach or failure as aforesaid prior to the expiration
of said waiting period if reasonably necessary to protect the Premises or
Tenant's interest therein, to prevent injury or damage to persons or property,
or in the event of any other emergency (e.g., roof leak which is covered by
Landlord's warranty under Section 6.7 of this Lease). Any amounts not reimbursed
by Landlord within thirty (30) days of Tenant's written demand therefor,
together with all accrued interest thereon, may be applied by Tenant as a credit
against Tenant's next payment(s) of Minimum Rent or other charges.
ARTICLE XIX
19.1 SUBORDINATION. Tenant agrees to subordinate this Lease to the lien
of any deed of trust, mortgage or mortgages now or hereafter placed upon
Landlord's interest in the Premises; provided, however, that Landlord, at its
expense, shall procure from any such mortgagee an agreement, in writing, in form
and substance reasonably acceptable to Tenant, providing in substance that (a)
so long as Tenant substantially performs the obligations imposed upon Tenant
hereunder within the applicable grace or cure period, its tenancy will not be
disturbed, nor its rights under this Lease affected by, any default under such
mortgage nor shall Tenant be named as a defendant in any foreclosure proceeding,
and (b) in the event of any foreclosure under any such mortgage or deed of
trust, or a granting of a deed in lieu thereof, any such mortgagee or purchaser
of Landlord's interests through foreclosure sale or deed in lieu thereof shall
permit the insurance proceeds and condemnation awards to be used for any
restoration and repair required under ARTICLES XV and XVI hereof. Landlord, at
its expense, shall procure such executed agreement from any existing mortgagee
of the Premises on or before the Date of Occupancy. Tenant shall in the event of
the sale or assignment of Landlord's interest in the Premises, or in the event
of any proceedings brought for the foreclosure of, or in the event of the
exercise of the power of sale under, any mortgage covering the Premises and to
which this Lease is subordinated as required herein, attorn to and recognize
such mortgagee (or the purchaser of such mortgagee's interest) as Landlord under
this Lease. Tenant shall, following receipt of written request therefor, execute
all reasonable documents necessary to evidence such attornment, provided that
(a) such documents are in a form and substance reasonably acceptable to Tenant
and (b) Tenant has received the nondisturbance-agreement required above and
there exists no default thereunder by such mortgagee (or the purchaser of such
mortgagee's interest).
19.2 QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that
upon Tenant paying the rent and observing and performing all of the terms,
covenants and conditions on Tenant's
22
part to be observed and performed hereunder, Tenant may peaceably and quietly
have, hold, occupy and enjoy the Premises without hindrance or molestation from
Landlord or any persons claiming through Landlord.
19.3 LANDLORD'S ASSURANCES.
(a) To induce Tenant to execute this Lease, and in consideration
thereof, Landlord, to the best of its knowledge, warrants and
represents as follows:
(i) Landlord has entered into a contract to purchase the
Premises and will have, prior to the date on which Landlord is
required to start its construction pursuant to Section 6.1 above,
good fee simple title to the Premises free and clear of all
easements, restrictions, liens, encumbrances, leases and the like,
except as set forth on EXHIBIT E, attached hereto and made a part
hereof.
(ii) There are no restrictions or other legal impediments
either imposed by law (including applicable zoning and building
ordinances) or by any instrument (including the items set forth on
EXHIBIT E) or any pending governmental actions, which would
prevent the use of the Premises for the operation of a
fenestration and mill production, warehouse, distribution, and
sales facility.
(iii) The Premises has access to all adjacent streets through
the access routes and to the entrances of the Premises for the
purposes of vehicular traffic; and access for trucks to the
receiving door serving the Premises.
(iv) The Building and the Premises will comply with all laws,
rules, regulations, ordinances, and orders of all applicable
governmental authorities, including without limitation all
building codes, zoning ordinances, and all environmental laws and
regulations applicable to the Building and the Premises and the
uses made thereof, including, without limitation, laws and
regulations relating to hazardous substances.
(v) Landlord has not received any notice of a pending or
contemplated condemnation or eminent domain proceedings with
respect to the Building or the Premises, nor has Landlord any
knowledge or notice that the Building or the Premises, or any
portion thereof, is in violation of any applicable statute, law,
rule, regulation, or order of any governmental authority,
including any zoning ordinances or building codes.
(vi) The execution and performance of this Lease by Landlord
will not violate or cause a default under any agreement,
instrument, or other transaction to which Landlord is a party or
by which Landlord and/or the Premises are bound.
(b) If Landlord shall breach any material warranty,
representation, covenant or agreement set forth in Section 19.3(a)
above, and such failure or breach shall continue uncured for a period
of thirty (30) days after notice thereof from Tenant to Landlord and
materially and adversely affect Tenant's business operations in the
Premises, Tenant shall have the right, in addition to all other
remedies, to terminate this
23
Lease at any time within thirty (30) days after the occurrence of such
failure or breach by giving Landlord notice thereof prior to the full
compliance by Landlord with such requirements, warranties,
representations, covenants and agreements; provided, however, that
Tenant shall not have the right to terminate this Lease if Landlord
commences to remedy such failure or breach within said thirty (30) day
period, and thereafter diligently pursues such cure to completion. For
purposes of determining whether any such warranty, representation,
covenant or agreement is material, such matter must have a material
impact upon the ability of the Tenant to conduct its business or to use
and occupy the Premises.
19.4 TITLE MATTERS. Prior to the Date of Occupancy, Landlord shall
deliver to Tenant (a) a copy of Landlord's most current Owner's Policy of Title
Insurance (the "Title Policy") verifying to Tenant that Landlord's title is as
represented under Section 19.3 above and verifying that the Premises are within
the bounds of the property described in EXHIBIT A, and (b) a copy of a survey of
the Premises prepared by a licensed surveyor, which shall be consistent with the
Title Policy.
ARTICLE XX
20.1 HAZARDOUS SUBSTANCES. The term "Hazardous Substances," as used in
this Lease, shall include, without limitation, flammables, explosives,
radioactive materials, asbestos, polychlorinated byphenyls (PCBs), chemicals
known to cause cancer or reproductive toxicity, pollutants, contaminants,
hazardous wastes, toxic substances or related materials, petroleum and petroleum
products, and substances declared to be hazardous or toxic under any law or
regulation now or hereafter enacted or promulgated by any governmental
authority.
20.2 TENANT'S OBLIGATIONS
(a) Tenant shall not cause or knowingly permit to occur (i) any
violation of any federal, state, or local law, ordinance, or regulation
now or hereafter enacted, related to Hazardous Substances on, under, or
about the Premises; or (ii) the use, generation, release, manufacture,
refining, production, processing, storage, or disposal or any Hazardous
Substances on, under, or about the Premises in violation of applicable
federal or state laws, or the transportation to or from the Premises of
any Hazardous Substances in violation of applicable federal or state
laws.
(b) In connection with Tenant's operations in the Premises, Tenant
shall, at Tenant's own expense, comply with all laws regulating the
use, generation, storage, transportation, or disposal of Hazardous
Substances ("Laws") with respect to Tenant's business operations in the
Premises. Tenant shall, at Tenant's own expense (if Tenant is required
by the Laws), make all submissions to, provide all information required
by, and comply with all requirements of all governmental authorities
(the "Authorities") under the Laws with respect to Tenant's business
operations in the Premises. Should any Authorities demand that a
cleanup plan be prepared and that a clean-up be undertaken because of
any deposit, spill, discharge, or other release of Hazardous Substances
that occurs during the term of this Lease, at or from the Premises and
which arises at any time from Tenant's use or occupancy of the
Premises, then Tenant shall, at Tenant's own expense, prepare and
submit (if Tenant is required by the Laws) the required plan and all
related bonds and other financial assurances; and Tenant shall carry
out all such clean-up plans.
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(c) Tenant shall indemnify, defend and hold harmless the Landlord
from all fines, suits, procedures, claims and actions of every kind,
and all costs associated therewith (including attorney's and
consultants' fees) arising out of or in any way connected with any
deposit, spill, discharge, or other release of Hazardous Substances
directly related to the violation of any Laws that occurs during the
term of this Lease, at or from the Premises and which arises at any
time directly from Tenant's use or occupancy of the Premises, resulting
from Tenant's failure to provide all information, make all submissions,
and take all steps required by all Authorities under the Laws.
(d) Tenant's obligation and liabilities under this Section 20.2
shall survive the expiration of this Lease.
20.3 LANDLORD'S OBLIGATIONS.
(a) Landlord shall not cause (and prior to the Date of Occupancy
shall not knowingly permit) (i) any violation of any federal, state, or
local law, ordinance, or regulation now or hereafter enacted, related
to Hazardous Substances on, under, or about the Premises; or (ii) the
use, generation, release, manufacture, refining, production,
processing, storage, or disposal or any Hazardous Substances on, under,
or about the Premises in violation of applicable federal or state laws,
or the transportation to or from the Premises of any Hazardous
Substances in violation of applicable federal or state laws.
(b) Landlord shall indemnify, defend and hold harmless the Tenant
from all fines, suits, procedures, claims and actions of every kind,
and all costs associated therewith (including attorney's and
consultants' fees) arising out of or in any way connected with any
deposit, spill, discharge, or other release of Hazardous Substances
that occurred prior to the Date of Occupancy (unless such Hazardous
Substance was caused by the acts or negligence of the Tenant or the
guests, invitees, employees, agents or contractors of the Tenant) or is
directly related to the violation of the Landlord's obligations as set
forth in subparagraph (a) of this Section 20.3
(c) Landlord's obligation and liabilities under this Section 20.3
shall survive the expiration of this Lease.
ARTICLE XXI
21.1 HOLDING OVER. If Tenant or anyone claiming under Tenant shall
continue occupancy of the Premises after the expiration of the original term of
this Lease without any agreement in writing between Landlord and Tenant with
respect thereto, such occupancy shall not be deemed to extend or renew the term
of this Lease, but such occupancy shall continue as a tenancy from month to
month upon the covenants, provisions and conditions herein contained, provided
that Minimum Rent shall be an amount equal to one hundred ten percent (110%) of
the Minimum Rent payable by Tenant hereunder prior to the expiration or
termination of this Lease.
21.2 WAIVERS. Failure of either party to complain of any act or
omission on the part of the other party, no matter how long the same may
continue, shall not be deemed to be a waiver by said party of any of its rights
hereunder. No waiver by either party at any time, express or implied, of any
breach of any provision of this Lease shall be deemed a waiver of a breach of
any other provision of this Lease or a consent to any subsequent breach of the
same or any other provision. If any action by either party shall require the
consent or approval of the other party, the other party's consent to or approval
of such action on any one occasion shall not be deemed a consent to or approval
of said action on any subsequent occasion or a consent to or approval of any
other action on the same or any subsequent occasion.
25
21.3 NOTICES. Notices required under this Lease shall be in writing and
deemed to be properly served on receipt thereof if personally delivered, sent by
certified or registered mail (return receipt requested, postage prepaid) or by
overnight courier service: (i) to Landlord at the address set forth in the first
paragraph of this Lease, with a separate copy to Thomas DeVore, Goold Patterson
DeVore & Rondeau, 4496 South Pecos Road, Las Vegas, Nevada or (ii) to Tenant at
the address set forth in the first paragraph of this Lease, with a separate copy
to Jonathan K Schoenike at 755 Boardman-Canfield Road, Building G-West,
Youngstown, Ohio 44512, and a copy to Daniel P. Daniluk, Daniel Daniluk, LLC,
1129 Niles-Cortland Road, SE, Warren, Ohio 44484. The parties to receive notice
and the addresses for notice may be changed by the party entitled to notice by
giving notice of such change pursuant to this Article. The date of notice shall
be the date of receipt of notice or the date of attempted delivery of the notice
by the overnight courier service or the U.S. Postal Service to the addressee or
its agent.
21.4 ATTORNEYS' FEES. If either party hereto be made or becomes a party
to any litigation commenced by or against the other party involving the
enforcement of any of the rights and remedies of such party, or arising on
account of the default of the other party in the performance of such party's
obligations hereunder, then the prevailing party in any such litigation, or the
party becoming involved in such litigation because of a claim against such other
party, as the case may be, shall receive from the other party all costs and
reasonable attorneys' fees incurred by such party in such litigation.
21.5 FORCE MAJEURE. The time frames for the performance of all
obligations under this Lease shall be suspended by any delays caused by acts of
God, including, but not limited to, extreme weather conditions and/or other
natural causes, casualty, labor problems (including but not limited to strikes,
walk-outs, picketings, boycotts and shutdowns), governmental restrictions upon
the availability or use of labor or materials, litigation commenced by third
parties, or insurrection, embargoes, or delays in providing necessary consents
or approval. The time for performance of such obligation shall be extended only
for the period of such delay. Notwithstanding the foregoing, lack of funds shall
not be deemed to be a cause beyond control of either party, and with respect to
matters addressed in the Development Agreement, the definition of force majeure
therein shall apply. In no event will any force majeure condition excuse the
timely payment of rent and other amounts due and owing by the Tenant under the
terms of this Lease.
21.6 ESTOPPEL CERTIFICATES. At any time and from time to time, Landlord
and Tenant each agree, upon request in writing from the other, to execute,
acknowledge and deliver to the other or to any person designated by the other a
statement in writing certifying that this Lease is unmodified and is in full
force and effect, or if there have been modifications, that the same is in full
force and effect as modified (stating the modifications), that the other party
is not in default in the performance of its covenants hereunder, or if there
have been such defaults, specifying the same and the dates to which the rent and
other charges have been paid, and such other matters as the requesting party may
reasonably request.
21.7 RECORDATION. Simultaneously herewith, Landlord and Tenant have
entered into a memorandum of lease for recording in the form attached hereto and
made a part hereof as EXHIBIT F. Provided Tenant elects to record such
memorandum, Tenant shall pay the recording fees to record such memorandum.
21.8 INVALIDITY OF PARTICULAR PROVISION. If any term or provision of
this Lease or the application hereto to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other
26
than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Lease shall be valid and
be enforced to the fullest extent permitted by law.
21.9 CAPTIONS AND DEFINITIONS. The captions of the Sections of this
Lease are for convenience only and are not a part of this Lease and do not in
any way limit or amplify the terms and provisions of this Lease. The word
"Landlord" and the pronouns referring thereto, shall mean, where the context so
admits or requires, the persons, firm or corporation named herein as landlord or
the mortgagee in possession for the time being of the land and building
comprising the Premises and if there is more than one landlord, the covenants of
Landlord shall be the joint and several obligations of each of them, and if
Landlord is a partnership, the covenants of Landlord shall be the joint and
several of each of the partners and the obligation of the partnership. Any
pronoun shall be read in the singular or plural number and in such gender as the
context may require. Except as in this Lease otherwise provided, the terms and
provisions of this Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Notwithstanding
anything contained herein to the contrary, the obligations of Landlord hereunder
shall be binding only upon the owner of the Premises.
21.10 BROKERAGE. Landlord and Tenant represent and warrant each to the
other that each has not dealt with any real estate agent or broker in connection
with this transaction and Landlord and Tenant each agree to indemnify and save
each other harmless from and against all loss, cost and expense incurred by
reason of the breach of such representation and warranty.
21.11 MORTGAGEE PROTECTION. Tenant agrees to send the holder of any
mortgage or deed of trust on the Premises (a "Mortgagee"), a copy of any notice
of default given to Landlord at such address of Landlord's Mortgagee of which
Tenant has been notified. If Landlord fails to cure any default of Landlord
within the time period provided for in this Lease, then Landlord's Mortgagee
shall have an additional ten (10) days within which to cure such default (or
such additional period of time as may be reasonably necessary if such Mortgagee
is diligently pursuing cure of same) before Tenant shall be entitled to exercise
any right to terminate this Lease as provided by the terms of this Lease or at
law or in equity.
21.12 ENTIRE AGREEMENT. This instrument contains the entire and only
agreement between the parties, and no oral statement or representations or prior
written matter not contained in this instrument shall have any force and effect.
This Lease shall not be modified in any way except by a writing executed by both
parties.
21.13 COUNTERPART SIGNATURES. This Lease may be executed in
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one document. Signature pages of any counterpart may
be appended to any other counterpart and shall constitute an original document.
21.14 GUARANTY BY AMERICAN ARCHITECTURAL PRODUCTS CORPORATION. American
Architectural Products Corporation ("Guarantor") hereby unconditionally
guarantees the payment and performance of each and every obligation of the
Tenant under this Lease during the Primary Term. The Lease may be changed by
agreement between Landlord and Tenant at any time, or by course of conduct,
without the consent of and without notice to Guarantor. This guaranty shall
guarantee the performance of the Lease as amended. An assignment of this Lease
in accordance with its terms shall not affect this guaranty. The Guarantor
consents to and waives notice of any extension of the time or times of payments
or rents under the Lease. If Tenant defaults under the Lease, Landlord can
proceed immediately against Guarantor or Tenant, or both, or Landlord can
enforce against Guarantor or Tenant, or both, any rights that it has under this
Lease, or pursuant to applicable laws. Guarantor waives the
27
right to require Landlord to (i) proceed against Tenant (ii) proceed against or
exhaust any security that Landlord holds from Tenant or (iii) pursue any other
remedy in Landlord's power.
21.15 CONTINGENCIES TO LEASE. This Lease is contingent upon each of the
following:
a. The closing on the purchase of the Premises by Landlord from the
City of Dubuque in accordance with the terms of the Development Agreement; and
b. The ability of the Landlord to obtain its financing to acquire the
Premises and to construct the Improvements.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease the day
and year first above written by their respective officers thereunto duly
authorized.
WITNESSES: LANDLORD:
OTTO A, LLC
a Nevada limited liability company
??????????????????? By: Herman Ahler
------------------------------- ------------------------------
??????????????????? Its: Manager
------------------------------- ------------------------------
TENANT:
EAGLE WINDOW & DOOR, INC.
an Iowa corporation
??????????????????? By: /s/ David Beeken
------------------------------- ------------------------------
???????????????????
-------------------------------
GUARANTOR:
AMERICAN ARCHITECTURAL
PRODUCTS CORPORATION
a Delaware corporation
By: /s/ David J. McKelvey, V.P.
-----------------------------------
DAVID J. MCKELVEY
29
STATE OF NEVADA )
) SS:
COUNTY OF CLARK )
BEFORE ME, a Notary Public in and for said County and State, did
personally appear OTTO A, LLC, a Nevada limited liability company, by Herman
Ahler, its manager, who acknowledged to me that he did sign the foregoing
instrument as such officer and that the same is his free act and deed, both
individually and as such officer of said limited liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Las Vegas, Nevada this 8th day of December, 1999.
/s/ Bridget D. Whitehurst
-------------------------
NOTARY PUBLIC
--------------------------------
BRIDGET D. WHITEHURST
Notary Public - Nevada
[SEAL] No. 99-35898-1
My appt. exp Mar 7, 2003
--------------------------------
STATE OF NEVADA )
) SS:
COUNTY OF CLARK )
BEFORE ME, a Notary Public in and for said County and State, did
personally appear EAGLE WINDOW & DOOR, INC., an Iowa corporation, by David
Beeken, its president, who acknowledged to me that he did sign the foregoing
instrument as such officer and that the same is his free act and deed, both
individually and as such officer of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Las Vegas, this 8th day of December, 1999.
/s/ Bridget D. Whitehurst
-------------------------
NOTARY PUBLIC
This Instrument Prepared By:
--------------------------------
BRIDGET D. WHITEHURST
Notary Public - Nevada
[SEAL] No. 99-35898-1
My appt. exp Mar 7, 2003
--------------------------------