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EXHIBIT 10.8
Xx. Xxxxxx X. Xxxxxx
Xxx. Xxxxx X. Xxxxxx
000 Xxxxxxxxxx Xxxx Xxxx
Xxxxx Xxxxx, XX 00000
May 27, 1997
Xx. Xxxxxxx X. Xxxxx, President
Flour City Architectural Metals, Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 0
Xxxxxxx Xxxx, Xxxxxxxxx 00000
Subject: Ground and Building Lease (9 pages) Dated December 20, 1993, Between
Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx and Xxx X. Xxxxxxxx, Xx. for Property in
Tri County Industrial Park
Dear Xx. Xxxxx:
This letter constitutes an agreement between Xxxxxx X. Xxxxxx and Xxxxx X.
Xxxxxx (Wrights) and Flour City Architectural Metals, Inc. (FCAM) to assume
subject Lease (copy attached) and all the responsibilities and rights of the
Lease including all terms and conditions of the Lease except for the following:
1. The term of this agreement between Wrights and FCAM is for a period of
one (1) year beginning June 1, 1997, and ending on May 30, 1998.
2. FCAM may renew this lease under the same terms for an additional term in
increments of six (6) months or as mutually agreed, ending upon the
expiration of subject Lease, by giving ninety (90) days written notice
prior to the end of the term.
3. The GTE option noted in paragraph 2.2 is null and void.
4. Rent shall be paid directly by FCAM to Lessor as set out in the Lease.
Annual (or prorated portion thereof) property taxes ($6,370.94) shall be
paid by FCAM directly to the county with no advance escrow.
5. Wrights grant permission for FCAM to negotiate directly with the Lessor
concerning expansion of the Premises, an extended term, and related
matters. If your negotiations are concluded, Wrights are agreeable to
terminate this agreement and the referenced Lease with the Lessor.
6. The replacement value for fire and extended coverage insurance shall be
$1,000,000.00 and this amount shall be the limit of FCAM's exposure in
case of destruction of premises. FCAM shall not be bound to the terms
noted in the last sentence of paragraphs 7.1 and 7.3.
7. Wrights and Lessor agree to allow FCAM to utilize the property outside
the chain link fence for storage of equipment and/or materials.
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8. Concerning paragraph 12.1, revise the following: add the phrase "notice
of" prior to the word "failure" in the second line; and revise the
second sentence as follows "Notices will be required from the Lessor to
the Lessee."
9. Wrights shall at their expense repair, replace and/or install materials
and workmanship as follows prior to commencement of lease:
o Repair roof leaks that may exist.
o Replace damaged/stained ceiling tiles in office.
o Patch and paint drywall in office to achieve uniform finished
appearance.
o Replace driveway paving and patch or overlay parking areas to good
condition. Driveway work to be completed by June 5, 1997, and parking
area work to be completed by June 15, 1997, all weather permitting.
Driveway will be passable during construction.
o Ensure the following is in full working order (including light bulbs
and similar) for plant and office areas: all electrical systems;
lighting; security systems; emergency lighting system; intercom
system; sprinkler & fire alarm system; overhead crane; HVAC; plumbing
system; and ventilation fans.
o Concerning the locks of all doors, ensure all are in working order
and provide keys. FCAM may re-key at FCAM's option.
o The following items currently in the facility to remain during this
lease: fire extinguishers; air distribution lines; phone equipment
and system; office improvements and furnishings.
o Concerning the designated overhead water lines in the plant, remove
and dispose off-site.
The following parties agree to be bound by the terms of this letter and the
terms of subject lease except as modified by this letter.
/s/ XXXXXX X. XXXXXX /s/ XXXXX X. XXXXXX
---------------------------- ----------------------------
Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxx
FLOUR CITY ARCHITECTURAL METALS, INC.
/s/ XXXXXXX X. XXXXX 5/20/97
---------------------------- -------
Xxxxxxx X. Xxxxx, President Date
----------------------------- -------
Xxx X. Xxxxxxxx, Xx. Date
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Xxx X. Xxxxxxxx, Xx.
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxx 00000
May 15, 1997
Xx. Xxxxxx X. Xxxxxx
Xxx. Xxxxx X. Xxxxxx
000 Xxxxxxxxxx Xxxx Xxxx
Xxxxx Xxxxx, XX 00000
Subject: Ground And Building Lease Date December 20, 1993, For Property in Tri
County Industrial Park
Dear Bud and Xxxxx:
This letter constitutes my consent for you to sub-lease the subject Premises to
Flour City Architectural Metals, Inc.
All terms and conditions of the lease remain in effect, and you remain
primarily responsible for the Lessee's performance.
If you have any further comments, please call me.
Very truly yours,
/s/ Xxx Xxxxxxxx, Xx.
-----------------------------
Xxx Xxxxxxxx, Xx.
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GROUND AND BUILDING LEASE
Lessor: Xxx X. Xxxxxxxx, Xx.
Lessee: Xxxxxx X. Xxxxxx
INDEX
Subject Article Page
------- ------- ----
Access to Premises XX 7
Additions to the Premises XXI 7
Applicable Law XVII 7
Assignment and Subletting VIII 4
Chattels and Fixtures XI 4
Covenant of Lessee XVIII 7
Covenants of Lessor XXX 0
Xxxxxxx XXX 0
Xxxxxxxxxxx xx Xxxxxxxx XXX 0
Eminent Domain XIII 6
Insurance VI 2
Mortgages X 4
Notices XVI 6
Option to Renew XIX 7
Premises I 1
Rent III 1
Repairs IX 4
Taxes and Assessments IV 2
Term II 1
Termination of Lease XV 6
Utilities V 2
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GROUND AND BUILDING LEASE
LEASE, made December 20, 1993, between Xxx X. Xxxxxxxx, Xx. as "Lessor"
and Xxxxxx X. Xxxxxx, dba Volunteer Warehouse and Xxxxxx X. Xxxxxx and Xxxxx X.
Xxxxxx, individually, as "Lessee" by which the parties agree as follows:
ARTICLE I
PREMISES
1.1 The Lessor leases to Lessee and Lessee rents from Lessor a portion
of premises located in Tri-County Industrial Park, Piney Flats, Tennessee and
described in "Exhibit A", attached hereto and made part hereof.
1.2 "Exhibit B" attached hereto and made a part hereof, is a plat of
Tri-County Industrial Park on which the Premises are outlined in red.
ARTICLE II
TERM
2.1 The Lease term shall commence on November 15, 1994. The Lease term
shall end sixty (60) months from such date.
2.2 This lease is void if GTE exercises its option to purchase the
premises as provided for in its existing lease with Lessor. Otherwise, this
lease is in full force and effect.
ARTICLE III
RENT
3.1 The Lessee agrees to pay to the Lessor as rent during the original
term of this Lease, 60 monthly installments, due on the fifteenth day of each
month, the sum of $8,610.00, totaling $510,600.00 for the term.
3.2 The rental during the term of this Lease shall be on a net-net-net
basis. The Lessee, and not the Lessor, shall pay all costs connected with the
use and occupancy of the Premises including, but not limited to: real estate
taxes (or any other tax or charge imposed by any governmental authority
expressly designated as a substitute for such taxes, but subject to the
provisions of paragraph 6.1 hereof), personal property taxes, any installments
of special assessments which become due and payable during the term of this
Lease or any exercised renewals thereof, utilities, service charges,
maintenance, and insurance, subject to the provisions of Article IX hereof.
The term "rent" as used elsewhere in the Lease shall include all payments and
charges described in Paragraphs 3.1 and 3.2.
3.3 Rent shall be paid to Lessor at the address shown herein or at such
other place as Lessor may designate in writing.
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ARTICLE IV
TAXES AND ASSESSMENTS
4.1(a) Lessee covenants and agrees to pay and discharge before
delinquency thereof and before penalties shall accrue thereon, all taxes and
assessments on the Premises due and payable during the term of this Lease and
renewals hereof. If required by Lessor's permanent lender, Lessee agrees to
deposit each month in advance with the lender(s) in escrow, one/twelfth (1/12)
of such taxes and assessments pursuant to the terms of the mortgage(s).
4.2 Notwithstanding the foregoing provisions, Lessee may in good faith
and in the name of Lessor where appropriate, contest the validity of any tax by
appropriate action or legal proceeding, but no such contest shall relieve
Lessee of its obligation to pay such tax or taxes before the same shall become
delinquent unless the proceeding to contest such tax shall operate to prevent
sale of the premises, any part thereof or any property thereon. Lessee shall
indemnify and save Lessor harmless against any and all loss, cost or expense of
any kind that may be imposed upon Lessor as a result of such proceeding or in
connection therewith.
ARTICLE V
UTILITIES
5.1 Lessee shall pay or cause to by paid all charges for water, gas,
sewer, electricity, light, heat, power, telephone or other service used,
rendered or supplied to or in connection with the Premises during the term of
this Lease.
ARTICLE VI
INSURANCE
6.1 During the term of this Lease, Lessee shall maintain general
liability insurance for the benefit of Lessor, Lessor's permanent lender, and
Lessee, as their respective interests may appear, in an amount not less than
Two Million Dollars ($2,000,000.00) combined single limit for bodily injury
and/or property damage arising out of any one accident or occurrence. Lessee
shall provide Lessor with written evidence of such coverage annually. All
policies shall contain a provision for thirty (30) day notice to Lessor of
cancellation of any policy.
6.2 Lessee shall also maintain during the term of this Lease fire and
extended coverage insurance insuring the improvements to the Premises in an
amount equal to one hundred (100%) percent of the agreed upon replacement value
of the improvements. ($1,000,000.00 is the agreed replacement value at the
beginning of the term of this lease. Said value shall be adjusted yearly per
the BLS consumer price index plus the cost of capital expenditures for
additions to the leased premises.) Such fire and extended coverage insurance
policies shall be in the names of the Lessor, Lessor's permanent lender, and
Lessee as their respective interests may appear. Lessee shall provide Lessor
and Lessor's mortgagee(s) with written evidence of such insurance.
6.3 The Lessee will indemnify and save harmless the Lessor against and
from all liabilities, obligations, damages, causes of action, claims or
judgments which may be imposed upon or incurred by or asserted against
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the Lessor by reason of any of the following matters occurring after occupancy
under this Lease, unless any of the following shall have resulted from the
negligence or willful misconduct of Lessor or Lessor's agents: (a) any work or
activity on or about the Premises; (b) any use, non-use, possession,
maintenance and management of the Premises or any part thereof; (c) any
negligence or intentional misconduct on the part of Lessee, or any of its
agents, contractors, servants, employees, licensees, or invitees; (d) any
accident, injury or damage to any person or property occurring on or about the
Premises or any part thereof; (e) any failure on the part of the Lessee to
perform or comply with any of the covenants, agreements, terms or conditions of
this Lease.
ARTICLE VII
DESTRUCTION OF PREMISES
7.1 If the Premises shall be partially destroyed by fire or other
casualty covered by Lessee's policy of fire and extended coverage insurance,
then Lessor shall promptly and with due diligence replace or repair the
Premises conforming to the specifications of the Building partially destroyed,
the same to be done as soon as possible after issuance of required permits.
Lessor shall use its best efforts to complete such repair or replacement in a
timely manner. In the event the insurance proceeds are not sufficient to pay
the costs of such work Lessee agrees to promptly pay any additional sums
necessary.
7.2 In the event of total destruction of the Premises as above
mentioned, or such partial destruction whereby Lessee cannot reasonably
operate, Lessee's rent shall completely xxxxx from the date of such destruction
until possession of the rebuilt premises is delivered to the Lessee. In the
event of any other partial destruction or damage whereby Lessee shall be
deprived of the occupancy of only a portion of the Premises, then the rent
shall be reduced and apportioned according to the area of the Premises which is
unusable by Lessee until such time as the Premises shall be repaired or
restored. Provided, however, that if more than seventy-five (75%) percent of
the Premises are destroyed this Lease may be terminated by either party on
thirty (30) days written notice to the other.
7.3 For the purpose of paying towards the cost of such repairs,
replacements or rebuilding, Lessor, its mortgagee(s), and Lessee shall make
available all net sums received under insurance policies covering such loss, in
reimbursements for work and materials actually incorporated in the Premises. If
this Lease is terminated as provided in Paragraph 9.2 all insurance proceeds
shall be paid to Lessor. If such proceeds are not sufficient to pay the full
cost of repair or restoration, Lessee shall pay the deficiency.
7.4 In the event the Lessor and Lessee cannot agree as to the
application of the foregoing provisions, each shall immediately appoint an
arbitrator. The arbitrators shall jointly appoint one additional arbitrator
within seven (7) days, and the three shall constitute an arbitration panel to
determine the application of said provisions. Their decision shall be final and
conclusive on the parties. Costs of arbitration shall be divided equally
between Lessor and Lessee.
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ARTICLE VIII
ASSIGNMENT AND SUBLETTING
8.1 Lessee may elect to sublease the premises or assign its rights
under this Lease in whole or in part to a wholly owned subsidiary or affiliate
of Lessee, subject to approval by Lessor. In the event of any sublease or
assignment to a subsidiary of Lessee, Lessee shall remain liable for the
performance of all obligations contained in this Lease.
ARTICLE IX
REPAIRS
9.1 Lessee agrees to accept premises "as is" and to make all necessary
repairs and then to keep the Premises and all improvements in essentially the
same condition as of the date it takes possession. Rehabilitation to this
essentially same conditions will be the responsibility of the Lessee at the
termination of this lease, or any extensions. Major reroofing will be shared by
Lessee and Lessor on a pro rata basis assuming a 15 year life.
9.2 Lessee further covenants to operate and keep the Premises in a
clean and sanitary condition according to all applicable laws and codes.
ARTICLE X
MORTGAGES
10.1 Lessee agrees to execute any instrument necessary to evidence
subordination of this Lease to any mortgage by Lessor, unless execution thereof
shall, in Lessee's opinion, create a right in Lessor or its mortgagee superior
to a right or rights existing under Federal law or the laws of the State of
Tennessee as of the date hereof.
ARTICLE XI
CHATTELS AND FIXTURES
11.1 Provided only if Lessee is not in default in rent payments or any
provision of this Lease, Lessor waives all claims to any chattels or equipment
affixed to the Premises by Lessee or its sublessee (See Article VIII) and
Lessee or its sublessee may remove the same at the expiration or termination of
this Lease or its renewals; provided, however, Lessee shall repair any damage
to Premises caused by the removal of such chattels or equipment.
ARTICLE XII
DEFAULT
12.1 Except as otherwise provided herein, if Lessee fails to fulfill
any provision of this Lease, then, 10 days after such notice of failure, the
Lessee shall be deemed to be in default under this Lease and shall have 10
additional days to cure said default, subject to the interest provision for
moneys owing. Notices will be required from the Lessor to the Lessee.
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In the event of default, Lessor, in addition to other legal or equitable
remedies it may have, may terminate the Lease, in which event Lessee shall
remain liable for all future rentals due hereunder for the then current term of
the Lease plus fees paid for collection efforts. Any moneys owing by either
party to the other will bear interest at 12% per annum from the date due until
paid.
12.2 If the notice provided for in 12.1 shall have been given and the
Lease terminated, then Lessor may, without further notice, re-enter the
Premises by force or otherwise and dispossess lessee by summary proceedings or
otherwise, and remove Lessee's personal property. Lessee hereby waives the
service of notice of intention to re-enter or to institute legal proceedings to
that end.
12.3 In case of any such default, re-entry, expiration or dispossession
by summary proceedings or otherwise, Lessor shall use his best efforts to
re-let the Premises or any part thereof, for a term or terms which may be less
than or exceed the period which would otherwise have constituted the balance of
the term of this Lease and which may be for less or more than the rent herein
provided for. Any surplus of monthly rentals (less the Lessor's costs of
re-leasing the premises and interim expenses of holding) over and above
Lessee's rental obligation shall be credited to Lessee's account for the
reminder of Lessee's rental obligations to Lessor. If any deficiency is not
paid for within thirty (30) days, Section 12.4 shall prevail and control. The
failure of Lessor to re-let the Premises or any part thereof shall not release
or affect Lessee's liability for damages; provided, however, notwithstanding
any other terms to the contrary, Lessor will use its best efforts to re-let to
mitigate Lessee's damages, costs and expenses, and to re-let on the same terms
and conditions as contained herein.
12.4 Subject to the provisions of this Article, if the rent shall not
be paid when due and the time for curing the deficiency shall have expired,
that part of the rent covenanted to be paid by the Lessee for the balance of
the then current term of this Lease which has not been paid to the Lessor,
shall immediately become due and payable at the election of the Lessor upon
written notice to the Lessee. If Lessee is declared bankrupt or voluntarily
offers to creditors terms of composition, or in case a receiver is appointed to
take charge of and conduct the affairs of the Lessee, such claim for unpaid
rent so due and payable under this Lease for the balance of the then current
term of this Lease shall be considered liquidated damages and shall constitute
a debt provable in bankruptcy or receivership.
12.5 In the event Lessor neglects to pay when due any obligations or
any mortgage or encumbrance affecting title to the demised premises and to
which this Lease is subordinate, or fails to perform any obligations specified
under this Lease, then Lessee, after continuance of any such failure or default
for twenty (20) days after notice in writing thereof by Lessee, may pay said
assessments, principal, interest or charges, or cure such default, all on
behalf of and at the expense of Lessor, and do all necessary work and make all
necessary payments in connection therewith, and Lessor agrees thereafter on
demand, to pay Lessee forthwith the amount so paid by Lessee together with
interest thereon at the rate of twelve (12%) percent per annum and agrees that
Lessee may withhold any and all rental payments and other payments thereafter
due to Lessor and apply same to the payments of such indebtedness, or,
alternatively, Lessee may cancel and terminate this Lease by written notice to
Lessor given within thirty (30) days following such twenty (20) day period.
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12.6 If Lessee shall default in the observance of performance of any
term or covenant on Lessee's part to be observed in any article of this Lease,
Lessor may, immediately, or at any time thereafter and without notice, perform
the same for the account of Lessee, and Lessee will promptly reimburse Lessor
all monies expended upon presentation of a xxxx for same by Lessor to Lessee.
Any monies owing by either party to the other will bear interest at 12% per
annum from the date due until paid.
ARTICLE XIII
EMINENT DOMAIN
13.1 If the Premises shall be taken or condemned by any competent
authority for any public or quasi-public use or purpose, the term of this
Lease, at Lessee's option shall terminate and cease from the date when
possession shall be so taken.
ARTICLE XIV
COVENANTS OF LESSOR
14.1 Lessor covenants and warrants that Lessor has the lawful right and
authority to make this Lease; and that Lessee, upon paying the rent herein
reserved and performing and observing the covenants and conditions herein
contained on Lessee's part to by performed and observed, shall and will
peacefully and quietly have, hold and enjoy the Premises for the full term of
this Lease and any extensions thereof, except in the event of the taking of the
Premises by public or quasi-public authority as provided in Article XV above.
ARTICLE XV
TERMINATION OF LEASE
15.1 Upon any termination of this Lease, whether by lapse of time,
cancellation pursuant to an election provided herein, forfeiture or otherwise,
Lessee shall immediately surrender possession of the Premises to Lessor in good
and tenantable repair, subject however, to the provisions of Article IX hereof.
ARTICLE XVI
NOTICES
16.1 Any notice or consent required to be given by or on behalf of
either party upon the other shall be in writing and shall be given by mailing
such notice or consent by Registered or Certified Mail, return receipt
requested, addressed to the Lessor at X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxx 00000
or to the Lessee at 000 Xxxxxxxxxx Xxxx Xxxx, Xxxxx Xxxxx, XX 00000, or at such
other address or addresses as may be specified from time to time, in writing,
delivered to the other party.
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ARTICLE XVII
APPLICABLE LAW
17.1 The laws of the State of Tennessee shall govern the validity,
performance and enforcement of this Lease. The invalidity or unenforceability
of any provision of this Lease will not affect or impair any other provision.
17.2 Wherever used, "Lessor" and "Lessee" shall be deemed to include
the heirs, personal representatives, successors, sublessees, and assigns of
said parties unless the context excludes such construction.
ARTICLE XVIII
COVENANT OF LESSEE
18.1 Lessee covenants that it will provide a recent (less than one year
old) Statement of Financial to Lessor prior to the beginning of the initial
term and at the beginning of any renewal term.
ARTICLE XIX
OPTION TO RENEW
19.1 Provided Lessee gives at least 90 days notice prior to the
expiration of the term of this lease, Lessor grants to Lessee the option to
renew this lease for one additional five year term under the same terms and
conditions except that the rental will be increased (but not decreased) at the
beginning of each year of the new term by the change in the Bureau of Labor
Statistics Consumer Price Index.
ARTICLE XX
ACCESS TO PREMISES
20.1 Lessee and Lessor agree that Lessor may utilize the property
belonging to the Lessor which lies outside the chain link fence for storage of
equipment and or materials and that Lessor may have ingress and egress to said
storage area via the asphalt driveways. Lessor agrees that he will see that
storage is done in an orderly and safe manner and will hold Lessee harmless
from any loss that Lessee may suffer as a result of said storage.
ARTICLE XXI
ADDITIONS TO THE PREMISES
21.1 Additions or modifications to the premises may be made only with
written consent of Lessor. Any such expansion or modifications shall be
constructed in accordance with all applicable requirements of the County of
Xxxxxxxx and other controlling authorities, and the contractor, architect,
engineer, and financing for any such addition shall be approved in writing by
the Lessor.
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Dated this 20th day of December, 1993, as to LESSOR, and this 20th day of
December, 1993 as to LESSEE.
Witnesses: Lessor:
/s/ Xxxxxx X. Xxxxxx /s/ Xxx X. Xxxxxxxx, Xx.
-------------------------- --------------------------
Xxx X. Xxxxxxxx, Xx.
LESSEE:
Xxxxxx X. Xxxxxx, dba
Volunteer Warehouse
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
-------------------------- --------------------------
Xxxxxx X. Xxxxxx, Individually
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxx X. Xxxxxx, Individually
By: /s/ Xxxxx X. Xxxxxx
--------------------------
STATE OF TENNESSEE )
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me this 20th day of
December, 1993, by XXX X. XXXXXXXX, XX.
/s/ Xxxxxx Xxxx Xxxxxx
--------------------------
Notary Public
My Commission Expires: 6/03/97
STATE OF TENNESSEE )
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me this 20th day of
December, 1993, by XXXXXX X. XXXXXX.
/s/ Xxxxxx Xxxx Xxxxxx
--------------------------
Notary Public
My Commission Expires: 6/03/97
STATE OF TENNESSEE )
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me this 21st day of
December, 1993, by XXXXX X. XXXXXX.
/s/ Xxxxxx Xxxx Xxxxxx
--------------------------
Notary Public
My Commission Expires: 6/03/97
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