EXHIBIT 10.19
THE INDUSTRIAL DEVELOPMENT BOARD OF
THE CITY OF SHELBYVILLE, TENNESSEE
AND
SHELBYVILLE INDUSTRIAL SPEC BUILDING - WRS - PARTNERSHIP
FACILITY LEASE AGREEMENT
DATED AS OF DECEMBER 1, 1994
TABLE OF CONTENTS
Parties
Preamble
ARTICLE I
DEFINITIONS
Section 1.1. Definitions of Terms
Section 1.2. References to Lease
Section 1.3. References to Articles, Sections, Etc.
Section 1.4. Headings
ARTICLE II
REPRESENTATIONS, WARRANTIES, AND COVENANTS
Section 2.1. Representations, Warranties, and Covenants of the Issuer
Section 2.2. Representations, Warranties, and Covenants of the Company
ARTICLE III
DEMISING CLAUSE: TERM
Section 3.1. Demise of Facility
Section 3.2. Lease Term
ARTICLE IV
ACQUISITION OF THE PROJECT
Section 4.1. Assumption of Bank Loan, Issuance of Series A Note, and
Issuance of Series B Note
Section 4.2 Costs of the Project
Section 4.3 Company Required to Pay Project Costs in Event Loan Insufficient
Section 4.4. Payment of Expenses of Loan
Section 4.5. Other Amounts Payable by the Company
Section 4.6. Bank Priority
ARTICLE V
RENTAL PROVISIONS: PREPAYMENT
Section 5.1. Quiet Enjoyment
Section 5.2. Rental Payments; Basic Rental Payments; and Additional
Rental Payments
Section 5.3. Credits Toward Basic Rental Payments
Section 5.4. General Obligation; Obligations of Company Unconditional
Section 5.5. Prepayment of Rental Payments
Section 5.6. Rights and Obligations of Company upon Full Prepayment of
Rental Payments
ARTICLE VI
MAINTENANCE, MODIFICATIONS,
TAXES, AND INSURANCE
Section 6.1. Maintenance of the Facility
Section 6.2. Modification of the Facility
Section 6.3. Improvements as Part of the Facility
Section 6.4. Taxes, Assessments, and Utility Charges
Section 6.5. Insurance Required
Section 6.6 Insurers and Policies
Section 6.7. Application of Net Proceeds of Insurance
Section 6.8. Advances by Issuer
Section 6.9. Obligation of Company to Maintain Insurance Regardless
of Approval
ARTICLE VII
DAMAGE, DESTRUCTION, CONDEMNATION. ETC.
Section 7.1. Damage or Destruction
Section 7.2. Condemnation
ARTICLE VIII
SPECIAL COVENANTS
Section 8.1. Warranty of Condition or Suitability; Use of Project
Section 8.2. Indemnity and Hold Harmless Provisions
Section 8.3. Reimbursement of issuer
Section 8.4. Right of Access to the Project
Section 8.5. Project as a Public Facility
Section 8.6. Compliance with Orders, Ordinances, Etc.
Section 8.7. Discharge of Liens and Encumbrances
Section 8.8. Restriction Against Certain Religious Activities
Section 8.9. Further Assurances and Corrective Instruments
Section 8.10. Granting of Easements
Section 8.11. Release of Certain Land
ARTICLE IX
ASSIGNMENT; REMOVAL OF EQUIPMENT; ETC.
Section 9.1. Assignment and Subleasing
Section 9.2. Consent to Assignment
Section 9.3. Restrictions on Mortgage or Sale of Project by Issuer
Section 9.4. Removal of Fixtures
Section 9.5. Installation of Company's Own Machinery
Section 9.6. References to Loan Ineffective After Paid
ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
Section 10.1. Events of Default Defined
Section 10.2. Remedies on Default
Section 10.3. Remedies Cumulative
Section 10.4. Agreement to Pay Attorneys' Fees and Expenses
Section 10.5. Delay or Omission Not a Waiver
Section 10.6. Interpretation of any Conflicting Provisions
Section 10.7. Force Majeure Provision
ARTICLE XI
OPTIONS; PURCHASE OF PROJECT; ETC.
Section 11.1. Options to Terminate
Section 11.2. Option to Purchase Project Prior to Payment of the Loan
Section 11.3. Option to Purchase Project After Payment of the Loan
Section 11.4. Option to Purchase Unimproved Land
Section 11.5. Conveyance on Exercise of Option to Purchase Project
Section 11.6. Payments Upon, and Conditions For, Early Termination
Section 11.7. Continuation of Certain Provisions
ARTICLE XII
MISCELLANEOUS
Section 12.1. Certificates and Opinions
Section 12.2. Limited Liability of the Issuer
Section 12.3. Notices
Section 12.4. Binding Effect
Section 12.5. Severability
Section 12.6 Limitation of Rights
Section 12.7. Execution of Counterparts
Section 12.8. Applicable Law
Section 12.9. Table of Contents and Section Headings Not Controlling
Section 12.10. No Liability of the City of SHELBYVILLE, Tennessee
Section 12.11. Net Lease
Section 12.12. Not Partners
Signatures
Acknowledgments
Exhibits
Exhibit "A" Description of Land
Exhibit "B" Permitted Encumbrances
FACILITY LEASE AGREEMENT
THIS FACILITY LEASE AGREEMENT, dated as of December 1, 1994,
by and between THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF SHELBYVILLE,
TENNESSEE (the "Issuer"), a public, nonprofit corporation organized and existing
under the laws of the State of Tennessee, and SHELBYVILLE INDUSTRIAL SPEC
BUILDING - WRS PARTNERSHIP, a Tennessee partnership (the "Company") (the Issuer
and the Company being herein called, collectively, the "Parties").
W I T N E S S E T H:
WHEREAS, the Issuer is a public, nonprofit corporation and a
public instrumentality of the City of Shelbyville, Tennessee and is authorized
under Chapter 53, Title 7, Tennessee Code Annotated, as amended (the "Act"), to
enter into lease agreements with manufacturing, industrial, commercial, and
financial enterprises with respect to one or more projects for such payments and
upon such terms and conditions as the Board of Directors of the Issuer may deem
advisable in accordance with the provisions of the Act in order to maintain and
increase employment opportunities by inducing such enterprises to locate in or
to remain in the State of Tennessee (the "State");
WHEREAS, to induce Desa International, Inc., a Delaware
corporation ("Desa") to locate a manufacturing facility in the City of
Shelbyville, Tennessee, the Company and Desa were informed that the Issuer would
undertake to cause the Company to acquire certain land and build a certain
manufacturing facility thereon (the land and building being referred to as the
"Facility"), and to cause Desa to equip said Facility with such furniture,
fixtures and equipment as it needed or desired for its operations (the
"Equipment"), in Shelbyville, Tennessee, which Facility is to be owned by the
Issuer and leased by the Issuer to the Company, and which Equipment is to be
owned by the Issuer and leased by the Issuer to Desa, following which the
Company acquired the land, built the Facility and leased the same to Desa who
located its manufacturing operation in Shelbyville, and the Issuer now proposes
to acquire the Facility from the Company and to lease the same back to the
Company, pursuant hereto, and to acquire the Equipment from Desa, and lease the
same back to Desa, pursuant to a certain Equipment Lease Agreement (the
"Equipment Lease"); and
WHEREAS, the Company has borrowed, and Trans Financial Bank of
Tennessee, F.S.B. ("Bank"), has lent, the sum of Seven Hundred Thousand and
NO/100 Dollars ($700,000.00) to the Company (the "Bank Loan"), to finance the
cost of the acquisition of the Facility by the Company, pursuant to that certain
Construction Loan and Disbursement Agreement, dated March 1, 1994, by and
between Bank and Company (the "Bank Loan Agreement), which loan is evidenced by
a certain Construction Loan Promissory Note of the Company, payable to the order
of the Bank in the amount of the Bank Loan, dated March 1, 1994, (the "Bank
Note"), and is secured by a certain Construction Mortgage Deed of Trust,
Security Agreement and Financing Statement, dated March 1, 1994, made by
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the Company to Xxxx X. Xxxxxxxxx XX, Esq., trustee, for the benefit of the Bank
(the "Bank Deed of Trust"); and
WHEREAS, the Board of Directors of the Issuer, pursuant to
Section 7- 53-102 of the Act, has found and determined that the agreement by the
Issuer to acquire, equip and lease such manufacturing facility will develop
trade and commerce in and adjacent to the City of Shelbyville, Tennessee, will
contribute to the general welfare, will alleviate conditions of unemployment
and, has induced the Company to locate in and will induce the Company to remain
in Shelbyville, Tennessee;
WHEREAS, the Issuer is authorized by law and deems it
necessary to enter into that certain Assumption Agreement (the "Assumption
Agreement"), dated as of December 1, 1994, by and among the Issuer, the Company
and the Bank, in order to finance the acquisition of the Facility and to further
the purposes of the Issuer; and
WHEREAS, the Issuer has not made and does not intend to make
any profit by reason of its business or venture in which it may engage or by
reason of its entering into this Lease, and no part of the Issuer's net
earnings, if any, will ever inure to the benefit of any person, firm or
corporation except the City of Shelbyville, Tennessee; and,
WHEREAS, the Issuer is authorized by law and has deemed it
necessary to borrow money for the purpose of acquiring the Facility and to that
end has duly authorized and directed the issuance of its not exceeding Two
Hundred Thousand and No/100 Dollars ($200,000.00) Industrial Development Revenue
Note, Series A (Desa Project) (the "Series A Note"); and
WHEREAS, the Issuer has executed a certain Collateral
Assignment of Facility Lease (the "Assignment of Facility Lease") and a certain
Deed of Trust, Assignment of Leases and Security Agreement (Facility) (the
"Facility Deed of Trust") to secure, inter alia, the loan of the indebtedness
(the "Facility Loan") evidenced by the Series A Note; and
WHEREAS, the Issuer is authorized by law and has deemed it
necessary to borrow money for the purpose of acquiring the Equipment and to that
end has duly authorized and directed the issuance of its not exceeding Eight
Hundred Sixty Thousand and No/100 Dollars ($860,000.00) Industrial Development
Revenue Note, Series B (Desa Project) (the "Series B Note"); and
WHEREAS, the Issuer has executed a certain Collateral
Assignment of Equipment Lease (the "Assignment of Equipment Lease") and a
certain Security Agreement (the "Equipment Security Document") to secure, inter
alia, the loan of the indebtedness (the "Equipment Loan") evidenced by the
Series B Note; and
WHEREAS, the Issuer is authorized by law and has deemed it
necessary to acquire the Facility and the Equipment (the Facility and the
Equipment being sometimes referred to as the "Project") as aforesaid, which
acquisition has occurred of even date herewith; and
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WHEREAS, the Issuer proposes to lease the Facility to the
Company and the Company desires to lease the Facility from the Issuer upon the
terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the premises and
the mutual covenants hereinafter contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions of Terms. In addition to the words
and terms defined in the preamble hereto and elsewhere defined in this Lease,
the following words and terms as used herein, whether or not the words have
initial capitals, shall have the following meaning, unless the context or use
indicates another or different meaning or intent, and such definitions shall be
equally applicable to both the singular and plural forms of any of the words and
terms herein defined:
"Act" means Chapter 53, Title 7, Tennessee Code Annotated. as
amended and supplemented from time to time.
"Additional Rental Payments" means that portion of the Rental
Payments described in Section 5.2(b) of this Lease.
"Authorized Representative" means, in the case of the Issuer,
the Chairman, the Vice Chairman, the Secretary or any Assistant Secretary of the
Issuer; in the case of Desa, the President, any Vice President, the Secretary or
the Treasurer; in the case of the Company, W. R. (Xxxx) Xxxx, Jr. or Xxxxx X.
Xxxx; and, in the case of any of them, such additional persons as, at the time,
are designated to act on behalf of the Issuer, Desa, or the Company, as the case
may be, by written certificate furnished to the Issuer, Desa, or to the Company,
as the case may be, containing the specimen signature of each such person and
signed on its behalf by a previously Authorized Representative.
"Bank" means Trans Financial Bank of Tennessee, F.S.B., its
successors and assigns, or any subsequent owner of the Bank Note.
"Bank Loan Documents" means, collectively, the Bank Loan
Agreement, the Bank Note, the Bank Deed of Trust and the Assumption Agreement.
"Basic Rental Payments" means that portion of the Rental
Payments described in Section 5.2(a) of this Lease.
"Building" means all buildings, structures, improvements, and
fixtures located on the Land, the acquisition of which is financed with the
proceeds of the Bank Loan or the Facility Loan, but not with the proceeds of the
Equipment Loan.
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"Company" means (a) Shelbyville Industrial Spec Building - WRS
Partnership, a partnership, formerly known as Xxxx XX Partnership, organized and
existing under the laws of the State of Tennessee, (b) any successors and
assigns of said partnership, and (c) any surviving. resulting or transferee as
permitted herein.
"Condemnation" means the taking of title to, or the use of,
the Facility under the exercise of the power of eminent domain by any
governmental entity or any other person acting under governmental authority.
"Costs of the Project" means all of those costs and expenses
enumerated in Section 4.2 hereof.
"Desa Lease" means that certain Lease, dated February 25,
1994, by and between Company and Desa, as amended by that certain First
Amendment to Lease, dated as of December 1, 1994, and as further amended
hereafter.
"Equipment" means those items of furniture, fixtures and
equipment and related property acquired by the Issuer with the proceeds of the
Series B Note, and any equipment acquired in substitution therefor and any
renewals or replacements thereof pursuant to the Equipment Lease.
"Equipment Lender" means Desa International, Inc., or any
subsequent owner of the Series B Note.
"Equipment Loan Documents" means, collectively, the Series B
Note. the Assignment of Equipment Lease, and the Equipment Security Document.
"Event of Default" or "Default" means any of those events
defined as Events of Default by Section 10.1 of this Lease.
"Facility" means, collectively, the Land and Building.
"Facility Loan Documents" means, collectively, the Series A
Note, the Assignment of Facility Lease, and the Facility Deed of Trust.
"Fiscal Year" means the fiscal year, as such from time to time
exists, of Desa.
"Gross Receipts " means all receipts, revenues, and income
received by the Company and other monies received by or on behalf of the Company
with respect to the Facility, and any sublease of the Facility.
"Independent Counsel" means an attorney or attorneys duly
admitted to practice law before the highest court of any state of the United
States of America or the District of Columbia and shall include counsel for the
Issuer and counsel for the Company.
"Issuer" means The Industrial Development Board of the City of
Shelbyville, Tennessee, and its lawful successors and assigns.
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"Land" means the real estate and interests in real estate
described in Exhibit "A" hereto annexed and by this reference made a part
hereof, less such real estate and interest in real estate as may be taken by the
exercise of the power of eminent domain as provided in Article VII of this Lease
and less such real estate and interest in real estate as may be sold to the
Company pursuant to Article XI of this Lease.
"Lease" means this Facility Lease Agreement, as from time to
time supplemented or amended.
"Lender" means Shelbyville Industrial Spec Building - WRS -
Partnership, or any subsequent owner of the Series A Note.
"Lien" means any interest in Property securing an obligation
owed to anyone, whether such interest is based on the common law, statute, or
contract, and including, but not limited to, the security interest arising from
a mortgage, encumbrance, pledge, conditional sale, trust receipt, lease,
consignment, or bailment for security purposes. The term "Lien" also includes
reservations, exceptions, encroachments, easements, rights of way, covenants,
conditions, restrictions, leases, and other similar title exceptions and
encumbrances, including, but not limited to, mechanics', materialmen's,
warehousemen's, carriers', and other similar encumbrances affecting real
property. For the purposes of this Lease, one shall be deemed to be the owner of
any Property which he, she, or it has acquired or holds subject to a conditional
sale agreement or other arrangement pursuant to which title to the Property has
been retained by or vested in someone else for security purposes.
"Loan" means, collectively, the Bank Loan, the Facility Loan
and the Equipment Loan.
"Loan Documents means, collectively, the Bank Loan Document,
the Facility Loan Documents, and the Equipment Loan Documents.
"Loan Payment Date" means each date on which interest,
principal, if any, or any of the foregoing, shall be payable on the Bank Loan or
the Facility Loan.
"Net Proceeds" means so much of the gross proceeds with
respect to which that term is used as remains after payment of all expenses,
costs, and taxes, including reasonable attorney's fees and extraordinary
expenses, incurred in obtaining such gross proceeds.
"Permitted Encumbrances" means: (a) the Liens, if any,
described in Exhibit "B" attached hereto; (b) utility, access, and other
easements and rights of way, restrictions, leases and exceptions that do not, in
the written opinion of the Authorized Representative of Desa, materially impair
the utility or value of the Property affected thereby for the purposes for which
it is intended; (c) mechanics', materialmen's, warehousemen's, carriers', and
other similar liens to the extent permitted by Section 8.7 of this Lease; and,
(d) Liens for taxes at the time not delinquent.
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"Project" means collectively: (a) the Facility and (b) the
Equipment.
"Property" means any interest in any kind of property or
assets, whether real, personal, or mixed, tangible or intangible.
"Rental Payments" means, collectively, the Basic Rental
Payments and the Additional Rental Payments, as described in Section 5.2 of this
Lease.
"State" means the State of Tennessee.
"Substitute Facilities" means such facilities as defined in
Section 7.2(a) of this Lease.
"Term" means the term of this Lease as specified in Section
3.3 hereof.
Section 1.2. References to Lease. The words "hereof,"
"herein," "hereunder," and other words of similar import refer to this Lease as
a whole.
Section 1.3. References to Articles. Sections. Etc. References
to Articles, Sections, and other subdivisions of this Lease are to the
designated Articles, Sections, and other subdivisions of this Lease as
originally executed.
Section 1.4. Headings. The headings of this Lease are for
convenience only and shall not define or limit the provisions hereof.
(END OF ARTICLE I)
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ARTICLE II
REPRESENTATIONS, WARRANTIES, AND COVENANTS
Section 2.1. Representations. Warranties, and Covenants of the
issuer. The Issuer hereby represents, warrants, and covenants as follows as the
basis for the undertakings on its part herein contained:
(a) That the Issuer: (1) was legally created and exists
under the provisions of the Act; (2) has the power under the provisions of the
Act to enter into the transactions contemplated by this Lease and to carry out
its obligations hereunder; and, (3) has been duly authorized, by proper action,
to execute, deliver and perform this Lease and the Loan Documents;
(b) That the Project constitutes a "project" within the
meaning of the Act, and that the Issuer is entering into the Loan Documents to
aid in the financing of the Project to accomplish the public purposes of the
Act;
(c) That the Issuer will finance the costs incurred in the
acquisition of the Project in accordance with the terms and provisions hereof
and of the Equipment Lease, in order to induce and cause the Company to provide
a manufacturing facility in Shelbyville, Tennessee, such facility upon its
completion, to be leased to or occupied by (i) industrial, commercial, financial
or service enterprises; (ii) nonprofit domestic corporations or enterprises
whose purpose is the promotion, support and encouragement of either agriculture
or commerce in the State or whose purpose is the promotion of the health,
welfare and safety of the citizens of the State; or (iii) similar corporations
or enterprises, thereby maintaining and increasing employment opportunities, and
furthering the welfare of the residents of the City of Shelbyville and of the
State;
(d) That in order to finance the costs of the Project, the
Issuer is entering into the Loan Documents;
(e) That to the Issuer's knowledge, the Project, as
designed, complies with all presently applicable building and zoning ordinances;
(f) That the Issuer will not pledge the rentals and other
amounts derived from the Project other than to secure the Loan and will not
mortgage or encumber the Project;
(g) That nothing in this Lease shall be construed to
require Issuer to operate the Project other than as lessor; and
(h) That all requirements of the Act have been complied
with.
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Section 2.2. Representations. Warranties. and Covenants of the
Company. The company hereby represents, warrants, and covenants as follows as
the basis for the undertaking on its part herein contained:
(a) That the Company: (i) is a partnership duly organized
and validly existing under the laws of the State; (ii) has the power and
authority to enter into this Lease; and (iii) has duly authorized the execution,
delivery, and performance of this Lease; and
(b) That the execution and delivery of this Lease and the
Facility Loan Documents will be valid and binding on the Company and that
neither the execution nor delivery of the foregoing documents, nor the
consummation of the transactions contemplated thereby, nor the fulfillment of or
compliance with the terms and conditions hereof or thereof, will conflict with
or result in a breach of any of the terms, conditions, or provisions of any
agreement or instrument to which the Company is now a party or by which it is
bound, or constitute a default hereunder or under any of the foregoing, or
result in the creation or imposition of any Lien upon any Property of the
Company under the terms of any instrument or agreement, other than the
respective Liens, if any, under the Loan Documents and under this Lease; and
(c) That throughout the Term, the Company will not take,
permit to be taken, fail to take, or permit to fail to be taken, any action
which would cause the Project not to constitute a "project" within the meaning
of the Act; and
(d) That the financing by the Issuer of the costs of
acquiring the Project will induce and cause the Company to provide said Project;
and
(e) That all of the proceeds of the Facility Loan will be
used for the payment of the Costs of the Project; and
(f) That to the knowledge of the Company, the execution,
delivery and performance in accordance with the respective terms of this Lease,
the Loan Documents and any other documents executed and delivered in connection
with this transaction do not and will not (i) violate any applicable law or (ii)
conflict with, result in a breach of or constitute a default under any
indenture, agreement or other instrument to which Company is a party or by which
Company or any of the Company's properties may be bound; and
(g) That there is no action, suit, proceeding or, to the
Company's knowledge, any inquiry or investigation at law or in equity or before
or by any public board or body pending or, to the Company's knowledge,
threatened against or affecting the Company or the Company's property, wherein
an unfavorable decision, ruling or finding would have a material, adverse effect
on the validity or enforceability of the Loan, this Lease, or the Loan
Documents, which has not been previously disclosed.
(END OF ARTICLE II)
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ARTICLE III
DEMISING CLAUSE; TERM
Section 3.1. Demise of Facility. The Issuer demises and leases
to the Company, and the Company leases from the Issuer, the Facility, subject
only to permitted encumbrances, in accordance with the provisions of this Lease,
to have and to hold for the Term.
Section 3.2. Lease Term. The Term of this Lease shall commence
as of the date hereof and shall terminate January 1, 2004, unless earlier
terminated pursuant to the provisions of Article XI hereof; PROVIDED, HOWEVER,
that in no event shall this Lease be terminated (except pursuant to Section
10.2(a)(4) hereof), but the Term hereof shall continue on a month-to-month
basis, until: (a) the principal of the Loan and the interest thereon, shall have
been paid in full or provisions made for such payment; (b) all liabilities,
reasonable costs, and reasonable expenses of the Issuer, including those of its
legal counsel, incurred pursuant to, or in connection with, this Lease shall
have been fully paid and discharged to the satisfaction of the Issuer; and, (c)
all other liabilities, costs, and expenses which the Company herein assumes or
agrees to pay shall have been fully paid or satisfactory provision made
therefor.
(END OF ARTICLE III)
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ARTICLE IV
ACQUISITION OF THE FACILITY
Section 4.1. Assumption of Bank Loan and Issuance of Series A
Note. In order to provide funds for the purpose of financing the cost of
acquiring the Facility, the Issuer has assumed the Bank Loan. without recourse,
pursuant to the Assumption Agreement, has issued the Series A Note, and has
entered into the other applicable Loan Documents. The Issuer and the Company
agree that the proceeds of the Bank Loan and Facility Loan shall be used to pay
for Costs of the Project. It is agreed and understood that throughout the Term,
the Facility shall be owned by the Issuer, and leased to the Company pursuant to
this Lease.
Section 4.2. Costs of the Project. The proceeds of the Bank
Loan and the Facility Loan shall be drawn by the Company on behalf of the Issuer
to pay for Costs of the Project. For purposes of this Lease. "Costs of the
Project" shall consist of all costs of acquiring, improving, and installing the
Facility as the same may be available therefor and financed pursuant to the Bank
Loan Documents and the Facility Loan Documents, including, without limitation:
(i) all costs of acquiring the Land and the Building,
including architectural, engineering, development, consulting,
marketing and supervisory services with respect to acquisition
of the Facility under the Act, and capitalized interest
heretofore accrued or paid in connection with the temporary
financing of all or any part of the costs of any of the
foregoing;
(ii) all fees, taxes, charges, and other expenses for
recording or filing, as the case may be, the instrument or
instruments conveying the Land and the improvements, if any,
thereon to the Company, and reconveying the Land and the
improvements thereon from the Company to the Issuer, this
Lease, the Desa Lease, the Bank Loan Documents, the Facility
Loan Documents or any additional documents, instruments or
agreements relating thereto or to the Bank Loan, the Facility
Loan or this Lease;
(iii) all costs of entering into the Bank Loan and
the Facility Loan, including, but not limited to, all legal,
accounting, feasibility study, financial advisory, legal
investment, and any other fees, discounts, costs, and expenses
incurred in connection with the preparation, reproduction.
authorization, execution, and delivery of the Bank Loan and
the Facility Loan, the Bank Loan Documents, the Facility Loan
Documents, this Lease, and any and all additional documents,
instruments or agreements related thereto, and the payment of
any premium for title insurance;
(iv) reimbursement to the Company for any of the
above enumerated items of cost or expense paid by it.
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Nothing contained in this Lease, or in any related documents, shall impose upon
the Issuer to see to the proper application of the proceeds of the Loan or any
disbursement thereof.
Section 4 3. Company Required to Pay Project Costs in Event
Loan Insufficient. If the moneys in the Bank Loan and the Facility Loan
available for payment of the Costs of the Project should not be sufficient to
pay the costs thereof in full, the Company agrees to complete the Facility and
to pay all that portion of the cost of the Project as may be in excess of the
moneys available therefor in the Loan. The Issuer does not make any warranty,
either express or implied, that the moneys under the Bank Loan and the Facility
Loan and which, under the provisions of this Lease, will be available for
payment of the Costs of the Project, will be sufficient to pay all costs which
will be incurred in that connection. The Company agrees that, if after
exhaustion of the moneys in the Bank Loan and the Facility Loan, the Company
should pay any portion of the Costs of the Project pursuant to the provisions of
this Section, it shall not be entitled to any reimbursement therefor from the
Issuer, nor shall it be entitled to any diminution in or postponement of the
payments required to be made hereunder.
Section 4.4. Payment of Expenses of Loan. The Company agrees
to be liable and pay for recording expenses, legal fees, printing expenses and
other fees and expenses incurred or to be incurred by or on behalf of the Issuer
in connection with or as an incident to the Bank Loan and the Facility Loan or
the Bank Loan Documents or the Facility Loan Documents.
Section 4.5. Other Amounts Payable by the Company. The Company
agrees to pay all costs and expenses (including attorney's fees), not otherwise
paid under the terms of this Lease reasonably incurred by the Issuer in
connection with, or as a direct or indirect result of, or in connection with the
administration or enforcement of, and compliance with, this Lease and the Bank
Loan or the Facility Loan, or otherwise in regard to the Facility. The Company
may, however, without creating a default hereunder, contest in good faith the
necessity, and the reasonableness of, any costs, expenses, fees, amounts,
liabilities and obligations referred to in this Section 4.5 and in Section 8.2
hereof.
Section 4.6. Bank Priority. It is agreed and understood that
the terms, conditions, provisions, liens and security interests set forth or
granted in the Bank Loan Documents are and shall continue to be secured by the
Facility with priority over those set forth or granted herein, in the Facility
Loan Documents or in the Equipment Loan Documents, as applicable. In the event
of any conflict or inconsistency between the terms and provisions of the Bank
Loan Documents, this Lease or the Facility Loan Documents, the terms and
provisions of the Bank Loan Documents shall control and prevail.
(END OF ARTICLE IV)
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ARTICLE V
RENTAL PROVISIONS; PREPAYMENT
Section 5.1. Quiet Enjoyment. The Issuer hereby covenants and
agrees that it will not take any action, other than pursuant to Section 8.4 or
Article X of this Lease, to prevent the Company or Desa from having quiet and
peaceable possession and enjoyment of the Project during the Term and will, at
the request of the Company or Desa, and at the requesting person's cost, to the
extent that it may lawfully do so, join in any legal action in which the Company
or Desa asserts its right to such possession and enjoyment.
Section 5.2. Rental Payments; Basic Rental Payments; and
Additional Rental Payments. The Company covenants and agrees to pay, or cause to
be paid, as and for rental and for use of the Project, throughout the Term, the
Basic Rental Payments and the Additional Rental Payments as provided in this
Section, in funds which constitute lawful monies of the United States of America
for the payment of public and private debts, as at the time of payment.
(a) Basic Rental Payments. The Company shall, throughout
the Term, pay, or cause to be paid, as Basic Rental Payments, the following
amounts:
(1) On or prior to any installment payment date for
the Bank Loan under the Bank Note, until the principal of, and
interest on the Bank Loan shall have been fully paid, a sum
which will enable the Issuer to pay the amount payable on such
date as principal of (where at maturity, or upon acceleration
or otherwise), and interest upon the Bank Note as provided in
the Bank Loan Documents.
(2) On or prior to any installment payment date for
the Facility Loan under the Series A Note, until the principal
of, and interest on the Facility Loan shall have been fully
paid, a sum which will enable the Issuer to pay the amount
payable on such date as principal of (whether at maturity, or
upon acceleration or otherwise), and interest upon the Series
A Note as provided in the Facility Loan Documents.
(b) Additional Rental Payments. The Company shall from
time to time pay, as Additional Rental Payments, within thirty (30) days of
receipt of written demand therefor from the person entitled to payment thereof,
an amount sufficient to pay the following costs and expenses to the extent such
costs and expenses are not paid from the proceeds of the Baulk Loan or the
Facility Loan:
(1) The fees and other costs incurred for services of
such engineers, architects, attorneys, and independent
accountants as are employed to make examinations, opinions,
and reports required under, or contemplated by, this Lease;
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(2) The fees and other costs, not otherwise paid
under this Lease, incurred by the Issuer by reason of its
leasing of the Project or in connection with its
administration and enforcement of, and compliance with, this
Lease, or otherwise in connection with the Project; and,
(3) All amounts advanced by the Issuer under
authority of this Lease or otherwise and which the Company is
obligated to repay.
The Issuer hereby directs the Company to make the Basic Rental
Payments (i) under subsection (a)(1) to the Bank for payment of the Bank Loan,
and such payments shall be made in a timely manner so that the Issuer can comply
with the provisions of the Bank Loan Documents, and (ii) under subsection (a)(2)
to the Lender for payment of the Facility Loan, and such payments shall be made
in a timely manner so that the Issuer can comply with the provisions of the
Facility Loan Documents.
Payments of Additional Rental Payments shall be made by the
Company directly to the persons entitled to such payment.
In the event the Company shall fail to make any payment
required by this Section, the payment so in default shall continue as an
obligation hereunder of the Company until the amount in default shall have been
fully paid, and the Company shall pay, or cause to be paid, the same with
interest thereon from the date of default until so paid at a rate per annum
equal to twelve percent (12%) or the maximum rate of interest allowable by
applicable law, whichever is less.
The Company shall make the payments required by this Section
without any further notice thereof except as may be specifically required by
this Section.
Section 5.3. Credits Toward Basic Rental Payments. The
following amounts shall be credited (to the extent, if any, which such amounts
shall not have previously been the basis for such a credit) in the manner
specified, against the Basic Rental Payments, and such Basic Rental Payments
shall accordingly be reduced to the extent of any such credits:
(a) Any amounts paid as a prepayment of Basic Rental
Payments pursuant to Section 5.5 hereof;
(b) Any other amounts paid to Bank or the Lender as a
prepayment of Basic Rental Payments, the Bank Loan or the Facility Loan pursuant
to any provisions hereof or the terms thereof, including, but not necessarily
limited to, Section 9.4 hereof.
Section 5.4. General Obligation; Obligations of Company
Unconditional. The Company shall pay to or upon the order of the Issuer, at or
before the time when payable by the Issuer, all costs and liabilities incurred
by the Issuer in connection with its financing of the Facility, under the Bank
Loan Documents or the Facility Loan Documents, or otherwise as a result of the
transactions contemplated by this Lease.
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The obligations of the Company to make the payments required
in Section 5.2 hereof, and to perform and observe any and all of the other
covenants and agreements on its part contained herein, shall be a general
obligation of the Company and shall be absolute and unconditional irrespective
of any defense or any rights of set off, recoupment, or counterclaim which the
Company otherwise may have against the Issuer. The Company shall not: (a)
suspend, discontinue, or xxxxx any payment required by Section 5.2 hereof
(except as provided in Section 5.3); (b) fail to observe any of its other
covenants or agreements in this Lease, the Bank Loan Documents or the Facility
Loan Documents; or, (c) except as provided in Article XI hereof, terminate this
Lease for any cause whatsoever, including, without limiting the generality of
the foregoing, failure to complete the Project; failure of Desa to occupy or to
use the Project as contemplated in this Lease or otherwise; any change or delay
in the time of availability of the Project; any defect in the title, design,
operation, merchantability, fitness, or condition of the Project or in the
suitability of the Project for the purposes or needs of Desa; failure of
consideration; eviction or constructive eviction; destruction of or damage to
the Project; commercial frustration of purpose; the taking by Condemnation of
title to or the use of all or any part of the Project; any change in the
taxation or other laws of the United States of America or of the State or any
political subdivision of either; any declaration or finding that any portion of
this Lease is invalid or unenforceable; and, any failure of the Issuer, Bank,
Desa or the Lender to perform and observe any agreement, whether express or
implied, or any duty, liability, or obligation arising out of or in connection
with this Lease or otherwise.
Nothing contained in this Section shall be construed to
release the Issuer from the performance of any of the agreements on its part
contained in this Lease, and in the event the Issuer should fail to perform any
such agreement on its part, the Company may institute such action against the
Issuer, as the Company may deem necessary to compel performance; provided,
however, that anything contained herein to the contrary notwithstanding, no such
action shall: (a) violate the agreements on the part of the Company contained in
the second paragraph of this Section; (b) diminish the amounts required to be
paid by the Company pursuant to any provision of this Lease; or (c) seek to
impose or impose any pecuniary liability on the Issuer payable from any source
other than as provided in the Loan Documents, or any personal or pecuniary
liability on any officer or director of the Issuer. The Company may, at its own
cost and expense, and in its own name or in the name of the Issuer, prosecute or
defend any action or proceeding or take any action involving third persons which
the Company deems reasonably necessary in order to secure or protect its right
to possession, occupancy, and use of the Project, and in such event the Issuer
shall, provided the Company shall pay, or cause to be paid, all costs (including
attorneys' fees) reasonably incurred by the Issuer in connection therewith as
such costs accrue, cooperate fully with the Company.
Section 5.5. Prepayment of Rental Payments. (a) Basic Rental
payments under Section 5.4(a)(1) may be prepaid in full or in part as permitted,
but only as permitted under the Bank Loan Documents or with Bank's consent in
its sole discretion, and Basic Rental Payments under Section 5.4(a)(2) may be
prepaid in full or in part at any time without premium or penalty.
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(b) The amount necessary to prepay the Rental Payments in
full, or to provide for such full prepayment, shall be determined in accordance
with the provisions of Section 11.6 of this Lease.
Section 5.6. Rights and Obligations of Company Upon Full
Prepayment of Rental Payments. In the event the Rental Payments shall have been
prepaid in full, the Company shall have the option to purchase the Project in
accordance with the provisions of Section 11.3 hereof. If such option is not
exercised, then (i) this Lease shall continue in accordance with its terms, and
(ii) the Company shall have no further obligation to pay Basic Rental Payments
during such paid up period of the Term hereof.
(END OF ARTICLE V)
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ARTICLE VI
MAINTENANCE, MODIFICATIONS, TAXES, AND INSURANCE
Section 6.1. Maintenance of the Facility. Throughout the Term,
the Company shall, at its own expense, keep and maintain the Facility, or cause
the Facility to be kept and maintained, in good condition, repair, and working
order (ordinary wear and tear excepted), making, or causing to be made, all
repairs and replacements thereto (whether ordinary or extraordinary, structural
or nonstructural, or foreseen or unforeseen), and operate the Facility, or cause
the Facility to be operated, as deemed necessary and proper by the Company.
Section 6.2. Modification of the Facility. (a) The Company, at
its own cost and expense, may make such additions, renewals, replacements, or
improvements to or alterations of the Project, or may construct or place on the
Facility, such additional or renewal or replacement facilities, furnishings, or
equipment, as the Company may deem desirable to attain the purposes herein
contemplated, provided that such additions, renewals, replacements,
improvements, alterations, facilities, furnishings, or equipment shall not
impair the fair market value, structural soundness, or usefulness of the
Facility.
(b) At the request of the Company or Desa, the Issuer
shall join in any application for such municipal and other governmental permits
and authorizations as the Company may deem necessary or advisable in connection
with any such construction, acquisition or installation, provided that the
Company or Desa shall indemnify and hold the Issuer harmless, or cause the
Issuer to be indemnified and held harmless, against and from all costs and
expenses, including attorneys' fees, which may be incurred by the Issuer in
connection with any such joinder or application.
Section 6.3. Improvements as Part of the Facility. All
buildings, structures, improvements, fixtures, accessions and other Property
which shall be constructed, placed, or installed in or upon the Facility as a
substitute for, or in renewal or replacement of, any buildings, structures,
improvements, fixtures, accessions, or other Property constituting part of the
Facility, shall become a part of the Facility; provided, however, that the
Company does not warrant, covenant or represent that such additions would become
a part of the Facility.
Section 6.4. Taxes, Assessments, and Utility Charges. (a) The
Company shall pay, or cause to be paid, as the same shall respectively become
due: (i) all taxes, in lieu of tax payments, regulatory fees, and governmental
charges of any kind whatsoever, including ad valorem taxes, that may at any time
be lawfully assessed or levied against or with respect to the Facility and/or
any furnishings, equipment, or other Property installed or brought by the
Company or any other person, therein or thereon, excluding, however, any taxes
levied upon or with respect to the income or revenues of the Issuer from the
Facility; (ii) all utility or other charges, including "service charges,"
incurred or imposed for the operation, maintenance, use, occupancy, upkeep, and
improvement of the Facility; and, (iii) all assessments and charges of any kind
whatsoever lawfully made by any governmental body
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for public improvements which are in respect of the Facility or any part
thereof. It is acknowledged and agreed, however, that the Issuer and the Company
do not expect or intend that any ad valorem taxes will be assessed against the
Facility during the Term.
(b) The Company or any other person may, in good faith and
at its own expense, contest any such taxes, in lieu of tax payments,
assessments, and other charges, after giving notice of its intention to do so to
the Issuer. In the event of any such contest, the Company or such other person,
as applicable, may permit the taxes, assessments, or other charges so contested
to remain unpaid during the period of such contest and any appeal therefrom,
unless the Issuer shall notify the Company or such other person, as applicable,
that by nonpayment of any such items the Facility, or any part thereof, may be
imminently subject to loss or forfeiture, in which event such taxes,
assessments, or charges shall be paid promptly or secured by posting a bond in
form and substance satisfactory to the Issuer. The Issuer shall, if requested by
the Company or such other person, as applicable, and provided that the Issuer
shall be indemnified and held harmless against and from all costs and expenses
(including attorneys' fees) which may be reasonably incurred by the Issuer in
connection therewith, cooperate fully with the Company or such other person, as
applicable, in any such contest.
Section 6.5. Insurance Required. (a) At all times throughout
the Term, the Company shall maintain insurance against such risks and for such
amounts as are customarily insured against by businesses of like size and type,
paying, as the same become due and payable, all premiums in respect thereto,
including but not necessarily limited to:
(i) fire insurance with Uniform Standard Extended
Coverage Endorsements or equivalent coverage obtainable
through Federal or State programs, and vandalism and malicious
mischief insurance, as may be approved for issuance in the
State, at all times in an amount equal to not less than 80% of
the replacement cost of the Building, exclusive of excavations
and foundations with respect to the Building;
(ii) comprehensive general public liability
insurance, insuring against all claims for personal injury or
death on an occurrence basis in an amount not less than
$1,000,000 per occurrence and $1,000,000 per person, and
against all claims for property damage on an occurrence basis
in an amount not less than $500,000 per occurrence; and
(iii) workers' compensation coverage and any other
type of insurance required by the laws of the State.
Any of the insurance required above may provide deductible
provisions in amounts not exceeding that in similar policies carried by
businesses of a size and character similar to the Company, but in no event to
exceed $10,000, if reasonably obtainable, and the Company shall be a
self-insurer to the extent of the amount of the deductible obtained.
(b) The Net Proceeds of the insurance carried pursuant to
the provisions of this Section shall be paid and applied as provided by Section
6.7 hereof.
-18-
Section 6.6. Insurers and Policies. (a) Each insurance policy
required by Section 6.5 hereof: (1) shall be issued by a financially responsible
insurer (or insurers) of recognized standing, legally authorized to provide the
respective insurance in the State; and (2) shall prohibit cancellation or
modification by the insurer without at least thirty (30) days prior written
notice to the Issuer, Desa and the Company. Before the expiration of any such
policy, the Company shall furnish the Issuer and Desa evidence satisfactory to
the Issuer and Desa, that such policy has been renewed or replaced, or is no
longer required by this Lease. Without limiting the generality of the foregoing,
all insurance policies carried pursuant to Section 6.5 hereof shall name the
Company, Desa and the Issuer as parties insured thereunder as the respective
interest of each of such parties may appear, and each policy shall provide that
losses thereunder shall be adjusted by the Company, with the concurrence of
Desa, with the insurer on behalf of the insured parties.
(b) All such policies of insurance, or certificates
(acceptable to the Issuer and Desa) of the insurers, or of an agent or agents of
the insurers, that such insurance is in force and effect, shall be deposited
with the Bank.
Section 6.7. Application of Net Proceeds of Insurance. The Net
Proceeds of the insurance carried pursuant to the provisions of Section 6.5
hereof shall be applied as follows:
(a) The Net Proceeds of the insurance carried pursuant to
Sections 6.5(a)(i) hereof shall be applied as provided in Section 7.1 hereof;
and
(b) The Net Proceeds of the insurance carried pursuant to
Sections 6.5(a)(ii) and 6.5(a)(iii) hereof shall be applied toward
extinguishment or satisfaction of the liability with respect to which such
insurance proceeds may be paid.
Section 6.8. Advances by Issuer. (a) In the event the Company
shall fail to pay, or fail to cause to be paid, any tax, assessment, or
governmental charge required to be paid by the provisions of Section 6.4 hereof,
prior to the date upon which such tax, assessment or charge would become
delinquent, or maintain, or cause to be maintained, the full insurance coverage
required by the provisions of Section 6.5 hereof, the Issuer, with not less than
ten (10) days' prior written notice to the Company and Desa, may (but shall be
under no obligation to) pay such tax, assessment, or governmental charge or
obtain or maintain the required policy of insurance, and pay the premium or
premiums on the same.
(b) In the event that the Company or any other person
shall permit any unsafe or dangerous condition to exist in the Project, the
Issuer may (but shall be under no obligation to) notify the Company and Desa in
writing of such condition, and if the Company or Desa shall fail to correct such
condition, or cause such condition to be corrected, within (30) days after
receipt of such notice, may (but shall be under no obligation to) make the
required correction, improvement, or repair.
(c) All amounts so advanced by any person pursuant to
subsections (a) or (b) of this Section shall be promptly reimbursed by the
Company to the person making the advance, together with interest thereon from
the date of such advance to the date of
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reimbursement at a rate per annum equal to twelve percent (12%) or the maximum
rate of interest allowable by applicable law, whichever is less.
Section 6.9. Obligation of Company to Maintain Insurance
Regardless of Approval. No acceptance or approval of any insurance policy by the
Issuer shall relieve or release the Company from any liability, duty, or
obligation under the provisions of this Lease.
(END OF ARTICLE VI)
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ARTICLE VII
DAMAGE, DESTRUCTION, CONDEMNATION, ETC.
Section 7.1. Damage or Destruction. (a) Subject to the Bank
Loan Documents, in the event the Facility shall be damaged or destroyed (in
whole or in part) at any time during the Term:
(i) the Company shall promptly give, or cause to be
given, written notice of such damage or destruction to the
Issuer, the Bank and Desa;
(ii) any Net Proceeds of insurance resulting from
damage to or destruction of the Facility shall be applied by
the Company, at the option of Desa, to the prepayment of all
or any portion of Rental Payments and/or to the repair or
replacement of the Facility;
(iii) so long as there shall be outstanding any
indebtedness evidenced by the Loan, the Company shall, if and
to the extent required by the Lender, promptly replace,
repair, or restore the Facility to such condition, value, and
utility to allow the Facility to operate as it was designed to
operate prior to such damage or destruction, with such
changes, alterations, and modifications (including the
substitution and addition of other Property), as may be then
approved by the Bank, Lender, Equipment Lender and Desa.
In the event such Net Proceeds of insurance, or the portion
thereof, if any, are insufficient to pay in full the costs of such replacement,
repair, rebuilding or restoration, the Company shall be obligated to complete
such replacement, repair, or restoration, paying from its own monies that
portion of the costs thereof in excess of such Net Proceeds of insurance.
All such replacements, repairs, or restoration of the Facility
made pursuant to this Section, whether or not requiring the expenditure of
monies of the Company, shall automatically become a part of the Facility the
same as if specifically described herein.
(b) If the Loan, including the interest payable thereon,
and all sums payable pursuant to Section 5.2(b) hereof, have been fully paid, or
provision therefor has been made, all such Net Proceeds of insurance shall be
paid as provided in the Equipment Lease or the Desa Lease, or if no provision
with respect thereto is made, such Net Proceeds shall be paid to the Company.
(c) The Company shall be entitled to any insurance
proceeds or portion thereof made for damage to or destruction of any Property
which, at the time of such damage or destruction, is not part of the Project.
Section 7.2. Condemnation. (a) In the event all or any part of
the title to, or the use of, the Facility shall be taken by Condemnation during
the Term:
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(i) the Company shall promptly give, or cause to be
given, written notice of any Condemnation proceedings of, or
affecting, the Facility, or any portion thereof, to the
Issuer, Bank, Desa, Lender and the Equipment Lender;
(ii) any Net Proceeds of any Condemnation award shall
be applied by the Company, at the option of Desa, to the
prepayment of any portion of Rental Payments, to the
restoration of the Facility, and/or to the acquisition of
Substitute Facilities, as such term is hereinafter defined;
(iii) so long as there shall be outstanding any
indebtedness evidenced by the Loan, the Company shall, to the
extent required by Desa, (i) promptly restore the Facility
(excluding any land taken by Condemnation) to such condition.
value, and utility to allow the Facility to operate as it was
designed to operate prior to such Condemnation, with such
changes, alterations, and modifications (which do not increase
expense, unless Desa pays such additional cost) as may be then
required by Desa, or (ii) acquire, by construction or
otherwise, facilities (the "Substitute Facilities"),
acceptable to Desa, of such nature and value to allow the
Facility to operate as it was designed to operate prior to
such condemnation, with such changes, alterations, and
modifications as may be then required by Desa.
In the event that such Net Proceeds are not sufficient to pay
in full the costs of such restoration of the Facility or such acquisition of
Substitute Facilities, the Company shall be obligated to complete such
restoration or acquisition, or to acquire such Substitute Facilities, as
applicable, and shall pay from its own monies that portion of the costs thereof
in excess of such Net Proceeds of any condemnation award.
The restored portions of the Facility, or the Substitute
Facilities, whether or not requiring the expenditure of the moneys of the
Company or Desa, shall automatically become part of the Facility.
(b) If the Loan, including the interest payable thereon,
and all sums payable pursuant to Section 5.2(b) hereof, have been fully paid,
all such Net Proceeds of any Condemnation award shall be paid as provided in the
Equipment Lease or the Desa Lease, or if no provision with respect thereto is
made, such Net Proceeds shall be paid to the Company.
(c) The Company shall be entitled to the proceeds of any
Condemnation award or portion thereof made for damage to, or taking of, any
Property which, at the time of such damage or taking, is not part of the
Project.
(END OF ARTICLE VII)
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ARTICLE VIII
SPECIAL COVENANTS
Section 8.1. No Warranty of Condition or Suitability; Use of
Project. The Company acknowledges its full familiarity with the Land and the
Building, and it represents that it is solely responsible for the plan under
which the Facility will be operated and maintained. The Issuer makes no
representations or warranties, either express or implied, as to the condition,
title, design, operation, merchantability, or fitness of the Project, or that it
is, or will be, suitable for the purposes or needs of the Company or Desa.
Section 8.2. Indemnity and Hold Harmless Provisions. The
Company hereby releases the Issuer, its members, agents, employees, and
consultants from; agrees that the Issuer, its members, agents, employees, and
consultants shall not be liable for; and agrees to reimburse and indemnify and
hold the Issuer, its members, agents, employees, and consultants harmless from
and against, any and all: (a) liability for loss or damage to Property or any
injury to or death of any and all persons that may be occasioned by any cause
whatsoever pertaining to the Project or arising by reason of or in connection
with the acquisition, occupation, or use of said Project; (b) liability arising
from, or expense incurred by reason of, the Issuer's leasing of the Project, and
all causes of action and attorneys fees and any other expense incurred in
defending any suits or actions which may arise as a result of any of the
foregoing excluding Issuer's obligations to the Company hereunder; and (c) all
costs and expenses of the Issuer or the officers, directors, or employees
thereof, incurred as a result of carrying out its obligations under this Lease,
the Loan Documents, or any other document herein contemplated; provided,
however, that the foregoing shall not apply to the negligence or wanton or
willful misconduct of the Issuer, its members, agents, consultants and
employees.
Section 8.3. Reimbursement of Issuer. Notwithstanding that it
is the intention of the parties that the Issuer shall not incur any pecuniary
liability by reason of this Lease, or the Loan Documents, or by reason of any
actions, documents, statutes, ordinances, or regulations pertaining to the
foregoing, the Company shall promptly pay any and all costs and expenses, as
such costs and expenses accrue, which may be incurred by, or judgments which may
be rendered against, the Issuer, or any of its officers, employees, or agents at
any time or times during, or subsequent to the Term: (a) in enforcing any of the
terms, covenants, conditions, or provisions of this Lease; (b) in defending any
action, suit, or proceeding brought against the Issuer, or any of its respective
officers, employees, or agents as a result of the violation of, or failure to
comply with, any present or future Federal, State, or municipal law, ordinance,
regulation, or order, or as a result of any alleged failure, neglect,
misfeasance, or default on the part of the Company, or any of the employees,
servants, agents, or independent contractors of any of the foregoing in
connection with, arising from, or growing out of, this Lease or in connection
with the Loan, the Loan Documents, or the Project, or any operations conducted
in, or any use or occupancy of, said Project, or any action pertaining to, or
connected with, any of the foregoing.
-23-
Section 8.4. Right of Access to the Project. The Issuer and
its duly authorized agents shall have the right at all reasonable times to enter
upon, and to examine and inspect, the Project. In addition, the Issuer and its
duly authorized agents shall have such rights of access to the Project as may be
reasonably necessary for the proper maintenance and repair of the project in the
event of any failure by the Company to perform its obligations hereunder.
Section 8.5. Project as a Public Facility. The Company shall,
during the Term, admit, or cause to be admitted, persons; employ, or cause to be
employed, persons at, and render, or cause to be rendered, services at, the
Project without discrimination as to race, religion, creed, color, sex, age, or
national origin.
Section 8.6. Compliance with Orders. Ordinances. Etc. (a) The
Company shall throughout the Term, without expense to the Issuer, promptly
comply, or promptly cause compliance, with all statutes, codes, laws, acts,
ordinances, orders, judgments, decrees, injunctions, rules, regulations,
permits, licenses, authorizations, directions, contract provisions, and
requirements of all Federal, State, county, municipal, and other governments,
departments, commissions, boards, companies or associations insuring the
premises, courts, authorities, officials, and officers, foreseen or unforeseen,
ordinary or extraordinary, which now or at any time hereafter may be applicable
to the Project, or any part thereof, or to any of the streets, roads,
passageways, sidewalks, curbs, gutters adjoining the Project, or any part
thereof, or to any use, manner of use, or condition of the Project, or any part
thereof.
(b) Notwithstanding the provisions of subsection (a) of
this section, the Company or any other person may, in good faith and at his,
her, or its own expense, upon prior written notice to the Issuer, contest the
validity or the applicability of any requirement of the nature referred to in
subsection (a) of this section. In such event, the Company, or any such person,
as applicable, may fail to comply with the requirement or requirements so
contested during the period of such contest, and any appeal therefrom, unless
the Issuer or the Trustee shall notify the Company and Desa, or any such person,
as applicable, that by failure to comply with such requirement or requirements,
the Project, or any part thereof, may be imminently subject to loss or
forfeiture, in which event the Company or Desa shall promptly take such action
with respect thereto as shall be satisfactory to the Issuer. The Issuer shall,
if requested by the Company, Desa or such other person, as applicable, and
provided that the Issuer shall be indemnified and held harmless against and from
all costs and expenses (including attorneys' fees) which may be reasonably
incurred by the Issuer in connection therewith, cooperate fully with the
Company, Desa or such other person, as applicable, in any such contest.
Section 8.7. Discharge of Liens and Encumbrances. (a) The
Company shall not permit or create, or suffer to be permitted or created, any
Lien, except for Permitted Encumbrances, upon the Facility or any part thereof,
by reason of any labor, materials, or services rendered or supplied, or claimed
to be rendered or supplied, with respect to the Facility, or any part thereof.
The Company shall immediately give notice to the Issuer and Desa of the filing
or assertion of any such Lien of which it has knowledge, and shall, within
thirty (30) days after receipt of actual or constructive notice of the filing or
assertion of any
-24-
such Lien, satisfy the Lien or cause it to be discharged of record or otherwise
prevent the enforcement thereby by payment, deposit, filing the requisite bond,
or taking such other action as shall be reasonably satisfactory to the Issuer.
(b) Notwithstanding the provisions of subsection (a) of
this section, the Company, Desa or any other person, may, in good faith and at
his, her, or its own expense, upon prior written notice to the Issuer, contest
any such Lien. In such event, the Company, Desa or any such person, as
applicable, may permit the Lien or encumbrance so contested to remain
undischarged and unsatisfied during the period of such contest, and any appeal
therefrom, unless the Issuer shall notify the Company and Desa, or any such
persons, as applicable, that by nonpayment of such Lien or encumbrance the
Project, or any part thereof, may be imminently subject to loss or forfeiture,
in which event, the Company or Desa shall promptly secure payment of such unpaid
Lien or encumbrance by filing, or causing to be filed, the requisite bond, in
form and substance satisfactory to the Issuer. The Issuer shall, if requested by
the Company, Desa or such other person, as applicable, and provided that the
Issuer shall be indemnified and held harmless against and from all costs and
expenses (including attorneys' fees) which may be reasonably incurred by the
Issuer in connection therewith, cooperate fully with the Company, Desa or such
other persons, as applicable, in any such contest.
Section 8.8. Restriction Against Certain Religious Activities.
The Company hereby covenants that, for such period as may be required by law, no
part of the Project shall be used for sectarian instruction, or as a place of
religious worship, or in connection with any part of a program of a school or
department of divinity of any religious denomination.
If at any time the applicable law would permit the Project to
be used for a purpose prohibited by this Section, such prohibition shall, to
that extent, be of no further force or effect. This covenant shall survive any
termination of this Lease.
Section 8.9. Further Assurances and Corrective Instruments.
The Issuer and the Company agree that they will, from time to time, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
such supplements hereto and such further instruments as may reasonably be
required for correcting any inadequate or incorrect description of the Project
hereby leased or intended so to be or for carrying out the expressed intention
of this Lease.
Section 8.10. Granting of Easements. The Company may at any
time or times, subject to its leasehold interest, grant easements, licenses,
rights of way (including the dedication of public highways) and other rights or
privileges in the nature of easements with respect to any property or rights
included in the Project, or the Company may release existing easements,
licenses, rights of way and other rights and privileges with or without
consideration, and the Issuer agrees that it shall execute and deliver any
instrument necessary or appropriate to confirm and grant or release any such
easement, license, right of way or other grant or privilege upon receipt of: (1)
a copy of the instrument of grant or release, and (2) a written application
signed by the Authorized Representative of the Company and Desa requesting such
instrument and stating (i) that such grant or release is not detrimental to the
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proper conduct of the business of the Company or Desa, and (ii) that such grant
or release will not impair the effective use or interfere with the operation of
the Project.
Section 8.11. Release of Certain Land. Notwithstanding any
other provisions of this Lease, the parties hereto reserve the right, at any
time and from time to time, to amend this Lease for the purpose of effecting the
release of or removal from this Lease and the leasehold estate created hereby of
(i) any unimproved part of the Land (on which no part of the Building or other
building or equipment owned by the Company or Desa and essential to the
continued operation of the Project is situated), or (ii) any part of the Land
with respect to which the Company proposes to convey fee title or an easement to
a railroad, public utility or public body in order that railroad service,
utility services or roads may be provided for the Project; provided that if at
the time any such amendment is made any of the Loan is outstanding and unpaid
such amendment shall not be effective until and unless the Lender, Bank Desa and
Equipment Lender have consented thereto in writing.
(END OF ARTICLE VIII)
ARTICLE IX
ASSIGNMENT: REMOVAL OF EQUIPMENT: ETC.
Section 9.1. Assignment and Subleasing. (a) This Lease may be
assigned and the Project subleased, as a whole or in part, by the Company
without the necessity of obtaining the consent of the Issuer, subject, however,
to each of the following conditions: (i) no assignment shall relieve the Company
from primary liability for any obligations under this Lease, and in the event of
any such assignment, the Company shall continue to remain primarily liable for
payment of the amounts specified in this Lease and for performance and absence
of the other agreements on its part provided to be performed and observed by the
Company to the same extent as though no assignment had been made; (ii) the
assignee or sublessee shall assume the obligations of the Company hereunder to
the extent of the interest assigned or subleased; (iii) the Company shall,
within thirty (30) days after the delivery thereof, furnish or cause to be
furnished to the Issuer a true and complete copy of each assignment, assumption
of obligation or sublease, as the case may be; and (iv) Desa, Bank, Lender and
Equipment Lender shall have consented to such assignment, assumption of
obligation or sublease.
(b) The Company may contract for the performance by others
of operations or services on, or in connection with, the Project, or any part
thereof, for any lawful purpose; provided, however, that any such contract shall
not be inconsistent with the provisions of this Lease or the Loan Documents and
that the Company shall remain fully obligated and responsible under this Lease,
to the same extent as if such contract had not been executed.
Section 9.2. Consent to Assignment. The Issuer shall assign
its rights to receive certain monies under this Lease to the Bank and Lender as
security for the payment of the Loan. Such assignment shall in no way diminish
or impair the obligations, if any, of the Issuer under this Lease and shall be
subject and subordinate to this Lease. The Company
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hereby agrees and consents to such assignment by the Issuer, and further agrees
and consents to all terms, provisions, and conditions of the Assumption
Agreement and the Assignment of Facility Lease.
Section 9.3. Restrictions on Mortgage or Sale of Project by
Issuer. The Issuer agrees that, except for any assignment, mortgage or pledge of
its interest in the rentals hereunder to Lender pursuant to the Deed of Trust
and the Assignment of Lease, it will not mortgage, sell, assign, transfer or
convey the Project or any portion thereof during the Term, except as otherwise
permitted herein.
Section 9.4. Removal of Fixtures. (a) In the event the Company
determines from time to time that any item of fixtures or improvements
constituting a part of the Facility has become inadequate, obsolete, worn out,
unsuitable, undesirable, or unnecessary, the Company may remove such item
constituting a part of the Facility, and may sell, trade-in, exchange, or
otherwise dispose of the same, as a whole or in part, provided that:
(i) Such removal will not materially impair the
overall efficiency of the operation of the Project, or
adversely affect the structural integrity of the Project; and,
(ii) The Company shall either:
(A) substitute, or cause to be substituted, for such
removed item (by direct payment of the costs thereof), and
install, or cause to be installed, in the Project, other
fixtures or related property having equal or greater value and
utility in the operation of the Project (but not necessarily
having the same function), all of which substituted property
shall be free of all Liens, other than Permitted Encumbrances,
and shall become a part of the Project; or,
(B) not make, or cause to be made, any such
substitution and installation, provided that: (i) in the case
of the sale of any such removed item (other than to itself),
or in the case of the scrap thereof, the Company shall pay, or
cause to be paid, to the Bank, or if the Bank Loan is paid,
the Lender, the proceeds from such sale of the scrap thereof,
as the case may be; or, (ii) in the case of the trade-in of
such removed item for other property not to be installed in
the Project, the Company shall pay, or cause to be paid, to
the Bank, or if the Bank Loan is paid, the Lender, an amount
of money equal to the credit received by it in such trade-in;
or, (iii) in the case of the sale of any such removed item of
fixtures, equipment, or improvements constituting a part of
the Project by the Company or in the case of any other
disposition thereof, the Company shall pay to the Bank, or if
the Bank Loan is paid, the Lender, an amount of money equal to
the fair market value thereof at the time of sale or other
disposition; and
(C) Desa shall have granted its prior written consent
(in its sole discretion).
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Any monies paid to the Bank or the Lender pursuant to the
provisions of this Section shall be as a prepayment of the Bank Loan or the
Facility Loan, as applicable, and the Company shall receive a credit therefor in
accordance with the provisions of Section 5.3 hereof.
(b) Notwithstanding any provision of Section 9.4(a) hereof,
unless the Loan Documents require otherwise, the Company without being required
to make the substitution specified in Section 9.4(a)(2)(A) hereof, or the
payment specified in Section 9.4(a)(2)(B) hereof, may remove and sell or
otherwise dispose of any item or items of fixtures, or improvements constituting
part of the Facility, and without the necessity of notifying the Bank or the
Lender (but with the required prior written approval of Desa), provided that the
aggregate value of such furnishings, equipment, and improvements so removed does
not exceed: (A) Ten Thousand Dollars ($10,000) in any Fiscal Year; and, (B)
Fifty Thousand Dollars ($50,000) in all Fiscal Years during the Term. The value
of any such furnishings, equipment, or improvements so removed pursuant to this
subsection (b) shall not be included in the computations required by Section
9.4(c) hereof.
(c) The Issuer shall promptly execute any and all instruments
deemed necessary by the Company, in its sole discretion, to fully effectuate the
provisions of this Section.
Section 9.5. Installation of Desa's Own Machinery. Desa may,
from time to time, in its sole discretion and at its own expense, install
machinery, equipment and other tangible and movable property in the Project or
on the Land. All such machinery, equipment and other tangible and movable
property shall remain the sole property of Desa in which the Issuer and the
Company shall have no interest.
Section 9.6. References to Loan Ineffective After Paid. Upon
payment in full of the Bank Loan, the Facility Loan or the Equipment Loan, all
references in this Lease to the Bank Loan, the Facility Loan or the Equipment
Loan and to Bank, the Lender or Equipment Lender, as applicable, shall be
ineffective and the Bank, the Lender or Equipment Lender, as applicable, shall
not thereafter have any rights hereunder.
(END OF ARTICLE IX)
ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
Section 10.1. Events of Default Defined. Each of the following
shall be an "Event of Default" under this Lease, and the terms "Event of
Default" or "Default" shall mean, whenever they are used in such Lease, any one
or more of the following events:
(a) The failure by the Company to pay, or cause to be
paid, when due, the Basic Rental Payments, or any part thereof, specified to be
paid under Section 5.2 hereof;
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(b) The filing by the Company of a voluntary petition in
bankruptcy or any petition or other pleading seeking any reorganization,
composition, readjustment, liquidation, or similar relief under any present or
future law or regulation, or the seeking of or consent to or acquiescence in the
appointment of any trustee, receiver, or liquidator of all or any substantial
part of its assets or of its interest in the Facility, or the making of a
general assignment for the benefit of creditors, or the admission in writing of
the inability by the Company to pay its debts generally as the same shall become
due;
(c) The adjudication of the Company to be bankrupt or
insolvent, or the filing of a petition or other pleading against the Company
seeking an adjudication of bankruptcy, reorganization, composition,
readjustment, liquidation, or similar relief under any present or future law or
regulation, which shall remain undismissed or unstayed for an aggregate of sixty
(60) days (whether or not consecutive), or the entry of an order or decree by a
court of competent jurisdiction, without the consent or acquiescence of the
Company, appointing a trustee in bankruptcy or reorganization or a receiver or
liquidator of the Company, of all or any substantial part of its Property, or of
the Facility, which order or decree shall continue unvacated or unstayed on
appeal or otherwise and in effect for a period of ninety (90) days (whether
consecutive or not);
(d) The occurrence of a "default" or an "event of default"
under any of the Loan Documents;
(e) Subject to Section 10.7, the failure by the Company to
observe and perform any covenant, condition, or agreement hereunder on its part
to be observed or performed [except obligations referred to in paragraphs (a),
(b) or (c) of this Section for which no such notice must be given for a period
of thirty (30) days after written notice, specifying such failure and requesting
that it be remedied, is given to the Company by the Issuer, unless the Issuer
shall agree in writing to an extension of such time prior to its expiration;
provided, however, if the failure stated in the notice cannot be corrected
within the applicable period, the Issuer will not unreasonably withhold its
consent to an extension of such time if corrective action is instituted by the
Company within the applicable period and diligently pursued until the default is
corrected.
Section 10.2. Remedies on Default. (a) Whenever an Event of
Default shall have occurred and be continuing, the Issuer or the Lender may take
any one or more of the following remedial steps:
(1) Declare, by written notice to the Company, to be
immediately due and payable, whereupon the same shall become
due and payable: (i) all unpaid Rental Payments payable
pursuant to Section 5.2 hereof in an amount equal to the
amount required to pay, or cause to be paid, the Loan; and,
(ii) all other payments due or to become due under this Lease;
(2) Withhold any or all further performance under
this Lease;
(3) Re-enter and take possession of the Project
without terminating this Lease, and sublease the Project for
the account of the Company, holding the
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Company liable for the difference in the rent and other
amounts payable by such sublessee in such subleasing and the
Rental Payments and other amounts payable by the Company
hereunder;
(4) Terminate the Term, exclude the Company from
possession of the Project and use its best efforts to lease
the Project to another for the account of the Company, holding
the Company liable for all Rental Payments and other payments
due up to the effective date of such leasing and for the
difference in the amounts payable by such new lessee and the
amounts payable by the Company under this Lease; and/or
(5) Take any other action or proceeding permitted by
the terms of this
(a) Whenever any Event of Default shall have occurred and
be continuing, the Issuer may take, in addition to the above and the following,
whatever action at law or in equity may appear necessary or desirable to collect
the Rental Payments then due and thereafter to become due, or to enforce
performance and observance of any obligation, agreement, warranty or covenant of
the Company under this Lease.
(b) Any sums paid to the Issuer (other than for indemnity
for costs or other expenses) by reason of any remedy specified in this Section,
shall be used to pay all or a portion of the Loan.
(c) No action taken pursuant to this Section shall relieve
the Company from its obligation to make all payments required under Section 5.2
hereof.
(d) Notwithstanding the foregoing provisions of this
Section, until final action pursuant to this Section shall have been taken which
would preclude such action, the Company may pay all accrued unpaid Rental
Payments (exclusive of such Rental Payments accrued solely by virtue of
acceleration thereof as provided in Section 10.2(a)(1) hereof), and otherwise
fully cure all Events of Default. In such event, this Lease shall be fully
reinstated as if an Event of Default had not occurred.
Section 10.3. Remedies Cumulative. No remedy herein conferred
upon or reserved to the Issuer is intended to be exclusive of any other
available remedy, but each and every such remedy shall be cumulative and in
addition to every other remedy given under this Lease, or now or hereafter
existing at law or in equity. No delay or omission to exercise any right or
power accruing upon any Event of Default shall impair any such right or power or
shall be construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient. In order to
entitle the Issuer to exercise any remedy reserved to it in this Article, it
shall not be necessary to give any notice, other than such notice as may be
herein expressly required in this Lease.
Section 10.4. Agreement to Pay Attorneys' Fees and Expenses.
In the event the Company shall default under any of the provisions of this
Lease, and the Issuer shall employ attorneys or incur other expenses for the
collection of amounts payable hereunder, or
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the enforcement of performance or observance of any obligations or agreements on
the part of the Company herein contained, the Company shall, on demand therefor,
pay to the Issuer the reasonable fees of such attorneys and such other expenses
so incurred.
Section 10.5. Delay or Omission Not a Waiver. No delay or
omission of the Issuer to exercise any right or power accruing upon any breach
of any covenant or agreement contained herein, or upon the happening of any
other Default hereunder, shall impair any such right or power, or shall be
construed to be a waiver of any such right or power, or shall be construed to be
a waiver of any other Default hereunder, or any acquiescence therein; and every
such power, right, or remedy contained herein of the Issuer may be exercised
from time to time and as often as may be deemed expedient by the Issuer. Any
waiver, permit, consent, or approval of any form or character on the part of the
Issuer of any breach of, or default under, this Lease, or any waiver on the part
of the Issuer or the Lender of any provision or condition herein, must be in
writing and shall be effective only to the extent specifically set forth in such
writing.
Section 10.6. Interpretation of any Conflicting Provisions. In
the event of any conflict between any of the provisions hereof, or between any
such provisions and the provisions of the Loan Documents, except to the extent
otherwise provided in such document, the provisions of the Loan Documents shall
prevail.
Section 10.7. Force Majeure Provision. The provisions of
Section 10.1(d) are subject to the following limitations: if, by reason of force
majeure, the Company is unable in whole or in part to carry out the agreements
of the Company on its part herein contained, the Company shall not be deemed in
default during the continuance of such inability. The term "force majeure" as
used herein shall mean, without limitation, the following: acts of God; strikes;
lockouts or other industrial disturbances; acts of public enemies; orders of any
kind of any governmental body, including the government of the United States or
of the State or any of their departments, agencies, or officials, or any civil
or military authority; insurrections; riots; epidemics; landslides, lightning;
earthquake; fire; hurricane; storms; floods; washouts; droughts; arrests;
restraint of government and people, civil disturbances; explosions, breakage or
accident to machinery, transmission pipes, or canals; partial or entire failure
of utilities; or any other cause or event not reasonably within the control of
the Company, in each case which has the effect of making it impossible (as
distinguished from impracticable for the Company to perform, it being agreed
that the settlement of strikes, lockouts, and other industrial disturbances
shall be entirely within the discretion of the Company, and the Company shall
not be required to make settlement of strikes, lockouts, and other industrial
disturbances by acceding to the demands of the opposing party or parties when
such course is, in the judgment of the Company, unfavorable to the Company.
(END OF ARTICLE X)
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ARTICLE XI
OPTIONS: PURCHASE OF FACILITY; ETC.
Section 11.1. Options to Terminate. The Company shall have,
and is hereby granted, the following options to terminate this Lease:
(a) At the time of any prepayment of the Rental Payments
in whole pursuant to the provisions of Section 5.5 hereof, the Company may
terminate this Lease (i) by paying to the appropriate person the amounts
required by Section 11.6 hereof, and (ii) by Company giving the Issuer notice in
writing of such termination.
(b) At any time after full payment of the Loan, the
Company may terminate this Lease by giving the Issuer notice in writing of such
termination.
Section 11 2. Option to Purchase Facility Prior to Payment of
the Loan. The Company shall have, and is hereby granted, the option to purchase
the Facility prior to the full payment of the Loan at the time of any prepayment
of the Rental Payments in whole pursuant to the provisions of Section 5.5
hereof. The purchase price payable by the Company in the event of its purchase
pursuant to this Section shall be a sum equal to One Hundred Dollars ($100) plus
the amount necessary to prepay the Rental Payments in whole.
Section 11.3. Option to Purchase Facility After Payment of the
Loan. The Company shall have, and is hereby granted, the further option to
purchase the Facility at any time during the Term following full payment of the
Loan for a purchase price of One Hundred Dollars ($100). To exercise the option
granted in this Section, the Company shall notify the Issuer of its intention so
to exercise such option not less than five (5) days nor more than ninety (90)
days prior to the proposed date of purchase and shall on the date of purchase
pay such purchase price to the Issuer.
Section 11.4. [This Section Intentionally Omitted]
Section 11.5. Conveyance on Exercise of Option to Purchase
Project. At the closing of any purchase pursuant to this Lease, the Issuer shall
upon receipt of the purchase price deliver to the Company the following:
documents (including, without limitation, a special warranty deed and xxxx of
sale) conveying to the Company good and marketable title to said Property as it
then exists, subject to the following: (i) those Liens (if any) to which title
to said Property was subject when conveyed to the Issuer; (ii) those Liens
created by the Company or to the creation or suffering of which the Company
consented; (iii) those Liens resulting from the failure of the Company to
perform or observe any of the agreements on its part contained in this Lease;
and (iv) Permitted Encumbrances other than the Loan Documents.
Section 11.6. Payments Upon. and Conditions For. Early
Termination. Termination by the Company of this Lease pursuant to Section 11.1
hereof or the purchase of the Project pursuant to Section 11.2 hereof shall not
be effective until the Company shall have made the following payments:
(a) To the Bank an amount which will be sufficient to pay
the Bank Loan in full;
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(b) To the Bank, an amount sufficient to pay all unpaid
fees and expenses of the Bank under the Bank Loan Documents or otherwise;
(c) To the Lender an amount which will be sufficient to
pay the Facility Loan in full;
(d) To the Lender, an amount sufficient to pay all unpaid
fees and expenses of the Lender under the Facility Loan Documents or otherwise;
(e) To the Issuer, an amount certified by the Issuer
sufficient to pay all unpaid fees and expenses (including attorneys' fees) of
the Issuer incurred under this Lease;
and
(f) To the appropriate person, an amount sufficient to pay
all other fees, expenses, or charges, if any, due and payable or to become due
and payable under this Lease, the Bank Loan Documents or the Facility Loan
Documents and not otherwise paid or provided for.
Section 11.7. Continuation of Certain Provisions. Upon
termination of this Lease, the liabilities of the Company under such Lease shall
terminate, except that its liabilities and obligations under Sections 8.2 and
8.3 of this Lease, and as otherwise herein expressly provided, shall
nevertheless survive.
(END OF ARTICLE XI)
ARTICLE XII
MISCELLANEOUS
Section 12.1. Certificates and Opinions. Any certificate or
opinion made or given by an officer or director of the Issuer may be based
(whether or not expressly so stated), insofar as it relates to legal matters,
upon a certificate or opinion of or representations by counsel, unless such
officer or director knows that the certificate or representations with respect
to the matter upon which his or her certificate or opinion may be based are
erroneous; and, any certificate or opinion made or given by counsel may be based
(insofar as it relates to factual matters, information with respect to which is
in the possession of the Issuer) upon the certificate or opinion of, or
representation by, an officer or director of the Issuer, unless such counsel
knows that the certificate or representations with respect to the matters upon
which his or her certificate or opinion may be based as aforesaid are erroneous.
Section 12.2. Limited Liability of the Issuer. No recourse
under or upon any obligation, covenant, agreement or certification contained in
the Loan Documents, in the Loan, or in this Lease, or in any other document
whatsoever, or under any judgment obtained against the Issuer, or by the
enforcement of any assessment or by any legal or equitable proceeding by virtue
of any constitution or statute or otherwise or under any circumstances, under or
independent of the Loan Documents, this Lease or any other
-33-
document, shall be had against any incorporator, member, director or officer, as
such, past, present or future, of the Issuer, either directly or through the
Issuer or any receiver thereof, or for the payment of any other sum or for the
performance of any obligation under the Loan Documents, this Lease, or any other
document or certification. Any and all personal liability of every nature,
whether at common law or in equity, or by statute or by constitution or
otherwise, of any such incorporator, member, director or officer, as such, to
respond by reason of any act or omission on his part or otherwise, for the
payment for or to the Issuer or any receiver thereof, of any sum that may remain
due and unpaid upon the Loan, is hereby expressly waived and released as a
condition of and consideration for the execution of the Loan Documents and this
Lease.
Section 12.3. Notices. All notices, certificates, and other
communications hereunder shall be in writing, and shall be sufficiently given
and shall be deemed given when delivered and, if delivered by mail, shall be
sent by registered mail or certified mail, return receipt requested, postage
prepaid, addressed as follows:
To the Issuer:
The Industrial Development Board
of the City of Shelbyville, Tennessee
c/o Xxxx X. Xxxxxxx, Esq.
Bomar, Shofner, Xxxxx & Xxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
To the Company:
Shelbyville Industrial Spec Building - WRS - Partnership
c/o Sain Construction Company
713 Xxxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
To the Bank:
Trans Financial Bank of Tennessee, F.S.B.
000 Xxxxx Xxxxxxx
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
To the Equipment Lender:
Desa International, Inc.
0000 Xxxxxxxxxx Xxxxx
X.X. Xxx 00000
Xxxxxxx Xxxxx, Xxxxxxxx 00000-0000
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To Desa:
Desa International, Inc.
0000 Xxxxxxxxxx Xxxxx
X.X. Xxx 00000
Xxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Section 12.4. Binding Effect. This Lease shall inure to the
benefit of and shall be binding upon the Issuer, the Company, and the respective
heirs, executors, successors, administrators, and assigns of the foregoing.
Section 12.5. Severability. In the event any provision of this
Lease shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
Section 12.6. Limitation of Rights. Except as otherwise
expressly provided herein, nothing in this Lease, express or implied, shall be
construed to confer upon any person, other than the Issuer, the Company, the
Bank, Desa, the Equipment Lender and the Lender, any right, remedy or claim,
legal or equitable, under or by reason of this Lease or any provisions hereof.
Section 12.7. Execution of Counterparts. This Lease may be
executed in several counterparts, each of which shall be an original, and all of
which shall constitute but one and the same instrument.
Section 12.8. Applicable Law. This Lease has been executed and
delivered in the State of Tennessee. It is intended that such Lease shall be
construed and governed exclusively by the applicable laws of the State of
Tennessee and the United States of America.
Section 12.9. Table of Contents and Section Headings Not
Controlling. The Table of Contents and the headings of the several Sections in
this Lease have been prepared for convenience of reference only and shall not
control, affect the meaning, or be taken as an interpretation of any provision
of this Lease.
Section 12.10. No Liability of the City of Shelbyville.
Tennessee. The City of Shelbyville, Tennessee, shall not in any event be liable
for the payment of the principal of, or interest on, the Loan, or for the
performance of any pledge, mortgage, obligation or agreement of any kind
whatsoever herein contained by or of the Issuer and neither the Loan Documents
nor any of the Issuer's agreements or obligations herein or otherwise shall be
construed to constitute an indebtedness of the City of Shelbyville, Tennessee
within the meaning of any constitutional or statutory provision whatsoever.
Section 12.11. Net Lease. This Lease shall be deemed and
consumed to be a "net lease," and the Company shall pay absolutely net during
the Term the rent and all other payments required hereunder, free of any
deductions, and without abatement, deduction or set off, other than those herein
expressly provided.
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Section 12.12. Not Partners. Nothing contained herein or in
any other document shall be deemed to render Issuer, Bank, Lender, Equipment
Lender, Desa or Company partners or venturers for any purpose.
(END OF ARTICLE XII)
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IN WITNESS WHEREOF, the Issuer has caused this Lease to be executed in
its corporate name, its official seal to be hereunto affixed and attested by its
duly authorized officer, and the Company has caused this Lease to be executed in
its name and behalf by its authorized officer, all as of the date first above
written.
SHELBYVILLE INDUSTRIAL SPEC BUILDING
- WRS - PARTNERSHIP
By: /s/ X. X. Xxxx
Title: Managing General Partner
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STATE OF TENNESSEE
COUNTY OF
Personally appeared before me, X. X. Xxxx. Notary Public, and
______________ and with whom I am personally acquainted (or proved to me on the
basis of satisfactory evidence), and who acknowledged that they executed the
foregoing instrument for the purposes therein contained and who further
acknowledged that they are Chairman and Secretary, respectively, of THE
INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF SHELBYVILLE, TENNESSEE, a public,
nonprofit corporation organized and existing under the laws of the State of
Tennessee, the within named bargainer and that they are authorized to execute
this instrument on behalf of said corporation.
WITNESS my hand, at office, this ___ day of December, 1994.
/s/ Xxxxx X. Xxxxxx
Notary Public
My Commission Expires:
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EXHIBIT A
Land in the 0xx Xxxxx Xxxxxxxx of Bedford County,
Shelbyville, Tennessee, more particularly described as follows:
Beginning at a metal pin in fence on the west margin of
Xxxxxxx Boulevard at the southwest corner of the Xxxxxx Xxxx property and the
southeast corner of the herein described tract and running thence with the west
margin of Xxxxxxx Boulevard thence S 54(degree)58'W 36.20 feet to its point of
intersection with the north margin of Eagle Boulevard, thence with the north
margin of Eagle Boulevard N 73(degree)38'W 173.76 feet to a point, thence N
77(degree)13'W 255.00 feet to a metal pin, the southwest xxxxx of the herein
described tract; thence leaving the margin N 10(degree)43'E 724.25 feet to a
metal pin in fence, the northwest corner of the herein described tract; thence S
84(degree)32'E 165.70 feet to an 18 inch white oak in fence; thence S
85(degree)l9'E 196.57 feet to a metal pin at a cedar snag at fence corner, the
northwest corner of the said Xxxx property and the northeast xxxxx of the herein
described tract; thence with Xxxx'x west line S 03(degree)09'W 134.10 feet to a
point in fence; thence S 03(degree)54'W 631.95 feet to the point of beginning,
containing 7.06 acres.
Being the property conveyed to The Industrial Development
Board of the City of Shelbyville, Tennessee, by instrument of record in Deed
Book _____, page _____, Register's Office for Bedford County, Tennessee.
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EXHIBIT B
PERMITTED ENCUMBRANCES
1. Taxes for the current year.
2. Matters shown on the survey of Xxx Xxxxxxxxx, Registered Land
Surveyor, dated February 21, 1994.
3. Easement to the City of Shelbyville, dated December 17, 1974,
of record in Deed Book 130, page 215, Register's Office for
Bedford County, Tennessee.
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LEASE
This LEASE, made and entered into on this the _____ day of February,
1994, by and between XXXX XX PARTNERSHIP hereinafter referred to as "Lessor,"
and DESA INTERNATIONAL, INC. hereinafter referred to as "Lessee".
WITNESSETH:
Lessor does hereby lease, demise and let unto Lessee a 53,000 square
feet building located on seven (7) acres of land at 000 Xxxxx Xxxx. in the 0xx
Xxxxx Xxxxxxxx xx Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx including finishing per
attached Schedule A (the "Leased Premises") with cost not to exceed nine hundred
thousand dollars ($900,000), and more specifically described as follows:
Beginning at a metal pin in fence on the west margin of Xxxxxxx
Boulevard at the southwest corner of the Xxxxxx Xxxx property and the
southeast corner of the herein described tract and running thence with
the west margin of Xxxxxxx Boulevard thence S 54 58' W 36.20 feet to
its point of intersection with the north margin of Eagle Boulevard,
thence with the north margin of Eagle Boulevard N 73 38' W 173.76 feet
to a point, thence N 77 13' W 255.00 feet to a metal pin, the southwest
corner of the herein described tract; thence leaving the margin N 10
43' E 724.25 feet to a metal pin in fence, the northwest corner of the
herein described tract; thence S 84 32' E 165.70 feet to an 18 inch
white oak in fence; thence S 85 19' E 196.57 feet to a metal pin at a
cedar snag at fence corner, the northwest corner of the said Xxxx
property and the northeast corner of the herein described tract; thence
with Xxxx'x west line S 3 09' W 134.10 feet to a point in fence; thence
S 3 54' W 631.95 feet to the point of beginning, containing 7.06 acres.
For title source see Deed Book 166; Page 240 in the Office of the
Register of Deeds, Bedford County, Tennessee FN 94-68.
This Lease is made under the following terms and conditions:
1. Term. Based upon completion of all items on Schedule A, this Lease
shall begin on June 1, 1994, and run for a period of one hundred twenty (120)
months from and after that date to May 31, 2004, provided the conditions
hereinafter set forth are faithfully kept and complied with by both parties.
DESA shall have access to the building for equipment installation on and after
May 1, 1994.
2. Purchase Option. Lessee shall have the option to purchase the land
and building at the end of sixty (60) months in May, 1999 for seven hundred
ninety thousand dollars ($790,000) and at the end of one hundred twenty (120)
months in May, 2004 for six hundred thousand dollars ($600,000).
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3. Renewal Option. Lessee shall have the option to renew the lease for
an additional sixty (60) month period to May 31, 2009 upon the condition that
there is no default in performance of any condition of this Lease for which a
notice of default has been given to Lessee. Such renewal term shall be upon the
same terms, covenants and conditions hereof. Further, Lessee shall have the
option at the end of such renewal period to purchase the land and building in
May, 2009 for one hundred thousand dollars ($100,000).
4. Rental. The rental price on this building during the term of the
Lease shall be ELEVEN THOUSAND FIVE HUNDRED DOLLARS ($11,500) per month, payable
by the fifteenth day of the Lease period and thereafter on the same day of each
month during the 120 months.
5. Modifications by Lessor. Lessor agrees to complete additions to the
structure as requested by the lessee which will be on the same terms and
conditions as this lease as long as interest rates and insurance rates remain
constant. Any improvements and modifications to be made by Lessor shall utilize
materials which are new, and both workmanship and materials shall be of
first-class quality.
6. Improvements by Lessee. Any improvements made by Lessee shall remain
the property of the Lessee and may be removed upon the expiration of the lease.
Lessee shall repair any damage occasioned by such removal. Should Lessee not
desire to remove said improvements, then, and in that event, Lessor may purchase
same for an amount equal to the original cost of said improvements to Lessee.
7. Insurance and Maintenance. Lessor shall be responsible for
maintaining hazard insurance to the extent of the full insurable value of the
Leased Premises for loss or damage by fire with the standard extended coverage,
vandalism and malicious mischief endorsements.
Lessee shall keep and maintain in good order, condition and repair the
Leased Premises and every part thereof. Lessee shall further maintain in good
order and repair the sidewalks, gutters, curbs, parking area and in lawn in
front of and adjacent to the Leased Premises. Lessee will, at Lessee's sole cost
and expense, maintain comprehensive liability insurance with reference to the
Leased Premises and shall name Lessor as an additional insured thereon.
8. Taxes. Lessee shall pay all real estate taxes and any other taxes
assessed against the property. Lessor will attempt to arrange for in-lieu of tax
agreement per Schedule B.
9. Utilities. Lessee shall be responsible for all utility bills and
deposits for the Leased Premises.
10. Return of Premises. Lessee agrees to return the premises at the end
of this Lease or any term renewal term in as good a condition as when this Lease
was entered into, normal wear and tear expected, or otherwise to be responsible
for repairs.
11. Restoration of Premises by Lessor.
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a. In the event the Leased Premises are damaged or destroyed or
rendered partially untenantable for their then use by fire or other casualty,
the Lessor shall promptly repair (but only from insurance proceeds received by
Lessor pursuant to the provisions of this Lease, less the cost of any such
recovery) the Leased Premises and restore the same to substantially the
condition in which they were immediately prior to the happening of such
casualty. Lessor's obligation to repair shall not extend to any improvements,
additions or personalty of the Lessee.
b. Rent Abatement. During the period from the date of such casualty
until the Leased Premises are repaired and restored, Lessee's obligations to pay
any basic rental due hereunder shall xxxxx. The abatement shall be in the
proportion of the Leased Premises destroyed or rendered untenantable to the
total Leased Premises.
c. Termination Option. Notwithstanding the foregoing, in the event that
fifty percent (50%) or more of the Leased Premises or fifty percent (50%) or
more of the improvements located thereon are destroyed or rendered untenantable
by fire or other casualty, either party shall have the option to terminate this
Lease effective as of the date of such casualty by giving to the other party,
within forty-five (45) days after the happening of such casualty, written notice
of such termination. Upon the happening of such event, Lessor shall retain all
insurance proceeds payable to it pursuant to the provisions of this Lease.
12. Condemnation.
a. Complete or Substantial Condemnation. If the whole of the Leased
Premises or such portion thereof as will make the Leased Premises unsuitable for
the purposes leased is condemned for any public use or purpose by any legally
constituted authority, then, and in either of such events, this Lease shall
cease from the time when possession is taken by such public authority, and
rental shall be accounted for between Lessor and Lessee as of the date of the
surrender of possession. Such termination shall be without prejudice to the
rights of either the Lessor or Lessee to recover compensation from the
condemning authority for any loss or damage caused by such condemnation. Neither
Lessor nor Lessee shall have any rights in or to any award made to the other by
the condemning authority.
b. Partial Condemnation. If, during the term of this Lease, less than
the entire Leased Premises shall be taken in any such proceeding and if the
Leased Premises is not thereby rendered unsuitable for the purposes leased,
then, and in that event, this Lease shall upon vesting of title in the
proceeding, terminate solely as to the part so taken, and Lessor shall be
entitled to the total award made in any such proceeding. If this Lease is not
terminated as a result of complete or substantial condemnation as hereinabove
set for, this Lease shall continue for the balance of its term as to the part of
the Leased Premises remaining without any reduction or abatement of or effect
upon the term hereof or the liability of the Lessee to pay in full the rent
herein provided to be paid.
13. Assignment--Lessor's Consent Required. The Lessee may sublet all or
portions of the Leased Premises for the remainder of the term with the approval
of the Lessor, which approval shall not be unreasonably withheld, provided that
the business or occupation of the sublessee is not extra hazardous, disreputable
or illegal and provided further that the Lessee
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shall remain primarily liable for the payment of the rent herein reserved and
for the performance of all other terms of this Lease required to be performed by
Lessee.
14. Indemnification. Lessor warrants that there are no environmental
problems associated with this land and agrees to indemnify Lessee from any
violation of an Environmental Protection Agency guideline which is now existing,
and Lessee agrees to offer the same indemnification to Lessor for any violation
which might occur during its occupancy or because of its use of the property.
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IN TESTIMONY WHEREOF witness the signatures of the parties hereto on
the day and date first above written.
LESSOR:
XXXX XX PARTNERSHIP
BY:________________________________
LESSEE:
DESA INTERNATIONAL, INC.
BY:________________________________
Xxxx X. Xxxxxx
Vice President
STATE OF TENNESSEE
COUNTY OF BEDFORD
I, the Undersigned, a Notary Public in and for the State and County
aforesaid, do hereby certify that _________________ did personally appear before
me and did certify and declare that he is the Managing Partner of a Tennessee
general partnership, and that he acknowledged he executed the foregoing Lease as
Managing Partner thereof on behalf of said partnership as duly authorized by the
partnership and as the act of the partnership for the purposes therein stated on
this ______day of ___________ , 1994.
-------------------------
NOTARY PUBLIC
MY COMMISSION EXPIRES:____________
STATE OF TENNESSEE
COUNTY OF BEDFORD
I, the undersigned, a Notary Public in and for the State and County aforesaid,
do hereby certify that the foregoing Lease was executed before me by DESA
International, Inc. by and through Xxxx X. Xxxxxx its Vice President, and that
the said Xxxx X. Xxxxxx personally appeared before me, after being first duly
sworn, and declared that he was the officer
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designated and that he executed the foregoing Lease as Vice President of the
Corporation and that the execution of this Lease is the voluntary act and deed
of the Corporation.
WITNESS my hand on this ____ day of _____________, 1993.
-------------------------
NOTARY PUBLIC
MY COMMISSION EXPIRES:____________
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SCHEDULE A
PROJECT DESCRIPTION
CONCRETE FLOOR SLAB
CONCRETE SLAB ON GRADED TRUCK DOCK
ELECTRICAL
1. 800 AMP SERVICE
2. HIGH BAY HALITE LIGHTING FIXTURES
3. 110 V RECEPTACLES
4. 220 V RECEPTACLES
SPRINKLER SYSTEM FACTORY AREA
LOADING DOCKS, LEVELERS & SEALS
OUTSIDE UTILITIES, GAS, WATER ELECTRICAL SEWER &
SPRINKLER SYSTEM
SHOP RESTROOMS / BREAK ROOM
OFFICE SPACE
OFFICE SPRINKLER SYSTEM
OFFICE AREA ELECTRICAL, HEATING & COOLING
FACTORY HEATING SYSTEM
PAINT MIXING ROOM
MANTEL MANUFACTURING WALLS
GENERAL AIR PLUMBING
LP GAS PLUMBING
SECURITY SYSTEM / FIRE PROTECTION / PAGING SYSTEM
COOLING FANS (4)
PAVED PARKING LOT & DRIVEWAYS
WASHER PITS
February 15, 1994
Xxxx Xxxx, Xx. & Associates
Xxxx Construction Co.
713 Xxxxxxx
Xxxxxxxxxx, XX 00000
In Re: Xxxxx-Xxxxxx Building, Shelbyville, Tn.
Gentlemen:
As Mayor of the City of Shelbyville, I believe there will be no problem
with the Shelbyville Industrial Bond Board granting an in-lieu of tax agreement
to your firm if you should purchase the captioned building for manufacturing
purposes.
The City of Shelbyville Bond Board does have the authority to grant
in-lieu of tax arrangements with industrial clients who establish manufacturing
facilities in Shelbyville. We have done this for many corporations in the past.
This would have to be voted on by the entire bond board, but I do not
foresee there being a problem with the request.
Sincerely,
Mayor Xxxxx Xxxxxxxx
SCHEDULE B
February 18, 1994
Xx. X. X. Xxxxxx, President
DESA, INTERNATIONAL
X.X. Xxx 00000
Xxxxxxx Xxxxx, XX 00000-0000
Re: Real Estate Tax Abatement
Dear Xx. Xxxxxx:
In reference to your letter of February 16, 1994 regarding the Real Estate Tax
Abatement on the Xxxxx-Xxxxxx Building through a lease arrangement with Xxxx
Xxxx, Xx., I, as Mayor, have discussed this arrangement with a majority of
Shelbyville City Council members and in conjunction with Xxxx Xxxxxx.
We are confirming negotiations as follows:
1st five years 0 Tax
6th year 60% Tax
7th year 70% Tax
8th year 80% Tax
9th year 90% Tax
10th year 100%Tax
We hope this will satisfy your needs at this time and if we can be of further
assistance to you, please call.
Cordially,
Mayor Xxxxx Xxxxxxxx, III
cc: Xxxx Construction Co.
Xxxx Xxxx, Xx.
ADDENDUM TO LEASE
This Addendum to Lease made and entered into on the _____ day of March,
1996, by and between SHELBYVILLE INDUSTRIAL SPEC BUILDING - WRS - PARTNERSHIP
(Lessor) and DESA INTERNATIONAL. INC. (Lessee).
WHEREAS, the parties have heretofore entered into a Lease dated the
25th day of February, 1994, the subject of which is the 7 acres located at 000
Xxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxx, and upon which is
located a 53,000 square foot industrial building presently used by Lessee; and
WHEREAS, the Lessor was designated in the aforesaid Lease of February
25, 1994, as "Desa ll Partnership;" however, at the request of Lessee, the
partnership name of Lessor was changed to Shelbyville Industrial Spec Building -
WRS Partnership; and
WHEREAS, Lessee has requested Lessor to provide an additional 20,000
square feet of building space as an addition to the present facility located
upon the leased premises; and
WHEREAS, the parties desire to enter into this Addendum to reflect
their new rental arrangement.
Now, therefore, for and in consideration of the mutual promises and
covenants contained herein, the parties agree as follows:
1. Paragraph No. 1 of the Lease is deleted and substituted in its stead
is the following: "1. Term. Based upon completion of the 20,000 square
foot addition, the modified terms of this Lease shall begin on March
15, 1996, and run for a period of 1 12 months from and after that date
to July 15, 2005, provided the conditions hereinafter set forth are
faithfully kept and complied with by both parties. Desa shall have
access to the building for equipment installation and other use on and
after May 1, 1996, or sooner if completion allows."
2. Paragraph No. 2 of the Lease is deleted and substituted in its stead
is the following:
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"2. Purchase Option. Lessee shall have the option to purchase the land
and the building at the end of 52 months, that is July 15, 2000, for
$1,085,000.00, and at the end of 112 months, that is July 15, 2005, for
$820,000.00."
3. Paragraph No. 3 of the Lease is deleted and substituted in its stead
is the following:
"3. Renewal Option. Lessee shall have the option to renew this Lease
for an additional 60 month period to July 15, 2010, upon the condition
that there is no default in the performance of any condition of this
lease for which a notice of default has been given to Lessee and has
not been cured. Such renewal term shall be upon the same terms,
covenants and conditions hereof. Further, Lessee shall have the option
at the end of such renewal period to purchase the land and building in
July, 2010, for $140,000.00."
4. Paragraph No. 4 of the Lease is deleted and substituted in its stead
is the following:
"4. Rental. The rental price on this building during the term of this
Lease shall be $15,500.00 per month, payable by the 15th day of the
Lease and thereafter on the same day of each month during the 112
months."
5. All other terms and conditions of the original Lease remain in full
force and effect. In the event of any conflicts or inconsistencies
between the original Lease and the terms of this Addendum, the terms of
the Addendum shall control.
WITNESS our signatures the day and date first above written.
LESSOR:
SHELBYVILLE INDUSTRIAL SPEC
BUILDING - WRS - PARTNERSHIP
By: /s/ X. X. Xxxx
LESSEE:
DESA INTERNATIONAL, INC.
By: /s/ X. X. Xxxxxxx
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STATE OF TENNESSEE
COUNTY OF
I, the undersigned, a Notary Public, in and for State and County
aforesaid, do hereby certify that X. X. Xxxx, did personally appear before me
and did certify and declare that he is the Managing Partner of a Tennessee
General Partnership, Shelbyville Industrial Spec Building - WRS - Partnership,
and he acknowledged that he executed the foregoing Addendum to Lease as Managing
Partner thereof on behalf of said Partnership as duly authorized by the
Partnership and as an act of the Partnership for the purposes therein contained.
Witness my hand and official seal this __ day of April, 1996.
/s/ Xxxxxxx X. Xxxxxxx
NOTARY PUBLIC
My commission expires:
STATE OF
COUNTY OF
I, the undersigned, a Notary Public, in and for State and County
aforesaid, do hereby certify that the foregoing Addendum to Lease was executed
before me by Desa International, Inc., by and through X. X. Xxxxxxx, its
President, and that he personally appeared before me, after being duly sworn and
declared that he was the Officer designated and that he executed the foregoing
Addendum to Lease as such Officer of the Corporation and that the execution of
the Lease is the voluntary act and deed of the Corporation.
Witness my hand and official seal this __ day of April, 1996.
/s/ Xxxxx Xxxxx Xxxxx
NOTARY PUBLIC
My commission expires:
