NET LEASE
LANDLORD: XX XXXXXXXX, 0000 XXXX XXXX XX., XXX 000, XXXXXX, XX 00000
TENANT: XXXXXXXX SIDING AND WINDOW, INC., 0000 XXXX XXXX XX., BOX 579,
MANDAN, ND 58554
DATE OF LEASE: JANUARY 1, 1997
The landlord hereby leases to the tenant and tenant hereby leases from
the landlord, the premises described herein on the following terms and
conditions:
1. Premises: All equipment and vehicles as per the attached list known
as Exhibit "A" and approximately 6,000 sq. ft. of office space of the
buildings commonly known as the Xxxxxxxx Siding Building, being a part of the
real property situated in the City of Mandan, County of Xxxxxx, State of
North Dakota, described as follows:
Lot 4, Block 1, Twin City Industrial Sites
2. Parking, Common Areas and Access: The tenant and his invitees
shall have the non-exclusive right to the use of the common areas, including
parking areas, sidewalks and such other areas and facilities as may from time
to time be designated by the landlord, all subject to the terms and
conditions of this lease and further subject to the rules and regulations for
the use thereof as from time to time prescribed by the landlord. The landlord
has the right, from time to time, to close any part of the common areas as
may be necessary to prevent a dedication thereof to the public or to prevent
the acquisition of any rights therein by any other person or for the purposes
of making improvements, performing maintenance or doing repairs. Except for
necessary interruptions in connection with construction, maintenance and
repair work or causes beyond the control of the landlord, the landlord will
at all times make available to the tenant and his invitees, reasonable access
to the lease premises and a reasonable number of car parking spaces which,
for the premises as a whole, will be to the best ability of the landlord in
conformity with the applicable regulations of the county and city. The
landlord reserves the right, however, to make some of the car parking space
available on contiguous properties. The tenant shall in no event have the
right to any specific parking spaces nor the right to exclude others from the
use of any parking spaces, but the landlord may, by regulation, designate
areas for tenant and employee parking.
3. Cleaning Common Areas: The tenant will cause the sidewalks, common
areas and parking lot to be maintained in good repair and in a clean,
sanitary and safe condition and will cause
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snow and ice to be removed, all according to the general standards of the
community.
4. Additional Construction: It is anticipated that additions to the
building may be built by the landlord on the described property and that the
building in which the leased premises are situated may be modified. The
landlord reserves the right to perform such construction, but does not assume
the obligation of doing so.
5. Term of Lease: This lease shall commence January 1, 1997 and shall
terminate on the last day of December, 1999.
6. Surrender on Termination: At the expiration of the term of this
lease, or of any renewal or extension thereof, or on the earlier termination
of this lease, the tenant will surrender the leased premises in a clean and
neat condition and in as good condition as when received, reasonable wear and
tear and damage by fire and casualty excepted. The tenant may remove his
trade fixtures and if the landlord so directs, shall remove his trade
fixtures and if such fixtures are removed, shall cause the leased premises to
be repaired or will pay to the landlord such reasonable sum as will defray
the cost of repair necessitated by such removal. Landlord shall have the
right to advertise and place for rent or for sale signs on the premises.
7. Holding Over: If the tenant shall hold over after the expiration
of this lease without a new lease having been entered into, then the tenant
shall be on a month-to-month tenancy, but otherwise on all of the same terms
and conditions as provided in this lease except that all rents, including the
base rent, and all additional charges, will be 20 per cent greater than they
would have been had this lease not expired.
8. Basic Rent: The tenant agrees to pay to the landlord as basic
rent: Seven Thousand One Hundred Fifty Dollars ($7,150.00) per month. The
rent shall be considered paid when received in good funds by landlord or his
authorized agent. All rent shall be paid in advance on the first business day
of each calendar month. The rent for any part month at the beginning or
ending of this lease shall be pro-rated on a daily basis. Any rent not paid
within 5 days of the due date shall be subject to a surcharge of $100, with
said surcharge to be paid at the same time the rent is paid. All rent paid
shall apply to the first rent coming due.
9. Governmental Fees: All fees, taxes and assessments including rent
tax, business tax, real estate tax, payable to the city, county, state and
USA during the life of this lease shall be paid by tenant within 15 days of
receiving notice of fees, assessments or taxes due.
10. Payment of Rent: All rents and other sums due to the landlord
under the provisions of this lease shall be paid to the landlord, Xx
Xxxxxxxx, 0000 Xxxx Xxxx Xxxxx, Xxxxxx, XX.
11. Tenant Deposit: NONE.
12. Interest on Delinquencies: Any delinquent rent or other charges
owed by the tenant to the landlord shall bear interest from the date due
until paid at a maximum rate allowed by law.
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13. Utilities: Tenant hereby covenants and agrees to pay all charges
for heat, lights, water and sewer and for all other public utilities which
shall be used in or charged against the leased premises during the full term
of this lease. Landlord shall not be liable for the failure of any such
services for any reason whatsoever. In the event the leased premises are a
part of a building or larger premises to which such charges are charged as a
whole, with the consent of the landlord, the tenant agrees to pay, upon
demand, a proper and fair share of said charges as determined by the
percentage of building space in the demised premises as compared with the
total building space included in said charge. Tenant shall make no charge for
utilities to other tenants of the same building, without the written consent
of the landlord.
14. Signs: The tenants may maintain such individual signs as are
consistent with the general design and decor of the area and are approved by
the landlord prior to their erection. If, with the landlord's approval, the
tenants' signs are integrated with the general identifying sign established
by the landlord, then each tenant will be responsible for the maintenance of
his own sign, but for that purpose must engage the sign company designated by
the landlord. Signing within the demised premises shall be subject to the
prior written consent of landlord prior to the installation of such signs.
15. Condition of Premises: The tenant accepts the premises in their
existing condition and relies upon his or her own inspection.
16. Use of Premises: The premises will be used by the tenant only for
the purpose of sales and manufacture of window related products.
17. Fire Risk: The tenant shall not do anything on the leased premises
which will increase the fire hazard nor engage in any activity nor store any
materials which are prohibited by law or the ruling of the fire district or
fire marshal or the reasonable regulations promulgated by the landlord. If,
with the consent of the landlord, the tenant lawfully maintains any material
or engages in any activity which increases the fire insurance rates or
otherwise increases the costs of maintaining the premises, the tenant shall
pay such increased cost to the landlord on demand.
18. Repairs and Maintenance: The tenant shall be responsible for the
maintenance and repair of the heating and air conditioning systems, roof,
walls, foundation and structural parts of the premises including all original
plumbing and wiring located within the roof, within the walls or beneath the
floor. The tenant shall, at his own expense, keep and maintain the interior
of the leased premises in a neat, clean condition and in good repair,
including promptly replacing any broken or cracked window glass including
glass located in both interior and exterior walls or partitions. Tenant shall
replace all necessary lighting ballasts, bulbs and tubes and furnace filters.
19. Tenant Repairs by Xxxxxxxx: If the tenant fails or refuses to
perform any repair or maintenance required of him under this lease promptly
after written notice from the landlord,
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then the landlord may make or cause to be made such repairs or maintenance
and the tenant will promptly reimburse the landlord therefor.
20. Alterations: The tenant shall have the right to make alterations,
additions and improvements to the interior of the leased premises, according
to designs approved by the landlord in writing. No structural alterations may
be made by tenant without landlord's prior written consent, which consent
shall not be unreasonably withheld. Any alterations, additions and
improvements which may be made or installed by tenant shall remain upon the
leased premises and, at the termination of this lease, shall be surrendered
with the premises as a part thereof, provided, however, that all personal
property, fixtures and equipment placed on the leased premises by the tenant
may or shall be removed as herein provided. Any increase in real estate taxes
resulting from tenant alterations or improvements shall be paid by the tenant.
21. Liability Insurance: The tenant agrees to secure and maintain
property damage insurance and personal liability insurance with limits of at
least $100,000 property damages and $1,000,000 bodily injury, naming the
landlord and landlord's agent as an additional insured and providing the
landlord or his agent with a certificate of insurance in force including the
name of the insurance company, the effective date of the policy, coverage and
limits provided. Said insurance shall require 30 days notification to
landlord by the insurance company prior to cancellation. The tenant agrees to
indemnify and save the landlord and landlord's agent harmless from and
against any and all claims of any nature whatsoever arising from any act,
omission or negligence of the tenant or the tenant's contractors, licensees,
agents, servants, employees or invitees or arising from any accident, injury
or damage caused to any person or property occurring in or about the leased
premises or elsewhere in the above described property if such accident,
damage or injury is claimed to have resulted from an act for which the tenant
is allegedly responsible. This indemnity and hold harmless agreement includes
costs, expenses and costs of defense.
22. Fire Insurance: Tenant shall, at tenant's sole cost and expense,
keep all buildings and improvements erected upon the demised premises and the
fixtures, other than trade fixtures of tenant or its sublessees, insured for
the benefit of landlord and tenant against loss or damage by fire, with
extended coverage protection, with replacement cost type of insurance, in a
total amount equal to the replacement value of said improvements.
Certificates of such insurance coverage shall be furnished to said landlord
stating that coverage will not be cancelled without ten (10) days prior
written notice to said landlord, and name the landlord as the insured.
23. Plate Glass: Tenant shall also, at tenant's cost and expense,
maintain all plate glass against any and all damage and breakage.
24. Tenant Risk: The tenant will use and occupy the leased premises
and the common areas with respect to which he has a right of use at his own
risk and agrees that the landlord shall
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have no responsibility or liability for any loss or damage sustained by the
tenant including loss or damage of or to his fixtures or his personal
property.
25. Waiver of Subrogation: Each party hereto waives any and every
claim which arises or may arise in its favor and against the other party
hereto during the term of this lease or any renewal or extension thereof for
any and all loss of, or damage to, any of its property located within or
upon, or constituting a part of, the premises leased to tenant hereunder,
which loss or damage is covered by valid and collectible fire and extended
coverage insurance policies, to the extent that such loss or damage is
recoverable under said insurance policies. Said mutual waivers shall be in
addition to, and not in limitation or derogation of, any other waiver or
release contained in this lease with respect to any loss of, or damage to,
property of the parties hereto. Inasmuch as the above mutual waivers preclude
the assignment of any aforesaid claim by way of subrogation (or otherwise) to
an insurance company (or any other person), each party hereto hereby agrees
immediately to give each insurance company which has issued to it policies of
fire and extended coverage insurance, written notice of the terms of said
mutual waivers, and to have said insurance policies endorsed, if necessary,
to prevent the invalidation of said insurance coverages by reason of said
waivers.
26. Assignment and Subletting: The tenant shall not assign or sublet
the whole or any part of the leased premises without the prior written
consent of the landlord, which consent shall not be unreasonably withheld,
and in giving or withholding consent, the landlord will take into
consideration the effect of such assignment or subletting on the entire
property described above. In the event that consent is given to an assignment
or subletting, the tenant shall nevertheless remain liable to the landlord
for the full amount of rent due according to the terms of this lease and the
tenant's liability shall continue despite any modification in this lease
which shall be made at the request of, or by agreement with, any assignee or
sub-tenant. A fee of 25% of one month's rent shall be paid by tenant to
landlord at the time of any assignment for landlord's documentation in
connection therewith.
27. Xxxxxxxx's Right of Entry: The landlord and its authorized agent
shall have the right to enter the demised premises during normal business
hours for the purpose of inspecting the general condition and state of repair
of the premises and for the purpose of making any repairs required of the
landlord and for showing of the premises to any prospective tenant. In the
event of an emergency the landlord and its authorized agents or public
authorities shall have the right to enter the leased premises at any time to
prevent damage to the leased premises or other parts of the above described
property or to preserve the public peace. Landlord shall have a key to the
premises; if the tenant changes locks, tenant shall provide landlord with new
keys.
28. Default by the Tenant: The following events shall constitute events
of default by the tenant:
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(a) The failure of the tenant to pay any installment of rent or
any other sums which are due from the tenant to the landlord in accordance
with any provisions of this lease within 5 days after written notice from the
landlord;
(b) The failure of the tenant to comply with any term, condition
or covenant of this lease if the same is not remedied within 30 days after
written notice from the landlord, or, if such failure cannot reasonably be
remedied within 30 days, if the tenant shall not have commenced remedial
action with diligence and dispatch;
(c) If the tenant shall become insolvent or shall make a
transfer in fraud of creditors or shall make a general assignment for the
benefit of creditors or commit any act of bankruptcy;
(d) If the tenant shall file a petition under any section or
chapter of the bankruptcy laws of the USA or shall be adjudged bankrupt or
insolvent in any proceedings filed by or against the tenant;
(e) If a receiver shall be appointed for the tenant or for all or
substantially all of the assets of the tenant.
29. Remedies of the Landlord: Upon the occurrence of any such event of
default by the tenant, the landlord shall have the option to pursue any one
of the following remedies without further notice or demand:
(a) Terminate all rights of the tenant under this lease, in which
event the tenant shall immediately surrender the premises to the landlord and
if the tenant fails to do so the landlord may, without prejudice to any other
remedy, enter upon the premises by any lawful means and remove the tenant and
his property therefrom or retain the property asserting whatever lien for
rent the landlord may have upon such property, and the tenant agrees to pay
to the landlord upon demand the amount of all loss or damage which the
landlord may suffer by reason of such termination whether through inability
to relet the premises on the same or more favorable terms to the landlord or
otherwise;
(b) The landlord may enter upon the premises and do or perform
whatever the tenant was obligated to do under the terms of the lease and the
tenant shall forthwith reimburse the landlord the cost thereof and the
landlord shall, in such event, endure no liability to the tenant for any such
action, whether caused by the negligence of the landlord or otherwise.
30. Attorney Fees: In pursuing any of its remedies including the
giving of notices of default the landlord shall be entitled to recover from
the tenant all of its costs and expenses incurred, including reasonable
attorney fees, through and including appeal and the pursuit of any remedy
provided by this lease shall not limit or preclude any other remedies
provided by law.
31. Rents after Default: If this lease shall be terminated as herein
provided, the tenant shall nevertheless remain liable for all rents due the
landlord and agrees to pay the same on the dates that the same are due,
together with all other sums due the landlord.
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32. Successor Landlord: Any covenants and agreements binding upon the
landlord as provided in this lease shall be binding upon the landlord only
with respect to and during his ownership of the premises, and if the
ownership of the premises shall be transferred, then from and after the
effective date of the transfer all obligations of the landlord shall be the
sole obligation of the successor landlord.
33. Mortgages: The landlord has full authority to subordinate the
interest of the tenant to any mortgage, deed of trust or other lien placed
upon the demised premises and the tenant will, upon request, execute any
subordination instruments as may be appropriate to carry out this
subparagraph provided that in such subordination this lease shall be
recognized by the mortgagee or beneficiary under a deed of trust, and the
rights of the tenant shall remain in full force and effect during the term of
this lease so long as the tenant shall continue to perform all of his
agreements under this lease.
34. Waiver of Default: No waiver by the parties hereto of any default
or breach of any term, condition or covenant of this lease.
35. Default by Landlord: Landlord shall in no event be in default in
the performance of any of its obligations under this lease unless it has
received written notice from the tenant and has failed to perform such
obligation within 30 days after receipt of such notice or such additional
time as is reasonably necessary to perform the same.
36. Applicable Law: This lease shall be construed and enforced
according to the laws of the State of North Dakota and the venue of any
action brought with respect to this lease may be laid in Xxxxxx County, North
Dakota.
37. Force Majeure: Landlord or tenant shall not be required to perform
any term, condition or covenant in this lease so long as such performance is
delayed or prevented by force majeure, which shall mean Acts of God, strikes,
lockouts, material or labor restrictions by any governmental authority, civil
riot, floods and any other cause not reasonably within the control of
landlord or tenant and which, by the exercise of due diligence, landlord or
tenant is unable, wholly or in part, to prevent or overcome.
38. Exhibits: All exhibits, attachments, annexed instruments and
addenda referred to herein shall be considered a part hereof for all purposes
with the same force and effect as if copied at full length herein.
39. Successors: The terms, conditions and covenants contained in this
lease, shall apply to, inure to the benefit of, and be binding upon the
parties hereto and their respective successors interest and legal
representatives except as otherwise herein expressly provided. All rights,
powers, privileges, immunities and duties of landlord under this lease,
including but not limited to any notices required or permitted to be
delivered by landlord to tenant hereunder, may, at landlord's option, be
exercised or performed by landlord's agent or attorney.
40. Notices: Any notice or document required or permitted to be
delivered pursuant to this lease shall be deemed to have
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been delivered, whether actually received or not, when the same is deposited
in the U.S. Mail, first class, postage paid, registered or certified mail,
return receipt requested, addressed to the landlord or tenant at the address
stated above or at such other address as may have been specified by notice
given as herein provided. Notice given in any other manner shall be effective
only if given in the manner in which legal process may be served as provided
by or if receipt thereof is acknowledged in writing.
41. Telephone Service: Tenant shall, at own expense, install and
maintain telephone service.
42. Estoppels: If requested by landlord, tenant shall execute estoppel
certificates stating the status of this lease.
43. Riders: See attached Exhibit "A".
This lease was on the date thereof executed at Mandan, North Dakota by
the landlord and the tenant. The riders and exhibits referred to herein are
incorporated into this document by this reference.
LANDLORD: TENANT:
/s/ Xx Xxxxxxxx /s/ Xx Xxxxxxxx
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(ACKNOWLEDGMENT FOR INDIVIDUAL)
STATE OF NORTH DAKOTA )
) SS.
COUNTY OF XXXXXX )
On this _____ day of ____________, 199___, before me personally appeared Xx
Xxxxxxxx, known to me to be the landlord and person who is described in and
who executed the within instrument, and acknowledged to me that he executed
the same.
Witness my hand hereto affixed the day and year first written above.
(NOTARY SEAL REQUIRED)
______________________________
Notary Public
Commission Expires ___________
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(ACKNOWLEDGMENT FOR CORPORATION)
STATE OF NORTH DAKOTA )
) SS.
COUNTY OF XXXXXX )
On this _____ day of __________, 199___, before me personally appeared Xx
Xxxxxxxx, known to me to be the President of Xxxxxxxx Siding and Window,
Inc., the corporation that executed the foregoing instrument as tenant, and
acknowledged the said instrument and to be the free and voluntary act and
deed of said corporation, for the uses and purposes therein mentioned, and on
oath state that he is authorized to execute the said instrument and that the
seal affixed is the corporate seal of said corporation.
Witness my hand hereto affixed the day and year first written above.
(NOTARY SEAL REQUIRED)
______________________________
Notary Public
Commission Expires ___________
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