EXHIBIT 10.10
LEASE AGREEMENT BETWEEN
FLOUR CITY ARCHITECTURAL METALS
AND ARECO
This Instrument Prepared By: XXXX X. XXXXXXXXX, Attorney at Law
Xxxxxx Xxxxx, Xxxxx 0
0000 Xxxxxx Xxxxxx
X.X. Xxx 0000 XXX
Xxxxxxx Xxxx, XX 00000
(000) 000-0000
LEASE AGREEMENT
This Lease Agreement (the "Lease") is made and entered into this
27th day of August, 1999, by and between ARECO, L.P. A DELAWARE LIMITED
PARTNERSHIP, as "Landlord" (also sometimes referred to herein as "Seller")
and FLOUR CITY ARCHITECTURAL METALS, INC., as "Tenant" (also sometimes
referred to herein as "Buyer").
WITNESSETH: That the said Landlord does hereby lease to Tenant and
Tenant does hereby hire from Landlord the following described Premises:
Approximately 6.018 acres located in Xxxxxxxx County, Tennessee, and
more particularly described on EXHIBIT A hereto attached (the "Leased
Premises"), beginning on the 31st day of August 1999, (the "Commencement
Date") up through and including the 31st day of December, 2004, for use in
Tenant's regular business or in any other legitimate business, subject to the
terms and conditions of this lease. Tenant shall inspect and accept the
condition of the Leased Premises on the Commencement Date of the Lease.
1. TERM OF THE LEASE
This Lease shall commence upon the Commencement Date and shall
continue for a term up through and including the 31st day of December, 2004
(the "Initial Term"). Tenant may, upon giving Landlord written notice not
less than three (3) months prior to the expiration of the term of this Lease,
renew this Lease for One (1) additional term of Three (3) years (the "Renewal
Term") upon the same terms and conditions as contained in this Lease, except
that the rent during the Renewal Term shall be as stated below.
2. RENT
Tenant covenants to pay Landlord, without demand, the following
stated rent:
Annual Rent Monthly Rent
----------- ------------
Commencement Date to December 31, 2001 $252,000.00 $21,000.00
January 1, 2002 to December 31, 2004 $276,000.00 $23,000.00
Renewal Term (1-1-05 to 12-31-07) $300,000.00 $25,000.00
Rent shall be payable monthly on the 1st day of each month at the office of
the Landlord. If the term of this Lease shall commence on a day other than
the first day of a calendar month, Tenant shall pay Landlord on the
commencement date an amount equal to one such monthly installment of the rent
multiplied by a fraction having as its numerator the number of days remaining
in said month (from and including the day of commencement) and as its
denominator the total number of days in said month.
3. OPTIONS
OPTION TO PURCHASE. Tenant shall retain and Landlord hereby grants
to Tenant an option to purchase the Property (the "Option to Purchase"),
which option shall be exercisable at any time during the term of this Lease,
or as provided in Paragraph 8.1, below. If exercised, the terms of the
purchase and sale shall be as set forth hereinafter.
4. MAINTENANCE AND REPAIRS OF PREMISES
4.a. The Landlord shall, during the term of this Lease, maintain in
proper and usable condition (1) the roof; (2) the gutters and downspouts;
(3) building walls (exterior); (4) foundation and structural members;
(5) structural plumbing; (6) structural wiring and electrical service (but
not including any wiring beyond the circuit breaker box nearest the
electric meter); and (7) all paved surfaces; and shall make all exterior and
interior structural repairs and shall maintain the same in such a manner that
the premises may be used by the Tenant for the purposes for which leased,
except for such repairs as are required by the actions of the Tenant. In
addition, Tenant shall be responsible for any maintenance or repairs
resulting from or occasioned by Tenant's actions, or the actions of any
agent, contractor, sub-contractor or any other person acting on behalf of
Tenant.
-2-
4.b. Landlord represents to Tenant that is has no knowledge of any
hazardous substances buried or deposited on the Leased Premises. If any
hazardous wastes exist on the Leased Premises as of the Commencement Date of
this Lease, Landlord further agrees to save harmless and indemnify Tenant
from and against any and all claims, suits, losses, injuries, damages and
expenses, including reasonable attorney's fees and legal costs, incident to
or resulting from or arising out of the existence of such hazardous waste.
The Tenant agrees to save harmless and indemnify the Landlord from and
against all environmental claims, suits, losses, injuries, damages and
expenses, including reasonable attorney's fees and legal costs, arising out
of any act of Tenant during the Initial Term or any extension term, its
agents, invitees, servants and employees, during the term of this lease and
renewal thereof.
4.c. All plumbing, lighting, electrical, security, mechanical and HVAC
systems (the "Building Interior Systems") are in good working order, or if not,
Landlord shall, prior to the commencement of this Lease, place them in good
working order.
4.d. Tenant shall be fully responsible for the maintenance and repair of
the Building Interior Systems and the lawn.
5. TENANT'S ALTERATIONS, ADDITIONS, INSTALLATIONS, AND REMOVAL THEREOF
5.1. Tenant may, at its own expense, at any time after the date of this
Lease, and during the term hereof, make such alterations or additions to the
leased premises as may be necessary to fit the same for its business. These
improvements, alterations, additions become part of the real estate covered by
this lease unless specific agreement in writing states otherwise. However, trade
fixtures, signs, equipment, furniture or other such property placed in, or
affixed to the premises shall not become the property of the Landlord and shall
be removed by Tenant upon termination of the Lease unless Landlord waives the
requirement of their removal. Notwithstanding the foregoing, Tenant shall not
make any additions, installations, alterations, or modifications to the Leased
Premises which adversely affect the value of the Leased Premises or the
Property.
5.2. Tenant will promptly pay and discharge its obligations for any
such work done on the premises in order that no liens may attach for payments
due any mechanicals or materialman. In the event any lien is levied or
attempted to be xxxxx, Tenant agrees to have the same promptly
-3-
removed by repayment of this obligation or by posting bond so as to bring about
prompt removal of said lien.
6. UTILITIES
6.1. Tenant shall pay all charges for water and other utilities consumed
or used by Tenant upon the leased premises.
7. OBSERVANCE OF LAWS
7.1. Tenant shall fully obey and comply with all public laws,
ordinances, rules or regulations relating to the use of the leased premises,
and will indemnify and save harmless the Landlord from any and all claims
that might arise due to Tenant's noncompliance with same.
8. DAMAGE BY FIRES, ETC.
8.1. If at anytime the Leased Premises should be destroyed or damaged
by fire, explosion, earthquake, windstorm, flood, casualty, or other cause to
such extent that Tenant cannot continue its normal business therein, or if in
Tenant's opinion, the Premises are rendered untenantable or unfit for
occupancy, Tenant shall have the option within a period of thirty (30) days
thereafter to declare this lease terminated as of the date of such damage or
destruction by giving Landlord written notice to such effect, and the rent
shall be apportioned as of such date and all prepaid rent shall forthwith be
repaid. If Tenant does not exercise this option, Landlord shall at his own
expense, perform as rapidly as circumstances permit such rebuilding and
repairs as may be necessary to restore the Premises to their former
condition. From the date of such damage until such restoration is completed
there shall be a pro rata abatement of rent to the extent that and for the
period that the Premises are untenantable. Tenant shall have the right to
exercise its Option to Purchase for a period of thirty days following such
damage or destruction. If Tenant exercises its Option to Purchase following
damage or destruction, Tenant shall be entitled to receive all insurance
proceeds payable as a result of such damage or destruction.
8.2. Tenant shall maintain insurance covering the Leased Premises against
loss or damage by boiler explosion, fire, and the perils specified in the
standard extended coverage endorsement; and in the event of damage or
destruction to the Premises by fire or any of said perils, whether or not
attributable to the negligence of Tenant or its agents, visitors, servants, or
employees, this Paragraph shall control.
-4-
9. TERMINATION BY REASON OF DEFAULT
9.1. In the event that either of the parties hereto shall fail to
perform any covenant required to be performed by such party under the terms
and provisions of this Lease, including Tenant's covenant to pay rent, and
such failure shall continue unremedied for a period of thirty (30) days after
the service of written notice upon such party by the other party hereto, this
Lease may be terminated by the party not at fault.
10. CONDEMNATION
10.1. In the event that during the term of this Lease, or any
extension or renewal thereof, any portion of the Property is taken by
governmental or quasi-governmental authority by exercise of the power of
eminent domain. Tenant shall have the right and option to terminate this
Lease. If Tenant does not elect to terminate this Lease, then the monthly
rental payments from the date of acquisition to the end of the original or
any extended term shall be reduced in proportion to the resulting loss of use
of said Leased Premises by Tenant. If Tenant does not elect to terminate the
Lease, Tenant shall have a period of thirty (30) days from the date of the
filing of any condemnation action by any governmental entity with the power
of eminent domain, or the date Landlord reaches an agreement with any
governmental entity with the power of eminent domain, within which to exercise
its Option to Purchase. Upon timely exercise of the Option to Purchase,
Tenant be entitled to a reduction in the purchase price, equal to the amount
paid to Landlord by the condemning authority. Tenant shall not be entitled to
participate in or receive any part of the damages or award which may be paid
to or awarded Landlord by reason of a taking under this Section. Tenant shall
be entitled to make its own claim for damages resulting from such taking.
11. ASSIGNMENT
11.a. Tenant may assign this Lease or sublet the premises or any
part thereof, including specifically, the Option to Purchase contained
herein, with the written consent of the Landlord, which consent shall not be
unreasonably withheld.
- 5 -
12. TAXES
12.1. Tenant shall pay all personal property taxes and real estate
taxes, assessments and charges which shall be assessed and levied upon the
leased premises or any part thereof during the said term as they become due.
13. INSURANCE
13.1. Tenant shall maintain insurance on the Leased Premises
providing coverage against loss by basic perils with a company licensed to
issue policies of insurance in the State of Tennessee, and the Landlord shall
be named an additional insured as their interests may appear.
13.2. Tenant shall maintain its own basic perils insurance covering
any property owned by it or third parties located within or upon the leased
premises and in the Tenant's care custody or control. Tenant shall maintain
worker's compensation insurance and other policies of insurance in such form
as necessary relating to the conduct of its business on the Property.
14. TENANT'S LIABILITY INSURANCE
14.1. During the term of this Lease or any renewal thereof, Tenant
agrees to carry public liability and property damage insurance protecting
both Landlord and Tenant in at least the amount of $1,000,000.00. A
certificate evidencing such insurance shall be furnished to Landlord naming
Landlord as an additional insured.
14.2. Tenant shall protect, indemnify and save Landlord harmless
from and against all and any claims, suits, actions, liability, injury,
damage and expenses of any kind, including reasonable attorney's fees and
legal costs, (i) caused by or arising out of any breach of or failure by
Tenant to perform Tenant's responsibilities, warranties and conditions under
this Lease or (ii) caused by or arising out of any act or negligence of
Tenant, its agents, invitees, servants and employees, during the Initial Term
or Renewal Term. It is a condition of this save-harmless and indemnification
that Tenant shall receive reasonably prompt notice from Landlord of any claim
against Tenant. Landlord shall protect, indemnify and save Tenant harmless
from and against all and any claims, suits, actions, liability, injury, damage
and expenses of any kind, including reasonable attorney's fees and legal
costs, (i) caused by or arising out of any breach of or failure by Landlord
to perform Landlord's responsibilities, warranties and conditions under this
Lease or (ii) caused by or arising out of any act of negligence of Landlord,
its agents, invitees, servants
- 6 -
and employees, during the term of this Lease and renewal thereof. It is a
condition of this save-harmless and indemnification that Landlord shall
receive notice from Tenant of any claim against Tenant within ten (10) days
after Tenant shall receive notice of such claim.
15. LANDLORD'S RIGHT TO ENTER PREMISES
15.1. Tenant shall permit Landlord and Landlord's agents to enter at
all reasonable times to view the state and condition of the premises, or for
any reasonable purpose.
16. BANKRUPTCY OR RECEIVERSHIP
16.1. In the event a petition in bankruptcy is filed by or against
Tenant or in the event a receiver is appointed to take over the business of
Tenant, or a composition made for creditors, then this lease will remain in
effect as long as the trustee, receiver, or Tenant meets the terms and
conditions of this lease.
17. WAIVER OF SUBROGATION
17.1. The Landlord and Tenant agree to maintain insurance providing
coverage against loss by basic perils on their respective property and
interest in the demised premises and hereby waive all rights of recovery of
one against the other from any claims for losses or damage which may be
covered by the Standard Tennessee Form of Basic Perils Insurance. The
parties agree that they will request their respective insurance companies to
grant such a waiver, provided, however, that this paragraph shall not be
applicable and of no force or effect if all relevant insurance companies fail
to consent thereto. This paragraph shall not limit any rights the Tenant has
under Section 10 above.
18. ESTOPPEL CERTIFICATE AND SUBORDINATION, ATTORNMENT, NON-DISTURBANCE
18.1. Landlord and Tenant agree that at any time and from time to
time, but not more than ten (10) days after written request by either of them
to the other, to execute, acknowledge and deliver to the requested party:
(i) a Subordination, Attornment and Non-Disturbance Agreement, and (ii) a
statement in writing certifying that this Lease is unmodified and is in full
force and effect (or if there have been such modifications, that the same is
in full force and effect as modified, and stating the modification) and that
there are no material and continuing defaults
- 7 -
by either party and the date to which the rental and other charges have been
paid in advance, it being intended that any such statement delivered pursuant
to this section may be relied upon by any prospective purchaser of the fee,
mortgagee or assignee of any mortgage upon the fee or leasehold interest in
the Demised Premises or by the assignee of the Tenant.
19. MISCELLANEOUS PROVISIONS
19.1. If any provision of this Lease Agreement or any application
thereof shall be invalid or unenforceable, the remainder of this Lease
Agreement and any other application of such provision shall not be affected
thereby.
19.2. Landlord covenants that Tenant shall at all times peaceably
and quietly have, hold, and enjoy the premises during the term of this Lease
Agreement.
19.3. This Lease Agreement will be simultaneously executed in two
or more counterparts, each of which shall be deemed a fully enforceable
original but all of which together shall constitute one and the same
instrument.
19.4. No changes, additions, or interlineations made to this Lease
Agreement shall be binding unless initialed by both parties.
19.5. This Lease Agreement supersedes all agreements previously
made between the parties relating to its subject matter. There are no other
understandings or agreements between them.
19.6. UTILITIES. There are presently in existence at the Property,
telephone, water, sewer, and electrical lines, sanitary sewers, and storm
sewers or other approved surface draining systems satisfactory to Buyer,
which utilities and systems have been completed, installed, and fully paid
for, and which are fully sufficient in their current condition to service
the operations of the Property.
19.7. STRUCTURAL SOUNDNESS AND COMPLIANCE. To the best of Seller's
knowledge, information, and belief, and without any cause to believe
otherwise, Seller represents, warrants,
- 8 -
and agrees that the Property, as of the date of Closing, contains no latent
defects; that the equipment and systems serving the Property, including, without
limitation, the plumbing, heating, air conditioning, and electrical systems, are
in good working order; that the roof of every building is sound; and that all
pavement, curbs, lighting, landscaping, and other related improvements are in
good condition and contain no latent defects.
19.8. ACCESS. The Property has direct, perpetual, valid and
enforceable access to Fordtown Road.
20. TERMS OF PURCHASE
If the Option to Purchase in Article 4, Section 8.1 or Section 10.1 of
this Lease is exercised by Tenant, the following terms and conditions shall
constitute the "Contract of Sale" for such purchase which Contract of Sale shall
have an effective date of the date upon which Landlord receives written notice
of the exercise of the Option to Purchase.
20.1. SALE OF PROPERTY. Seller agrees to sell to Buyer, and Buyer agrees to
purchase from Seller the Leased Premises, together with all improvements and
fixtures now or hereafter located thereon, and together with all personal
property located thereon, whether tangible or intangible. (All of the above
properties are hereinafter collectively referred to as the "Property", the
improvements and fixtures are sometimes separately referred to as
"Improvements", and the personal property is sometimes hereinafter referred to
as the "Personal Property.")
20.2. PURCHASE PRICE. If the Option to Purchase contained herein is
exercised by Tenant, the Purchase Price will be determined as of the date of
exercise in accordance to the following schedule:
Period in which Option is Exercised Resulting Purchase Price
----------------------------------- ------------------------
Commencement Date to December 31, 2000 $2,200,000.00
January 1, 2001 to December 31, 2002 $2,300,000.00
January 1, 2003 to December 31, 2004 $2,450,000.00
Buyer agrees that the Purchase Price will be payable as follows:
a) $100,000.00 upon exercise of the Option to Purchase as
xxxxxxx money;
-9-
b) The balance in cash or cashier's check at closing.
20.3. TITLE. Seller is the owner of good and marketable fee simple
title to the Property, free and clear of any liens, mortgages, assessments,
pledges, security interests, options, encumbrances, easements, tenancies,
covenants, restrictions, conditions, charges, agreements, encroachments, and
all other encumbrances and exceptions to title which would adversely affect
the use of the property for its intended purpose by Buyer, or its
marketability.
If Buyer's title insurance binder discloses matters or defects in the
title to the Property, other than those matters created or caused by Buyer,
Buyer shall give Seller written notice of the same, and Seller may be allowed a
reasonable time, not in excess of thirty (30) days from such notice, within
which to cause the matter or defect to be cured. In the event Seller elects not
to cure any title defect under this paragraph, then Buyer may elect to accept
the defect and proceed to close the transaction, or Buyer may cancel this
Contract by notice in writing to Seller, whereupon the Xxxxxxx Money shall be
returned to Buyer, and each party shall be released from further liability to
the other.
20.4. SURVEY. Buyer shall obtain a newly certified "as-built" Land
Title Survey of the Property prepared by a licensed surveyor. The survey must
be sufficient in form and content to allow a title insurance company to
delete the standard survey exception and must show on its face that the
Property is not located within any recognized flood hazard area. If the
survey is not acceptable to the title insurance company, shows the dimensions
of the Property to be materially different than as set forth on Exhibit A, or
shows encroachments, and Seller elects not to remedy said encroachments, then
Buyer, within thirty (30) days from receipt of the survey, shall have the
right upon written notice to Seller to terminate this Contract or to close
the purchase and sale of the Property regardless of the condition.
20.6. TAXES AND ASSESSMENTS. Taxes and assessments shall be prorated
at closing.
-10-
20.10. GENERAL REPRESENTATIONS, WARRANTIES, AND AGREEMENTS OF SELLER.
Seller represents, warrants, and agrees as follows as of the date of this
Contract and the date of Closing:
A. To Seller's actual knowledge, the Property is or at closing
will be free and clear of any and all liens except for any existing liens and
lien for current year's taxes, and no party is in a position to file any lien
against the Property.
B. Seller knows of no violation of any laws, municipal ordinances,
orders, or other requirements of any governmental entity which affect or
might affect the Property.
C. To Seller's actual knowledge, there are currently no lawsuits
involving the Property, nor any contingent liabilities involving the Property
or the continued operation of the Property.
D. To Seller's actual knowledge, there is no pending or threatened
condemnation or similar proceeding affecting the Property or any portion
thereof, and Seller has no knowledge that any such action is presently
contemplated.
E. To Seller's actual knowledge, Seller has no information or
knowledge that there are any laws, ordinances, or restrictions, or any
changes contemplated therein, or any judicial or administrative action, or
any action by adjacent landowners or natural or artificial conditions upon
the Property, or any other fact or condition which would have a material
adverse effect upon the Property or its value, which has not been disclosed
in writing to Buyer.
F. To Seller's actual knowledge, title to the Property is as
represented herein. Present zoning of the Property allows commercial uses.
There are no pending or threatened proceedings relating to the zoning of the
Property.
G. To Seller's actual knowledge, neither Seller nor the Property
is subject to any pending proceedings under any state or federal insolvency
or bankruptcy legislation. To Seller's knowledge, no such proceedings, either
voluntary or involuntary, are imminent or threatened.
-11-
20.11. CONDITIONS TO CLOSING. The obligation of Buyer to purchase the
Property and to perform Buyer's other obligations hereunder shall be subject
to the following conditions, which may be waived, in whole or in part, but
only in writing by Buyer:
A. All representations, warranties, and agreements made by Seller
herein shall be true and correct in all respects on and as of the date of
Closing, with the same force and effect as if made on and as of such date,
and Seller shall have performed all covenants and obligations and complied
with all conditions required by this Contract in a timely manner.
B. Buyer must be able to obtain a title insurance commitment to
issue an ALTA Form B owner's policy of title insurance, with standard
exceptions.
In the event any of the conditions set forth above are not satisfied the
obligations of the parties to each other under this Contract shall cease.
20.12. BROKERS AND COMMISSIONS. Seller and Buyer each warrant to each
other that there are no brokers or other parties entitled to receive a
commission or other fee with respect to the sale of the Property other than
Xxxx Corporation who shall receive a real estate commission as specifically
set forth on EXHIBIT B, attached hereto and incorporated as if fully set
forth herein, to be paid at Closing out of Seller's funds. Each party will
indemnify and hold harmless the other from any and all claims for broker's
commissions and similar claims arising from said Indemnitor's actions.
20.13. CLOSING. The Closing shall be held at the office of Xxxxxxxxx &
XxXxxxxxx, 0000 Xxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxxx on or before
Forty-five (45) days after exercise of the Option to Purchase. Buyer shall
have the right to determine the actual date of Closing upon giving Seller at
least five (5) days written notice, provided such date shall be reasonably
convenient to Seller.
At Closing, all documents necessary for the conveyance of the Property
and the payment of the Purchase Price, shall be executed and delivered. Said
documents shall include, without limitation, the following:
-12-
A. General Warranty Deed transferring the Property from Seller
to Buyer, subject only to the Permitted Exceptions and any other matter approved
by Buyer. Buyer agrees to obtain a policy of owner's title insurance;
X. Xxxx Affidavits, Survey, Surveyor's Certificate,
Confirmations, Consents, Approvals, and other documents contemplated by this
Agreement, or reasonably required by Buyer's Title Insurance Company.
20.14. CLOSING COSTS AND ADJUSTMENTS.
A. Seller will be responsible of the costs and expense of the
termite letter, payoff letters, consents, or approvals required hereunder, the
costs of satisfying and releasing any existing liens, and all other fees, costs,
and expenses incurred by Seller in connection with and relating to satisfaction
of the terms and conditions hereof, and Seller's own attorney's fees.
B. Buyer shall be responsible for the costs of inspecting the
Property, the cost of title insurance and documentary stamps, costs of
completing all other due diligence requirements, and Buyer's attorney's fees.
C. At Closing, the following adjustments between the parties
shall be made as of 12:01 a.m. on the date of Closing.
(i) City, state, and county real and personal
property ad valorem taxes shall be apportioned as of the date of Closing. If the
amount of such taxes for the year in which the Closing occurs cannot reasonably
be determined, the apportionment shall be based upon the amount of taxes for the
next preceding tax year, and later adjusted.
20.15. NOTICE. All notices hereunder, shall be in writing, signed by
the party giving the notice, and shall be delivered personally or sent by
certified mail, postage prepaid, return receipt requested, address to as
follows:
TO BUYER: Flour City Architectural Metals, Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 0
Xxxxxxx Xxxx, Xxxxxxxxx 00000
000-000-0000 (ph)
000-000-0000 (fax)
With Copy to
-13-
Buyer's Counsel: Xxxx X. Xxxxxxxxx, Attorney at Law
Xxxxxx Xxxxx, Xxxxx 0
0000 Xxxxxx Xxxxxx
X.X. Xxx 0000 XXX
Xxxxxxx Xxxx, Xxxxxxxxx 00000
TO SELLER: Areco, L.P.
C/o Xxxxxxx X. Xxxx
0000 Xxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
With copy to Xxxx Xxxxx
Seller's Counsel: Benesch, Friedlander, Xxxxxxx & Aronoff
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
or at such other addresses which may hereafter be designated in writing by any
party. The date of personal delivery, or three (3) days after the date of
mailing, as the case may be, shall be the date of such notice or other
communication.
20.16. CASUALTY. Seller shall maintain in full force and effect all
insurance policies currently covering the Property until Closing, and shall
furnish Buyer with copies of the same, if required by Buyer in writing. The
risk of loss or damage to the Property from fire, flood, windstorm, or other
casualty, shall be borne by Seller until delivery of the General Warranty
Deed to Buyer, as contemplated herein. Risk of loss or damage to the Property
after delivery of the Warranty Deed shall be borne by Buyer. If, before the
date of Closing, the Property is damaged by any such casualty, Buyer shall
have the option either to terminate this Contract or to complete the purchase
contemplated hereunder. In the event Buyer elects to terminate this Contract
due to casualty as defined in this Section, Buyer shall be entitled to the
return of all Xxxxxxx Money and Buyer and Seller shall be relieved and
discharged of further obligations hereunder. If, however, Buyer elects to
complete the transaction, there shall be no reduction in the Purchase Price,
and, if such option is available through Seller's insurance carrier, Buyer
shall be entitled to negotiate for and receive from any insurance carrier or
responsible party all
-14-
insurance proceeds or damages attributable to the casualty, including rent
loss insurance. At the time of such loss, Seller shall execute and deliver to
Buyer all instruments for the assignment and collection of such insurance
proceeds and claims for damages. If the policy of insurance requires the
building to be reconstructed or restored, there shall be no reduction in the
purchase price; provided that if the restoration or reconstruction costs are
less than the proceeds payable under the policy, the purchase price shall be
reduced only by the difference between the proceeds payable pursuant to the
policy and the cost of reconstruction or restoration. If reconstruction or
restoration shall be required, it shall be performed to the plans and
specifications of Buyer, except that if Buyer's plans and specifications
require an expenditure of money in excess of the proceeds of the insurance
policy, Buyer shall be responsible for the excess cost.
20.17. MISCELLANEOUS
A. This Contract constitutes the sole and entire agreement
between Buyer and Seller. No modification hereof shall be binding unless made
in writing and executed by Buyer and Seller. No representations, promises, or
inducements not included in this Contract, or any verbal modification or
amendment hereof, shall be binding upon Buyer or Seller. This contract shall
be binding upon and shall inure to the benefit of Buyer and Seller, and their
respective heirs, successors, assigns, beneficial owners and representatives.
B. Time is of the essence of this Contract.
C. The validity, construction and interpretation of this
Contract shall be determined in accordance with the laws of the State of
Tennessee.
D. The captions used in this Contract are for purposes of
convenience only and shall not be construed or interpreted so as to limit or
define the effect of this Contract.
E. All agreements, representations, and warranties of the
Seller contained in this Lease and Contract shall survive the Closing of this
transaction.
F. This Contract may be executed in several counterparts,
each of which shall be deemed an original, and all such counterparts together
shall constitute one and the same instrument.
- 15 -
G. Buyer may waive any provision hereunder which is a
condition to Buyer's performance and may elect to close the transaction.
H. Obligations owed by Buyer to Seller under the terms of
this Agreement, or otherwise, may be offset against obligations owed by
Seller to Buyer.
I. Where certification of any document is required
hereunder, the certification shall state that the contents of the certified
documents are true, correct, and complete in all material respects and (where
appropriate) prepared in accordance with generally accepted accounting
principles consistently applied; that there are no facts known as of the
date of certification which would alter the information contained thereon in
any way whatsoever, and that the certification is given as an inducement to
the consummation of the transaction contemplated herein.
J. Seller certifies, represents, and warrants, under
penalty of perjury, that Seller is not a foreign person or non-resident alien
for purposes of Section 1445 of the Internal Revenue Code, or any related
provisions, and Seller will execute such further certifications with respect
thereto as Buyer may require.
AND IT IS MUTUALLY UNDERSTOOD AND AGREED that the covenants, warranties
and representations and agreements herein contained shall survive the lease
and the contract of purchase herein contained, and shall inure to the benefit
of and be equally binding upon the respective executors, administrators,
heirs, successors, and assigns of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this lease the day
and year first above written.
LANDLORD:
ARECO, L.P.
A DELAWARE LIMITED PARTNERSHIP
By: /s/ [ILLEGIBLE]
------------------------------
General Partner
- 16 -
TENANT:
FLOUR CITY ARCHITECTURAL METALS, INC.
By: /s/ [ILLEGIBLE]
---------------------------------------
Title: Pres & CEO
---------------------------------------
STATE OF OHIO )
)
COUNTY OF CUYAHOGA )
Before me, _____________________________________________, a Notary
Public of the state and county aforesaid, personally appeared
_________________________________, with whom I am personally acquainted (or
proved to me on the basis of satisfactory evidence), and who, upon oath,
acknowledged himself to be a partner of ARECO, L.P., the within named bargainor,
a Delaware limited partnership, and that he as such partner executed the
foregoing instrument for the purposes therein contained, by signing the name of
the partnership by himself as partner.
Witness my hand and seal, at office this ______ day of ______, 1999.
-------------------------------
Notary Public
My Commission Expires:
----------------------
STATE OF TENNESSEE )
)
COUNTY OF WASHINGTON )
Before me, Xxxxxx Rochester, a Notary Public of the state and county
aforesaid, personally appeared Xxxxx Xxxxxxxx, with whom I am personally
acquainted (or proved to me on the basis of satisfactory evidence), and who,
upon oath, acknowledged himself to be CEO of FLOUR CITY ARCHITECTURAL METALS,
INC., the within named bargainor, a corporation, and that he as such
_________________________, being authorized so to do, executed the foregoing
instrument for the purpose therein contained, by signing the name of the
corporation by himself as _______________________________.
Witness my hand and seal, at office this 27th day of August, 1999.
-17-
/s/ Xxxxxx Rochester
-------------------------------
Notary Public
My Commission Expires:
April 30, 2003
--------------
-18-
