FIRST AMENDMENT TO LEASE
THE FIRST AMENDMENT TO LEASE (the "FIRST AMENDMENT") is made and entered
into as of the 14th day of August, 1998, by and between XX XXXXXXXX (hereinafter
referred to as the "LANDLORD") and XXXXXXXX SIDING AND WINDOW, INC. (hereinafter
referred to as the "TENANT").
RECITALS:
A. Landlord and Tenant have entered into a Net Lease dated January 1,
1997 (the "Lease") for certain premises (the "Premises") located in Mandan,
North Dakota, as more particularly set forth therein.
2. Landlord and Tenant desire to amend the Lease as set forth below.
NOW, THEREFORE, for valuable consideration, receipt and sufficiency of
which is hereby acknowledged, it is agreed between the parties as follows:
1. The first sentence of Paragraph 1 on Page 1 of the Lease shall be
revised to read as follows:
"All equipment and vehicles as per the attached list known as Exhibit
"A;" the portion of the building located at 0000 Xxxx Xxxx Xxxxx
indicated on Exhibit "B;" 2 storage buildings on the east half of Lot
9 at 0000 Xxxx Xxxx Xxxxx 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:
Xxx 0, Xxxxx 0, Xxxx Xxxx Xxxxxxxxxx Sites
2. The following shall be deleted from the first sentence of Paragraph
2 on Page 1 of the Lease:
"and further subject to the rules and regulations for the use thereof
as from time to time prescribed by Landlord."
3. The following shall be inserted as the second sentence of Paragraph
5 on Page 2 of the Lease:
"Landlord grants to Tenant an option to extend the term for two
additional terms of five years each, on the same terms and conditions
as herein set forth. Should tenant elect to exercise such option, it
shall do
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so by written notice to Landlord at least 120 days prior to the
expiration of the term."
4. The first sentence of Paragraph 8 on Page 2 of the Lease shall be
revised to read as follows:
"The tenant agrees to pay to the Landlord as basic rent: Five Thousand
Five Hundred Fifty-Seven Dollars ($5,557.00) per month."
5. The following shall be inserted after the first sentence of
Paragraph 9 on Page 2 of the Lease:
"Tenant shall have the right at its own expense to challenge any tax
or assessment; such challenge will not, however, relieve Tenant=s
obligation to pay such taxes promptly when due. If such challenge
results in a reduction of taxes or assessments, Tenant shall be
entitled to a refund of such reduction within fourteen (14) days of
the date such refund amount is received by Landlord. If the challenge
results in reduction of a xxxx prior to payment by Landlord, Tenant
shall not be entitled to a refund, but shall have its xxxx
appropriately reduced."
6. Paragraph 16 on Page 3 of the Lease shall be deleted in its entirety
and the following shall be inserted:
"The premises will be used by Tenant for any lawful purpose."
7. The following shall be added after the last sentence of Paragraph 20
on Page 4 of the Lease:
"Tenant shall have the right at its own expense to challenge any such
tax increase; such challenge will not, however, relieve Tenant's
obligation to pay such taxes promptly when due. If such challenge
results in a reduction of taxes, Tenant shall be entitled to a refund
of such reduction within fourteen (14) days of the date such refund
amount is received by Landlord. If the challenge results in reduction
of a xxxx prior to payment by Landlord, Tenant shall not be entitled
to a refund, but shall have its xxxx appropriately reduced."
8. The third sentence of Paragraph 21 on Page 4 of the Lease shall be
revised to read as follows:
"Tenant and Landlord each agree to indemnify and save the other party
harmless from and against any and all claims of any nature whatsoever
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arising from any act, omission or negligence of the party or the
party=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 such party is
allegedly responsible."
9. The following shall be inserted at the end of the first sentenced of
Paragraph 25 on Page 5 of the Lease:
"except for intentional or grossly negligent acts of the parties, it
being the intent of the parties that in the event of loss caused by
ordinary negligence, the parties agree to look solely to the proceeds
of insurance policies."
10. The following shall be inserted after the last sentence of Paragraph
29 on Page 6 of the Lease:
"If Landlord shall fail to promptly keep and perform any of its
representations and warranties strictly in accordance with the terms
of this Lease and shall continue in default for a period of thirty
(30) days after written notice thereof to Landlord, then Tenant may,
at its sole option and discretion, exercise any or all of the
following remedies:
(A) declare this Lease ended and vacate the premises without
incurring additional rent or other costs associated with the lease of
the premises; or
(B) remain in the premises and withhold rent and other costs due
Landlord until such time as Landlord cures such default; or
(C) perform any Landlord obligation, and all expenses (including
without limitation, reasonable attorney fees) incurred by Tenant in
performing such obligation shall be deemed an obligation of Landlord
to Tenant and shall be paid to Tenant on demand."
11. Paragraph 30 on Page 6 of the Lease shall be revised to read as
follows:
"In pursuing any of its remedies including the giving of notices of
default Landlord and Tenant shall be entitled to recover from the
other party all of their costs and expenses incurred, including
reasonable attorney fees, through and including appeal and the pursuit
of any
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remedy provided by this lease shall not limit or preclude any other
remedies provided by law."
12. All other terms and conditions of the Lease shall remain the same,
except as expressly modified herein.
IN WITNESS WHEREOF, the parties hereto have hereunto executed this First
Amendment to Lease as of the date set forth above.
LANDLORD:
/s/ Xx Xxxxxxxx
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XX XXXXXXXX
TENANT:
XXXXXXXX SIDING AND WINDOW, INC.
BY: /s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXXX, PRESIDENT
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