The URL can be used to link to this page

ABC Supply Lease AgreementMasterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: ABC Supply Lease DATE: May 31, 2011 Dubuque hitil All- AmedcaCity 1111 1 2007 Economic Development Director Dave Heiar recommends City Council approval of a five -year lease with American Builders and Contractor's Supply Co., Inc. (ABC Supply) located at 10 S. Main Street. In February of 2010, the City purchased this excess ROW, which includes a 33,452 sq. ft. building, for $330,000 from the Iowa Department of Transportation. This is a land purchase contract and will be paid over six years. At the time of the purchase, the building was leased to ABC Supply Co. The City assumed the lease with ABC Supply Co., which expires on June 1, 2011. The major terms of the proposed lease are: 1. The initial monthly rate is $3,500 and requires the tenant to reimburse the City for any property taxes on this site. 2. The lease is for five years and includes an annual 3% increase. 3. ABC also leases property in this area from Hendricks Commercial Properties, LLC. This lease also expires within the next year. Should ABC not be able to negotiate a lease with Hendricks Commercial Properties, LLC, they would have the right to terminate the lease with the City prior to June 1, 2012, with a 30 day notice. 4. ABC will replace the current lighting system for an estimated cost of $13,000 and the City will be responsible for % of the actual cost for this building improvement up to $6,500. 5. ABC will pay for future building repairs that cost $1,000 or less. I concur with the recommendation and respectfully request Mayor and City Council approval. L_ Michael C. Van Milligen MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager David J. Heiar, Economic Development Director Masterpiece on the Mississippi TO: Michael C. Van Milligen, City Manger FROM: David J. Heiar, Economic Development Director RE: ABC Supply Lease DATE: May 23, 2011 Short term leases (three years or less) can be authorized by the City Manager; however, Iowa law requires that the city hold a public hearing prior to leasing public property for longer than 3 years. Since ABC Supply has requested a lease for 5 years, the City Council set a public hearing for June 6, 2011 prior to acting on this lease. In February of 2010, the City purchased this excess ROW, which includes a 33,452 sq. ft. building, for $330,000 from the Iowa Department of Transportation (IDOT). This is a land purchase contract and will be paid over 6 years. At the time of the purchase, the building was leased to ABC Supply Co. The City assumed the lease with ABC Supply Co., which expires on June 1, 2011. ABC currently pays $2,000 per month rent as the City assumed the lease arrangement ABC had with the previous owner, IDOT. The proposed new lease is for a five year period, from June 1, 2011 to May 31, 2016. The major terms of the proposed lease are as follows: Dubuque AUmedcallb 111 r 2007 INTRODUCTION This memorandum presents for City Council review and approval of a Lease Agreement between the City of Dubuque, Iowa and American Builders and Contractor's Supply Co., Inc. (ABC Supply) for a five year period. DISCUSSION In 2005, the City assisted Tri -State Industries in a relocation to the Dubuque Industrial Center West. The Iowa Department of Transportation acquired Tri- State's property at 10 S. Main Street in anticipation of the expansion of the Julien Dubuque Bridge project. The City agreed to give the company land in the Dubuque Industrial Center West in return for the company's right to reacquire any excess ROW not needed by the IDOT for this project. 1. The initial monthly rate is $3,500 and requires the tenant to reimburse the City for any property taxes on this site. 2. The lease is for 5 years and includes an annual 3% increase. 3. ABC also leases property in this area from Hendricks Commercial Properties, LLC. This lease also expires within the next year. Should ABC not be able to negotiate a lease with Hendricks Commercial Properties, LLC, they would have the right to terminate the lease with the City prior to June 1, 2012, with a 30 day notice. 4. ABC will replace the current lighting system for an estimated cost of $13,000 and the City will be responsible for 1 /2 of the actual cost for this building improvement upto $6,500. 5. ABC will pay for future building repairs that cost $1,000 or less. Further details of the proposed lease are included in the attached lease agreement. RECOMMENDATION /ACTION STEP Following the public hearing, I recommend that the City Council approve a 5 year lease with American Builders and Contractor's Supply Co., Inc. (ABC Supply) located at 10 S. Main Street and authorize the City Manager to sign the lease agreement. Attachment Prepared by David J. Heiar, 50 West 13 Street, Dubuque, IA 52001 563 - 589 -4393 RESOLUTION NO. 187-11 RESOLUTION APPROVING THE DISPOSAL OF AN INTEREST IN REAL PROPERTY OWNED BY THE CITY OF DUBUQUE BY LEASE BETWEEN THE CITY OF DUBUQUE, IOWA AND AMERICAN BUILDERS AND CONTRACTOR'S SUPPLY CO., INC. (ABC SUPPLY) WHEREAS, the City of Dubuque, Iowa (City) owns the real property located at 10 S. Main Street in the. City of Dubuque, Iowa, legally described as follows: - Parcel "B ", located in Block 14 of Dubuque Harbor Company Addition, in the City of Dubuque, as shown and described in Warranty Deed recorded April 29, 2005 in Document No. 2005- 00006524 in the records of Dubuque County, Iowa (the Real Estate); and WHEREAS, City and American Builders and Contractor's Supply Co., Inc. have. negotiated a 5 year Lease Agreement for a building located on the Real Estate, a copy of which Lease Agreement is on file at the office of the City Clerk, City Hall, 13 and Central Avenue, Dubuque, Iowa; and WHEREAS, the City Council believes . it is in the best interests of the City of Dubuque to approve the Lease Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The Lease Agreement between City and American Builders and Contractor's Supply Co., Inc. is hereby approved and the City Manager is authorized to execute said lease on behalf of the City of Dubuque. Passed, approved and adopted this 6 th day of June, 2011. Att -st evin S. irnstahl, Acting City Clerk Roy D c uol, Mayor CITY Or DUBUQUE, IOWA OVINCIAL NOTICE NOTICE is hereby giv- en that the City Council of Dubuque, Iowa, will conduct a public hear- ing at a meeting to commence at 6:30 p.m., on the 6th day of June, 2011, in the His- toric Federal Building, 350 West Sixth Street, to consider the dispos- al of real property by lease agreement be- tween the City of Du- buque and American Builders and Contrac- tor's Supply Co., Inc. for real property locat- ed at 10 S. Main Street in the City of Dubuque, Iowa. (Copy of sup- porting documents are on file in the City Clerk's Office and may be viewed ' during working hours.) Written comments re- garding said lease agreement may be submitted to the City Clerk's Office on or be- fore the time of public hearing. - At said time and place of public hearing, all interested citizens and parties opportunity given be heard for or against said lease agreement. Any visual or hearing impaired persons needing special assis- tance �r persons with special accessibility needs should contact the City Clerk's Office at (563) ) • (563) 6 0 - -6618 at least 48 hours prior to the meeting. Published by order of the City Council given on the 16th day of May, 2011. Kevin S. Flrnstahl, Acting City Clerk It 5/20 STATE OF IOWA {SS: DUBUQUE COUNTY CERTIFICATION OF PUBLICATION I, Suzanne Pike, a Billing Clerk for Woodward Communications, Inc., an Iowa corporation, publisher of the Telegraph Herald,a newspaper of general circulation published in the City of Dubuque, County of Dubuque and State of Iowa; hereby certify that the attached notice was published in said newspaper on the following dates: May 20, 2011, and for which the charge is $16.35. Itj24 Subscribed to before m Notary Public in and for Dubuque County, Iowa, this 1 rz,J day of , 207/ . Nv ry Public in and for Dubuque County, Iowa. A j ... MARY K. WESTERME1 f� Commission Number 154 ,w Alit► My Egmliq, ipm i it 1 �. RESOLUTION INTENT TO DISPOSE OF AN EYIN REAL PIIOPSWIY OWNED NY THE CITY �D"E TH CITY OF IOWA AND A� COIETRACTOWS SUP- PLY CO., INC. WHEREAS, the City of Dubuque, Iowa (City) owns the real property located at 1p S. Main Street In the City of Du- buque, Iowa, legally described as follows: Parcel "B ", located In Block 14 of Dubuque Harbor Company A dd1- tion, in the City of Du- buque as shown and described in Warranty 2005 in Document No. 2005 - 00006524 in the records of Dubuque County, Iowa (the Real Estate); and WHEREAS, City • and American .Builders and Contractor'S Supply CO., Inc. have negotiat- ed a Lease Agreement for a buildirg located on the Reaite, a copy of which Lease the office Is the I C lt at Clerk, City Hall, 1 3th and Central Avenue, Dubuque, Iowa; and WHEREAS, the Clty Cpundl believes It Is In the best interests of the City of Dubuque to approve the Lease NOW, THEREFORE, BE IT RESOLVED BY THE 'CITY COUNCIL OF THE CITY OF DUBUQUE, IO- WA: Section 1. The City of Dubuque Intends to dispose of Its interest In the Real Estate by Lease Agreement be- tween City and Ameri- can Builders and Con - tactors Supply Co., Inc. Section 2. The City Clerk is hereby author- ized and directed to cause this Resolution and a notice to be pub- lished as prescribed by Iowa Code Section 364.7 of a public hear- ing on the City's intent to dispose ° of the foregoing - described real property, to be held on the 6th day of June, 2011, at 6:30 o'clock p.m. at the His- toile Federal Building, Council Chambers, 350 W. 6th Street, Dubu- que, Iowa. Passed, approved and adopted this 16th day of May, 2011. Roy D. Buol, Mayor Attest: Kevin S. FIrnstahl, Acting City Clerk it 5/20 STATE OF IOWA {SS: DUBUQUE COUNTY CERTIFICATION OF PUBLICATION I, Suzanne Pike, a Billing Clerk for Woodward Communications, Inc., an Iowa corporation, publisher of the Telegraph Herald,a newspaper of general circulation published in the City of Dubuque, County of Dubuque and State of Iowa; hereby certify that the attached notice was published in said newspaper on the following dates: May 20, 2011, and for which the charge is $24.66. Paz40 Subscribed to before m Notary Public in and for Dubuque County, Iowa, this , day of z' , 20`7 . tary Public in and for Dubuque County, Iowa. MARY K. WESTERMEI Commiaei0n Number 154 Prepared by: Barry A. Lindahl, Esq. 330 Main Street, Suite 300 Dubuque IA 52001 563 583 -4113 LEASE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA, AND AMERCIAN BUILDERS & CONTRACTORS SUPPLY CO., INC. This Lease Agreement (the Lease), dated for reference purposes this day of I na, / , 2011, is made and entered into by and between the City of Dubuque, Iowa, an Iowa municipal corporation (Lessor), American Builders & Contractors Supply Co., Inc. (Lessee). SECTION 1. DEMISE AND TERM. 1.1. In consideration of the rents hereinafter reserved and the terms, covenants, conditions and agreements set forth in this Lease, Lessor hereby leases to Lessee the real property known as 10 South Main St. Dubuque, IA 52003 which is comprised of approximately 20,000 sq. ft. of warehouse as shown on Exhibit A attached to and made a part of this Lease together with any and all easements and appurtenances thereto and subject to any easements and restrictions of record (the Demised Premises), to have and to hold for an initial term commencing as of the 1 day of June, 2011 and ending at midnight on the 31 day of May, 2016 (the Initial Term), subject to all of the terms, covenants, conditions and agreements contained herein. Tenant shall have the right to terminate the Lease any time prior to June 1, 2012 by giving the Landlord a thirty (30) day written notice. 1.2. Upon commencement of the Initial Term of this Lease, all prior leases between Lessor and Lessee for the Demised Premises or any part thereof shall terminate. 1.3. Use of Premises. Lessee acknowledges that the Demised Premises is currently zoned HI Heavy Industrial. Notwithstanding such zoning, Lessee agrees that the Demises Premises shall not be used for any of the following uses: Slaughterhouses or stockyards; Manufacture or processing of the following materials: acid, lime or lime products; detergent; and ammonia or chlorine; Sanitary landfills; Sewage treatment plants; Crematoriums; reduction plants; foundries, forges or smelters; and Junk yards, salvage yards. 1.4. Lessee further agrees that the Demised Premises shall be used only for the following purposes and no others without the prior written consent of Lessor: 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 Sales and Storage of Building Material SECTION 2. RENT, TAXES, AND OTHER PAYMENTS 2.1. Rent. (1) Lessee shall pay Lessor, in addition to taxes, fees (including but not limited to storm water fees), rates, charges, levies, assessments, and all other charges required to be paid under this Lease by Lessee, rent for the first year of the Term in the amount of $42,000, in twelve equal monthly payments of $3,500 commencing on the 1 day of June, 2011, and on the first day of each month thereafter. Rent for the remainder of the Term shall be paid in accordance with the following schedule: 3.2. Improvements. Period June 1, 2011 to May 31, 2012 June 1, 2012 to May 31, 2013 June 1, 2013 to May 31, 2014 June 1, 2014 to May 31, 2015 June 1, 2015 to May 31, 2016 2.2. Taxes. Lessee shall pay all property taxes on the Leased Premises, including the land and any improvements thereon, due and payable during the term of the Lease. SECTION 3. TITLE TO IMPROVEMENTS AND TRADE FIXTURES 3.1. Trade Fixtures. For the purposes of this Lease, "Trade Fixtures" shall mean the following personal property located on the Demised Premises used in Lessee's business: Industrial Racking Title to Lessee's trade fixtures (the Trade Fixtures) is and shall be the sole and exclusive property of Lessee during the term of this Lease and shall remain the sole and exclusive property of Lessee after the expiration or termination of this Lease, for whatever reason. Lessor acknowledges and understands that it shall have no right, title or interest in or to Lessee's Trade Fixtures either during the term of this Lease, or thereafter (except as hereinafter provided). Lessor acknowledges and agrees that Lessee shall have the right to encumber, sell, or hypothecate Lessee's Trade Fixtures, to remove them from the Demised Premises, or to otherwise deal with all or any portion of such Lessee's Trade Fixtures, at Lessee's sole discretion. Upon ten (10) days' prior written notice to Lessor, Lessor shall execute and deliver to Lessee a certificate in recordable form prepared by Lessee stating that Lessor has no interest or right in or to Lessee's Trade Fixtures, as well as any other or further document which Lessee may reasonably request from Lessor. 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 2 Annual Rent $42,000.00 $43,260.00 $44,557.80 $45,894.60 $47,271.37 Monthly Rent $3,500.00 $3,605.00 $3,713.15 $3,824.55 $3,939.28 f (1) Improvements on the Demised Premises as of the commencement date of this Lease are the Building. On delivery of possession of the Demised Premises to Lessee, Lessee shall not construct any improvements on the Demised Premises without the prior written consent of Lessor, which consent shall not be unreasonably withheld. Upon any termination of this Lease, by reason of any cause whatsoever, if any new Improvements or Improvements existing at the time of the execution of this Lease or any part thereof shall then be on the Demised Premises, all of Lessee's right, title, and interest therein shall cease and terminate, and title to the Improvements shall vest in Lessor, and the Improvements or the part thereof then within the Demised Premises shall be surrendered by Lessee to Lessor. No further deed or other instrument shall be necessary to confirm the vesting in Lessor of title to the Improvements. However, upon any termination of this Lease, Lessee, upon request of Lessor, shall execute, acknowledge and deliver to Lessor a quitclaim deed confirming that all of Lessee's right, title and interest in or to the Improvements has expired, and that title to the Improvements has vested in Lessor. Lessor reserves the right to require Lessee to remove some or all of the Improvements which Lessee shall accomplish within 30 days of the expiration of this Lease Agreement. SECTION 4. [Section left intentionally blank] SECTION 5. TAXES. 5.1. Lessee agrees to reimburse Lessor within ten (10) days of the receipt of an invoice for the real estate taxes upon the real estate of the Demised Premises that become due and payable during the term hereof and which would become delinquent if not so paid during the term hereof. Lessor shall further provide to Lessee official receipts of the appropriate taxing authority or other evidence satisfactory to Lessee evidencing payment thereof. 5.2. During the term of this Lease, Lessee further agrees to reimburse Lessor all other taxes, fees (including but not limited to storm water fees), rates, charges, levies and assessments, general and special, of every name, nature and kind, whether now known to the law or hereafter created which may be taxed, charged, assessed, levied or imposed upon said real estate and which become payable during the term hereof and which would become delinquent if not so paid during the term hereof, any buildings or improvements thereon which may be taxed, charged, assessed, levied or imposed upon the leasehold estate hereby created and upon the reversionary estate in said real estate during the term hereof and which become payable during the term hereof and which would become delinquent if not so paid during the term hereof, and all such other taxes, fees, rates, charges, levies and assessments shall be paid by Lessee as they become due and before they become delinquent during the term hereof. The foregoing notwithstanding, Lessee shall only be responsible for the payment of any assessments, general or specific, so long as such assessments are calculated over the longest period 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 3 permitted by law, in which case Lessee shall be responsible for paying those payments falling due within the Term of the Lease. 5.3. Lessee agrees to timely pay all taxes, fees, assessments or other public charges levied or assessed by lawful authority (but reasonably preserving Lessee's rights of appeal) against its personal property on the premises, during the term of this Lease. 5.4. Nothing herein shall require Lessee to pay any of Lessor's income taxes, surtaxes, excess profit taxes or any taxes on the rents reserved to Lessor hereunder. 5.5. Lessee shall at all times have the right to contest in good faith, in any proper proceedings, in the name of Lessor if necessary, the payment or satisfaction of any such taxes, fees, assessments, rates, charges or levies so agreed to be paid by Lessee, if the validity thereof, or the right to assess or levy the same against or collect the same from said Demised Premises or Improvements, shall be disputed. Upon the conclusion of any such suit or proceedings, or not less than three (3) months prior to the date when the right to redeem therefrom expires, whichever will be the earlier, Lessee shall promptly pay and satisfy such disputed tax, fee, assessment or other charge as finally determined, together with all expenses, costs and attorneys' fees whatsoever incurred in connection therewith. SECTION 6. REPAIRS. 6.1. Lessee shall at all times during the term of this Lease, keep the Demised Premises and the Improvements thereon, and all sidewalks, curbs, and all appurtenances to the Demised Premises, in good order, condition and repair, casualties and ordinary wear and tear excepted and to a condition satisfactory to Lessor. Lessee shall keep the Demised Premises in such condition as may be required by law and by the terms of the insurance policies furnished pursuant to this Lease, whether or not such repair shall be interior or exterior, and whether or not such repair shall be of a structural nature. Notwithstanding the foregoing, Tenant's responsibility for the costs and expenses for normal maintenance, repairs and replacements shall be limited to $1,000 per occurrence. Upon reasonable notice to Lessee, Lessor may, at its discretion and at its cost, conduct an annual inspection of the Demised Premises to determine Lessee's compliance with this Section 6. 6.2. Lessor agrees to pay for one half of the costs (up to $13,000) documented by Lessee for replacement of current lighting fixtures with new ballasts and T -5 lights. Lessee is authorized to deduct the agreed upon costs, from the lease payments during the first year of the Term, prior to May 31, 2012. 6.3. Lessor shall only be responsible for the costs and expenses for normal maintenance, repairs and replacements which exceed $1,000 per occurrence. Otherwise, Lessor shall have no obligation to Lessee for any maintenance, repair or replacement expense of any kind on the Demised Premises. 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 4 SECTION 7. COMPLIANCE WITH LAW. 7.1. During the term of this Lease, Lessee shall comply with all local, state and federal laws applicable to Lessee's use of the Demised Premises, including but not limited to the Americans with Disabilities Act and the Smoke Free Air Act. 7.2. Lessee shall not commit waste on the Demised Premises except as necessary for its business purposes including the removal or construction of any buildings and Improvements on the Demised Premises, and shall be liable for any damages to or destruction of any buildings or Improvements on the Demised Premises resulting from waste and shall be required to repair or rebuild such buildings or Improvements. Lessee shall not remove any Improvements on the Demised Premises without the prior written approval of Lessor. SECTION 8. ALTERATIONS. Lessee shall not, without Lessor's prior written consent, which consent shall not be unreasonably withheld, make any alteration, addition, or modification to any Improvement on the Demised Premises that exceeds Five Thousand Dollars ($5,000.00) in cost. Any alteration, addition, or modification of Tess than Five Thousand ($5,000.00) Dollars shall not require Lessor's consent. SECTION 9. USE OF DEMISED PREMISES. 9.1. Lessee shall not knowingly use or allow the Demised Premises or any buildings or Improvements thereon or any appurtenances thereto, to be used or occupied for any unlawful purpose or in violation of any certificate of occupancy. Lessee shall not suffer any act to be done or any condition to exist within the Demised Premises or in any Improvement thereon, or permit any article to be brought therein, which is dangerous, unless safeguarded as required by law, or which, in law, constitute a nuisance, public or private, or which may make void or voidable any insurance in force with respect thereto. SECTION 10. INSURANCE. 10.1. Lessee shall maintain during the term of this Lease insurance as set forth in the City's standard Insurance Schedule for Lessees of City Property, as such uniform, standardized schedule may from time to time be amended. The current Insurance Schedule is attached to this Lease Agreement as Insurance Schedule A. Lessor shall provide written notice of any amendment to the Insurance Schedule not less than sixty days prior to the effective date of such amendment. 10.2. All insurance required by this Section shall be taken out and maintained in responsible insurance companies selected by Lessee which are authorized under the laws of the State of Iowa to assume the risks covered thereby or Lessee may at its election self- insure itself pursuant to the aforementioned guidelines. Lessee shall deposit annually by not later than July 1 of each year with City a certificate or certificates or binders of the respective insurers stating that such insurance is in force and effect. Lessee shall furnish City evidence satisfactory to City that the policy has 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 5 been renewed or replaced by another policy conforming to the provisions of this , or that there is no necessity therefor under the terms hereof. In lieu of separate policies, Lessee may maintain a single policy, or blanket or umbrella policies, or a combination thereof, which provide the total coverage required herein, in which event Lessee shall deposit with City a certificate or certificates of the respective insurers as to the amount of coverage in force upon Improvements, provided, however, the specific limit shall not be impaired. 10.3. Lessee agrees to notify City immediately in the case of damage exceeding $1,000.00. in amount to, or destruction of, Improvements or any portion thereof resulting from fire or other casualty. SECTION 11. LESSOR'S WARRANTIES AND REPRESENTATIONS 11.1. Lessor's Representation of Good Title. Lessor covenants and warrants that Lessor is lawfully seized in possession of the Demised Premises, and that it has full right and authority to enter into this Lease for the full term hereof, and covenants and agrees that upon paying the rent provided for herein, and upon Lessee's performing the covenants and agreements of this Lease required to be performed by said Lessee, that it will have, hold and enjoy quiet possession of the Demised Premises. Lessor warrants to Lessee that the Demised Premises are properly zoned for the conduct of the operation of Lessee's business. 11.2. Lessor makes no representations or warranties as to the condition, including environmental condition, of the Demised Premises and Lessee accepts the Demised Premises as is. SECTION 12. LESSEE'S WARRANTIES AND REPRESENTATION. 12.1. Lessee Compliance With Law. Lessee shall comply with all applicable local, state and federal laws, rules, regulations and permits with regard to the Demised Premises and its use, occupancy and control of the Demised Premises. 12.2. Environmental Matters. (1) Lessee covenants and agrees that Lessor shall have no responsibility for or liability arising from any release of a Hazardous Substance which is caused by or results from Lessee, Lessee's use, occupancy or control of the Demised Premises, except for Lessor Hazardous Substances (any Hazardous Substance which leaches or migrates upon the Demised Premises from any property owned by Lessor). Notwithstanding any other provision of this Lease, Lessee shall not have any responsibility for any Hazardous Substance which leaches or migrates upon the Demised Premises from any adjacent property or any release of a Hazardous Substances which is caused by Lessor or which pre- exists the date of this Lease, except as follows: (a) Lessee shall be responsible for known pre- existing releases for which Lessee fails to take due care and adequate 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 6 precaution and /or for which Lessee's actions or inactions cause a worsening of the release, and (b) Lessee shall provide full cooperation, assistance, and access to Lessor or other parties investigating and /or responding to a threatened or actual release. (2) Lessee covenants and agrees to promptly notify Lessor of any release of Hazardous Substance in, on or about the Demised Premises of which Lessee suspects or has actual knowledge. (3) Lessee covenants and agrees to promptly take any and all necessary and appropriate response to fully address any release of Hazardous Substance for which Lessee is responsible under this Section 12.2(1) following advance notice to Lessor. Such response shall include, without limitation, notification to appropriate governmental authorities, as may be required by law. Lessee shall seek and obtain the concurrence of Lessor as to any such response. Lessee shall respond to such release to the full extent required by law in no event shall Lessee allow limitations or restrictions to be placed on the Demised Premises without the written consent of the Lessor. (4) Lessee covenants and agrees to not manufacture, treat or dispose of Hazardous Substances at the Demised Premises or allow the manufacture, treatment, or disposal of Hazardous Substances on the Demised Premises. Lessee shall use and store on the Demised Premises only those Hazardous Substances as are associated with its regular business activities, and then only as allowed by law. (5) For the purposes of this Lease, "Hazardous Substance" or "Hazardous Substances" means any hazardous or toxic substance, material or waste which is or becomes regulated by any local government, the State of Iowa or the United States Government. It includes, without limitation, any material or substance that is (i) defined as a "hazardous substance" or "hazardous waste" under Chapter 455B, Iowa Code, (ii) petroleum and petroleum products, (iii) asbestos containing materials in any form or condition, (iv) designated as a "hazardous substance" pursuant to 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1321), (v) defined as a "hazardous waste" pursuant to § 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq., (vi) defined as a "hazardous substance" pursuant to § 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.0 § 9601 et seq., or (vii) defined as a "regulated substance" pursuant to Subchapter IX, Solid Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C. § 6991 et seq.] The term "Hazardous Substance" shall not include any air emissions discharged into the atmosphere as allowed by a duly issued permit from the applicable governmental agency. SECTION 13. INDEMNIFICATION. 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 7 13.1. Indemnification of Lessee. To the extent allowed by law, Lessor will defend, indemnify and save harmless Lessee from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Lessee by reason of (a) any accident, injury to or death of persons or loss of or damage to property occurring on or about the Demised Premises and resulting from any act or omission of Lessor, (b) any failure on the part of Lessor to perform or comply with any of the terms of this Lease and (c) any breach on the part of Lessor of any warranty or representation contained in Section 11. In case any action, suit or proceeding is brought against Lessee by reason of such occurrence, Lessor will, at Lessor expense and discretion, either defend such action, suit or proceeding, or cause the same to be defended by counsel approved by Lessee, which approval will not be unreasonably withheld. 13.2. Indemnification of Lessor. Lessee will defend, indemnify and save harmless Lessor from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Lessor by reason of (a) any accident, injury to or death of persons or loss of or damage to property occurring on or about the Demised Premises during the term of this Lease and resulting from any negligence of Lessee or anyone claiming by, through or under Lessee during the term of the Lease and (b) any failure on the part of Lessee to perform or comply in any material respect with any of the material terms of this Lease, and (c) any material breach on the part of Lessee of any warranty or representation contained in Section 12. In case any action, suit or proceeding is brought against Lessor by reason of such occurrence, Lessee will, at Lessee's expense and discretion, either defend such action, suit or proceeding, or cause the same to be defended by counsel approved by Lessor, which approval will not be unreasonably withheld. 13.3. Survival. The obligations and liabilities under this Section shall survive and continue in full force and effect and shall not be terminated, discharged or released, in whole or in part, irrespective of the termination or expiration of the term of this Lease. SECTION 14. CONDEMNATION. 14.1. Entire Condemnation. If at any time during the term of this Lease all or substantially all of the Demised Premises or the Improvements thereon shall be taken in the exercise of the power of eminent domain by any sovereign, municipality or other public or private authority, then this Lease shall terminate on the date of vesting of title in such taking and any prepaid rent shall be apportioned as of said date. Substantially all of the Demised Premises and the Improvements thereon shall be deemed to have been taken if the remaining portion of the Demised Premises shall not be of sufficient size to permit Lessee, in Lessee's sole discretion, to operate its business thereon in a manner similar to that prior to such taking. 14.2. Allocation of Award. Any award for such taking of all or substantially all of the 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 8 Demised Premises shall be paid to the parties hereto in accordance with the following: (1) To Lessor, the amount of the award attributable to the Demised Premises, determined as if this Lease was not in effect at the time of such award, excluding therefrom the amount of the award attributable to new Improvements constructed by Lessee but not Improvements existing at the commencement of the Term of this Lease, and all other sums not directly attributable to the value of the Land constituting the Demised Premises; (2) To Lessee, the entire award except that portion allocated to Lessor above. 14.3. Partial Condemnation. (1) If less than all or substantially all of the Demised Premises or the Improvements thereon shall be taken in the exercise of the power of eminent domain by any sovereign, municipality or other public or private authority, then Lessee, at its option, may elect to continue this Lease in full force and effect or terminate this Lease. If Lessee shall elect to maintain this Lease in full force and effect, the award for such partial condemnation shall be allocated as provided in 14.2, and Lessee shall proceed with reasonable diligence to carry out any necessary repair and restoration so that the remaining Improvements and appurtenances shall constitute a complete structural unit or units which can be operated on an economically feasible basis under the provisions of this Lease. In the event Lessee elects to continue this Lease in full force and effect after a partial condemnation, the Rent shall be reduced in proportion to the area of the Demised Premises taken. (2) Should Lessee elect to terminate this Lease upon a partial condemnation, Lessee shall provide Lessor with written notice of such election within thirty (30) days after the date of vesting of title for such taking. Lessee shall specify in such written notice the date on which this Lease shall terminate, which date shall be not less than 60 days nor more than 360 days after delivery of such notice to Lessor (the Termination Date). In the event Lessee terminates this Lease, as provided for in this 13.3, Lessee shall be entitled to the entire award for such partial taking. 14.4 Temporary Taking. If the temporary use of the whole or any part of the Demised Premises or the Improvements thereon or the appurtenances thereto shall be taken at any time during the term of this Lease in the exercise of the power of eminent domain by any sovereign, municipality, or other authority, the term of this Lease shall not be reduced or affected in any way, and Lessee shall continue to pay in full the rent, additional rent and other sum or sums of money and charges herein reserved and provided to be paid by Lessee, and the entire award for such temporary taking shall be paid to Lessee. Lessee shall repair and restore any and all damage to the Demised Premises and the Improvements as soon as reasonably practicable after such temporary taking. 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 9 SECTION 15. ASSIGNMENT AND SUBLETTING. This Lease may not be assigned by Lessee without the prior written consent of Lessor, which consent shall not be unreasonably withheld, provided said third party agrees to comply with the terms and conditions of this Lease. Lessee may sublet parts of the Demised Premises without the prior consent of Lessor provided Lessee's subtenants agree to comply with the applicable terms and conditions of this Lease, and provided further that Lessee shall remain responsible to Lessor for the terms and conditions of this Lease. SECTION 16. DEFAULT. 16.1. Lessor's Rights in the Event of Lessee's Default. If Lessee shall fail or neglect to observe, keep or perform any of the covenants, terms or conditions contained in this Lease on its part to be observed, kept or performed, and the default shall continue for a period of thirty (30) days after written notice from Lessor setting forth the nature of Lessee's default (it being intended that in connection with a default not susceptible of being cured with diligence within thirty (30) days, the time within which Lessee has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence, but in no event longer than ninety (90) days), then and in any such event, Lessor shall have the right at its option, on written notice to Lessee, to terminate this Lease. Lessor shall thereafter have the right to enter and take possession of the Demised Premises with process of law and to remove all personal property from the Demised Premises and all persons occupying the Demised Premises and to use all necessary force therefor and in all respects to take the actual, full and exclusive possession of the Demised Premises and every part of the Demised Premises as of Lessor's original estate, without incurring any liability to Lessee or to any persons occupying or using the Demised Premises for any damage caused or sustained by reason of such entry on the Demised Premises or the removal of persons or property from the Demised Premises. 16.2. Rights of Holder of Encumbrance in Event Lessee Defaults. If Lessee fails or neglects to observe, keep or perform any of the covenants, terms or conditions contained in this Lease on its part to be observed, kept or performed, the Holder of any indebtedness secured by an encumbrance on the leasehold estate under this Lease shall have thirty (30) days after receipt of written notice from Lessor setting forth the nature of Lessee's default and a reasonable time thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature thereof within such thirty (30) days and is diligently prosecuting such proceedings, but in no event longer than ninety (90) days, within which to endeavor to make good or remove the default or cause for termination of the Lease. All right of Lessor to terminate this Lease on the failure or neglect of Lessee to observe, keep and perform the covenants, terms and conditions of this Lease is, and shall continue to be, at all times prior to payment in full of the indebtedness to the Holder of Lessee, subject to and conditioned on Lessor's having first given the Holder written notice thereof and the Holder having failed to cause the default or cause for termination to be made good or removed within thirty (30) days after receiving written notice of default or cause for termination or within a reasonable time 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 10 thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature of foreclosure within such thirty (30) days and is diligently prosecuting such proceedings, but in no event longer than ninety (90) days. In the event that the Lease is terminated due to the Lessee's bankruptcy, insolvency or other proceedings, and in the event the Holder has complied with the terms of this 16.2, then Lessor at Holder's option, shall enter into a new lease with Holder or the successful bidder at foreclosure on the same terms as this Lease, for the term then remaining, and specifically preserving all unexercised options. 16.3. Lessee's Rights in the Event of Lessor's Default. If Lessor shall fail or neglect to observe, keep or perform any of the covenants, terms or conditions contained in this Lease on its part to be observed, kept or performed, and the default shall continue for a period of thirty (30) days after written notice from Lessee setting forth the nature of Lessor's default (it being intended that in connection with a default not susceptible of being cured with diligence within thirty (30) days, the time within which Lessor has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence, but in no event longer than ninety (90) days), then and in any such event, Lessee shall have all rights available to it provided by law or equity. SECTION 17. RIGHT TO CURE OTHER'S DEFAULTS. Whenever and as often as a party shall fail or neglect to comply with and perform any term, covenant, condition or agreement to be complied with or performed by such party hereunder, then, following thirty (30) days' prior written notice to such defaulting party (or such additional time to cure as may be accorded Lessee pursuant to 16.1 above, but in no event longer than ninety (90) days), the other party, at such other party's option, in addition to all other remedies available to such other party, may perform or cause to be performed such work, labor, services, acts or things, and take such other steps, including entry onto the Demised Premises and the Improvements thereon, as such other party may deem advisable, to comply with and perform any such term, covenant, condition or agreement which is in default, in which event such defaulting party shall reimburse such other party upon demand, and from time to time, for all costs and expenses suffered or incurred by such other party in so complying with or performing such term, covenant, condition or agreement. The commencement of any work or the taking of any other steps or performance of any other act by such other party pursuant to the immediately preceding sentence shall not be deemed to obligate such other party to complete the curing of any term, covenant, condition or agreement which is in default. SECTION 18. QUIET ENJOYMENT. Lessor covenants that at all times during the term of this Lease, so long as Lessee is not in default hereunder, Lessee's quiet enjoyment of the Demised Premises or any part thereof shall not be disturbed by any act of Lessor, or of anyone acting by, through or under Lessor. Notwithstanding the foregoing, Lessor shall have the right upon reasonably notice to Lessee to enter the Demised Premised at any time to determine whether Lessee is in compliance with the requirement of this Lease. SECTION 19. ESTOPPEL CERTIFICATES. Each party hereto agrees that at any 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 11 time and from time to time during the term of this Lease, within ten (10) days after request by the other party hereto or by any lender having an interest in Lessee's leasehold estate, it will execute, acknowledge and deliver to the other party or to such lender or any prospective purchaser, assignee or any mortgagee designated by such other party, a certificate stating (a) that this Lease is unmodified and in force and effect (or if there have been modifications, that this Lease is in force and effect as modified, and identifying the modification agreements), (b) the date to which rent has been paid, (c) whether or not there is any existing default by Lessee in the payment of any rent or other sum of money hereunder, and whether or not there is any other existing default by either party hereto with respect to which a notice of default has been served, and, if there is any such default, specifying the nature and extent thereof; and (d) whether or not there are any setoffs, defenses or counterclaims against enforcement of the obligations to be performed hereunder existing in favor of the party executing such certificate. SECTION 20. WAIVER. No waiver by either party hereto of any breach by the other of any term, covenant, condition or agreement herein and no failure by any party to exercise any right or remedy in respect of any breach hereunder, shall constitute a waiver or relinquishment for the future of any such term, covenant, condition or agreement or of any subsequent breach of any such term, covenant, condition or agreement, nor bar any right or remedy of the other party in respect of any such subsequent breach, nor shall the receipt of any rent, or any portion thereof, by Lessor, operate as a waiver of the rights of Lessor to enforce the payment of any other rent then or thereafter in default, or to terminate this Lease, or to recover the Demised Premises, or to invoke any other appropriate remedy which Lessor may select as herein or by law provided. SECTION 21. SURRENDER. Lessee shall, on the last day of the term of this Lease or upon any termination of this Lease, surrender and deliver up the Demised Premises, with the Improvements then located thereon into the possession and use of Lessor, without fraud or delay and in good order, condition and repair, reasonable wear and tear excepted, free and clear of all lettings and occupancies, free and clear of all liens and encumbrances other than those existing on the date of this Lease and those, if any, created by Lessor, without (except as otherwise provided herein) any payment or allowance whatever by Lessor on account of or for any buildings and Improvements erected or maintained on the Demised Premises at the time of the surrender, or for the contents thereof or appurtenances thereto. Lessee's Trade Fixtures, personal property and other belongings of Lessee or of any sublessee or other occupant of space in the Demised Premises shall be and remain the property of Lessee, and Lessee shall within thirty days after the expiration of the Term of this Lease remove the same, and in the event Lessee shall fail to do so, Lessor may cause the Trade Fixtures to be removed and Lessee agrees pay Lessor for the costs of removal within thirty (30) days of receipt of a statement therefore from Lessor.. 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 12 SECTION 22. MEMORANDUM OF LEASE. Each of the parties hereto will, promptly upon request of the other, execute a memorandum of this Lease in a form suitable for recording setting forth the names of the parties hereto and the term of this Lease, identifying the Demised Premises, and also including such other clauses therein as either party may desire, except the amounts of Basic Rent payable hereunder. SECTION 23. NOTICES. 23.1. All notices, demands or other writings in this Lease provided to be given or made or sent, or which may be given or made or sent, by either party to the other, shall be deemed to have been fully given or made or sent when made in writing and deposited in the United States mail, registered and postage prepaid, and by facsimile addressed as follows: TO LESSOR: TO LESSEE: SECTION 24. MISCELLANEOUS. City of Dubuque, Iowa City Manager City Hall 50 West 13 Street Dubuque IA 42001 Fax 319 589 -4149 American Builders & Contractors Supply Co., Inc. Attn: Real Estate Leasing Manager One ABC Parkway Beloit, WI 53511 Fax: (608) 363 -0416 23.2. The address and /or fax number to which any notice, demand or other writing may be given or made or sent to any party as above provided may be changed by written notice given by the party as above provided. 24.1. Time of the Essence. Time is of the essence of this Lease and all of its provisions. 24.2. Governing Law. It is agreed that this Lease shall be governed by, construed and enforced in accordance with the laws of the State of Iowa. 24.3. Paragraph Headings. The titles to the paragraphs of this Lease are solely for the convenience of the parties and shall not be used to explain, modify, simplify or aid in the interpretation of the provisions of this Lease. 24.4. Modification of Agreement. Any modification of this Lease or additional obligation assumed by either party in connection with this Lease shall be binding only if 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 13 evidenced in a writing signed by each party or an authorized representative of each party. 24.5. Parties Bound. This Lease shall be binding on and shall inure to the benefit of and shall apply to the respective successors and assigns of Lessor and Lessee. All references in this Lease to "Lessor" or "Lessee" shall be deemed to refer to and include successors and assigns of Lessor or Lessee without specific mention of such successors or assigns. 24.6. Force Majeure. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, unavailability of construction materials, unavailability or excessive price of fuel, power failure, riots, insurrection, war, terrorist activities, explosions, hazardous conditions, fire, flood, weather or acts of God, or by reason of any other cause beyond the exclusive and reasonable control of the party delayed in performing work or doing acts required under the terms of this Lease (collectively Force Majeure), then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. 24.7 Landlord's Lien Waiver. Landlord waives all rights which Landlord now or hereafter may have, under the laws of the State of Iowa to levy or distrain upon or to claim or assert any lien, right, claim or title to, any of the personal property of Tenant which now or hereafter may be located on the Premises, in order to enforce any obligation of Tenant, including, without limitation, the obligation to pay rent and any other monetary obligation arising hereunder. Provided however this provision should not prohibit Landlord from exercising the remedies described herein. Landlord agrees to execute the Landlord's Waiver and Consent, the form of which is attached as Exhibit B. 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 14 LESSOR: CITY OF DUBUQUE, IOWA By: Attest: uol, Mayor Roy D Kevin S. Firnsta 1, Acting City ' e rk 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 15 LESSEE: AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC. By: Kendra A. Story, CFO t €ng eases'BCSUrn* mxd fl.Mtlas: EtlritlLkpdf created by NMB 2010-10-08 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 Exhibit A a il Lease Area 50 100 200 300 400 16 Feet tlitCliv l DU E . ear the Mimixippi INSURANCE SCHEDULE A INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE 1. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa. All insurers shall have a rating of A or better in the current A.M. Best Rating Guide. 2. All Certificates of Insurance required hereunder shall provide a thirty (30) day notice of cancellation to the City of Dubuque, except for a ten (10) day notice for non- payment, if cancellation is prior to the expiration date. 3. shall furnish a signed Certificate of Insurance to the City of Dubuque, Iowa for the coverage required in Paragraph 6 below Such certificates shall include copies of the following policy endorsements: a) Commercial General Liability policy is primary and non-contributing. b) Commercial General Liability additional insured endorsement. c) Governmental Immunity Endorsements. 4. Each certificate shall be submitted to the contracting department of the City of Dubuque. 5. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of this agreement. 6. shall be required to carry the following minimum coverage/limits or greater if required by law or other legal agreement: a) COMMERCIAL GENERAL LIABILITY General Aggregate Limit Products-Completed Operations Aggregate Limit Personal and Advertising Injury Limit Each Occurrence Limit Fire Damage Limit (any one occurrence) Medical Payments This coverage shall be written on an occurrence, not a claims made form. Form CG 25 04 03 97 "Designated Location (s) General Aggregate Limit" shall be included. All deviations or exclusions from the standard ISO commercial general liability form CG 0001, or Business Owners form BP 0002, shall be clearly identified. 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 1 of 2 January 2008 17 $2,000,000 $1,000,000 $1,000,000 $1,000,000 $ 50,000 $ 5,000 INSURANCE SCHEDULE A (Continued) INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE Governmental Immunity Endorsement identical or equivalent to form attached. Additional Insured Requirement: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers shall be named as an additional insured on General Liability Policies using ISO endorsement CG 20 26 0704 "Additional Insured - Designated Person or Organization," or it's equivalent. - See Specimen b) WORKERS COMPENSATION & EMPLOYERS LIABILITY Statutory for Coverage A Employers Liability: Each Accident $100,000 Each Employee - Disease $100,000 Policy Limit - Disease $500,000 c) UMBRELLA EXCESS LIABILITY LIQUOR OR DRAM SHOP LIABILITY Coverage to be determined on a case by case basis by Finance Director, Completion Checklist n Certificate of Liability Insurance (2 pages) • Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages) • Additional Insured 20 26 07 04 • Governmental Immunities Endorsement 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 2 of 2 January 2008 18 THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN IS$UED TO THE INSURED REOUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT AGGREGAATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS NAMED ABOVE VYITH RESPECT TO ALL THE _ ECTIVE DATEDATE {MNIDOIYYI FOR THE POLICY TO WHICH THISCERTIFICATEMAYBE TERMS EXCLUSIONS POLICY DA TE 1 PERK 1 ANY ISSUEDORMAYPERTAIN. AND CONDITIONS OF SUCH POLFCJES e13R AOCL wank TYPE Of INSuRAl TYPE POLICY NUMBER .LLB A X GNIt/ERAL x LtAOtLI C( P4ENCIAL (ENERAL LIABILITY ws a EACH OCCURRENCE S 1,000,000 pALMA tTORFNTED •REMIMS (ES bceunence* 1 50,000 ; arSURERE j CLAANS M E © OCCUR NE D EXP (AM arm parson) S 5,000 PfR(SONAt x AOV INJURY 3 1,000,000 Gt NERAL AGGR s 2,000,000 GEH1 Af,3GItE.OA . LaaT APAI *S PER POL�Ir; I x I n LOC P UCTB COMPIOP AGG $ 1,000,000 A X .. V .• .-.., liASe.tYT ANYAUIO ALL CANED AUTOS SCHEDULED AUTOS HIREDAUTOS NON•ONMED AUTOS V . . G awiwo SIn:GLE L'tITT lEA acav+, 1,000,000 agOp,Y ITLPAY ! Ipy,g•� EQOt IPw ecraf'%I PROPERTY DAMA (Pm ercafent1 •0 1* O:ARAGE 4IAENLTTY AN AUTO AUTO ONLY EA ACCIDENT OTHER THAN EA ACC AUTO ONLY NOG E __ _ LBLEIa)TY OCGUH CLAMS NWOE DEDUCTMLE Rf TENTION S 0 J EACH OCCURRENCE AGGREGATE S VA)RK COMPENSATION AND EM PLOYER! UASILftY ANY PROPRIETORIPARTNERIEXECUTNE OFFICER,UESIDER EXCLUDED II 1.10 &pubs order SPECw. PROVISIONS be ow U A APT^,T I R E L EACH ACCIDENT f 100,000 EL '.XSEASE -EA ET+fPLEIYLC 0,00 a 10 0 f L OtSEASE P(X/C Lsstr S 500,000 O q ' isoNOF OPEWI MONsNEHICLEStti fCLUI' I ADDED 9YEi4C7t1k $EM£NTISPECIAI.P City of Dubuque is listed as an additional insured on general liability policies using ISO endorsement for CO 2026 0704 "Additional Insured - Designated Person or Organisation" or its equivalent. General Liability policy is primary i non- contributing. Form CG 2504 0397 "Designated Locations" general liability aggregate limit is included. Governmental immunities endorsement se included. ACORQ CERTIFICATE OF LIABILITY INSURANCE 12 /7 " 7 I 12/'7/2007 PRODUCER (563) 123-4567 Insurance Agency Street Address City ST FAX (563)9 7- 4 Z2.2, Code THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AD HOLDER. THIS C R DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE HAIL/0 P SImtED Company S treet City St . Zip Code +Nsurn s A I nsurance Company ws a srsrE�a c 914*R0 ; arSURERE CERTIFICATE HOLDER SHOULD ANY OF THE ABOVE DESCRRTED POLNiES EE CANCELLED SPORE T1D: EXPMAT ON OATS THHLQOC, TIN ISSUING INSURER VSLL E)NIEAVOR TO MAR. 30 DAYS YMeTTEN NOTICE TO me CEUTancart ROWER S$ NAMED TO THE LEFT, BUT •AIWRE TO 0010 SHALL IMPOSE ND OSUGATION OR LNBMTY OF ANY 10140 UPON THE INSURER as AGENR! OR REPRESENTATNES. City of Dubuque 50 West 13th Street Dubuque, IA 52001 ACORD 25 (2001105) INS025 woe) os AMS 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 19 CANCELLATION AUTNOIMEED REPRESENTATIVE VMS AimionW So+upans, PK 1000;371 0S45 0 ACORD G 914 T 9SB Papetd2 ACORD 25 (20Qire*) INS025 (o oe) oe ANIS Bch 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 IMPORTANT 11 the certificate holder is an ADDITIONAL INSURED. the poicy(ies) must be endorsed A statement on this certificate does not confer rights to the certificate holler in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subtect to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. Paw 2or 20 POLICY NUMBER: THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED LOCATION(S) GENERAL AGGREGATE LIMIT This endorsement modifies insurance provided under the following: CQMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE COMMERCIAL GENERAL LIABILITY CG 25 04 03 97 If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement) A. For all sums which the insured becomes legally obligated to pay as damages caused by "occur- rences" under COVERAGE A (SECTION I), and for all medical expenses caused by accidents under COVERAGE C (SECTION 1), which can be attributed only to operations at a single desig- nated "location" shown in the Schedule above: 1. A separate Designated Location General Aggregate Limit applies to each designated 'location", and that limit is equal to the amount of the General Aggregate Limit shown in the Declarations. 2. The Designated Location General Aggregate Limit is the most we will pay for the sum of all damages under COVERAGE A, except dam- ages because of "bodily injury" or "property damage" included in the "products-completed operations hazard", and for medical expenses under COVERAGE C regardless of the num- ber of: a. Insureds; b. Claims made or 'suits" brought; or e. Persons or organizations making claims or bringing "suits'. 3. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the Designated Loca- tion General Aggregate Limit for that desig- nated "Ioc,ation". Such payments shall not re- duce the General Aggregate Limit shown in CG 25 04 03 97 Page 1 of 2 21 the Declarations nor shall they reduce any other Designated Location General Aggre- gate Limit for any other designated location" shown in the Schedule above. 4. The limits shown in the Declarations for Each Occurrence, Fire Damage and Medical Ex- pense continue to apply. However, instead of being subject to the General Aggregate Limit shown in the Declarations, such limits will be subject to the applicable Designated Location General Aggregate Lirnit B. For all sums which the insured becomes legally obligated to pay as damages caused by "occur- rences' under COVERAGE A (SECTION I), and for all medical expenses caused by accidents under COVERAGE C (SECTION 1), which can- not be attributed only to operations at a single designated "location" shown in the Schedule above: 1. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the amount available under the General Aggregate Limit or the Products-Completed Operations Aggregate Limit, whichever is applicable: and 2. Such payments shall not reduce any Desig- nated Location General Aggregate Limit. CG 25 04 03 97 C. When coverage for liability arising out of the "products-completed operations hazard" is pro- vided, any payments for damages because of "bodily injury" or "property damage" included in the 'products-completed operations hazard* will reduce the Products-Completed Operations Ag- gregate Limit, and not reduce the General Ag- gregate Limit nor the Designated Location Gen- eral Aggregate Limit, D. For the purposes of this endorsement, the Defi- nitions Section is amended by the addition of the following definition: Copyright, Insurance Services Office, Inc., 1996 "Location means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway, waterway or right-of-way of a railroad, E. The provisions of Limits Of Insurance (SECTION 111) not otherwise modified by this endorsement shall continue to apply as stipulated. Page 2 of 2 CG 25 04 03 97 22 COMMERCIAL GENERAL LIABILITY CG 20 26 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION POLICY NUMBER: This endorsement modifies irtsurance provided under the following COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE ame Of Addltlonal Inaured Person(s) Or Organize o s The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Section 11 — Who Is An insured is amended to in- clude as an additional insured the person(s) or or- ganization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property dam- age" or "personal and advertising injury" caused, in whole or in part. by your acts or omissions or the acts or omissions of those acting on your behalf: A. In the performance of your ongoing operations; or 8. In connection with your premises owned by or rented to you CG 20 26 07 04 All terms and conditions of this policy apply unless modified by this endorsement. Includes copyrighted material of Insurance Services Office. Inc with permission. Page 1 of 1 ISO Properties, Inc., 2004 23 CITY OF DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time. 2. Claims Coverage, The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurance carrier. 4. Non - Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. No Other Change in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN 1 of 1 January 2008 24 THIS LANDLORD'S WAIVER AND CONSENT (this "Waiver and Consent ") is made and entered into between Secured Party (as defined below) and CITY OF DUBUQUE ( "Owner"), and affects certain premises owned by Owner and leased to AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC. ( "Customer "), which premises are identified in Exhibit 1 attached hereto (collectively, the "Premises "). BANK OF AMERICA, N.A. (together with its successors and assigns, in such capacity the "Secured Party ") is administrative agent for the lenders from time to time (the "Lenders ") party to a Loan, Security and Guaranty Agreement, dated as of June 30, 2010 (as modified, renewed, supplemented, restated or amended from time to time, collectively the "Loan Agreement ") by and among Secured Party, the Lenders party thereto, Customer and the other Obligors party thereto. As collateral for obligations relating to the Loan Agreement, Customer has granted to Secured Party for its own benefit and the ratable benefit of the Lenders, a security interest in and lien upon certain assets of Customer, including, without limitation, all of Customer's cash, cash equivalents, goods, inventory, accounts receivable, equipment, furniture and trade fixtures (such as equipment bolted to floors), together with all additions, substitutions, replacements, improvements and proceeds thereof, but excluding real property and real property fixtures (including but not limited to plumbing, lighting and HVAC systems) (hereinafter referred to collectively, as "Collateral "). Certain Collateral is or shall be located on and may be affixed to the Premises and Secured Party requires this Lien Waiver under the Loan Agreement. Secured Party and Owner agree that: EXHIBIT B LANDLORD'S WAIVER AND CONSENT 1. Notwithstanding any provisions of any lease between Owner and Customer pertaining to the Premises, this Waiver and Consent shall govern the rights between them pertaining to the Collateral. 2. The Collateral (a) shall be and remain personal property, notwithstanding the manner of their annexation to the Premises, their adaptability to the uses and purposes for which the Premises are used and the intention of the party making the annexation; and (b) shall not become fixtures. 3. OWNER WAIVES EACH AND EVERY RIGHT WHICH OWNER NOW HAS, OR MAY HEREAFTER HAVE, UNDER THE LAWS OF THE UNITED STATES OF AMERICA AND OF EACH STATE IN WHICH THE PREMISES ARE LOCATED, OR BY VIRTUE OF ANY LEASE NOW IN EFFECT OR CUSTOMER'S OCCUPATION OF THE PREMISES, TO LEVY OR DISTRAIN UPON THE COLLATERAL FOR RENT OR ANY OTHER MONETARY OBLIGATIONS, IN ARREARS, IN ADVANCE, OR BOTH OR TO CLAIM OR ASSERT ANY CLAIM, RIGHT OR TITLE TO, INTEREST IN OR LIEN UPON THE COLLATERAL. Owner recognizes and acknowledges that Secured Party's security interests in the Collateral are superior to any lien, right or claim of any nature that Owner may have or assert with respect to any Collateral by law, any lease or agreement, or otherwise. Notwithstanding anything to the contrary in this Waiver and Consent, Owner does not waive, relinquish or subordinate any liens, rights or remedies that Owner may now have, or shall ever enjoy, as a judgment creditor. 4. Owner acknowledges that each lease for the Premises is in full force and effect. Owner further acknowledges that it knows of no default at this time in the Customer's obligation to Owner with regards to the lease for the Premises. 5. Owner will use commercially reasonable efforts to provide Secured Party with written notice of any default by Customer under the lease resulting in termination of the lease (a "Default Notice "). Secured Party shall have at least fifteen (15) days following receipt of such Default Notice to cure such default, but neither Secured Party nor any Lender shall be under any obligation to cure any default by Owner under the lease. No action by Secured Party or any Lender pursuant to this Waiver and Consent shall be deemed to be an assumption by Secured Party or the Lenders of any obligation under the lease, and, except as provided in paragraphs 7 and 8 below, Secured Party shall not have any obligation to Owner. 6. Prior to a termination of the lease, Secured Party, or its representatives or invitees may, in accordance with the terms of the Loan Agreement enter upon the Premises at any time without any interference by Owner to inspect or remove any or all of the Collateral, including, without limitation, by public auction or private sale pursuant to the provisions of paragraph 8 below. 7. Owner consents to the installation of the Collateral on the Premises, and grants Secured Party a license for a period (the "Disposition Period ") of up to ninety (90) days, following receipt by Secured Party of a Default Notice or, if the lease has expired by its own terms (absent a default thereunder), up to thirty (30) days following receipt by Secured Party of written notice of such expiration, to enter into possession of the Premises to do any or all of the following to said Collateral: 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 25 assemble, appraise, display, operate, sever, remove, maintain, prepare for sale or lease, repair, lease, transfer and /or sell at public auction(s) or private sale(s) the Collateral, or any part thereof. During any Disposition Period in which Secured Party is in possession of the Premises, Secured Party shall pay Owner, periodically, a daily license fee equivalent to one - thirtieth (1 /30th) of the minimum monthly rental provided for in the lease agreement between Owner and Customer; provided that such amounts paid to Owner by Secured Party shall exclude any past -due rental, indemnity payments or similar amounts for which the Owner remains liable under the lease for default, holdover status or other similar charges. Any extension of the foregoing period shall only be with the written consent of Owner and at the same rate. All damage to the Premises caused by the conduct of such auction or sale and any removal of the Collateral (ordinary wear and tear excluded) shall be repaired by Secured Party at its expense. Neither Secured Party nor any Lender shall be liable for any diminution in value of the Premises caused by the absence of Collateral removed, and neither Secured Party nor any Lender shall have any duty or obligation to remove or dispose of any Collateral or any other property left on the Premises by Customer. With respect to any Collateral remaining on the Premises more than ten (10) days after the Disposition Period, Owner, at its sole election, may either deem such Collateral abandoned by Secured Party and Customer, or Owner may move, remove, and /or store the Collateral at the sole cost of Customer. 8. During any Disposition Period, (a) Secured Party and its representatives and invitees may inspect, repossess, remove and otherwise deal with the Collateral, and Secured Party may advertise and conduct public auctions or private sales of the Collateral at the Premises, in each case without interference by Owner or liability of Secured Party to Owner or liability of any Lender to Owner, and (b) Secured Party shall make the Premises available for inspection by Owner and prospective tenants and shall cooperate in Owner's reasonable efforts to re -lease the Premises. If Secured Party conducts a public auction or private sale of the Collateral at the Premises, Secured Party shall use reasonable efforts to notify Owner first and to hold such auction or sale in a manner which would not unduly disrupt Owner's or any other tenant's use of the Premises. 9. All notices hereunder shall be in writing, sent by certified mail, return receipt requested or by telecopy, to the respective parties and the addresses set forth in the Lease or at such other address as the receiving party shall designate in writing. 10. If any order or injunction is issued or stay granted which prohibits Secured Party from exercising any of its rights hereunder, then, at the option of Secured Party, the Disposition Period shall be stayed during the period of such prohibition and shall continue thereafter for the number of days remaining in the Disposition Period. 11. The waivers and consents herein granted shall continue until Owner shall have received Secured Party's written certification that all obligations of Customer to Secured Party in the Loan Agreement have been paid in full and /or fully performed. 12. Secured Party may amend, modify and extend any indebtedness of Customer to Secured Party or any of the terms and conditions of the Loan Agreement and related instruments and agreements, without the consent of the Owner and without giving notice thereof to Owner. 13. THIS WAIVER AND CONSENT SHALL BE INTERPRETED UNDER THE LAWS OF THE STATE OF NEW YORK and shall inure to the benefit of and be binding upon the successors, heirs, and assigns of Owner, Secured Party and the Lenders. 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 [Signatures continue on following page] 26 IN WITNESS WHEREOF, the parties hereto have executed this Waiver and Consent by their duly authorized officers as of the day and year written below. Dated this day of , 20_ By: Name: Title: 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 SECURED PARTY: BANK OF AMERICA, N.A. By: Name: Title: OWNER: CITY OF DUBUQUE CONSENTED TO: CUSTOMER: AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC. By: Name: Title: 27 List of Premises: 10 South Main St., Dubuque IA 52003 051211 Dubuque IA Lease 10 South Main St. Dubuque, IA 52003 Exhibit 1 to Landlord's Waiver and Consent 28 LANDLORD'S WAIVER AND CONSENT THIS LANDLORD'S WAIVER AND CONSENT (this "Waiver and Consent ") is made and entered into between Secured Party (as defined below) and CITY OF DUBUQUE ( "Owner"), and affects certain premises owned by Owner and leased to AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC. ( "Customer "), which premises are identified in Exhibit 1 attached hereto (collectively, the "Premises "). BANK OF AMERICA, N.A. (together with its successors and assigns, in such capacity the "Secured Party ") is administrative agent for the lenders from time to time (the "Lenders ") party to a Loan, Security and Guaranty Agreement, dated as of June 30, 2010 (as modified, renewed, supplemented, restated or amended from time to time, collectively the "Loan Agreement ") by and among Secured Party, the Lenders party thereto, Customer and the other Obligors party thereto. As collateral for obligations relating to the Loan Agreement, Customer has granted to Secured Party for its own benefit and the ratable benefit of the Lenders, a security interest in and lien upon certain assets of Customer, including, without limitation, all of Customer's cash, cash equivalents, goods, inventory, accounts receivable, equipment, furniture and trade fixtures (such as equipment bolted to floors), together with all additions, substitutions, replacements, improvements and proceeds thereof, but excluding real property and real property fixtures (including but not limited to plumbing, lighting and HVAC systems) (hereinafter referred to collectively, as "Collateral "). Certain Collateral is or shall be located on and may be affixed to the Premises and Secured Party requires this Lien Waiver under the Loan Agreement. Secured Party and Owner agree that: 1. Notwithstanding any provisions of any lease between Owner and Customer pertaining to the Premises, this Waiver and Consent shall govern the rights between them pertaining to the Collateral. 2. The Collateral (a) shall be and remain personal property, notwithstanding the manner of their annexation to the Premises, their adaptability to the uses and purposes for which the Premises are used and the intention of the party making the annexation; and (b) shall not become fixtures. 3. OWNER WAIVES EACH AND EVERY RIGHT WHICH OWNER NOW HAS, OR MAY HEREAFTER HAVE, UNDER THE LAWS OF THE UNITED STATES OF AMERICA AND OF EACH STATE IN WHICH THE PREMISES ARE LOCATED, OR BY VIRTUE OF ANY LEASE NOW IN EFFECT OR CUSTOMER'S OCCUPATION OF THE PREMISES, TO LEVY OR DISTRAIN UPON THE COLLATERAL FOR RENT OR ANY OTHER MONETARY OBLIGATIONS, IN ARREARS, IN ADVANCE, OR BOTH OR TO CLAIM OR ASSERT ANY CLAIM, RIGHT OR TITLE TO, INTEREST IN OR LIEN UPON THE COLLATERAL. Owner recognizes and acknowledges that Secured Party's security interests in the Collateral are superior to any lien, right or claim of any nature that Owner may have or assert with respect to any Collateral by law, any lease or agreement, or otherwise._Notwithstanding anything to the contrary in this Waiver and Consent, Owner does not waive, relinquish or subordinate any liens, rights or remedies that Owner may now have, or shall ever enjoy, as a judgment creditor. 4. Owner acknowledges that each lease for the Premises is in full force and effect. Owner further acknowledges that it knows of no default at this time in the Customer's obligation to Owner with regards to the lease for the Premises. 5. Owner will use commercially reasonable efforts to provide Secured Party with written notice of any default by Customer under the lease resulting in termination of the lease (a "Default Notice "). Secured Party shall have at least fifteen (15) days following receipt of such Default Notice to cure such default, but neither Secured Party nor any Lender shall be under any obligation to cure any default by Owner under the lease. No action by Secured Party or any Lender pursuant to this Waiver and Consent shall be deemed to be an assumption by Secured Party or the Lenders of any obligation under the lease, and, except as provided in paragraphs 7 and 8 below, Secured Party shall not have any obligation to Owner. 6. Prior to a termination of the lease, Secured Party, or its representatives or invitees may, in accordance with the terms of the Loan Agreement enter upon the Premises at any time without any interference by Owner to inspect or remove any or all of the Collateral, including, without limitation, by public auction or private sale pursuant to the provisions of paragraph 8 below. 7. Owner consents to the installation of the Collateral on the Premises, and grants Secured Party a license for a period (the "Disposition Period ") of up to ninety (90) days, following receipt by Secured Party of a Default Notice or, if the lease has expired by its own terms (absent a default thereunder), up to thirty (30) days following receipt by Secured Party of written notice of such expiration, to enter into possession of the Premises to do any or all of the following to said Collateral: assemble, appraise, display, operate, sever, remove, maintain, prepare for sale or lease, repair, lease, transfer and /or sell at public auction(s) or private sale(s) the Collateral, or any part thereof. During any Disposition Period in which Secured Party is in possession of the Premises, Secured Party shall pay Owner, periodically, a daily license fee equivalent to one - thirtieth (1 /30th) of the minimum monthly rental provided for in the lease agreement between Owner and Customer; provided that such amounts paid to Owner by Secured Party shall exclude any past -due rental, indemnity payments or similar amounts for which the Owner remains liable under the lease for default, holdover status or other similar charges. Any extension of the foregoing period shall only be with the written consent of Owner and at the same rate. All damage to the Premises caused by the conduct of such auction or sale and any removal of the Collateral (ordinary wear and tear excluded) shall be repaired by Secured Party at its expense. Neither Secured Party nor any Lender shall be liable for any diminution in value of the Premises caused by the absence of Collateral removed, and neither .Secured Party nor any Lender shall have any duty or obligation to remove or dispose of any Collateral or any other property left on the Premises by Customer. With respect to any Collateral remaining on the Premises more than ten (10) days after the Disposition Period, Owner, at its sole election, may either deem such Collateral abandoned by Secured Party and Customer, or Owner may move, remove, and /or store the Collateral at the sole cost of Customer. 8. During any Disposition Period, (a) Secured Party and its representatives and invitees may inspect, repossess, remove and otherwise deal with the Collateral, and Secured Party may advertise and conduct public auctions or private sales of the Collateral at the Premises, in each case without interference by Owner or liability of Secured Party to Owner or liability of any Lender to Owner, and (b) Secured Party shall make the Premises available for inspection by Owner and prospective tenants and shall cooperate in Owner's reasonable efforts to re -lease the Premises. If Secured Party conducts a public auction or private sale of the Collateral at the Premises, Secured Party shall use reasonable efforts to notify Owner first and to hold such auction or sale in a manner which would not unduly disrupt Owner's or any other tenant's use of the Premises. 9. All notices hereunder shall be in writing, sent by certified mail, return receipt requested or by telecopy, to the respective parties and the addresses set forth in the Lease or at such other address as the receiving party shall designate in writing. 10. If any order or injunction is issued or stay granted which prohibits Secured Party from exercising any of its rights hereunder, then, at the option of Secured Party, the Disposition Period shall be stayed during the period of such prohibition and shall continue thereafter for the number of days remaining in the Disposition Period. 11. The waivers and consents herein granted shall continue until Owner shall have received Secured Party's written certification that all obligations of Customer to Secured Party in the Loan Agreement have been paid in full and /or fully performed. 12. Secured Party may amend, modify and extend any indebtedness of Customer to Secured Party or any of the terms and conditions of the Loan Agreement and related instruments and agreements, without the consent of the Owner and without giving notice thereof to Owner. 13. THIS WAIVER AND CONSENT SHALL BE INTERPRETED UNDER THE LAWS OF THE STATE OF NEW YORK and shall inure to the benefit of and be binding upon the successors, heirs, and assigns of Owner, Secured Party and the Lenders. [Signatures continue on following page] IN WITNESS WHEREOF, the parties hereto have executed this Waiver and Consent by their duly authorized officers as of the day and year written below. Dated this day of , 20_. By: Kendra A. Story, CFO SECURED PARTY: BANK OF AMERICA, N.A. OWNER: CITY OF DUBU By: Name: Title: Mayor CONSENTED TO: CUSTOMER: AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC. By: Name: Title: SUE . Buol Exhibit 1 to Landlord's Waiver and Consent List of Premises: 10 South Main St., Dubuque IA 52003 F