Exhibit 10.5
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made and entered into effective the
1st day of August, 1998, by and between AMERICAN FIREFIGHTERS COOPERATIVE, INC.,
an Ohio corporation ("Landlord") and MORNING PRIDE MANUFACTURING L.L.C., a
Delaware limited liability company ("Tenant").
1. PREMISES: Landlord, in consideration of the rent to be paid and
the covenants to be performed by Tenant, does hereby lease unto Tenant, and
Tenant hereby rents from Landlord, on the terms and conditions hereinafter set
forth, the real property containing approximately five (5) acres, as legally
described on Exhibit "A" attached hereto and made a part hereof (the "Real
Estate"), together with all improvements thereon [including the improved
building containing 25,600 leasable square feet (the "Building")], and all
appurtenances thereto (hereinafter collectively the "Premises"). The Building is
commonly known as #0 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000.
2. TERM: The "Initial Term" of this Lease shall commence on full
execution hereof (the "Commencement Date") and shall terminate on the last day
of the sixtieth month following the Commencement Date.
3. RENTAL: Tenant agrees to pay Landlord, as base rental hereunder
during the Initial Term, One Hundred Fifteen Thousand Two Hundred Dollars
$115,200.00 per year in monthly installments of Nine Thousand Six Hundred
Dollars ($9,600.00), commencing on the Commencement Date and continuing through
the Initial Term.
All base rental payments hereunder shall be due on or before the first
day of each month, in advance, at 0000 Xxxxx Xxxxxxxxx Xxxx, Xxxx Xxxxxx, Xxxx
00000, or such other place as Landlord may from time to time designate in
writing, without any prior notice or demand therefor and without any right to
abatement, deduction or setoff. In the event any rental payment is not received
on or before the fifth calendar day after it is due, Tenant shall immediately
pay as additional rent, without demand or notice, a late fee of five percent
(5%) of the amount of the overdue rental payment. All amounts not paid when due
shall bear interest at the lower of: (i) the sum of (a) 400 basis points plus
(b) the "prime rate" of interest as from time to time publicly announced by
Citibank, N.A., New York, New York, or its successor, or (ii) the highest rate
allowed by law, per annum on a per diem basis until paid.
All costs and expenses which Tenant assumes or agrees to pay to
Landlord pursuant to this Lease shall be deemed additional rent, and in the
event of nonpayment thereof, Landlord shall have all the same rights and
remedies as herein provided for in case of nonpayment of rent.
4. RENEWAL OPTIONS: Provided Tenant is not in default after any
applicable cure period under this Lease at the expiration of the Initial Term or
at the time of giving written notice to the Landlord herein, Tenant may, by
giving written notice to the Landlord at least three (3) months but not more
than nine (9) months on or before
the expiration of the Initial Term of this Lease, extend the term for a period
of five (5) years ("First Renewal Term") upon the same covenants and agreements
as are herein set forth, except that base rental during the First Renewal Term
shall be the then fair market rental value for the Premises. "For purposes of
this Lease, the term "Fair Market Rental Value of the Premises" shall mean a
rate comprised of (a) one hundred percent (100%) of the prevailing base rental
rate per square foot of rentable area available in the Pertinent Market (as
hereinafter defined), as determined by Landlord and Tenant in good faith, and
(b) one hundred percent (100%) of any escalation of any such base rental rate
(based upon a fixed step and/or index) prevailing in the Pertinent Market, as
determined by Landlord and Tenant in good faith, taking into account (i)
comparable leases (on the basis of factors such as, but not limited to size, and
location of space, commencement date and term of lease), if any, recently
executed for improved space in the Building or (ii) if no such leases for
comparable space have been executed in the Building, then leases for comparable
(on the basis of factors such as, but not limited to, size and location of
space, commencement date and term of lease) improved space in first-class
industrial office buildings in the Dayton, Ohio area in which the Building is
located which are comparable to the Building in reputation, quality, age, size,
location, and level and quality of services provided and which have reached
economic stabilization and are not offering, for any other reason, below-market
rents (the foregoing factors not being exclusive in identifying comparable
buildings) (the Building, together with such comparable buildings, if
applicable, being herein referred to as the "Pertinent Market"). In determining
the Fair Market Rental Rate, Landlord and Tenant shall also take into
consideration (x) the definition of rentable area or net rentable area with
respect to which such rental rates are computed; (y) the value of rental
abatements, allowances for demolition, construction of tenant improvements and
space planning and other similar concessions generally available in the
Pertinent Market at such time to tenants leasing comparable space; and (z) other
comparable pertinent factors. If on or before two (2) months prior to the
expiration of the Initial Term of this Lease, Landlord and Tenant have not
agreed upon the Fair Market Rental Value of the Premises, then Landlord and
Tenant shall submit the dispute to final, binding arbitration as provided
hereinafter, which shall be located in Dayton, Ohio. Within ten (10) business
days of the exercise of such submittal, Landlord and Tenant shall each select,
at their own cost and expense, a real estate appraiser, who is a member in good
standing of The Appraisal Institute, carries the M.A.I. designation, and has no
less than ten (10) years of experience with the Pertinent Market. If either
party falls to select their appraiser, the other party's appraiser shall be the
sole appraiser for determining the Fair Market Rental Value of the Premises, and
the parties shall equally bear the cost of such appraiser. The selected
appraiser(s) shall be instructed to appraise the Fair Market Rental Value of the
Premises as defined herein. If two appraisers are selected and the range of
their appraisals of the Fair Market Rental Value of the Premises exceeds the
average of such appraisals by more than ten percent (10%), then the appraisers
shall select, by agreement between themselves, a third appraiser, who shall,
based upon the reports of the two initially selected appraisers, determine the
Fair Market Rental Value of the Premises within the range of the two values
determined by the Initial appraisers which shall be final and shall constitute
the Fair Market Rental Value of the Premises determination," Each party shall
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have the right to have the decision enforced by the Xxxxxxxxxx County Court of
Common Pleas, Dayton, Ohio. The parties shall thereafter enter into an amendment
to the Lease setting forth the rent for the First Renewal Term.
Provided Tenant is not in default after any applicable cure period
under this Lease at the expiration of the First Renewal Term or at the time of
giving written notice to the Landlord herein, Tenant may, by giving written
notice to the Landlord at least three (3) months but no more than nine (9)
months on or before the expiration of the First Renewal Term of this Lease,
extend the term for a period of five (5) years ("Second Renewal Term") upon the
same covenants and agreements as are herein set forth, except that base rental
during the Second Renewal Term shall be the then fair market rental value to be
paid for the Premises. If on or before two (2) months prior to the expiration of
the First Renewal Term, Landlord and Tenant have not agreed upon the fair market
rental value for the Premises, then Landlord and Tenant shall submit the dispute
to final binding arbitration, which shall be conducted in the same manner as
provided in the preceding paragraph. The parties shall thereafter enter into an
amendment to the Lease setting forth the rent for the Second Renewal Term.
5. USE: The Premises shall be used by Tenant only for lawful, light
Industrial use and for no other use without the prior written consent of
Landlord. Tenant shall, at its own expense, comply with all laws, orders and
ordinances respecting all matters of use, occupancy, condition or maintenance of
the Premises, and Tenant shall indemnify and hold Landlord harmless from any and
all costs and expenses (including reasonable attorney's fees) incurred by
Landlord on account of Tenant's use and occupancy thereof in violation of this
paragraph.
6. REPAIRS BY TENANT: At Tenant's sole cost and expense:
(a) Tenant agrees to maintain, repair and replace the interior and
exterior of the Building and all other improvements at, on, under, or within the
Premises in a first-class condition and shall keep the Premises in a safe,
clean, neat and attractive condition, except Landlord shall at its sole cost and
expense make any necessary replacements of the roof and structural components of
the Building not made necessary by Tenant's negligence or failure to maintain or
repair the same. Tenant shall pay all costs in connection with its maintenance,
repair and replacement obligations during the Term. It is the intention of the
parties that Landlord shall have no obligation to maintain, repair or replace
the Building or any improvement at, on, under or within the Premises during the
Term, except as specifically stated in this Lease.
(b) Without limiting the generality of the foregoing, Tenant agrees
to maintain, repair and replace the following: (1) the heating, ventilating and
air conditioning system serving the Building (Tenant shall maintain a
maintenance contract therefor with such provider as shall be reasonably
acceptable to Landlord); (ii) all of the electrical and mechanical equipment and
all other equipment in the Building or serving the Premises, including the
plumbing systems; (iii) the exterior of the Premises, including without
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limitation, the parking lot (including snow and ice removal), lighting,
sidewalks, access, landscaping and signage; (iv) the roof and all structural
components of the Building, except Landlord shall at its sole cost and expense
make any necessary replacements of the roof and structural components of the
Building not made necessary by Tenant's negligence or failure to maintain or
repair the same; and (v) all other matters to keep the Premises, and each and
every part thereof, in at least the same condition which existed as of the date
of execution of this Lease.
(c) Landlord shall not be liable directly or indirectly for any
damage or inconvenience incurred by Tenant as a result of Tenant's use of the
Premises or interruption of Tenant's use of the Premises for any reason unless
caused directly by Landlord's default hereunder.
(d) In the event that Tenant fails to maintain, repair or replace the
Premises as set forth in Sections 6(a) and 6(b) above, then Landlord may, at its
option, make such repair and Tenant shall, on demand, immediately pay the
Landlord's cost of said repair, together with interest at the lower of: (i) the
sum of (a) 400 basis points plus (b) the "prime rate" of interest as from time
to time publicly announced by Citibank, N.A., New York, New York, or its
successor, or (ii) the highest rate allowed by law, per annum on a perdiem
basis. Landlord shall not be liable to Tenant for any loss or damage that may
accrue to Tenant's stock or business by reason of such work or its results.
(e) Tenant covenants to pay promptly when due the entire cost of work
in the Premises undertaken by Tenant so that the Premises shall at all times be
free of liens for labor and materials arising from such work; to procure all
necessary permits before undertaking such work; to do all of such work in a good
and workmanlike manner, employing materials of good quality: to perform such
work only with contractors previously reasonably approved of in writing by
Landlord; to comply with all governmental requirements; and to save Landlord and
its agents, officers, employees, contractors and invitees harmless and
indemnified from all liability, injury, loss, cost, damage and/or expense
(including reasonable attorneys' fees and expenses) in respect of any injury to
or death of, any person, and/or damage to, or loss of destruction of, any
property occasioned by or growing out of such work.
(f) Tenant will indemnify and save harmless the Landlord from and
against all mechanics liens or claims by reason of repairs, alterations or
improvements which may be made by Tenant to the Premises. If Tenant does not pay
for said repairs, alterations or improvements, or post a bond for the same so as
to bond off all mechanics liens within the twenty (20) days of the filing of
each lien, then Landlord shall have the right to make said payment or post said
bond, in its discretion, and Tenant shall immediately reimburse Landlord for the
same upon receipt of a statement therefor from Landlord. If Tenant fails to pay
any amount due Landlord pursuant to this Section (f) or any other provision of
this Lease, such amount shall bear interest at the lower of: (i) the sum of (a)
400 basis points plus (b) the "prime rate" of interest as from time to time
publicly
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announced by Citibank, N. A., New York, New York, or its successor, or (ii) the
highest rate allowed by law, per annum on a per diem basis until paid.
7. TENANT'S COVENANTS: In addition to all other covenants stated
herein, Tenant agrees as follows:
(a) Tenant shall pay the rent herein required when due without notice
or demand, setoff, abatement, or deduction.
(b) Tenant shall pay for all utility services for the Premises
including, but not limited to, electricity, gas, water, sewer and telephone
directly to the service provider and shall maintain accounts for said services
in its own name. Landlord shall not be liable for the quality or quantity of or
interference involving such utilities unless due directly to Landlord's
negligence. Tenant agrees to maintain heat sufficient to heat the Building so as
to avoid any damage to the Building on account of cold.
(c) Tenant shall operate its business in a lawful manner.
(d) Tenant shall use all reasonable precautions to prevent waste,
damage or injury to the Premises.
(e) Tenant shall notify Landlord promptly in writing of any accident
occurring within the Premises.
8. INSURANCE.
(a) CASUALTY INSURANCE. Tenant shall carry such insurance against
loss of Tenant's property in, on or about the Premises by fire and such other
risks as are covered by all risk and extended coverage property insurance or
other hazards as Tenant deems necessary. Landlord shall not be liable for any
damage to Tenant's property in, on or about the Premises caused by fire or other
insurable hazards regardless of the nature or cause of such fire or other
casualty, and regardless of whether any negligence of Landlord or Landlord's
employees or agents contributed thereto. Tenant expressly releases Landlord of
and from all liability for any such damage. Tenant agrees that its insurance
policy or policies shall include a waiver of subrogation recognizing this
release from liability.
(b) PUBLIC LIABILITY INSURANCE. Tenant agrees to procure and maintain
during the Lease term a policy or policies of liability insurance, with product
liability and blanket contractual coverage, written by a responsible insurance
company or companies (which may be written to include the Premises in
conjunction with other premises owned or operated by Tenant) insuring Tenant
against any and all losses, claims, demands or actions for injury to or death of
any one or more persons and for damage to property in any one occurrence on the
Premises with a limit of not less than $1,000,000.00 and $2,000,000.00 general
aggregate policy limit arising from Tenant's conduct and operation
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of its business on the Premises, $500,000.00 limit for fire and legal liability,
and $1,000,000.00 limit for products. Tenant shall furnish to Landlord
certificates evidencing the continuous existence of such insurance coverage,
which must also name Landlord as an additional insured (except as to products
liability). All insurance companies must be licensed to do business in the state
where the Premises are located. Certificates of insurance will be provided at
the time this Lease is executed and twenty (20) days prior to expiration of each
policy. Certificates of insurance are to specify notification to Landlord of
cancellation or termination of policy not less than ten (10) days prior to
cancellation or termination.
(c) MISCELLANEOUS INSURANCE. Tenant agrees to provide and keep in
force at all times worker's compensation insurance complying with the law of the
state in which the premises are located. Tenant agrees to defend, indemnify and
hold harmless Landlord from all actions or claims of Tenant's employees or
employee's family members. Tenant agrees to provide a certificate as evidence of
proof of worker's compensation coverage.
With respect to any alterations or improvements by Tenant, Tenant shall
maintain contingent liability and builder's risk coverage naming Landlord as an
additional named insured. If Tenant hires contractors to do any improvements on
the Premises, each contractor must provide proof of worker's compensation
coverage on its employees and agents to Landlord.
9. TENANT'S INSURANCE CONTRIBUTION: Tenant shall pay as additional
rent, the total cost of the premiums for the insurance maintained by Landlord on
the Building and all other improvements on the Real Estate, for each lease year
during the term of this Lease. The premiums for the first and last lease years
shall be prorated. Tenant shall pay the total cost of such premiums annually
upon demand for such payment by Landlord, but in no event later than thirty (30)
days after Landlord's demand therefor. Any amounts not paid by Tenant to
Landlord when due under this Section 9 or any other provision of this Lease
shall bear interest at the lower of: (i) the sum of (a) 400 basis points plus
(b) the "prime rate" of interest as from time to time publicly announced by
Citibank, N.A., New York, New York, or its successor, or (ii) the highest rate
allowed by law, per annum on a per diem basis from the date due until paid.
10. LANDLORD'S OBLIGATION TO REBUILD. In the event the Building is
damaged by fire, explosion or other casualty, Landlord shall commence the
repair, restoration or rebuilding thereof within thirty (30) days after Landlord
receives insurance proceeds therefor or within 120 days of casualty loss,
whichever is earlier, and shall complete such restoration, repair or rebuilding
within one hundred eighty (180) days after the commencement thereof, provided
that if construction is delayed because of changes, deletions, or additions in
construction requested by Tenant, strikes, lockouts, casualties, acts of God,
war, material or labor shortages, governmental regulation or control or other
causes beyond the control of Landlord, the period for restoration, repair or
rebuilding shall be extended for the amount of time Landlord is so delayed. If
the casualty or the
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repair, restoration or rebuilding caused thereby shall render the Building
untenantable, in whole or in part, rent shall be equitably abated during the
period of untenantability and Tenant shall have no liability for the abated
rent, provided, however, that Tenant shall on a monthly basis, advance to
Landlord the sum equal to the full monthly payment of rent and other charges
otherwise due hereunder, and such advances shall be repaid by Landlord to Tenant
within thirty (30) days of receipt therefor from the proceeds of Landlord's
business income insurance on the Premises collected and retained by Landlord for
the period of such untenantability, provided however, that if Tenant shall not
be repaid in full for any such advanced abated rent within said 30 days, such
advances abated rent within said 30 days, such advances shall cease until
reconstruction or termination as provided herein and Landlord shall look
exclusively to such insurance. Landlord shall remain fully insured against loss
of business income on the Premises. If such a fire, explosion or other casualty
damages the building in which the Premises are located, in a material or
substantial way, Landlord may, in lieu of repairing, restoring or rebuilding the
same, terminate this Lease within sixty (60) days after the occurrence of the
event causing the damage by written notice to Tenant. In such event, the
obligation of Tenant to pay rent and other charges hereunder shall end as of the
date when the damage occurred.
11. INDEMNITY. Tenant will protect, indemnify and save harmless
Landlord, 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 Landlord by reason of (i) any failure on the part of Tenant to perform
or comply with any of the terms of this Lease; (ii) performance of any labor or
services or the furnishing of any materials or other property in respect of the
Premises or any part thereof; (iii) any violations or alleged violations of laws
or regulations by Tenant and all agents, officers, directors, employees,
customers, family members and invitees of Tenant ("Permitted Parties"); or (iv)
any use of the Premises by Tenant or Permitted Parties. In case any action, suit
or proceeding is brought against Landlord by reason of any occurrence described
in this Section 11, Tenant will, at Tenant's expense, resist and defend such
action, suit or proceeding, or cause the same to be resisted and defended. The
costs indemnified against hereunder and assumed under this Lease include,
without limitation, any claims due to loss suffered by the Landlord, Landlord's
other tenants, and/or the Permitted Parties. The obligations of Tenant under
this Section 11 shall survive the expiration or earlier termination of this
Lease.
12. TAXES.
(a) Tenant shall pay to Landlord as additional rent for the Premises
the actual amount of all real estate taxes and assessments, general and special,
water rates and all other impositions, ordinary and extraordinary, of every kind
and nature whatsoever, which may be levied, assessed, charged or imposed during
the term of the Lease upon the Premises or any part thereof or upon any
improvements at any time situated upon the Real Estate, including, without
limitation, any assessment by any association of owners of property in the
complex or subdivision of which the Real Estate is a part
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("Impositions"), provided, however, that such impositions shall be prorated
between Landlord and Tenant as of the Commencement Date for the first year of
the initial Term, and as of expiration date of the Lease term for the last year
of the Lease term (on the basis of Landlord's reasonable estimate thereof).
Impositions shall also include fees and costs incurred by Landlord during the
Lease term for the purpose of contesting or protesting tax assessments or rates.
If Tenant deems any imposition payable by Tenant hereunder to be illegal or
excessive, Tenant may compel Landlord to contest the same by proper proceedings
at Tenant's sole cost in good faith and expense. Tenant shall indemnify Landlord
against any loss or damage by reason of such contest, including all costs and
expenses thereof during the pendency of such proceedings. Landlord may take the
benefit of the provisions of any statute or ordinance permitting any assessment
to be paid over a period of years, in which event Tenant shall be obligated to
pay only those installments applicable to the term of this Lease and any
extensions thereof. The amount of such impositions shall be paid by Tenant to
Landlord within ten (10) days after Landlord bills Tenant therefor or, at
Landlord's election, in monthly installments in amounts estimated by Landlord.
The amount of all impositions shall be computed by Landlord within ninety (90)
days after the end of each accounting year (which Landlord may change from time
to time). Landlord shall furnish to Tenant a statement showing in reasonable
detail the actual impositions incurred during such accounting year. To the
extent the actual impositions incurred is greater than the sums paid by Tenant
for such year, the difference shall be billed to and paid by Tenant within
thirty (30) days after Tenant's receipt of said xxxx. Any amounts owing Landlord
and not paid when due shall bear interest at the lower of: (i) the sum of (a)
400 basis points plus (b) the "prime rate" of interest as from time to time
publicly announced by Citibank, N.A., New York, New York, or its successor, or
(ii) the highest rate allowed by law, per annum on a per diem basis from the
date due until paid. Any excess shall be credited against future installments of
rent. Tenant's estimated monthly impositions thereafter may be adjusted by
written notice from Landlord.
(b) If at any time during the term of this Lease the method of
taxation prevailing on the Commencement Date shall be altered so that any new
tax, assessment, levy, imposition, or charge, or any part thereof, shall be
measured by or be based in whole or in part upon the Lease, or the Premises, or
the Real Estate, or the rent, additional rent or other income therefrom and
shall be imposed upon Landlord, then all such taxes, assessments, levies,
impositions or charges, or the part thereof, to the extent that they are so
measured or based, shall be deemed to be included within the term "Impositions"
for the purpose hereof, to the extent that such Impositions would be payable if
the Premises were the only property of Landlord subject to such Impositions, and
Tenant shall pay the cost of impositions as so defined. There shall be excluded
from Impositions all federal income taxes, state and local net income taxes,
federal excess profit taxes, franchise, capital stock and federal or state
estate or inheritance taxes of Landlord.
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(c) Tenant further covenants and agrees to pay promptly when due all
taxes assessed against Tenant's fixtures, furnishings, equipment and stock-in
trade placed in or on the Premises during the term of this Lease.
13. ALTERATIONS.
(a) Tenant shall make all additions, improvements and alterations on
the Premises, and on and to the appurtenances and equipment thereof, required by
any governmental authority or which may be made necessary by the act or neglect
of Tenant, its employees, agents or contractors, or any persons, firm or
corporation claiming by, through or under Tenant. Tenant shall not make any
alterations to the Premises (hereinafter "Alterations") without Landlord's prior
written consent, which consent Landlord may, in its discretion, withhold.
(b) As to any Alterations which Tenant is permitted to make, such
work shall be performed with new materials, in a xxxxxxx-like manner, strictly
in accordance with plans and specifications therefor first approved in writing
by Landlord and in accordance with all applicable laws and ordinances. Tenant
shall, prior to the commencement of such work, deliver to Landlord copies of all
required permits, and builders risk (or installation floater) insurance coverage
to the extent of the cost of the Alterations. At Landlord's option (exercised by
notice in writing from Landlord to Tenant given within ten (10) days after
Landlord receives Tenant's plans and specifications), such work shall be
performed by employees or contractors approved by Landlord. Tenant shall permit
Landlord to monitor construction operations in connection with such work, and to
restrict, as may reasonably be required, the passage of manpower and materials,
and the conducting of construction activity. Upon completion of any such work by
or on behalf of Tenant, Tenant shall provide Landlord with such documents as
Landlord may require (including, without limitation, sworn contractors'
statements and supporting lien waivers) evidencing payment in full for such
work, and "as built" working drawings. In the event Tenant performs any work not
in substantial compliance with the provisions of this section, Tenant shall,
upon written notice from Landlord, immediately remove such work and restore the
Premises to their condition immediately prior to the performance thereof. If
Tenant fails so to remove such work and restore the Premises as aforesaid,
Landlord may, at its option, and in addition to all other rights or remedies of
Landlord under this Lease, at law or in equity, enter the Premises and perform
said obligation of Tenant and Tenant shall reimburse Landlord for the cost to
the Landlord thereof, immediately upon being billed therefor by Landlord, plus
interest at the lower of: (i) the sum of (a) 400 basis points plus (b) the
"prime rate" of interest as from time to time publicly announced by Citibank,
N.A., New York, New York, or its successor, or (ii) the highest rate allowed by
law, per annum on a per diem basis from the date paid by Landlord until paid by
Tenant. Such entry by Landlord shall not be deemed an eviction or disturbance of
Tenant's use or possession of the Premises nor render Landlord liable in any
manner to Tenant.
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(c) All improvements and Alterations made to the Premises by Tenant
shall, upon expiration or earlier termination of this Lease be deemed the
property of Landlord and Tenant shall have no further right or claim to the
title thereof.
(d) In the event Tenant desires to expand the Premises, Tenant shall
notify Landlord which notice shall include the size, location and type of
expansion. Thereafter, Landlord shall prepare plans and specifications for the
expansion, to be approved and paid for by Tenant (the "Plans"). Upon approval of
the Plans, Landlord shall estimate and submit the costs of the expansion for
Tenant's approval, which shall not be unreasonably denied, delayed or
conditioned. Upon approval, Landlord and Tenant shall enter into a new lease of
the Premises as to be expanded which new lease shall provide that Landlord shall
build the expansion and the rent shall be adjusted as follows; the new lease
shall expire five (5) years after completion of the expansion; during such five
(5) year period the base rental shall be equal to the sum of (i) the base rental
provided in Section 3 of this Lease, plus (ii) One Hundred Twenty-five Percent
(125%) of the fair market rental value of the expanded portion of the Premises
(determined at the time of execution of the new lease in the manner described in
Section 4). The new Lease shall provide for one (1) five (5) year option at the
fair market rental rate for the Premises as expanded. Any increase in costs due
to change orders shall be amortized as provided above or paid upon completion of
construction, at Landlord's option. In the event Tenant defaults hereunder prior
to completion of the expansion but after construction thereof commences,
Landlord may, at Landlord's sole option, elect to complete the expansion or
demolish the work to date. In the event Landlord elects to demolish the
construction, then Tenant shall pay to Landlord all of Landlord's damages in
connection with the expansion including but not limited to the cost to prepare
plans and specifications, to bid and hire contractors, to cancel the project, to
finance and to demolish and remove the incomplete expansion. Additionally,
Tenant shall be liable for damages as provided in Section 18 hereof.
14. RIGHT OF ENTRY: Landlord may enter the Premises at reasonable
hours to exhibit same to others and to inspect the Premises, and to make repairs
required of Landlord, provided Landlord does not unreasonably interfere with the
operation of Tenant's business within the Premises, Landlord may, during the
month preceding the expiration date of the term, place and maintain notices for
letting the Premises, free from hindrance by or control of Tenant.
15. ASSIGNMENT AND SUBLETTING:
Except as provided in the immediately succeeding paragraph, Tenant may
not assign, sublet or otherwise encumber this Lease, or permit the Premises or
any part thereof to be used by others, without the prior written consent of
Landlord, which consent may be granted or withheld in Landlord's sole
discretion.
Tenant may transfer its leasehold interest to a "Related Party" (as
hereinafter defined). The term "Related Party" means any person, firm,
corporation or legal entity
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which directly controls, is controlled by, or is under common control with
Tenant. The term "control" means the possession, directly, of the power to
direct or cause the direction of management in policies of Tenant, whether
through the ownership of voting securities or by contract.
16. TRANSFER OF INTEREST: If Landlord should sell or otherwise
transfer interest in the Premises, upon an undertaking by the purchaser or
transferee to be responsible for all of the covenants and undertakings of
Landlord, Tenant agrees that Landlord shall thereafter have no liability to
Tenant under this Lease or any modifications or amendments thereof, or
extensions thereof, except for such liabilities which might have accrued prior
to the date of such sale or transfer of its interest by Landlord.
17. CONDEMNATION:
(a) TAKING OF WHOLE. If the whole of the Premises shall be taken or
condemned for a public or quasi-public use or purpose by a competent authority,
or if such a portion of the Premises shall be so taken that as a result thereof
the balance cannot be used for the same purpose and with substantially the same
utility to Tenant as immediately prior to such taking, then in either of such
events, the Lease Term shall terminate upon delivery of possession to the
condemning authority, and any award, compensation or damages (hereinafter
sometimes called the "Award") shall be paid to and be the sole property of
Landlord whether the Award shall be made as compensation for diminution of the
value of the leasehold estate or the fee of the Real Estate or otherwise and
Tenant hereby assigns to Landlord all of Tenant's right, title and interest in
and to any and all of the Award. Tenant shall continue to pay rent and other
charges hereunder until the Lease term is terminated and any impositions and
premiums prepaid by Tenant, or which accrue prior to the termination, shall be
adjusted between the parties except tenant shall have the right to pursue a
separate claim for relocation expenses and for its personal property to the
extent it does not diminish the award to Landlord for its interest in the
premises.
(b) PARTIAL TAKING. If only a part of the Premises shall be so taken
or condemned, but the Lease is not terminated pursuant to Section 17(a) hereof,
Landlord shall repair and restore the Premises, to the extent reasonably
practicable, provided that Landlord shall not hereby be required to expend for
repair and restoration any sum in excess of the Award. Any portion of the Award
which has not been expended by Landlord for such repairing or restoration shall
be retained by Landlord as Landlord's sole property. The rent shall be equitably
abated following delivery of possession to the condemning body. If a portion of
the Building shall be so taken or condemned in a material or substantial way,
Landlord may terminate this Lease by giving written notice thereof to Tenant
within sixty (60) days after such taking. In such event, the Award shall be paid
to and be the sole property of Landlord.
(c) TEMPORARY TAKING. If the whole or a part of the Premises shall be
taken or condemned for a public or quasi-public use or purpose by a competent
authority, but
-11-
only on a temporary basis, then in such event this Lease shall continue in full
force and effect, without any abatement of rent whatsoever, but the Award paid
on account of such temporary taking during the Term of the Lease shall be paid
to Tenant in full satisfaction of all claims of Tenant on account thereof.
18. DEFAULT: Tenant agrees that any one or more of the following
events shall be considered events of default as said term is used herein:
(a) Tenant shall be adjudged an involuntary bankrupt, or a decree or
rider approving, as properly filed, a petition or answer filed against Tenant
asking reorganization of Tenant under the Federal bankruptcy laws as now or
hereafter amended, or under the laws of any state, shall be entered, and any
such decree or judgment or order shall not have been vacated or set aside within
ninety (90) days from the date of entry or granting thereof; or
(b) Tenant shall file or admit the jurisdiction of the court and the
material allegations contained in any petition in bankruptcy or any petition
pursuant to or purporting to be pursuant to the Federal bankruptcy laws as now
or hereafter amended, or Tenant shall Institute any proceeding or shall give its
consent to the institution of any proceedings for any relief of Tenant under any
bankruptcy or insolvency laws or any laws relating to the relief of debtors,
readjustment of indebtedness, reorganization, arrangements, composition or
extension; or
(c) Tenant shall make any assignment for the benefit of creditors or
shall apply for or consent to the appointment of a receiver for Tenant or any of
the property of Tenant; or
(d) The Premises are levied upon by any revenue officer or similar
officer; or
(e) A decree or order appointing a receiver of the property of Tenant
shall be made and such decree or order shall not have been vacated or set aside
within ninety (90) days from the date of entry or granting thereof; or
(f) Tenant shall abandon the Premises during the term hereof; or
(g) Tenant shall fail to make any payment of rent or in any other
payment required to be made by Tenant hereunder when due as herein provided (all
of which other payments shall be deemed "additional rent" payable hereunder) or
shall pay such amounts after the due date hereunder more than one time in any
twelve (12) calendar month period even if cured each individual time, or
(h) Tenant shall fail to contest the validity of any lien or claimed
lien and give security to Landlord to assure payment thereof, or, having
commenced to contest the same and having given such security, shall fall to
prosecute such contest with diligence,
-12-
or shall fail to have the same released and satisfy any judgment rendered
thereon, and such default continues for ten (10) days after notice thereof in
writing to Tenant; or
(i) Tenant shall default in keeping, observing or performing any of
the other covenants or agreements herein contained to be kept, observed and
performed by Tenant, and such default shall continue for thirty (30) days after
notice thereof in writing to Tenant; or
19. REMEDIES. Upon the occurrence of any one or more of such events
of default, Landlord may at its election terminate this Lease or terminate
Tenant's right to possession only, without terminating the Lease. Upon
termination of the Lease, or upon any termination of Tenant's right to
possession without termination of the Lease, Tenant shall surrender possession
and vacate the Premises immediately, and deliver possession thereof to Landlord,
and hereby grants to Landlord the full and free right, without demand or notice
of any kind to Tenant except as hereinabove expressly provided for, to enter
into and upon the Premises in such event with or without process of law and to
repossess the Premises by force, self-help or otherwise without process of law
as Landlord's former estate and to expel or remove Tenant and any other who may
be occupying or within the Premises without being deemed in any manner guilty of
trespass, eviction, or forcible entry or detainer, without incurring any
liability for any damages resulting therefrom and without relinquishing
Landlord's rights to rent or any other right given to Landlord hereunder or by
operation of law. Upon termination of the Lease, Landlord shall be entitled to
recover as damages all rent and other sums due and payable by Tenant on the date
of termination, plus (a) an amount equal to the value of the rent and other sums
provided herein to be paid by Tenant for the residue of the stated term hereof,
less the fair rental value of the Premises for the residue of the stated term
(taking into account the time and expenses necessary to obtain a replacement
tenant or tenants, including expenses hereinafter described relating to recovery
of the Premises, preparation for reletting and for reletting itself), and (b)
the cost of performing any other covenants to be performed by Tenant. If
Landlord elects to terminate Tenant's right to possession only without
terminating the Lease, Landlord may, at Landlord's option, enter into the
Premises, remove Tenant's signs and other evidences of tenancy, and take and
hold possession thereof as hereinabove provided, without such entry and
possession terminating the Lease or releasing Tenant, in whole or in part, from
Tenant's obligations to pay the rent hereunder for the full term or from any
other of its obligations under this Lease. Landlord may relet all or any part of
the Premises for such rent and upon such terms as shall be satisfactory to
Landlord (including the right to relet the Premises for a term greater or lesser
than that remaining under the Lease term, and the right to relet the Premises as
a part of a larger area, and the right to change the character or use made of
the Premises). For the purpose of such reletting, Landlord may decorate or make
any repairs, changes, alterations or additions in or to the Premises that may be
necessary or convenient. If Landlord does not relet the Premises, Tenant shall
pay to Landlord on demand damages equal to the amount of the rent, and other
sums provided herein to be paid by Tenant for the remainder of the Lease term.
If the Premises are relet and a sufficient sum shall not be realized from such
reletting
-13-
after paying all of the expenses of such decorations, repairs, changes,
alterations, additions, the expenses of such reletting and the collection of
the rent accruing therefrom (including, but not by way of limitation, attorneys'
fees and brokers' commissions), to satisfy the rent and other charges herein
provided to be paid for the remainder of the Lease term, Tenant shall pay to
Landlord on demand any deficiency and Tenant agrees that Landlord shall use
reasonable efforts to mitigate its damages arising out of Tenant's default;
Landlord shall not be deemed to have failed to use such reasonable efforts by
reason of the fact that Landlord has leased or sought to lease other vacant
premises owned by Landlord, whether on the Real Estate or not, in preference to
reletting the Premises, or by reason of the fact that Landlord has sought to
relet the Premises at a rental rate higher than that payable by Tenant under the
Lease (but not in excess of the then current market rental rate).
20. REMEDIES CUMULATIVE: No remedy herein or otherwise conferred upon
or reserved to Landlord shall be considered to exclude or suspend any other
remedy but the same shall be cumulative and shall be in addition to every other
remedy given hereunder, or now or hereafter existing at law or in equity or by
statute, and every power and remedy given by this Lease to Landlord may be
exercised from time to time and so often as occasion may arise or as may be
deemed expedient.
21. NO WAIVER. No delay or omission of Landlord to exercise any right
or power arising from any default shall impair any such right or power to be
construed to be a waiver of any such default or any acquiescence therein. No
waiver of any breach of any of the covenants of this Lease shall be construed,
taken or held to be a waiver of any other breach, or as a waiver, acquiescence
in or consent to any further or succeeding breach of the same covenant. The
acceptance by Landlord of any payment of rent or other charges hereunder after
the termination by Landlord of this Lease or of Tenant's right to possession
hereunder shall not, in the absence of agreement in writing to the contrary to
Landlord, be deemed to restore this Lease or Tenant's right to possession
hereunder, as the case may be, but shall be construed as a payment on account,
and not in satisfaction of damages due from Tenant to Landlord.
22. PERSONALTY OF TENANT: If Tenant shall not remove all its
property, including without limitation inventory and other goods, from the
Premises upon termination of this Lease, Landlord may at its option remove all
or part of said property in any manner that Landlord may choose, and Tenant
shall be liable to Landlord for all expenses incurred in such removal and
storage of such property.
23. SUBORDINATION: This Lease and any changes or amendments hereto or
any renewal or extensions hereof are subject and subordinate to all underlying
mortgages which may now or hereafter affect the Premises. This clause shall be
self-operative and no further instrument or subordination need be required by
any mortgagee. In confirmation of such subordination, Tenant shall, if requested
by Landlord, execute promptly an instrument having that effect, or any similar
instrument, as so requested by
-14-
Landlord, provided such mortgagee agrees not to disturb Tenant's possession of
the Premises so long as Tenant is not in default hereunder after any applicable
cure period.
24. HOLDING OVER: If Tenant remains in possession after expiration of
the Term hereof, without Landlord's acquiescence and written agreement of the
parties, Tenant shall be a month-to-month tenant subject to all the terms and
conditions of this Lease except Tenant shall pay hold-over rent equal to One
Hundred Fifty Percent (150%) of base rental. During such month-to-month tenancy,
either party may terminate this Lease upon thirty (30) days notice to the other.
25. SURRENDER OF PREMISES: At the termination of this Lease, Tenant
shall surrender the Premises in the same condition which existed at the
commencement of the term, normal wear and tear excepted. This covenant shall
survive the expiration or other termination of the Term of this Lease.
26. QUIET ENJOYMENT: Tenant, upon paying the rent and observing and
performing all the terms, covenants and conditions on its part to be observed
and performed, may peaceably and quietly enjoy the Premises, subject to the
terms and conditions of this Lease.
27. NOTICES: Except as otherwise provided in this Lease, a xxxx,
statement, notice or communication which either party may desire or be required
to give to the other will be deemed sufficiently given or delivered if hand
delivered, sent by nationally recognized overnight courier, or sent by
registered or certified mail, return receipt requested addressed to Tenant at
the Premises or at such other address as Tenant shall designate by written
notice, and to Landlord at the address first hereinabove given for payment of
rent, or at such other address as Landlord shall designate by written notice.
The time of giving such xxxx, statement, notice or communication shall be deemed
to be the time when same is delivered in person or when such receipt is accepted
or refused by either Landlord or Tenant.
28. EXCULPATORY CLAUSE: Landlord shall not be liable to Tenant, its
agents, employees, or customers or family members of any of the same for any
damages, losses, compensation, accidents, or claims whatsoever. The foregoing
notwithstanding, it is expressly understood and agreed that nothing in this
Lease contained shall be construed as creating any liability whatsoever against
Landlord personally, its members, officers, directors, shareholders or partners,
and in particular without limiting the generality of the foregoing, there shall
be no personal liability to pay any indebtedness accruing hereunder or to
perform any covenant, either express or implied, herein contained, or to keep,
preserve or sequester any property of Landlord, and that all personal liability
of Landlord of every sort, if any, is hereby expressly waived by Tenant, to the
extent permitted by law, and by every person now or hereafter claiming any right
or security hereunder, and that so far as the parties hereto are concerned, the
owner of any indebtedness or liability accruing hereunder shall look solely to
the Premises for the payment thereof.
-15-
If the Tenant obtains a money judgment against Landlord, any of its
officers, directors, shareholders, partners, or their successors or assigns
under any provisions of or with respect to this Lease or on account of any
matter, condition or circumstance arising out of the relationship of the parties
under this Lease, Tenant's occupancy of the Building or Landlord's ownership of
the Premises, Tenant shall be entitled to have execution upon any such final,
unappealable judgment only upon Landlord's interest in the Premises (whichever
is applicable) and not out of any other assets of Landlord, or any of its
members, officers, directors, shareholders or partners, or their successor or
assigns; and Landlord shall be entitled to have any such judgment so qualified
as to constitute a lien only on said Premises.
29. APPLICABLE LAW: Tenant and Landlord agree that this Lease shall
be interpreted and construed in accordance with the laws of the State of Ohio.
For all litigation, disputes, controversies which may arise out of or in
connection with this Lease, the undersigned hereby waive the rights to trial by
jury and consents to the jurisdiction of the courts in the State of Ohio.
30. BINDING EFFECT: All the terms, conditions and covenants of this
Lease shall inure to the benefit of and be binding upon the respective heirs,
legal representatives, successors and assigns of the parties hereto.
31. ENTIRE AGREEMENT: This Lease contains the entire agreement of the
parties and no representations or agreements, oral or written, not embodied
herein or incorporated herein by reference shall be of any force or effect.
32. NUMBER AND GENDER: The word "Tenant" shall be construed to mean
tenants where there is more than one tenant, and the necessary grammatical
changes to make the provisions hereof apply either to a corporation, individual
or partnership, singular or plural, masculine or feminine, will in all cases be
assumed as though in each case fully expressed.
33. AMENDMENT. This Lease may only be modified or amended in writing,
which shall be signed by both parties hereto.
34. SUCCESSORS AND ASSIGNS. The covenants, conditions, and agreements
made and entered into by the parties hereto shall be binding upon and inure to
the benefit of their respective heirs, representatives, successor and assigns.
35. CAPTIONS: Paragraph captions are used for convenience only, and
shall not limit or amplify or otherwise constitute a part of the provisions of
this Lease.
36. FORCE MAJEURE: Landlord shall not be deemed in default with
respect to any of the terms, covenants and conditions of this Lease on
Landlord's part to be performed, if Landlord's failure to timely perform same is
due in whole or in part to any strike, lockout, labor trouble (whether legal or
illegal), civil disorder, failure or power,
-16-
restrictive governmental law and regulations, riots, insurrections, war,
shortages, accidents, casualties, acts of God, acts caused directly by Tenant
or Tenant's agent, employees and invitees, or any cause beyond the reasonable
control of Landlord.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
effective the date first set forth above,
Signed and Acknowledged
in the presence of: LANDLORD:
AMERICAN FIREFIGHTERS COOPERATIVE,
INC., an Ohio corporation
BY: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------- --------------------------------
Print name: Xxxxxxx X. Xxxxxxxx
----------------------- Its: President
-----------------------------------
Print name:
-----------------------
TENANT:
MORNING PRIDE MANUFACTURING, L.L.C.,
a Delaware limited liability company
BY: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------- --------------------------------
Print name: Print name: Xxxxxx X. Xxxxxxxx
----------------------- -----------------------
Its: President
------------------------------
-----------------------------------
Print name:
-----------------------
STATE OF ILLINOIS :
: ss.
COUNTY OF XXXX :
The foregoing instrument was acknowledged before me this 14th day of
August, 1998, by Xxxxxxx X. Xxxxxxxx, President of The American Firefighters
Cooperative, Inc., an Ohio corporation, for and on behalf of said corporation.
-------------------------------
Notary Public
-17-
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT ("Amendment") is entered into
this 3RD day of September 1999, by and between THE AMERICAN FIREFIGHTERS
COOPERATIVE, INC., an Ohio corporation ("Landlord") and MORNING PRIDE
MANUFACTURING L.L.C., a Delaware limited liability company ("Tenant").
RECITALS
A. Landlord and Tenant are parties to a written lease agreement
dated August 1, 1998 (the "Lease"), for the lease of a certain premises
consisting of approximately 25,600 leasable square feet which is commonly known
as # 0 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000 (the "Premises").
B. Pursuant to Section 13(d) of the Lease, (i) Tenant has notified
Landlord of Tenant's desire to expand the Premises by 30,400 square feet (which
shall be individually referred to herein as the "Expansion Space"), (ii)
Landlord has obtained, and Tenant has approved, plans and specifications for the
Expansion Space designed by Xxxxx Xxxxxxxx dated August 1, 1999, and attached as
Exhibit A, and (iii) Landlord has obtained, and Tenant has approved, a quote for
the costs of such expansion from Xxxxxxx Construction Co., dated August 9, 1999,
and attached as Exhibit B.
C. Landlord and Tenant desire by this Amendment to amend the terms
of the Lease as hereinafter provided.
TERMS
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
1. Section 1, PREMISES, is hereby amended to provide that the term
"Premises" shall include the Expansion Space being constructed by
Landlord pursuant to Section 13(d) of the Lease.
2. Section 2, TERM, is hereby amended to provide that the "Initial Term"
shall terminate on the last day of the sixtieth (60th) month following
the later to occur of (i) the date that Landlord makes the Expansion
Space available for use by Tenant, provided an unconditional
certificate of occupancy has been issued (Tenant may be permitted to
occupy the Expansion Space for purposes of fixturing, provided that
Tenant does not interfere with Landlord's contractors), or (ii) January
3, 2000. The parties agree to confirm the termination date of the Lease
by a written agreement once said date is determined.
3. Section 3, RENTAL, is hereby amended to provide that, commencing on the
date that the Expansion Space is made available for use by Tenant and
continuing throughout the Initial Term, Tenant agrees to pay Landlord,
as base rental under the Lease, Two Hundred Eighty Six Thousand Two
Hundred Dollars ($286,200.00) per year in monthly installments of
Twenty Three Thousand Eight Hundred Fifty Dollars ($23,850.00),
calculated in accordance with the following:
Per Month Per Year Per Sq. Ft
---------------------------------------
25,600 Sq. Ft. Existing Space $ 9,600.00 $ 115,200.00 $ 4.50
----------- ------------ -------
30,400 Sq. Ft. Expansion Space $ 14,250.00 $ 171,000.00 $ 5.63
----------- ------------ -------
Total = $ 23,850.00 $ 286,200.00
----------- ------------
Tenant shall continue to pay the rental amount set forth in the Lease
until the Expansion Space is made available by Landlord. The parties
agree that the Fair Market Rental Value, as defined in Section 4 of the
Lease, for the Expansion Space is Four and 50/100 ($4.50) per square
foot per year.
4. Except as expressly amended, supplemented or modified, all other terms
and conditions of the Lease shall remain in full force and effect. In
the event of a conflict between the terms hereof and the terms of the
Lease, the terms hereof shall prevail. Any defined term herein shall,
unless specifically stated otherwise, have the same meaning as set
forth in the Lease. This amendment may be executed in counterparts,
each of which when executed and delivered (which may be accomplished
via facsimile) shall be deemed an original, but such counterparts
together shall constitute but one and the same document. The parties
executing this amendment have full right and authority to execute this
amendment. Additionally, except as specifically provided herein, the
Lease shall remain in effect and unmodified.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Lease as of the date first herein above set forth.
Signed and Acknowledged LANDLORD:
in the presence of: THE AMERICAN FIREFIGHTERS COOPERATIVE,
INC., an
Ohio corporation
/s/ Xxxx Xxxxxxxx BY: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------- --------------------------------
Print Name: XXXX XXXXXXXX Xxxxxxx X. Xxxxxxxx, President
/s/ Xxxxxx XxXxxxxxxx
-------------------------------
Print Name: Xxxxxx XxXxxxxxxx
Signed and Acknowledged TENANT:
in the presence of: MORNING PRIDE MANUFACTURING L.L.C.,
a Delaware limited liability company
/s/ Xxxxxxx X. Xxxxxxx BY: /s/ Xxxxxx Xxxxxxxx
------------------------------- ------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx Xxxxxx Xxxxxxxx, Chief Executive Officer
-------------------
/s/ Xxx X. Xxxxx
--------------------------------
Print Name: Xxx X. Xxxxx
--------------------
-2-
STATE OF OHIO :
: ss.
COUNTY OF XXXXXXXXXX :
The foregoing instrument was acknowledged before me this ______ day of
September, 1999, by Xxxxxxx X. Xxxxxxxx, President of The American Firefighters
Cooperative, Inc., an Ohio corporation, for and on behalf of said corporation.
[SEAL]
Xxxxxxxx Xxxxxx
------------------------
Notary Public
STATE OF ILLINOIS :
: ss.
COUNTY OF KENT :
XXXXXXXX XXXXXX, Notary Public
in and for the State of Ohio
My Commission Expires Dec. 31, 2000
The foregoing instrument was acknowledged before me this 8 day of
September, 1999, by Xxxxxx Xxxxxxxx, Chief Executive Officer of Morning Pride
Manufacturing L.L.C., a Delaware limited liability company, for and on behalf of
said company.
/s/ [Illegible]
---------------------------
Notary Public, State of RI
my term expires 3/3/2002.
[SEAL]
-3-
DATE
AUGUST, 1999
SHEET TITLE
SITE PLAN
SHEET NO.
C1
ADDITION TO
MORNING PRIDE MFG. CO,. INC.
INNOVATION COURT DAYTON OHIO
[SEAL]
ROUND BUILDING AFTER WORK IS COMPLETED.
XXX THAN ED FILL FOR BUILDING PAD HAS BEEN PLACED TO AT LEAST 95% MODIFIED
XXXXXXX IN ACCORDANCE WITH ASTM D 1557 MODIFIED XXXXXXX.
NEWLY GRADED AREAS FROM TRAFFIC AND EROSION. RECOMPACT RADE SETTLED, DISTURBED
AND DAMAGED AREAS AS NECESSARY TO QUALITY, APPEARANCE AND CONDITION OF WORK.
XXX STABILITY OF SLOPES AND EXCAVATIONS. PREVENT SURFACE AND XXX WATER FROM
ACCUMULATION IN EXCAVATIONS. REMOVE WATER TO SOFTENING OF SUBGRADE AND FILL.
SLOPE OF ALL GRADED AREAS SHALL BE 3 HORIZONTAL: 1 VERTICAL.
XXX SHALL CONFORM TO REQUIREMENTS OF THE AMERICAN CONCRETE XXX BUILDING CODE
REQUIREMENTS FOR REINFORCED CONCRETE.
XXX SHALL HAVE A MINIMUM COMPRESSIVE STRENGTH OF 4,000 PSI AT AND SHALL BE AIR
ENTRAINED FOR EXTERIOR CONCRETE EXPOSED XXX.
XXX REINFORCING SHALL CONFORM TO ASTM A 615 WITH A MINIMUM YIELD XXX OF 60,000
PSI.
WIRE FABRIC SHALL CONFORM TO ASTM A 185.
XXX PAVEMENT AND SIDEWALKS SHALL HAVE A BROOM FINISH.
XXX SEWER PIPE SHALL CONFORM TO ASTM D 3034 FOR SDR 35. IN COMPOUND SHALL
CONFORM TO ASTM D 1784.
XXX TRENCH BOTTOM SHALL BE SMOOTH AND REGULAR, FREE OF ROCKS HARD OBJECTS TO
ALLOW UNIFORM SUPPORT OF PIPE.
XXX SEWER PIPE SHALL CONFORM TO ASTM D 3034 FOR SDR 35. XXX COMPOUND SHALL
CONFORM TO ASTM D 1784.
SEWER TRENCH BOTTOM SHALL BE SMOOTH AND REGULAR FREE OF XXX ALL HARD OBJECTS TO
ALLOW UNIFORM SUPPORT OF PIPE.
[GRAPHIC]
TYPICAL ASPHALT PAVING
EXHIBIT A
PROPOSAL
Xxxxxxx Construction, Inc.
00000 Xxxxxxx Xxxx Xx,
Xxxxxxxxx, Xxxx 00000
(000) 000-0000
Proposal submitted to: Morning Pride Phone: 000-0000 Date:08-09-??
Street: 1 Innovation Ct. Job Name:
City, State, Zip: Dayton, Ohio Job Location:
Architect: Xxxx Xxxxxxxx Date of Pians: 08-01-?? Job Phone:
We hereby submit specifications and estimates for:
Xxxxxxx Construction, Inc. to furnish labor & materials for the
construction of an addition to existing building located at 1 Innovation Ct.,
Dayton, Ohio. Morning Pride, according to drawings by Xxxxx X. Xxxxxxxx,
architect, dated August 1, 1999.
Building as follows:
Add to east end of existing building 160' X 190'
Building to be pre-engineered American Buildings Co.
All concrete work - footers - foundation - slab -
dock - steps - sidewalks
Excavation site work - building pad & parking lot
Blacktop & stripping - 1500 sq. yd.
Building insulation
Plumbing for restrooms (4 water closets added over
existing)
Gasline extension
Sprinkler system
Electrical ($25,000 allowance)
HVAC
Restroom & lunch room - painted
Liner panel - painted
Office area not included in quote
Building permit - subcontractors to furnish their
own permits
We propose hereby to furnish material and labor - complete in accordance with
above specifications, for the sum of: $700,000
Payment to be made as follows:
(A) $50,000 - starting project
(B) $200,000 - footer - foundation - slab
(C) $150,000 - building delivery
(D) $150,000 - HVAC units set
(E) $100,000 - red iron set
(F) $35,000 - drywalled
(G) $15,000 - completion of this contract
Authorized Signature
/s/ [ILLEGIBLE]
----------------------------
Note: This proposal may be withdrawn
by us if not occupied within 10 days.
All material XXX to be XXX
specified. All work to be completed
in a workmanlike manner according
to standard practices. Any
alteration or deviation from above
specifications involving extra
costs will be executed only upon
written orders, and will become an
extra charge over and above the
estimate. All XXX XXX contingent
upon strikes, accidents, or delays
beyond our control. Owner to carry
XXX XXX, and other necessary
insurance. Our workers are covered
by Xxxxxxx'x compensation
insurance.
Acceptance of Proposal-the above prices,
specifications and conditions are satisfactory and
are hereby accepted. You are authorized to do the
work as specified. Payment will be made as
outlined above.
Date of Acceptance: ? Aug 99
-----------------------
Signature: /s/ [ILLEGIBLE]
--------------------------------
Signature:
--------------------------------
EXHIBIT B
SECOND AMENDMENT TO
LEASE AGREEMENT
THIS SECOND AMENDMENT TO
LEASE AGREEMENT ("Amendment") is entered into
this 1st day of July 2000 ("Effective Date"), by and between THE AMERICAN
FIREFIGHTERS COOPERATIVE, INC., an Ohio corporation ("Landlord") and MORNING
PRIDE MANUFACTURING L.L.C., a Delaware limited liability company ("Tenant").
R E C I T A L S
A. Landlord and Tenant are parties to a written
lease agreement
dated August 1, 1998, as amended by the First Amendment to
Lease Agreement,
dated September 3, 1999 (collectively the "Lease"), for the lease of a certain
premises consisting of approximately 55,200 leasable square feet which is
commonly known as #0 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000 ("Premises").
B. Pursuant to Section 13(d) of the Lease, Landlord expanded the
Premises by approximately 30,000 square feet and the parties adjusted the Term
and Rental amount as set forth in the First Amendment to
Lease Agreement.
C. During the construction of the expansion space, Tenant requested
certain change orders in the amount of Four Hundred Twenty Thousand Eighty One
Dollars and 23/100 Dollars ($420,081.25) ("Change Order Amount").
D. Landlord and Tenant desire by this Amendment to modify the rental
amount due to said change orders as hereinafter provided.
T E R M S
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
1. Section 3, RENTAL, is hereby amended to provide that, effective on the
First Day of operation in the Expanded Facilities (January 3, 2000),
Tenant agrees to pay Landlord, as base rental under the Lease, Three
Hundred Thirty Three Thousand Four Hundred Fifty Nine and 12/100
Dollars ($333,459.12) per year in monthly installments of Twenty Seven
Thousand Seven Hundred Eighty Eight and 26/100 Dollars ($27,788.26).
The foregoing amount was calculated by multiplying the Change Order
Amount by 1.125, dividing said amount over a One Hundred Twenty (120)
month period, and adding said amount to the existing monthly Rental
amount as modified by the First Amendment to Lease Agreement. Said
calculation is set forth below
Per Year Per Month
------------ -----------
Existing Rental Amount $ 286,200.10 $ 23,850.00
Increase due to Change Orders $ 47,259.12 $ 3,938.26
NEW RENTAL AMOUNT $ 333,459.12 $ 27,778.26
In the event that the Lease expires, or is terminated, at any time
within Ten (10) years after the Effective Date, Tenant shall reimburse
Landlord an amount equal to the number of
months remaining in said Ten (10) year period multiplied by Three
Thousand Nine Hundred Thirty Eight and 26/100 Dollars ($3,938.26). Said
obligation shall survive termination of the Lease and shall be paid to
Landlord within fourteen (14) days after the termination of the Lease.
2. Except as expressly amended, supplemented or modified, all other terms
and conditions of the Lease shall remain in full force and effect. In
the event of a conflict between the terms hereof and the terms of the
Lease, the terms hereof shall prevail. Any defined term herein shall,
unless specifically stated otherwise, have the same meaning as set
forth in the Lease. This amendment may be executed in counterparts,
each of which when executed and delivered (which may be accomplished
via facsimile) shall be deemed an original, but such counterparts
together shall constitute but one and the same document. The parties
executing this amendment have full right and authority to execute this
amendment. Additionally, except as specifically provided herein, the
Lease shall remain in effect and unmodified.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment to Lease as of the date first herein above set forth.
Signed and Acknowledged LANDLORD:
in the presence of: THE AMERICAN FIREFIGHTERS COOPERATIVE,
INC., an Ohio corporation
/s/ Xxxxxxxxx Xxxxxxxxx BY: Xxxxxxx X. Xxxxxxxx
----------------------------------- -------------------------
Print Name: Xxxxxxxxx Xxxxxxxxx Xxxxxxx X. Xxxxxxxx, President
/s/ Xxxxx xxxxx
-----------------------------------
Print Name: Xxxxx xxxxx
-----------------------
Signed and Acknowledged TENANT:
in the presence of: MORNING PRIDE MANUFACTURING L.L.C.
a Delaware limited liability company
/s/ X.Xxxxx BY: /s/ Xxxxxx Xxxxxxxx
----------------------------------- ------------------------------------
Print Name: X. XXXXX Xxxxxx Xxxxxxxx, Chief Executive Officer
-----------------------
/s/ [ILLEGIBLE]
-----------------------------------
Print Name: [ILLEGIBLE]
-----------------------
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