LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into, in duplicate, this 15th day
of May 1997, by and between B.M.S. Management, Inc., a Missouri Corporation,
(hereinafter called "Lessor"), whose address is 000 Xxxxxxxxx, Xx. Xxxxxx, XX
00000, and Snorkel, a Division of Figgie International, Inc., a Delaware
corporation, (hereinafter called Lessee"), whose address is 000 Xxxxx Xxxxxx,
Xxxxx 000, X.X. Xxx 0000, Xx. Xxxxxx, XX 00000.
WITNESSETH:
1. LEASED PREMISES. Lessor hereby leases to Lessee and Lessee rents from
Lessor a portion of that real property in Doniphan County, Kansas, commonly
known and referred to as the "Xxxxxx" property, located on Xxxx Xxxx, Xxxxxxx,
XX 00000, said leased area containing approximately 54,808 square feet of
building space, all as more fully described in Exhibit "A" attached hereto and
made a part hereof, together with all of the easements, rights, privileges, and
appurtenances thereunto belonging and together with all fixtures of every kind
whatsoever now or hereafter owned by the Lessor and used or procured for use in
connection with the operation and maintenance of the above referenced leased
premises, hereinafter referred to as "Premises".
2. TERM. The term of this Lease shall be for a
base period of Five (5) years, commencing on July 1, 1997, and ending on June
30, 2002. Said five (5) year period is hereinafter referred to as "Term".
3. USE. Lessee agrees that it will use the leased premises for its
production and/or storage purposes and for any other lawful purposes, and that
it will use said premises in a safe, lawful and reasonable manner, and commit no
waste thereon.
4. RENT. Lessee agrees without demand to pay to Lessor at X.X. Xxx 000,
Xxxxxx, Xxxxxx 00000, or at such place as Lessor may from time to time designate
in writing, as rent for the Premises the sum of Eleven Thousand Six Hundred One
and 03/100 ($11,601.03) per month, in advance, upon the 1st day of each and
every calendar month during the term of this Lease. Lessee to pay, as additional
rent, its pro-rata share of Common Area Maintenance Expenses as estimated in
Exhibit "B" upon submission by Lessor of invoices reflecting the true and
correct amount of said expenses. A late payment penalty equal to five percent
(5%) of the monthly rental due shall be paid by Lessee any time a rental payment
is not paid on or before five (5) days after the rental due date.
5. TAXES. Lessee shall be responsible for and pay a pro-rated portion of
all real estate taxes relating to the "Xxxxxx" property and all improvements
thereon incidental to the building occupied by LESSEE. In addition
to the monthly rental payment as hereinabove provided, Lessee shall pay 31.4% of
1/12th of the annual real estate taxes and assessments associated the "Xxxxxx"
property, the same being due and payable on the 1st day of each, and every,
month of the lease term. The pro-ration herein provided for shall be made on the
basis of the total tax liability for the preceding year. The amount of payment
shall be adjusted in January of each year to reflect any changes in the amount
of taxes and assessments but shall initially be the sum of Nine Hundred
Thirty-Nine Dollars and Sixty-Nine Cents ($939.69) per month based upon the 1996
tax statement, such being the last available tax statement. Any real estate tax
increase occasioned by improvements or additions made by Lessee to the Premises
shall be paid in full by Lessee and any real estate tax increases occasioned by
improvements or additions made by Lessor to any other portion of its property
shall be paid in full by Lessor.
6. ALTERATIONS AND INSTALLATIONS DURING TERM AND REMOVAL OF IMPROVEMENTS BY
LESSEE.
(a) Lessee shall have the right during the term of this Lease to make
such interior alterations, changes or improvements in the Premises, as may be
proper and necessary for the conduct of Lessee's business and for the full
beneficial use of said Premises, provided Lessee shall pay all costs and
expenses thereof, shall make such
alterations, changes and improvements in a good and workmanlike manner and shall
comply with all applicable laws and building regulations. Lessee agrees to
completely and fully indemnify Lessor against any Mechanic's Lien or other lien
or claims in connection with the making of such alterations, changes and
improvements.
(b) The Leasehold improvements, furnishings and trade fixtures,
electrical panels, cranes and such other operating equipment installed in the
Premises by Lessee and paid for by the Lessee shall remain the property of the
Lessee and may be removed by Lessee upon the termination of this Lease, provided
that Lessee shall repair any damages caused by the removal of any of such
improvements as are affixed to the Premises and require severance.
7. REPAIRS AND MAINTENANCE.
(a) Lessee, at its sole cost and expense, shall be responsible for the
normal routine maintenance and minor repairs of the plumbing, electrical, and
heating systems presently located within the Premises; provided, however, in no
event shall Lessee be responsible for any capital or major repairs or
replacement of parts instant thereto, this responsibility being assumed by the
Lessor. For the purpose of applying this paragraph, any single repair costing
over $500.00 for labor and/or material shall be considered major. Additionally,
Lessor shall be responsible for all maintenance costs exceeding $1,000.00
aggregate for labor and/or material for any one mechanical system or kind of
repair in any lease year, regardless of the single repair cost. Lessor covenants
to keep the Premises and sidewalks in a clean and orderly condition, free of
dirt, rubbish, snow and ice, and Lessee shall pay its pro-rata share of all
costs associated therewith as estimated in Exhibit "B" and upon the submission
of copies of invoices reflecting the true and correct amount expended therefore.
(b) Subject to Lessee paying its pro-rated share of those matters
addressed in Exhibit "B", Lessor will keep and maintain the parking lot,
landscaping, exterior structure, foundation, common areas, floor and roof areas
of the Premises in good condition and repair and will make any major repairs to
or replace any fixtures such a plumbing, electrical, and heating systems
situated in or upon the Premises on the date hereof or any extension.
(c) Notwithstanding any other terms or condition of this agreement,
Lessee specifically agrees to take all necessary and reasonable steps and
measures to not subject the balance of Lessor's property to exposure from smoke,
fumes, dust and other such substances, and to remain in compliance with
"Distribution Center Standards" which standards are attached hereto and made a
part hereof by reference.
8. INSURANCE.
(a) Lessee, at its sole cost and expense, shall maintain General Public
Liability Insurance against claims for injury or wrongful death, occurring upon,
in, or about the leased premises in amounts not less than $1,000,000 combined in
respect to injury or wrongful death to any person and for all persons in any one
accident. Lessee shall deliver to Lessor, upon request, a certificate of
insurance to evidence that Lessee has obtained such insurance and that premiums
have been paid thereon.
(b) It is the intention of the parties hereto that the Lessor shall
assume the full risk of damages to the Premises and to any and all of its
fixtures, equipment or personal property in or upon the Premises, resulting from
any of the perils insured against in the Standard Fire and Extended Coverage
Insurance Policy or the Standard Sprinkler Leakage Insurance Policy, regardless
of cause or origin and that in the event of a loss Lessor shall be entitled to
any and all insurance payments made in connection therewith. Lessee shall be
responsible for and pay, thirty-one point four percent (31.4%) of the
aforementioned insurance premiums. Payment of said premiums shall be pro-rated
for the period that the Premises is occupied by Lessee and shall be payable on a
quarterly basis. Upon request by LESSEE, LESSOR shall evidence the existence of
the aforementioned insurance policies with premiums paid current. Lessee shall
be
totally responsible for any and all insurance premium increases occasioned by or
attributable to its use or occupancy of the Premises or its operations and
activities thereon. Lessee shall also be totally responsible for any insurance
premium increases caused by or attributable to improvements which it has made to
the Premises. Lessor shall not be responsible for any loss or damage to Lessee's
property or the property of any third party which may be situated upon the
Premises and Lessee shall maintain such insurance coverage as it deems necessary
and appropriate to cover possible damage to or loss of said property. Further,
LESSEE shall not be responsible for increases in insurance premiums occasioned
by LESSOR or other occupants of LESSOR'S property.
9. UTILITIES. Lessee shall pay for all utilities and services used or
consumed by Lessee upon the Premises and shall pay any charges made for the
installation of new or additional connections or modifications in such services
made during the term hereof or made in order to meter the utilities used by
Lessee, or made in order to meter the utilities used/consumed by Lessee.
10. SIGNS. Lessee may place signs on the Premises advertising Lessee's
business or products; said sign(s) shall not interfere with Lessor' s existing
signage. Lessee agrees to remove such sign(s) upon termination of
this Lease or any extension thereof, and to repair own expense, any damage to
the Premises caused removal and if the sign (s) be painted on a wall or surface,
to restore that wall or surface to its former condition. Lessee agrees to obtain
from Lessor written consent to display specific signage as may be required,
provided, however, that such consent shall not be unreasonably withheld or
delayed.
11. ASSIGNMENT AND SUBLETTING. Lessee agrees that without the prior written
consent of the Lessor, Lessee will not assign, sublet, or mortgage this lease or
any right or interest therein, provided, however, that such consent shall not be
unreasonably withheld or delayed and provided further that in any event the
Lessee shall have the right to sublet to any subsidiary corporation of Lessee,
or to any corporation which shall be the result of a merger, consolidation, or
reorganization with Lessee.
12. LESSOR'S RIGHT TO ENTER PREMISES. Lessee agrees to permit Lessor and
any authorized representative of the Lessor to enter the Premises at all
reasonable times during usual business hours or at any other time in case of
emergency, for the purpose of inspecting the same or for any other reasonable
purpose, including such maintenance and repair which are the obligation of the
Lessor under this Lease.
13. DAMAGE OR DESTRUCTION OF PREMISES. Lessor
and Lessee agree that if, at any time during the continuance of this lease, the
Premises shall be destroyed, be damaged, or be in any condition so as to be
unfit for occupancy by LESSEE for LESSEE'S purposes (all hereinafter called
"Injury"), and such injury could reasonably be repaired within sixty (60) days
from the happening of such injury, then Lessee shall not be entitled to
surrender possession of the Premises; but in case of any such injury, Lessor
shall repair the Premises with all reasonable speed and shall complete such
repairs within sixty (60) days from the happening of such injury, and if not
completed within said sixty (60) days, Lessee shall have the option to terminate
this Lease immediately; and, if Lessee shall have been deprived of the occupancy
of any portion of the Premises during the aforementioned repair period, the rent
for the period of the repairs shall be abated. If the Premises be so injured
that such injury could not reasonably be repaired within sixty (60) days from
the happening of such injury, this Lease shall be considered terminated as of
the date of the happening of such injury or LESSEE may advise LESSOR that it
elects to extend the period for such repairs for an additional one hundred
twenty (120) days. In the event of such extension of the repair period, the rent
for such period shall be abated.
14. EMINENT DOMAIN. If, during the term of this Lease or any extension
thereof, proceedings shall be
instituted under the power of Eminent Domain which shall result in the
termination of this Lease or action for possession, this Lease shall be void and
this Lease shall cease and. terminate; and if Lessee shall thereafter continue
in possession of the Premise or any part thereof, it shall be a lease from
month-to-month and for no longer term anything in this instrument to the
contrary notwithstanding; and the whole of any award payable by reason of any
condemnation proceedings shall be the sole property of and be payable to the
Lessor . The Lessee shall be entitled to seek its separate award for loss of
business and for removing and relocation of trade fixtures and machinery and
shall be entitled to the whole of any such reward.
15. NO IMPLIED WAIVER BY LESSOR OR LESSEE. No waiver of any of the terms,
covenants, provisions, conditions, rules and regulations required by this Lease,
and no waiver of any legal or equitable relief or remedy shall be implied by the
failure of Lessor or Lessee to assert any rights, or to declare any forfeiture,
and no waiver of any of said terms, provisions, covenants, rules and regulations
shall exist unless such be in writing signed by the Lessor or the Lessee.
16. VACATION OF PREMISES. Lessee shall deliver up and surrender to Lessor
possession of the Premises upon the termination of this lease in as good
condition and repair as the same shall be at the commencement of said term
except for wear, tear, and decay; destruction or damage by the elements,
lightning, earthquake, acts of God, invasion, insurrection, riot, civil
commotion, military or usurped power, eminent domain, or other perils set forth
in this Lease; and except for Lessor's responsibility for repairs and
maintenance as set forth in Paragraph 7 of this lease. Upon the termination of
this lease and vacation of the Premises Lessee shall employ all reasonable
efforts to restore the Premises to "Distribution Center Standards" which
Standards are attached hereto and made a part hereof by reference.
17. HOLDING OVER. If, at the expiration of the Term, Lessee continues to
occupy the Premises, such holding over shall not constitute a renewal of this
lease, but Lessee shall be a tenant from month-to-month.
18. ENVIRONMENTAL MATTERS. Lessee shall conduct its operations in
compliance with all federal, state and local laws and regulations regarding
hazardous, dangerous or toxic materials or substances. Lessee shall be
responsible for cleaning up or otherwise properly rectifying any and all
environmental hazards or problems which it, its employees, its agents,
contractors, sub-contractors, licensees, or invitees may intentionally or
unintentionally create upon the Premises or upon any other portion of Lessor's
property during the Term, and
shall fully indemnify Lessor with respect to any costs, expenses, penalties or
liabilities which Lessor may be subject to as a result thereof. A Phase I
environmental audit dated October 14, 1994 was conducted by Environmental Audit
Co., of Topeka, Kansas with respect to the "Xxxxxx" property and LESSOR
represents that no visual indications or records were found to suggest
mismanagement of chemicals or hazardous waste materials at this site. In the
event Lessor reasonably believes that any activity engaged in by Lessee, its
agents or invitees may have created an environmental problem upon its property
exposing LESSOR to the possibility of fines or penalties by local, State or
Federal governments Lessor shall, prior to the termination of this lease or any
renewal thereof, have the right to demand that LESSEE cause another
environmental audit be conducted by a qualified firm mutually agreed upon by the
parties hereto. The expense/cost of said audit shall be borne by Lessee should
the audit indicate an environmental problem or condition was created or caused
by Lessee, and shall be borne by LESSOR in the event the audit indicates that no
environmental problems or condition was caused by LESSEE.
19. REMEDIES ON DEFAULT. If Lessee at any time during the term of this
Lease:
(a) Shall default in the observance or performance of any of Lessee's
obligations hereunder,
including the obligation to pay rent, and such default shall not have been cured
within twenty (20) days after Lessor shall have given to Lessee written notice
specifying such default, provided, however, that if the default complained of
shall be of such nature that the same cannot be completely remedied or cured
within such twenty (20) day period, then such default shall not be an
enforceable default against Lessee for the purposes of this paragraph if Lessee
shall have commenced to remedy the default complained of during such twenty (20)
day period and shall proceed with reasonable diligence and in good faith
therewith; or
(b) Shall finally and without further possibility of appeal or review,
(i) be adjudicated bankrupt or insolvent, or (ii) have a receiver or trustee
appointed for all or substantially all of its business or assets on the ground
of Lessee' s insolvency, or (iii) suffer an order to be entered approving a
petition filed by or against Lessee seeking reorganization of Lessee under the
Federal Bankruptcy Laws, or any other applicable law or statute of the United
States or any state thereof; or
(c) Shall make an assignment for the benefit of its creditors or file a
voluntary petition in bankruptcy, then in any such event; Lessor may, at its
option, terminate this Lease and re-enter Premises and remove all persons and
property therefrom using such forces as may be
reasonably necessary. In the event of such re-entry by reason of Lessee's
default, the Lessor shall re-rent the Premises for such rent, for such term and
upon such other terms and provisions as Lessor may in good faith obtain; and if
this Lease has not been terminated in the above manner, the Lessee shall not be
released from its obligations for rent during the term hereof, provided,
however, that any surplus of funds received by the Lessor after such re-renting
which exceeds the rental to be paid by the Lessee hereunder shall be retained by
the Lessor.
20. NOTICES. Any notices or consent required to be given by or on behalf of
either party upon the other shall be in writing and shall be given by Certified
Mail addressed to the Lessor at such place last designated for the payment of
rent, and to the Lessees at the address shown above or at such other address or
addresses as may be specified from time to time, in writing, to the other party.
21. SEVERABILITY. Each covenant, agreement, or condition of this Lease
shall be valid and enforceable to the fullest extent permitted by law. If any
portion of this Lease or the application thereof in any circumstances shall to
any extent be invalid or unenforceable, the remainder of this lease or the
application of such portion to circumstances other than those as to which it is
invalid or unenforceable shall not be affected thereby.
22. QUIET ENJOYMENT. Lessor hereby covenants and agrees that it is the
owner in fee simple of the Premises, and that if Lessee shall perform all of the
covenants and agreements herein stipulated to be performed on Lessee's part,
Lessee shall at all times during the continuance hereof have the peaceable and
quiet enjoyment and possession of the Premises without any manner of let or
hindrance from Lessor or any person or persons lawfully claiming the Premises,
except in the event of the taking of the Premises by public or quasi-public
authority, as provided for in Paragraph 16 hereinabove. Lessor shall have the
right, at any time or from time to time during the continuance of this Lease, to
mortgage or refinance a mortgage on the Premises or any part thereof, the lien
of which may, at the option of the Lessor, be prior to any interest of the
Lessee hereunder; but such encumbrance shall be subject to an limited by the
following express condition:
(a) The mortgage, trust deed, or other instruments creating such
encumbrance or a separate instrument establishing a binding obligation on the
lienor shall contain provisions under the terms of which the existence of this
Lease shall be recognized and shall provide the terms, covenants and conditions
in this Lease contained on its part to be kept and performed, neither the holder
of such encumbrance nor any holder or owner of the
indebtedness secured thereby, nor any other person shall have any power to
impair, modify, abrogate, or adversely affect the rights of the Lessee under
this lease or any renewal thereof.
23. SUCCESSORS AND ASSIGNS. The terms, covenants and conditions contained
in this lease shall bind and inure to the benefit of Lessor and Lessee and,
except as otherwise provided herein, their legal representatives, successors,
distributees and permitted assigns.
24. CHOICE OF LAW. This lease shall be governed and construed in accordance
with the laws of the State of Kansas.
25. INDEMNIFICATION.
(a) Lessor hereby agrees to indemnify, hold harmless, and defend Lessee
of and from any and all liability, damage, costs, and charges which may be
imposed upon, incurred by, or asserted against Lessee by reason of any of the
following occurrences: (i) any breach of the covenants or obligations of the
agreement; (ii) any act, whether proper or improper, of Lessor; (iii) any
negligence on the part of Lessor or its employees, agents, contractors,
subcontractors, licenses or invitees; or (iv) any personal injury or property
damage occurring on or about the Premises as a result of Lessor's failure and/or
violations of any applicable statutes, laws or ordinances; (v) any claims or
demands asserted that may arise out of
local state or federal laws, rules or regulations concerning environmental
matters that may have occurred prior to commencement of the term.
(b) Lessee hereby agrees to indemnify, hold harmless, and defend Lessor
of and from any and all liability, damage, costs, and charges which may be
imposed upon, incurred by, or asserted against Lessor by reason of any of the
following occurrences: (i) any breach of the covenants or obligations of this
Lease; (ii) any act, whether proper or improper, of Lessee; (iii) any negligence
on the part of Lessee or its employees, agents, contractors, subcontractors,
licenses or invitees; or (iv) any personal injury or property damage occurring
on or about the Premises as a result of Lessee's failure and/or violations of
any applicable statutes, laws or ordinances.
IN WITNESS WHEREOF, the parties hereto have signed this Lease as of the day
and year first above written.
B.M.S. Management, Inc.
By: /s/ Xxxxxx X. Means
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Snorkel, a Division of
Figgie International Inc.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx Xxxxx, President
STATE OF KANSAS, COUNTY OF DONIPHAN, SS:
The above and foregoing instrument was executed
and acknowledged for and on behalf of B.M.S. Management, Inc. by Xxxxxx X.
Means, Vice President/Secretary and was executed and acknowledged for and on
behalf of Snorkel, a division of Figgie International Inc. by Xxxxxxx Xxxxx,
President of Snorkel.
/s/ Xxxxxx X. Xxxxx
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Notary Public
My Appointment Expires: 8/6/97
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