EXHIBIT 10.58
LEASE AGREEMENT
COME NOW, the parties to this Agreement, Board of County
Commissioners of Coffey County, Kansas (County) and Miller
Building Systems of Kansas, Inc. (Miller), in exchange of the
mutual promises contained herein do hereby agree as follows:
1. Miller wishes to lease, and County desires to lease
a certain tract of real property, referred to hereinafter as
"Property" and more fully described in the legal description set
forth in Exhibit A attached hereto and incorporated herein by
reference.
2. Representations and Covenants by County. County
makes the following representations and covenants as the basis
for the undertaking of its part of the Lease contained herein:
A. That Coffey County is a
county governmental unit
existing under and pursuant
to the laws and constitution
of the State of Kansas.
Under the statutes of the
State of Kansas, County has
the power to enter into and
perform the transactions
contemplated by this Lease
and to carry out its
obligations hereunder.
B. That County has fee simple
title to the Property
subject only to easements
and restrictions of record
and apparent, none of which
will interfere with or
prevent Miller's use of the
property as a manufacturing
facility, subject only to a
current lease with American
Quality Manufacturing, Inc.
(AQM), a Delaware
corporation. Simultaneous
with this Lease Agreement,
American Quality
Manufacturing, Inc. is
entering into a Termination
of Lease Agreement which
will allow Miller to take
possession of this property.
C. County has not, in whole or
in part, assigned, leased,
hypothecated or otherwise
created any other interest
in, or disposed of, or
caused or permitted any
lien, claim, or encumbrance
to be placed against the
property leased hereunder,
except for and subject to
the Lease as set forth in
this instant document.
D. Except as otherwise provided
herein, County will not
during the basic term of
this Lease, in whole or in
part, assign, lease,
hypothecate or otherwise
create any other interest
in, or dispose of, or cause
or permit any lien, claim or
encumbrance to be placed
against the property leased
herein. This provision is
subject to the current lease
as described in sub-
paragraph A.
E. County has duly authorized
the execution of this Lease
pursuant to a formal action
of the Board of County
Commissioners, Coffey
County, Kansas.
3. Representations and Covenants by Miller. Miller makes
the following representations and covenants as the basis for
undertaking its part of the Lease contained herein.
A. Miller is a duly qualified and
existing corporation under the laws
of the State of Kansas and will be
duly authorized and qualified to do
business in the State of Kansas prior
to the commencement date of this
Lease, with lawful power and
authority to enter into this Lease,
acting by and through its duly
authorized officers and has received
its authority by its Board of
Directors and officers to authorize
Edward Craig, President, to sign this
Lease.
B. Miller shall:
(1) maintain and preserve its
existence and organization
as a corporation and its
authority to do business in
the State of Kansas and;
(2) not initiate any proceedings
of any kind whatsoever to
dissolve or liquidate
without first securing the
prior written consent of
County and making provision
for the payment in full of
the basic rent and to comply
with all other obligations
for this lease as they
apply.
C. Neither the execution or delivery of
this Lease, the consummation of the
transaction contemplated herein, nor
the fulfillment of any compliance
with the terms and conditions of this
Lease contravenes any provisions of
Miller's Articles of Incorporations
or Bylaws, nor does anything
contained herein conflict with or
result in a breach of the terms,
conditions or provisions of any
mortgage, debt, agreement, indenture,
or instrument to which Miller is a
party or by which Miller is bound, or
to which Miller or any of the
properties of Miller is subject, or
would constitute a default (without
regard to any required notice or the
passage of any period of time) under
any of the following, or would result
in a creation or imposition of any
lien, charge or encumbrance,
whatsoever, upon any of the property
or assets of Miller under the terms
of any mortgage, debt, agreement,
indenture or instrument, or violate
any existing law, administrative
regulation or court order including
consent decrees to which Miller is
subject.
D. This Lease constitutes a valid and
legal binding obligation on Miller
enforceable in accordance with its
terms.
E. That Miller has obtained or will
obtain if it becomes necessary in the
future, any and all permits,
authorizations, licenses and
franchises to enable Miller to
operate and utilize the property for
the purposes for which the property
is being leased to Miller under the
terms of this Lease and that Miller
will operate in accordance with all
local, state and federal laws to
insure compliance with any licensing,
permit, authorization or franchise
requirement.
4. Term. The initial term of this Lease shall be ten (10)
years commencing November 1, 1996 and ending October 31, 2006.
As used herein the expression "term hereof" refers to this
initial term. If on or before November 1, 1996, AQM does not
vacate the Property and County does not deliver the Property and
all systems, equipment, fixtures, structural components, the
roof and foundation in good operating condition, ordinary wear
and tear excepted, then the commencement date shall be postponed
until such conditions are satisfied (but in no event later than
April 1, 1997).
5. Basic Rent. County reserves and Miller agrees to pay
in the manner herein after specified to County without demand,
the rent on the property in the amount of $300,000 for the term
of this Lease. The payments shall be made at the rate of Two
Thousand Five Hundred Dollars ($2,500) per month for One Hundred
Twenty (120) months. Rent shall be paid to County in advance on
the first day of the month in which the rent shall become due
without deduction or offset at a place or places as may be
designated from time to time by County. In the event that
Miller should fail to make a payment by the fifteenth of any
given month, interest shall attach to the given monthly payment
at the rate of 1.5 percent (1.5%) per month or eighteen percent
(18%) per annum. Additionally, as allowed by law, County
reserves the right to advance all payments, including balloon
payments, due in the event that Miller should fail or refuse to
make payment under the terms of this Lease within Thirty (30)
days after a given payment is due. Further, County reserves the
right to waive any one payment, without being subject to or
stopped from enforcing these remedies should a future monthly
payment be delayed for more than thirty (30) days. In other
words, if County does not instigate advancement and liquidation
of this Lease in a month in which Miller is more than Thirty
(30) days late, this does not preclude County from asserting the
same rights as to a future month. This right to advance
payments should Miller be more than Thirty (30) days late shall
not be implicitly waived by the County, unless both parties
agree to a waiver of this provision in writing. This paragraph
shall be governed by sections 27 and 28 of this Agreement.
6. Building Purchase. At the end of the term hereof,
Miller shall have the option to pay the County the sum of Two
Hundred Fifty Thousand Dollars ($250,000) hereinafter referred
to as the Balloon Payment, and accept ownership of the property.
If Miller tenders the Balloon Payment, County shall deed the
property to Miller in Fee Simple by Warranty Deed subject only
to easements and restrictions of record as of the date hereof
and free and clear of all liens and encumbrances (except as
caused or permitted by Miller). If Miller declines to take
ownership of the property, any subsequent lease between the
parties shall be at fair market value rate. The Balloon Payment
shall be reduced by Full-Time Employee Reduction (FTE) in
accordance with a yearly FTE schedule as shown herein. The
Balloon Payment shall be divided into ten (10) parts of
$25,000.00 for each year, however, payment will be due only at
the conclusion of the ten (10) year lease. For each given year,
the payment due shall be reduced as provided herein. In other
words, for each year that the FTE is met in full, a $25,000.00
reduction shall be made to the Balloon Payment. If the entire
FTE number is not met such representative portion of the Balloon
Payment for that given year shall be reduced by the applicable
percentage. The FTE reductions shall be computed by taking the
total number of hours worked (includes paid holiday, vacation,
personal days and sick days) at the property by employees of
Miller during the preceding twelve months and dividing by two
thousand eighty (2,080). The FTE shall be computed on the
anniversary date of Miller taking possession of the property,
and computed for the preceding twelve months. Miller shall
submit to County a certified statement of employment not more
than thirty days after the anniversary date of Miller taking
possession of the property. The statement shall be provided to
County by Miller and shall be certified by an independent
accounting firm authorized to make such certification for Miller
in accordance with the Generally Accepted Rules of Accounting to
the extent they apply. The FTE shall be as follows:
Reduction 100% 90% 80% 70% 60%
Year Concluding FTE FTE FTE FTE FTE
1st year 14 12-13 10-11 8-9 6-7
2nd year 30 26-29 22-25 17-21 14-16
3rd year 50 44-49 37-43 29-36 23-28
4th-10th years 60 52-59 44-51 34-43 28-33
7. Uses Prohibited. Miller shall not use, or permit the
leased premises, or any part thereof, to be used, for any
purpose or purposes other than those allowed by the laws of
Coffey County, the State of Kansas, the Environmental Protection
Agency, or the United States of America and no use shall be made
or permitted to be made of the Leased premises, or acts done,
which will cause the cancellation of any insurance policy
covering the building located on the premises, or any part
thereof, or any other portion of the leased premises, any act
which may be prohibited by the applicable fire insurance
policies or other terms of insurance hereon. Miller shall, at
its sole cost, comply with all requirements, pertaining to the
Leased premises, of any insurance organization or company,
necessary for the maintenance of insurance, as herein provided,
covering any building or appurtenances at any time located on
the Leased premises. Miller shall prevent any activity which
produces substantial hazardous waste, emissions or odors in
violation of the rules and regulations of the Environmental
Protection Agency and any other local, state, or federal law and
hold County harmless and indemnify County for any violation of
such rules, regulations or laws.
8. Uses Permitted. Miller shall use this facility for the
manufacture and shipping of prefabricated buildings and uses
associated therewith. Other uses may be agreed to by the
parties, in writing signed by both parties, and the County's
consent thereto will not be unreasonably withheld.
9. General Accident and Liability Insurance. Miller shall,
at all times after acceptance of possession of the Leased
premises under the terms and conditions as contained herein, and
at all times during the term of the Lease thereafter, at
Miller's sole expense, keep all improvements which are now or
hereafter a part of the premises insured against loss or damage
by fire and the extended coverage hazards for one hundred
percent (100%) of the full replacement value of such
improvements as established by yearly review with a company
authorized to do business and authorized to sell insurance in
the State of Kansas, with loss payable to County and Miller as
their interests may appear. Any loss adjustment shall require
the written consent of both County and Miller. The cost of full
replacement will be reviewed annually by the parties hereto.
10. Personal Injury Liability Insurance. Miller shall
maintain in effect throughout the term of this Lease personal
injury liability insurance covering the Leased premises and its
appurtenances, sidewalks and parking lot thereon in an amount
not less than the maximum liability of a governmental entity for
claims arising out of a single occurrence as provided by the
Kansas Tort Claims Act or other supplemental laws; which policy
shall provide that such insurance may not be canceled by the
issuer thereof without at least thirty (30) days advance written
notice to Miller and County. Such insurance to be maintained
throughout the life of this Lease and will be obtained through
a company authorized to do business in the State of Kansas.
11. County's Right to Pay Premiums on Behalf of Miller. All
of the policies of insurance referred to in this section shall
be written in form satisfactory to County. Miller shall pay all
of the premiums therefore during the term of this Lease and
deliver such policies, or certificates thereof, to County, and
in the event of the failure of Miller, either to effect such
insurance in the names herein called for or to pay the premiums
therefore, or to deliver such policies, or certificates thereof,
to County, said action shall be a default of this Lease and
County shall be entitled, but shall have no obligation, to
effect such insurance and pay the premiums therefore, which
premiums shall be repayable to County with the next installment
of rent and/or County may proceed with all available remedies
under the default provisions herein.
12. Cost of Insurance Deemed Additional Rent. The cost of
insurance required to be carried by Miller in this section shall
be deemed to be additional rent hereunder. Each insurer
mentioned in this section shall agree, by endorsement on the
policy or policies issued by it, or by independent instrument
furnished to County, that it will give to County thirty (30)
days written notice before the policy or policies in question
shall be altered or canceled. County agrees it will not
unreasonably withhold its approval as to the form or to the
insurance companies selected by Miller.
13. Taxes and Assessments. The parties agree that the
Property has been and will continue to be deemed to be exempt
from state, county and/or municipal real property taxes by the
Board of Tax Appeals of the State of Kansas. County agrees to
take reasonable action to ensure that the property remains
exempt during the terms of this Lease. If the Property shall
nevertheless become subject to real property taxes, then Miller
shall, during the life of this Lease, bear, pay and discharge,
before the delinquency thereof, any and all taxes and
assessments. In the event any taxes and assessments may be
lawfully paid in installments, Miller shall be required to pay
only such installment thereof as becomes due and payable during
the life of this Lease, as and when the same becomes due and
payable. County covenants that without Miller's written consent
it will not, unless required by law, take any action which may
reasonably be construed as tending to cause or induce the
levying of any tax or assessment (other than special assessments
levied on account of special benefits or other taxes or
assessments for benefits or service uniformly imposed) which
Miller would be required to pay under this section and that
should any such tax or assessment be threatened or occur, County
shall, at Miller's request, fully cooperate with Miller in all
reasonable ways to prevent any such tax or assessment. In the
event that either the Federal government or the State of Kansas
determines that the demised property is not exempt from taxation
by the tax guidelines of either agency, because the leased
property is not meeting requirements for non-taxability then and
in that event, all tax assessments shall be the sole and
separate liability of Miller upon possession by Miller as set
forth herein.
14. Receipted Statements. Unless Miller exercises its right
to contest any tax or assessment in accordance with the
following paragraph hereof, Miller shall deliver to County a
photostatic or other suitable copy of the statement issued
therefore duly receipted to show the payment of taxes within
thirty (30) days after the last date for payment.
15. Contesting Taxes and Assessments. If Miller shall in
good faith desire to contest the validity or amount of any tax,
assessment, levy, or other governmental charge herein agreed to
be paid by Miller, Miller shall be permitted to do so in
accordance with established legal procedures. Miller shall give
County fifteen (15) days written notice of its intent to contest
the charge prior to its delinquency date and post a surety bond
covering any such tax levy or assessment of damage arising
therefrom prior to the delinquency date.
16. Quiet Enjoyment and Possession. So long as Miller shall
not be in default under the terms of this Lease, Miller shall
and may peaceably and quietly have, hold, and enjoy the leased
premises. County shall deliver all systems, equipment,
fixtures, structural components, the roof and foundation to
Miller in good operating condition, ordinary wear and tear
excepted.
17. County's Right of Entry. County, its agents and
employees shall have the right to enter into and upon the Leased
premises as is necessary at reasonable times and upon reasonable
notice for the purpose of inspecting the premises. County's
right of entry on the premises shall be subject to maintaining
any confidentiality requirement that Miller may reasonably
request of County.
18. Alteration of Leased premises. Miller shall have and
is hereby given the right, at its sole cost and expense, to make
such additions, improvements, changes and alterations in and to
any part of the Leased premises as Miller from time to time may
deem necessary or advisable; provided, however, Miller shall not
make any major addition, improvement, change or alteration which
will adversely affect the intended use of or the structural
strength of any part of the Leased premises. All such major
changes, alterations, improvements and additions shall require
the prior written consent of the County. County shall not
unreasonably withhold such consent. All additions,
improvements, changes and alterations made by Miller pursuant to
the authority of this section shall (a) be made in a workmanlike
manner and in strict compliance with all laws and ordinances
applicable thereto, (b) when commenced, be prosecuted to
completion with due diligence, and (c) when completed, shall be
deemed a part of the Leased premises; provided, however, that
additions of machinery, equipment and/or personal property of
Miller, shall remain the separate property of Miller and may be
removed by Miller prior to expiration of the term of this Lease;
provided further, however, that all such additional machinery,
equipment and/or personal property which remain on the Leased
premises after the termination of this Lease for any cause other
than the purchase of the premises pursuant to section 6 hereof
shall, if not removed within thirty (30) days after request by
County, upon and in the event of such termination, become the
separate and absolute property of County.
19. County Purchase of Scales/Heating Modification Loan.
County shall purchase certifiable scales for the Property in an
amount not to exceed Twenty Thousand Dollars ($20,000). The
scales to be purchased shall be mutually agreed upon by County
and Miller. County is responsible for the purchase and delivery
of the scales. County shall take reasonable measures to secure
the purchase and delivery of the scales within sixty (60) days
of Miller taking possession of the Property. Miller is
responsible for the installation and maintenance of the scales.
Once installed, the scales shall be deemed a fixture of the
Property, and shall not be removed by Miller unless and until
Miller becomes the owner of the Property or Miller and County
agreed in writing to the disposal or removal of the scales.
Further, upon Miller's request, County will make a loan to
Miller from County's Revolving Loan Fund in an amount not to
exceed Seventy-Five Thousand Dollars ($75,000) for heating
conversion, should Miller determine that a modification in the
heating system in the facility should be necessary. In no event
should the County make a loan to Miller for an amount in excess
of the cost of the heating conversion. This loan shall have a
term of not more than five (5) years, and an interest rate of
not more than 7.5 percent (7.5%). Miller shall repay County in
monthly installments beginning the first day of the month after
any payments are made to Miller under the terms of the loan.
Miller may request this loan within the first five (5) years of
this Lease. Miller shall provide corporate guarantees on the
loan. At the time that Miller requests such loan, documentation
shall be prepared and executed by the parties evidencing the
loan in more complete terms as fully set out at the time of the
loan.
20. Maintenance of Improvements. Miller shall, throughout
the term of this Lease, at its own cost, and without any expense
to County, keep and maintain the Leased premises, including all
buildings and improvements of every kind or nature including
equipment which may be a part thereof, and all appurtenances in
good sanitary and neat order, condition and repair. Miller is
expressly prohibited from selling, mortgaging, encumbering,
hypothecating or disposing of this property in any way except as
authorized by County and except in the ordinary course of
business. Miller may sell or otherwise dispose of such property
when obsolete, worn out, inadequate, unserviceable or
unnecessary in the operation of the Property, and Miller may
replace such property with other property at least equal in
value to that disposed of. County shall not be obligated to
make any repairs, replacements, or renewals of any kind, nature
or description, whatsoever to the Leased premises, including
buildings or equipment. Miller shall also comply with and abide
by all federal, state, county, municipal, and other governmental
statutes, ordinances, laws and regulations affecting the leased
premises, the improvements thereon, or any activity or condition
on or in such premises. County shall have the right to repair
and maintain the improvements and in the event of failure to do
so by Miller, reasonable wear and tear excepted, and all charges
for repair and maintenance shall be chargeable to Miller and be
promptly paid by Miller to County upon submission or
verification of such repair or maintenance charges, and all such
charges shall be deemed additional rent payable without regard
to any other provisions or requirements herein, on the part of
Miller. Miller may not dispose of, sell, encumber or remove any
of the improvements attached to the building or that reasonably
becomes a fixture without written approval of County. It is
understood that due to normal and reasonable wear and tear on
the improvements or fixtures, said improvements and fixtures may
wear out and the cost of repair of refurbishing will exceed the
cost of replacing the improvement or fixture, and in that event,
if not replaced with an improvement or a fixture of equal or
greater value, then Miller will provide a notice of said intent
to dispose of worn out or unrepairable improvements or fixtures
to County and only upon written consent by County, may said
property be disposed of or removed.
21. Damage to and Destruction of Improvements. The damage,
destruction, or partial destruction of any building or other
improvements or fixtures which are part of the premises
shall not release Miller from any obligation hereunder, and in
case of damage to or destruction of any such building,
improvement or fixtures, Miller shall, at its own expense,
promptly repair and restore the same to a condition as good or
better than that which existed prior to such damage or
destruction. Without limiting such obligations of Miller, it is
agreed that the proceeds of any insurance covering such damage
or destruction shall be made available to Miller for such repair
or replacement. Miller shall have the right to purchase
business interruption insurance to insure itself against loss
due to substantial damage or destruction of the demised
premises. The parties shall mutually cooperate on adjusting any
loss or damage on the demised premises with the insurance
carrier. All costs in excess of insurance proceeds necessary to
restore the premises to good or better condition than existed at
the time of such damage or destruction, shall be borne by
Miller. All building plans for restoration shall be by mutual
agreement of the parties hereto.
22. Utilities. Miller shall fully and promptly pay for all
water, gas, heat, light, power, telephone service, and other
public utilities of every kind furnished to the leased premises
throughout the term hereof, and all other costs and expenses of
every kind whatsoever of or in connection with the use,
operation and maintenance of the premises including deposits,
and all activities conducted thereon, and County shall have no
responsibility of any kind for any portion thereof. All future
expansion, alteration or change of utility services shall be at
expense of Miller.
23. Mechanic's Liens. Miller shall keep all of the Leased
premises and every part thereof and all buildings and other
improvements at any time located thereon free and clear of any
and all mechanic's or other similar lien. Whenever and so often
as any mechanic's or other similar lien is filed against the
Leased premises, or any part thereof, Miller shall discharge the
same of record within thirty (30) days after the date of filing.
Notice is hereby given that County does not authorize or consent
to and shall not be liable for any labor or materials furnished
to Miller or anyone claiming by, through or under Miller, upon
credit, and that no mechanic's or other similar lien for any
such labor, services or materials shall attach to or take effect
through reversionary or other estate of County in and to the
Leased premises, or any part thereof. Miller shall give County
written notice no less than thirty (30) days in advance of the
commencement of any construction, alteration, addition,
improvement, or repair estimated to cost in excess of Thirty
Thousand Dollars ($30,000) in order that County may post
appropriate notices of County's non-responsibility. County
shall have the right but will not be required to pay any
uncontested liens and charge all payments so made to Miller, to
be paid in the next monthly rental payment due from Miller.
24. Contesting Liens. Miller, notwithstanding the above,
shall have the right to contest any such mechanic's or other
similar lien if within thirty (30) days of filing, it (i)
notifies County in writing of its intention to do so, and if
requested by County, deposits with County a surety bond issued
by a surety company acceptable to County as surety, in favor of
County or cash, in the amount of lien claimed so contested,
indemnifying and protecting County from and against any
liability, loss, damage, cost and expense of whatever kind of
nature growing out of or in any way connected with said asserted
lien and the contest thereof, and (ii) diligently prosecutes
such contest, at all times effectively staying or preventing any
official or judicial sale of the premises or any part thereof or
interest therein, under execution or otherwise, and (iii)
promptly pays or otherwise satisfies any judgment adjudging or
enforcing such contested lien claim and thereafter promptly
procures record release or satisfaction thereof.
25. Indemnification. Miller shall and hereby covenants and
agrees to indemnify, protect, defend and save County harmless
from and against any and all claims, demands, litigation and
liabilities of any nature, costs, including reasonable
attorneys' fees and discovery expense arising from damage or
injury, factual or claimed, of whatsoever kind of character, to
property or persons, occurring in, on or about the premises
during the term hereof, and upon timely written notice from
County, Miller shall defend County in any action or proceeding
brought thereon; provided, however, that nothing contained in
this section shall be construed as requiring Miller to indemnify
County for any claim resulting from any act or omission of
County, or County's agents or employees.
26. Default by Involuntary Assignment. Neither this Lease
nor the leasehold estate of Miller nor any interest of Miller
hereunder in the Leased premises or in the building or
improvements or equipment therein shall be subject to
involuntary assignment, transfer, or sale, or to assignment,
transfer, or sale by operation of law in any manner whatsoever
and any such attempt at involuntary assignment, transfer, or
sale without the consent of County shall be void and of no
effect, such consent will not be unreasonably withheld.
27. Actions Constituting Default. The following shall be
considered a substantial or material breach of the terms and
conditions of this Lease and constitute a default and entitle
County to elect and pursue all remedies pursuant to sections 29
through 32 of this Lease.
A. Voluntary bankruptcy
B. Failure to name Miller Building Systems of
Kansas, Inc., as a qualified and existing
corporation under the laws of the State of
Kansas or under the ownership of its heirs and
assigns.
C. Non-payment of rent pursuant to this Agreement
within fifteen (15) days of the date due.
D. Failure to maintain accident and liability
insurance.
E. Failure to maintain fire and casualty
insurance.
F. Failure to maintain personal injury liability
insurance.
G. Failure to pay taxes and assessments.
28. Other Actions Constituting Default. Any breach of the
following terms or conditions shall constitute a non-material
default and upon non-compliance by Miller after notice pursuant
to section 33 by County, County shall have the right to pursue
all remedies pursuant to sections 29 through 32 of this Lease.
Non-material breach conditions are as follows:
A. Any breach of any term or condition of this
Lease.
B. Duty to maintain and repair demised property
as provided in section 20.
C. Failure to allow access to County at
reasonable times and places pursuant to
section 17 of this Lease.
D. Engaging in a prohibited use pursuant to
section 7 of this Lease.
E. Failure to secure County's consent to changes.
F. Failure to pay utility bills.
G. Failure to pay mechanic liens pursuant to
section 24.
H. Attempting to sublet demised premises without
consent of County, which consent shall not be
unreasonably withheld.
I. Any attempted assignment of Leased premises
without express written consent of County,
which consent shall not be unreasonably
withheld.
J. The failure to discharge or pay any mechanic
or artisan lien within thirty (30) days of the
filing thereof, pursuant to section 24.
29. Remedies on Default. Whenever any substantial or
material event of default shall have happened or be continuing,
County may take any one or more of the following remedial
actions.
A. Give Miller written notice of
intention to terminate this Lease on
the date specified therein, which
date shall not be earlier than thirty
(30) days after such notice is given,
and, if all defaults have not then
been cured on the date so specified
(except that this thirty (30) day
period shall be extended for a
reasonable period of time if the
alleged default is not reasonably
capable of cure within said thirty
(30) day period), Miller's right to
possession of the Leased premises
shall cease, and this Lease shall
thereupon be terminated and County
shall reenter and take possession of
the premises and all personalty
therein. County shall be entitled to
immediate possession after Miller has
failed to cure such default within
the period herein provided, without
the necessity to resort to legal
process.
B. Whenever any non-material event of
default shall have happened or be
continuing, County shall give Miller
written notice of intention to
terminate this Lease on the date
specified (except that this sixty
(60) day period shall be extended for
a reasonable period of time if the
alleged default is not reasonably
capable of cure within said sixty
(60) day period) therein, which date
shall not be earlier than sixty (60)
days after such notice is given, and,
if all defaults have not been cured
on the date so specified, Miller's
right to possession of the Leased
premises shall cease, and this Lease
shall thereupon be terminated, and
County shall re-enter and take
possession of the premises and all
personalty therein. Any costs for
repair of equipment necessitated by
other than reasonable wear shall be
chargeable to Miller and shall be in
addition to the liquidated damages as
set forth herein.
30. No Remedy Exclusive. No remedy herein conferred upon
or reserved to County is intended to be exclusive of any other
available remedy or remedies, but each and every such remedy
shall be cumulative and shall be in addition to every other
remedy given under this Lease or now or hereafter existing at
law or in equity or in statute. No delay or omission to
exercise any right or power accruing upon any event of default
shall impair any such right or power, or shall be construed to
be a waiver thereof, but any such right or power may be
exercised from time to time and as often as may be deemed to be
expedient. In order to entitle County to exercise any remedy
referred to in sections 29 through 32, it shall not be necessary
to give any notice, other than notice required herein. Any cost
of litigation necessitated under this Lease including reasonable
attorney fees shall be at the expense of Miller and shall be the
responsibility of Miller. This provision shall not apply if the
litigation is caused by the action of County, unless said action
is for default against Miller. Conversely, Miller shall be
entitled to any cost of litigation necessitated if County should
violate the provisions of this Lease including but not limited
to reasonable attorney fees.
31. Rights and Remedies. The rights and remedies reserved
by County and Miller hereunder and those provided by law shall
be construed as cumulative and continuing rights. No right or
remedy shall be exhausted by the exercise thereof on one or more
occasions. County and Miller shall each be entitled to specific
performance and injunctive or other equitable relief for any
breach or threatened breach of any of the provisions of this
Lease, notwithstanding the availability of an adequate remedy at
law, and each party hereby waives the right to raise such
defense in any proceeding in equity.
32. Waiver of Breach. No waiver shall be effective unless
in writing. The waiver of, or the failure to take action with
respect to any breach of any term, covenant, or condition herein
contained shall not be deemed to be a waiver of such term,
covenant, or condition or subsequent breach of the same, or any
other term, covenant, or condition herein contained. Payment or
payments or performance may be accepted hereunder without in any
way waiving the right to exercise any rights or remedies
provided for herein or otherwise with respect to any breach
which was in existence at the time such payment or payments or
performance was accepted.
33. Notice. All notice required or desired to be given
hereunder shall be in writing and shall be delivered in person
or mailed by registered or certified mail to:
COUNTY: Vernon Birk
County Clerk
County County Courthouse
110 S. 6th
Burlington, KS 66839
MILLER: Ed Craig
President
Miller Building Systems of Kansas, Inc.
P.O. Box 1283
Elkhart, IN 46515
Jeff Rubenstein
Much Shelist Freed Denenbert
Ament Bell & Rubenstein, P.C.
200 N. LaSalle Street, Suite 2100
Chicago, IL 60601-1095
All notices given by certified or registered mail as
aforesaid shall be deemed duly given as of the date they are so
mailed.
34. Construction and Enforcement. This Lease shall be
construed and enforced in accordance with the laws of the State
of Kansas. Wherever in this Lease it is provided that either
party shall or will make any payment or perform or refrain from
performing any act or obligation, each such provision shall,
even though not so expressed, be construed as an express
covenant to make such payment or to perform, or not to perform,
as the case may be, such act or obligation.
35. Sublease. Miller agrees that it will in no way
sublease, or attempt to sublease the demised premises, including
equipment without the express written consent of County, such
consent shall not be unreasonably withheld. The final terms and
conditions of any sublease agreement must be approved in writing
by both County and Miller. In the event of any such subleasing,
Miller shall remain fully liable for the performance of its
duties and obligations hereunder, and no such subleasing and no
dealings or transactions between County and any such sublessee
shall relieve Miller of any of its duties and obligations
hereunder.
36. Voluntary Assignment. Miller agrees that it will in no
way assign, or attempt to assign, the leased premises, including
equipment, without the express written consent of County, which
consent County shall not unreasonably withhold. In the event of
any such assignment Miller shall remain fully liable for the
performance of its duties and obligations hereunder.
37. Amendments. Amendments of the term hereon, the basic
rental payments, or of any and all other provisions of this
Lease may be made only pursuant to the express written consent
of County and Miller. The language of this contract is
controlling and supersedes all oral agreements and
representations of the parties hereto. All prior agreements by
and between the parties hereto are hereby merged within the
terms and conditions of this Lease and this Lease represents the
complete agreement of the parties hereto and shall be binding
upon all parties.
38. Net Lease. The parties hereto agree that this lease is
intended to be a triple net lease.
39. Invalidity of Provisions of Lease. If, for any reason,
any provision of this Lease shall be deemed to be invalid or
unenforceable, the validity and effect of the remaining
provisions hereof shall not be affected thereby.
40. Covenants Binding on Successors and Assigns. The
covenants, agreements and conditions herein contained shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors, assigns, devisees, heirs, legatees,
and beneficiaries.
41. Section Captions. The section captions appearing with
the section numbered designations of this Lease are for
convenience purposes only and are not a part of this Lease and
do not in any way limit or amplify the terms and provisions of
this Lease.
42. Filing of Lease Memo. The parties hereto agree that a
Memorandum of this Lease will be filed with the Register of
Deeds of County County, Kansas.
IN WITNESS WHEREOF, the parties have executed this Lease on
this 12 day of August , 1996.
BOARD OF COUNTY COMMISSIONERS MILLER BUILDING SYSTEMS
COFFEY COUNTY, KANSAS OF KANSAS, INC.
By: \William Knapp By: \Edward C. Craig
William Knapp, Chairman Edward C. Craig
President
ATTEST:
\Sharon Reynolds, Deputy
Vernon Birk, County Clerk
APPROVED:
\James Campbell
James Campbell, County Attorney