EXHIBIT 10.60
LEASE AGREEMENT
THIS AGREEMENT made and entered into this 21st day of
May, 1996, by and between Toboll Properties Limited Partnership, a
South Dakota limited partnership ("Lessor"), and Miller Structures,
Inc., an Indiana corporation ("Lessee");
WITNESSETH:
1. Description, Inspection and Possession of Leased
Premises.
1.1 Lessor does hereby lease to Lessee the following de-
scribed real property (the "Leased Premises"), located in Minnehaha
County, South Dakota, to-wit:
Lot 5 of Northwest Industrial Park in the West Half of
the North Half of the Northwest Quarter of Section 18,
Township 102 North, Range 49 West;
Together with a right of ingress and egress to and from
Lot 5 over and across a triangular portion of Lot 6, the
northeast boundary of which is a line beginning at a
point 25' east of the southwest corner of Lot 6 and
extending northwest to a point 60' north of the south
west corner of Lot 6.
1.2 Lessee acknowledges that it has inspected and
accepts the Leased Premises in its current condition, subject to
construction by Lessor of a rock/gravel area shown on Exhibit A
attached hereto, which shall be completed by Lessor within 45 days of
the execution of this Lease by Lessee.
1.3 Should Lessee pay the rent due hereunder and
observe and perform all the terms, covenants and conditions on its part
to be observed and performed, Lessee may peaceably and quietly enjoy
the Leased Premises subject to the terms and conditions of this Lease;
provided, however, that Lessee shall not occupy the Leased Premises
until the construction described in 1.2 is completed. Lessor shall pay
when due all payments on any and all existing and future mortgages to
which Lessor is party as mortgagor.
1.4 Upon expiration or earlier termination of the Lease
Term, Lessee shall surrender the Leased Premises (with any permitted
alterations, additions and improvements) in the same condition as
existed on the Commencement Date (or upon completion of alterations,
additions and improvements, if applicable), normal wear and tear and
damage from the elements excepted; provided that all equipment,
alterations, additions, improvements and systems shall be in working
order.
2. Term.
2.1 The term of this Lease (the "Lease Term") shall
commence on July 1, 1996 or, if sooner, upon notice from Lessor to
Lessee of completion of the improvements described in 1.2 (the
"Commencement Date").
2.2 The Lease Term shall be for four years ending on
the fourth anniversary of the Commencement Date at 11:59 o'clock
p.m.
2.3 Lessee may terminate this Lease at any time after
the twenty-fourth month following the Commencement Date, upon 60
days prior written notice and upon payment of the early termination fee
according to attached Exhibit B.
3. Rent.
3.1 In addition to compliance with other terms and
conditions hereinafter contained and subject to 3.2, Lessee shall pay
as base rent the sum of $29,616.00 for the Lease Term payable in equal
consecutive installments of $617.00 per month, in advance, on the
Commencement Date and on the 1st day of each calendar month during
the Lease Term; provided, however, that if the first calendar month of
the Lease Term is a partial month, Lessee shall pay on the Commence
ment Date a rental amount prorated for the number of days Lessee
occupies the Leased Premises for that partial month.
3.2 As additional rental, Lessee shall pay (i) all utilities,
snow removal, mowing and garbage service for the Leased Premises;
(ii) premiums when due for such insurance as Lessee is required to
maintain hereunder; (iii) annual real estate taxes and assessments on the
Leased Premises payable during the calendar year which includes the
Lease Term, subject to adjustment as such taxes increase or decrease
payable in April and October of each year upon invoice from Lessor
(subject to proration for partial years); (iv) any new tax or assessment
of a nature not presently in effect but which may hereafter be levied,
assessed or imposed upon Lessor or the Leased Premises, if such a tax
shall be based on or arise out of the ownership, use or operation of the
Leased Premises, regardless of whether denominated as a "tax", "fee",
"assessment" or otherwise.
3.3 If in the event of expiration or earlier termination of
this Lease, Lessee wrongfully remains in the possession of the Leased
Premises, then Lessee shall be liable to Lessor in an amount equal to
triple the amount of rent specified in this Lease Agreement. This
provision shall be cumulative with all other rights and remedies Lessor
shall have under this Lease and shall not be construed to create a valid
extension or renewal of any term of this Lease or to imply Lessor's
consent to such hold-over possession.
3.4 All amounts payable to Lessor under this Lease shall
bear interest at the rate of 12% per annum after their respective due
dates.
4. Pollution and Toxic and Hazardous Substances.
4.1 Subject to 4.2, Lessee shall keep and maintain the
Leased Premises and the waters or any waste on, under or discharged
from the Leased Premises in compliance with, and shall not cause or
permit the Leased Premises to be in violation of, any federal, state or
local laws, ordinances or regulations now or hereafter in effect, related
to environmental conditions, air, water and land pollution or the storage
or disposition of hazardous or toxic materials on, under or about the
Leased Premises.
4.2 Lessee shall not use, discharge, release, dispose of
or allow to exist on, under or about the Leased Premises any radioac
tive materials, asbestos, organic compounds known as polychlorinated
biphenyls or chemicals known to cause cancer or reproductive toxicity,
pollutants, contaminants, hazardous wastes, toxic substances or related
materials, including without limitation, any substances defined as or
included in the definition of "hazardous substances", "hazardous
wastes", "hazardous materials", or "toxic substances" under any of the
foregoing laws, ordinances or regulations.
4.3 Lessee shall obtain and maintain, to the extent
available or required by applicable law, all permits, opinions, approv
als, licenses, certificates and statements relating to compliance with all
such enactments and shall furnish copies of them to Lessor upon
request.
4.4 Lessee shall immediately advise Lessor in writing of:
(a) discovery of any occurrence or condition on
the Leased Premises or any real property adjoining or in the vicinity of
the Leased Premises which could subject Lessee or the Leased Premises
to any restrictions on ownership, occupancy, transferability or use of
the Leased Premises under any of the foregoing laws, ordinances or
regulations;
(b) any and all enforcement, clean-up, removal,
mitigation or other governmental or regulatory actions instituted,
contemplated, or threatened pursuant to any such laws, ordinances or
regulations; and
(c) all claims made or threatened by any third
party against Lessee, Lessor or the Leased Premises relating to damage,
contribution, cost, recovery, compensation, loss or injury resulting
from any of the above-described materials or substances.
4.5 In the event of discovery of a violation of this
section by Lessee or any of its employees, agents, invitees or
permittees, regardless of when discovered, Lessor may cause to be
undertaken and completed such tests, monitoring and remediation as
may be required under the circumstances or by applicable law or
regulation; and Lessee shall pay Lessor's costs and expenses, including
attorney's fees and expenses, within 10 days of written notice, and in
addition shall indemnify, defend and hold Lessor harmless as provided
in 9.
5. Use of Premises. The Leased Premises shall be used by
Lessee for storage of mobile or modular structures, vehicles or
materials and for no other purposes without Lessor's consent, which
shall not be unreasonably withheld. Lessee shall in all respects comply
with all codes, ordinances, statutes, rules and regulations of any
governmental authority having jurisdiction over the Leased Premises or
its use and shall not cause or permit use of the Leased Premises in
violation of any of the foregoing. Lessee shall not obstruct, interfere
with or otherwise disturb the lawful use and occupancy of other
property in the same development.
6. Alterations, Additions and Improvements.
6.1 Lessee may not make any alterations, additions or
improvements to the Leased Premises without the prior express written
consent of Lessor. Lessee may at its discretion, or at Lessor's
insistence shall, remove any alterations, additions or improvements
made by Lessee subject to the following conditions: (a) the Leased
Premises are, before expiration or earlier termination of this Lease,
restored to the condition existing at the Commencement Date; and (b)
Lessee shall not have such discretion during any period when Lessee is
in default as to any alterations, additions or improvements that Lessee
has not paid for.
6.2 Lessee shall not cause, suffer or permit, and shall
fully indemnify, defend and protect Lessor from and against, any
mechanic's liens or other claims by reason of the foregoing alterations,
additions, improvements or otherwise.
7. Maintenance, Damage and Destruction.
7.1 Lessee shall be responsible for maintaining the
Leased Premises in good condition, repair and functioning order during
the Lease Term, and shall pay the cost thereof. Lessee shall assume all
risk of and hold Lessor harmless from all damage to property of Lessee
stored, kept or used in or around the Leased Premises.
7.2 If the Leased Premises or any portion thereof is
damaged or destroyed to an extent wholly preventing Lessee's use and
enjoyment of the Leased Premises, Lessee may terminate this Lease
upon sixty (60) days written notice to Lessor, but only if all the
following conditions are present: no act or omission of Lessee, its
agents, employees or invitees caused or materially contributed to the
damage or destruction; insurance proceeds are insufficient to cover the
cost of repair of such damage or destruction; and Lessee is not
otherwise in default under the Lease at the time of the notice of
termination. If Lessee elects to terminate the Lease, such a termination
shall be the sole remedy against Lessor on account of such damage or
destruction and all insurance proceeds payable on account of such
damage or destruction shall be the sole property of Lessor.
7.3 In the event of any damage or destruction not
entitling Lessee to terminate this Lease, Lessee shall be obligated to
repair and restore the Leased Premises to their condition immediately
preceding such damage or destruction.
7.4 All repairs, maintenance and restoration undertaken
by or required of Lessee shall be accomplished promptly, with
reasonable diligence and completed within a reasonable period of time
after the necessitating occurrence. All methods of repair and
restoration, design, contractor selection and disbursement of insurance
proceeds shall be subject to Lessor's approval, which will not be
unreasonably withheld. In the event Lessee fails to perform its
obligation hereunder, Lessor may effect such repairs and charge the
cost of the same to Lessee, which costs Lessee hereby agrees to pay.
8. Eminent Domain. If any authority proceeds to acquire the
whole of the Leased Premises under power of eminent domain, Lessor
may terminate this Lease and Lessee shall surrender possession of the
Leased Premises as of the date the Leased Premises is legally acquired
by such authority. Upon termination by Lessor, Lessee shall have no
claim against Lessor for the value of any unexpired term of the Lease,
but shall have the right to make a tenant's claim for the value of
Lessee's leasehold interest and improvements made to the Leased
Premises or the cost of removal and relocation of such improvements
and Lessee's personal property. In the event a portion of the Leased
Premises is taken, this Lease shall remain in effect except that Lessee
may elect to terminate if 50% or more of the useable square footage of
the Leased Premises is taken, and shall notify Lessor within thirty (30)
days of the date of the taking of Lessee's election. If Lessee is entitled
to terminate, but does not so elect, the rent shall abate proportionately
to the square footage taken as of the date of the taking.
9. Indemnity and Defense.
9.1 Lessee shall hold Lessor, its successors, assigns,
officers, directors and employees harmless from and indemnify and
defend each of them against any and all claims, demands, actions and
suits and all costs, loss, damage, liability, expense (including attorneys'
fees), penalties and fines which may arise from or be claimed against
Lessor or the Leased Premises arising directly or indirectly from (a) the
use or occupancy of the Leased Premises by Lessee, or (b) failure of
Lessee to comply with any and all laws, statutes, ordinances, rules or
regulations applicable to the Leased Premises, or (c) Lessee's breach of
any warranty, covenants, liability or obligation under this Lease.
9.2 Lessee shall not be obligated to indemnify Lessor
under this section for any judgment or order if it is ultimately and
finally determined that Lessor's active fault was the sole cause of the
occurrence, condition or damage for which the indemnitee would
otherwise be entitled to indemnity. This paragraph shall not apply if
the fault of Lessor arises from any act or omission in supervising or
inspecting the Leased Premises, Lessee's business or from any act or
omission of Lessor with respect to notice, detection, prevention or
correction of any breach by Lessee of its warranties, covenants,
liabilities or obligations under this Lease.
9.3 Unless any claim, counterclaim, cross-claim or third
party claim, other than by Lessee, alleges that Lessor's active (and not
vicarious or passive) fault is the sole cause of the injuries or damages,
Lessee shall defend Lessor by counsel selected by Lessor, or reimburse
Lessor for costs, fees and expenses incurred in defense in any action,
demand, suit or other proceeding actually or allegedly arising from any
of the circumstances described in this section, even though it may be
alleged that Lessor was negligent or otherwise liable.
10. Insurance.
10.1 Lessee shall obtain and maintain at its sole expense
during all terms of this Lease premises or renter's liability insurance
and such other insurance as is necessary to cover Lessee's obligations
under the immediately preceding section and all necessary casualty
insurance on Lessee's contents, property, and property of others in
Lessee's possession.
10.2 Coverages to be maintained by Lessee shall insure
both Lessee and Lessor, as their interests may appear, shall be with
such companies and in such amounts as are reasonably satisfactory to
Lessor; and Lessee shall furnish written certificates of such insurance
satisfactory to Lessor.
10.3 Lessor shall not be responsible to Lessee for any
loss arising from damage to or destruction of the Leased Premises or
any contents, regardless of fault of Lessor or its agents or employees,
when such loss is covered by the standard form of insurance for fire and
extended coverage. This provision is intended to fully bind any such
insurance carrier. Lessor and Lessee shall execute all documents
necessary or convenient to implement this paragraph.
11. Re-Entry and Inspection. Lessor and its agents shall have
the right to enter upon the Leased Premises at reasonable times to
inspect the same on reasonable notice to Lessee, but nothing contained
in this paragraph shall be deemed to impose upon Lessor any
obligation, responsibility or liability whatsoever, for the care,
supervision or repair of the Leased Premises or any portion thereof.
12. Default and Remedies.
12.1 The occurrence of any of the following shall be
deemed an event of Lessee's default under this Lease: (a) Lessee's
failure to pay any rental when due if the failure continues for ten (10)
days after written notice to Lessee; (b) Lessee's breach of any other
terms and conditions of this Lease to be performed or observed by
Lessee if the breach continues for thirty (30) days after written notice
to Lessee; (c) Commencement of any bankruptcy, insolvency or
receivership proceedings under state or federal law by or against
Lessee.
12.2 Upon occurrence of any event of default and upon
expiration of the applicable notice period without cure of such default
or defaults, then Lessor may, without any further notice or demand,
exercise all or any one or more of the following rights and remedies:
(a) terminate this Lease without affecting Lessee's obligation to pay
rent; (b) enter into, take possession of and eject Lessee from, by force
or otherwise, the Leased Premises without being deemed guilty of
trespass; (c) declare the entire amount of unpaid rent due and payable,
and sue for and collect such accelerated rentals; (d) clean, refurbish,
remodel, improve for other uses and/or relet the Leased Premises or
any portion thereof and credit unpaid rentals due from Lessee with
amounts received upon reletting less all fees, costs and expenses
incurred in connection therewith; (e) pursue any other right or remedy
available under law or equity; (f) exercise any of the foregoing
remedies alone or in combination with any one or more other of such
remedies, all of which shall be deemed cumulative and not exclusive;
(g) recover from Lessee all attorneys fees and expenses incurred in
enforcing the terms of this Lease or exercising the foregoing rights and
remedies, as additional damages for loss of benefit of bargain.
12.3 Lessor shall be in default hereunder if it fails or
refuses to perform any provision of this Lease which it is obligated to
perform and Lessor has not cured such failure within thirty (30) days
after notice of default has been given to Lessor or has not commenced
in good faith to cure a condition which by its nature is not curable
within such 30 days.
12.4 At any time after Lessor's default, Lessee may cure
Lessor's default at Lessor's expense. Lessee may elect: (a) to set off
any sum expended against any unpaid outstanding amount due to Lessee
by Lessor; (b) to withhold future rent due to Lessor until Lessee is
reimbursed in full; or (c) to declare such sum immediately due and
payable from Lessor, which sum shall bear interest at a rate of 12%
percent per annum from the date of Lessee's payment.
13. General Provisions.
13.1 Any notice or communication under this Agree-
ment shall be in writing and delivered (by hand, telecopy, telegraph,
telex or courier) or deposited in the United States mail (first class,
registered or certified), postage fully prepaid and addressed as stated
below. Either party may, from time to time, specify as its address for
purposes of this Agreement any other address upon the giving of ten
days notice thereof to the other party in the manner required by this
paragraph. This paragraph shall not prevent the giving of written notice
in any other manner, but such notice shall be deemed effective only
when and as of its actual receipt at the proper address and by the proper
addressee.
13.2 Lessee shall not sublet the Leased Premises nor
assign its interests in this Lease. Subject to that restriction, this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors, assigns and legal representatives.
13.3 This Agreement is intended solely for the benefit
of Lessor and Lessee and shall not be enforceable by or create any
claim or right of action in favor of any other party.
13.4 This Agreement represents the entire and integrated
agreement between Lessor and Lessee with respect to the subjects
described herein and supersedes all prior negotiations, representations
or agreements, oral or written. This Agreement may be amended only
in writing signed by the party to be bound by such amendment and
stating that it is intended as an amendment of this Agreement.
13.5 If any one or more of the provisions of this
Agreement shall be determined to be invalid, illegal or unenforceable
in any respect for any reason, the validity, legality or enforceability of
such provision in every other respect and the remaining provisions of
this Agreement shall not be in any way impaired.
13.6 Failure of a party to insist upon adherence to any
term of this Agreement on any occasion shall not be considered a
waiver or deprive that party of the right thereafter to insist upon
adherence to that term or any other term of this Agreement.
13.7 This Agreement shall be governed by and interpret-
ed under the substantive laws of the State of South Dakota without
regard to principles of conflicts of law.
13.8 The section headings to this Agreement are intend-
ed solely for the parties' convenience and shall not affect the
interpretation or construction of any portion or provision of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the day and year first above-written.
Address for Notices: TOBOLL PROPERTIES LIMITED
2001 Crestwood Road PARTNERSHIP, a South Dakota
Sioux Falls, SD 57105 limited partnership
Attn: Jack Toboll
By \John F. Toboll
One of its General Partners
Address for Notices: MILLER STRUCTURES, INC., a
P. O. Box 1283 (46515) Indiana corporation
58120 County Road 3 South
Elkhart, Indiana 46517
By \Edward C. Craig
Its President/Chief Executive Officer
REVISED PROPOSAL 04/16/96
Miller Storage Parking
Early Property
Monthly Terminate Tax Effective
No. Site Term Rent Fee (*) Rent
4 Lot #5 4 Years $617 N/A $54.00 $671
w/early
exit fee
Month 48 $617 0 $54.00 $671
47 $617 $1,590.00 $54.00 $708
46 $617 $1,590.00 $54.00 $708
45 $617 $1,590.00 $54.00 $708
44 $617 $1,590.00 $54.00 $708
43 $617 $1,590.00 $54.00 $708
42 $617 $1,590.00 $54.00 $708
41 $617 $3,180.00 $54.00 $759
40 $617 $3,180.00 $54.00 $759
39 $617 $3,180.00 $54.00 $759
38 $617 $3,180.00 $54.00 $759
37 $617 $3,180.00 $54.00 $759
36 $617 $3,180.00 $54.00 $759
35 $617 $4,770.00 $54.00 $830
34 $617 $4,770.00 $54.00 $830
33 $617 $4,770.00 $54.00 $830
32 $617 $4,770.00 $54.00 $830
31 $617 $4,770.00 $54.00 $830
30 $617 $4,770.00 $54.00 $830
29 $617 $6,408.00 $54.00 $938
28 $617 $6,408.00 $54.00 $938
27 $617 $6,408.00 $54.00 $938
26 $617 $6,408.00 $54.00 $938
25 $617 $6,408.00 $54.00 $938
24 $617 $6,408.00 $54.00 $938
(*) Taxes will be invoiced separately in two payments according to tax bill.
EXHIBIT B