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Exhibit 10.61
LEASE
THIS LEASE is
made and entered into on this 27th day of April, 2004, by and
between Roost Leasing, LLC, whose address is 23614 Progress,
Sturgis, Michigan (“Landlord”), and Classic
Manufacturing, Inc., whose address is 21900 West US-12, Sturgis,
Michigan (“Tenant”).
WITNESSETH:
1.
Leased Premises; Term . Landlord
leases to Tenant, and Tenant hires from Landlord, on the terms and
subject to the conditions contained herein, the building located at
21900 West US-12, Sturgis, Michigan, and the real estate to which
it is affixed, as identified on Exhibit A which is attached hereto,
together with all apparatus, equipment, fittings, hot water
heaters, and fixtures whatsoever now owned or hereafter acquired by
Landlord and used or procured for use in connection with the
operation and maintenance of such building and real estate (all of
which are collectively referred to herein as the
“Premises”), for a term of Ninety-six (96) months
beginning on _____________, 2004, and ending on _______________,
2012, unless sooner terminated as provided herein (the
“Term”). This Lease shall be subject, however, to
encumbrances, conditions, covenants, easements, restrictions and
rights-of-way, whether or not of record, affecting the Premises, to
such matters as might be disclosed by inspection or survey and to
zoning ordinances and other laws, ordinances and regulations
applicable to the Premises, all of such that are known by Landlord
are set forth at Exhibit A hereto.
2.
Base Rent.
(a) Tenant shall
pay to Landlord, as rent for the Term, monthly installments of rent
to be determined in accordance with the provisions of subparagraph
(b) below. Each monthly installment shall he payable in advance,
without notice or demand, and without any setoff, abatement,
deduction, reduction or counterclaim of any kind; on or before the
first day of each calendar month during the Term at such place as
the Landlord shall from time to time designate.
(b) During the
first twelve months of the Term, the monthly installments of Base
Rent shall be Twelve Thousand Dollars ($ 12,000). Upon the first
anniversary of the commencement of the Term, and upon each
anniversary thereafter, the Base Rent shall be adjusted. All
adjustments shall be cumulative and shall be based upon any
increase in the Index. “Index” means the Consumer Price
Index of the Bureau of Labor Statistics, United States Department
of Labor (CPI-U), All Items Index for All Urban Consumers U.S. City
Average (1982-84 = 100), or any replacement therefor. If the Index
shall cease to be published, a reasonable substitute index shall
replace it for purposes of this Lease. The adjusted monthly
installments of Base Rent for the twelve months succeeding any
adjustment shall be the product found by multiplying the amount of
the monthly installment of Base Rent due for the month just prior
to adjustment times a fraction, the numerator of which shall be the
Index number indicated in the column for “all items” in
the month immediately preceding the adjustment and the denominator
of which shall be such Index number for the month and year used in
the numerator of the previous adjustment (or for the month
immediately preceding commencement of the Term, as the case may
be); provided, however, that in no case shall monthly Base Rent, or
Base Rent as adjusted, ever be reduced. Following each such
adjustment, the term “Base Rent,” as used in the Lease,
shall mean Base Rent as most recently adjusted. If at the beginning
of any Lease Year adjusted Base Rent shall not have been
calculated, Tenant shall continue paying the Base Rent previously
in effect on a timely basis. Upon notification by Landlord of the
adjusted Base Rent, Tenant shall immediately pay Landlord the
difference between Base Rent paid and that which would have been
due had adjusted Base Rent been calculated and shall thereafter
continue paying monthly installments of adjusted Base
Rent.
(c) Payments
received from Tenant shall be applied by Landlord as follows:
first, to any unpaid late charge; second, to accrued interest;
third, to other charges due and unpaid; fourth, to Additional Rent;
and fifth, to Base Rent.
3.
Additional Rent . All sums in
addition to Base Rent due to be paid to Landlord under the terms of
this Lease shall constitute Additional Rent. All Additional Rent
shall be due and payable immediately upon demand.
4.
Use of Premises . Tenant shall use
and occupy the Premises for manufacturing purposes and for no other
purpose, except with Landlord’s prior written
consent.
Tenant shall
not use the Premises, or permit the Premises to be used, for the
doing of any act or thing that constitutes a violation of any law,
order, ordinance, or regulation of any government authority or that
may be dangerous to life or limb; nor shall Tenant in any manner
deface or injure the Premises, or permit any objectionable noise or
odor or any hazardous material or contaminant to be emitted or
spilled, or permit anything to be done on the Premises tending to
create a health hazard or nuisance or to disturb others or to
injure the reputation of the Premises.
Tenant shall
receive the Premises from Landlord in compliance with (a) all laws,
ordinances, orders or regulations affecting the Premises or its use
or occupancy or, any alterations Tenant has made to the Premises,
and (b) the recommendations of any insurance company, inspection
bureau or similar agency, and shall, at Tenant’s expense,
maintain such compliance.
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Tenant shall
not (either with or without negligence) cause or permit the escape,
disposal or release of any biologically or chemically active or
other hazardous substances or materials. Tenant shall not allow the
storage or use of such substances or materials in any manner not
sanctioned by law or by reasonable standards prevailing in the
industry for the storage and use of such substances or materials,
nor allow to be brought into the Premises any such materials or
substances except to use in the ordinary course of Tenant’s
business, and then only after written notice is given to Landlord
of the identity of such substances or materials. Without
limitation, hazardous substances and materials shall include those
described in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et
seq., the Resource Conservation and Recovery Act, as amended, 42
U.S.C. Section 6901 et seq., any applicable state or local law and
the regulations adopted under these acts. In addition, Tenant shall
execute affidavits, representations and the like from time to time
at Landlord’s request concerning Tenant’s best
knowledge and belief regarding the presence of hazardous substances
or materials on the Premises. In all events, Tenant shall indemnify
Landlord in the manner elsewhere provided in this Lease against any
liability resulting from any release of hazardous substances or
materials on the Premises while Tenant is in possession, or caused
by Tenant or persons acting under Tenant.
5.
Condition of Premises . Except as
otherwise provided herein, Tenant’s entry into possession
shall constitute conclusive evidence against Tenant that the
Premises were in good order and satisfactory condition and suitable
for the purposes for which they are leased at the time of entry.
Neither Landlord nor Landlord’s agents have made any
representations or promises with respect to the physical condition
of the building, the land upon which it is erected or any other
portion of the Premises, the rents, leases, expenses of operation
or any other matter or thing affecting or related to the Premises
except as herein expressly set forth, and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except
as expressly set forth in the provisions of this Lease. Tenant has
inspected the Premises, is thoroughly acquainted with their
condition, and agrees to take the same “as
is.”
6.
Possession . If possession of the
Premises shall for any reason not be delivered to Tenant on the
date above fixed for the commencement of the Term, this Lease shall
nevertheless continue in full force and effect, and no liability
whatsoever shall arise against Landlord out of any delay other than
the abatement of rent, at the rate of one-thirtieth (1/30) of the
monthly installment of the Base Rent for each day of delay, until
possession of the Premises is delivered to Tenant; provided,
however, that the Lease shall be null and void if possession is not
delivered within three months of the date fixed for commencement of
the Term. If Tenant shall take possession of all or any part of the
Premises before the date fixed above for commencement of the Term,
such possession shall be governed by the provisions of this Lease,
except that Tenant shall pay Landlord, as rent, one-thirtieth
(1/30) of the monthly installment of the Rent for each day of the
period of such occupancy, which rent shall be apportioned according
to the area of the Premises actually occupied by Tenant. Neither
the Term nor any other provision of this Lease shall be affected by
Tenant’s prior occupancy, which shall occur only with the
written permission of the Landlord.
It is expressly
understood that Tenant’s obligation to pay rent shall
commence on the date possession of the Premises is delivered to
Tenant, and no liability, by abatement of rent or otherwise, shall
arise against Landlord as a result of delays in occupancy caused by
decoration or other work on the Premises done by or at the request
of Tenant, under this Lease or any other agreement.
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7.
Maintenance and Repair . Tenant
shall, at its expense, in every way place, keep and maintain the
Premises, and each component of the Premises other than the HVAC
systems, the costs of any replacements thereto being shared equally
between Landlord and Tenant, and all of tenant’s property
upon the Premises, in a good and clean operating condition.
Tenant’s obligations shall include, but not necessarily be
limited to, roadway, parking, landscaping, exterior and structural
maintenance, reconstruction and repairs (including all necessary
replacements), the replacement of broken glass and the repair and
maintenance (including all, necessary replacements) of the interior
portions and components of the Premises, such as the walls,
ceiling, heating, air conditioning, electrical, plumbing, dust
collecting and sprinkler systems, any building security system and
other interior components. Landlord shall be given notice of and
Tenant’s plan for any major repair or replacement undertaken.
Tenant shall also at its expense remove snow, ice, and rubbish from
the Premises. If, despite the provisions of this Lease, a spill or
emission of contaminants or hazardous materials should occur on the
Premises, and without limiting Landlord’s right to declare a
default because of such an occurrence, Tenant shall promptly notify
Landlord and the appropriate governmental agencies and immediately
take whatever steps may be necessary to clear up the spill or
emission, protect the public health and the environment, and assure
it does not happen again.
8.
Floor Load . Tenant shall not place a
load upon any floor of the Premises exceeding the floor load per
square foot it was designed to carry and is permitted by law.
Landlord acknowledges that Tenant’s current use of the
Premises is in full compliance with the provisions of this
paragraph.
9.
Alterations .
(a)
Except as required by Section 7 above, Tenant shall not, without
the prior written consent of Landlord, make any alterations,
improvements, or additions to the Premises. If Tenant desires to
make any alterations, improvements, or additions to the Premises,
Tenant shall first submit to Landlord plans and specifications
therefor and obtain Landlord’s written approval thereof.
Landlord shall not withhold or delay its approval of any
non-structural alterations unless Tenant’s proposal would be
detrimental to the long-term value of the Premises. Any such
approved alterations, improvements, or additions shall be made at
Tenant’s sole expense with such contractor or contractors as
shall be approved by Landlord. Unless otherwise directed by
Landlord in writing, no alterations, improvements, additions or
physical changes made by Tenant shall be removed by Tenant from the
Premises at the termination of this Lease. All alterations,
improvements, additions or physical changes left on the Premises at
the end of the Term shall become Landlord’s
property.
(b)
Tenant shall, before making any approved alterations, additions,
installations or improvements, at its expense, obtain all permits,
approvals and certificates required by any governmental or
quasi-governmental bodies and (upon completion) certificates of
final approval therefor and shall deliver promptly duplicates of
all such permits, approvals and certificates to Landlord, and
Tenant agrees to carry and will cause Tenant’s contractors
and subcontractors to carry such worker’s compensation,
general liability, personal and property damage insurance as
Landlord may require.
10.
Covenant against Liens . Nothing in
this Lease shall authorize Tenant to, and Tenant shall not, do any
act which will in any way encumber the title of Landlord in and to
the Premises, nor shall the interest or estate of Landlord in the
Premises be in any way subject to any claim whatsoever by virtue of
any act or omission of Tenant. Any claim to a lien upon the
Premises arising from any act or omission of Tenant shall be valid
only against Tenant and shall in all respects be subordinate to the
title and rights of Landlord, and any person claiming through
Landlord, in and to the Premises. Tenant shall remove any lien or
encumbrance on its interest in the Premises within 10 days after it
has arisen; provided, however, that Tenant may in good faith
contest any such item if it posts a bond or other adequate security
with Landlord.
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11.
Indemnification; Tenant’s Property .
(a)
Except as otherwise prohibited by law, Landlord shall not be liable
for any damage, either to person or property, sustained by any
person not due directly to the act or omission of Landlord. Tenant
shall indemnify and hold Landlord harmless from and against any and
all liabilities, obligations, damages, penalties, claims, costs and
expenses, including reasonable attorneys’ fees, paid or
incurred as a result of or in connection with Tenant’s use or
occupancy of the Premises, any breach by Tenant, Tenant’s
agents, contractors, employees, customers, invitees, or licensees,
of any covenant or condition of this Lease, or the carelessness,
negligence or improper conduct of the Tenant, Tenant’s
agents, contractors, employees, customers, invitees or licensees.
Tenant’s liability under this Lease extends to the acts and
omissions of any subtenant, and any agent, contractor, employee,
customer, invitee or licensee of any subtenant. In case any action
or proceeding is brought against Landlord by reason of any such
claim, Tenant, upon written notice from Landlord, will, at
Tenant’s expense, resist or defend such action or proceeding
by counsel approved by Landlord in writing.
(b)
Tenant shall bring or keep property upon the Premises solely at its
own risk, and Landlord shall not be liable for any damages thereto
or any theft thereof. Tenant shall maintain a policy of insurance
with a responsible insurance company satisfactory to Landlord
against risk of loss from any cause whatsoever to all such property
and to all of Tenant’s alterations, improvements or additions
to the Premises, to the full extent off their replacement cost,
which policy of insurance shall contain a clause or endorsement
under which the insurer waives, or permits the waiver by Tenant of,
all right of subrogation against Landlord, and its agents,
employees, customers, invitees, guests, or licensees, with respect
to losses payable under such policy, and Tenant hereby waives all
right of recovery which it might otherwise have against Landlord,
and its agents, employees, customers, invitees, guests, or
licensees, for any damage to Tenant’s property which is (or
by the terms of this Lease is required to be) covered by a policy
of insurance, notwithstanding t
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