As filed with the Securities and Exchange Commission on December 29, 1998
Registration No. 333-61463
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
AMENDMENT NO. 3
TO
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
KIDS STUFF, INC.
(Name of small business issuer in its charter)
Delaware 5961 34-1843520
- --------------------------- ------------------------- -------------------
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of organization) Classification Code No.) Identification No.)
4450 Belden Village Street, N.W., Suite 406
Canton, Ohio 44718
(330) 492-8090
(Address and telephone number of principal executive offices and
principal place of business.)
William L. Miller, Chief Executive Officer
Kids Stuff, Inc.
4450 Belden Village Street, N.W., Suite 406
Canton, Ohio 44718
(330) 492-8090
(Name, address and telephone number of agent for service)
Copies to:
Steven Morse, Esq. Michael Ference, Esq.
Lester Morse P.C. Lampert & Ference
111 Great Neck Road 135 West 50th Street, 20th Fl.
Suite 420 New York, NY 10020
Great Neck, NY 11021 (212) 889-7300
(516) 487-1446 (212) 889-5732
(516) 487-1452 (fax)
- -----------------
Approximate date of commencement of proposed sale to public: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis, pursuant to Rule 415 under the Securities Act of
1933, check the following box: | x |
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering: |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: |_|
<PAGE>
The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
ii
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 27. EXHIBITS.
1.01 Revised Form of Underwriting Agreement - 1997 Offering (5)
1.02 Revised Form of Selected Dealers Agreement - 1997 Offering (5)
1.03 Revised Form of Warrant Exercise Fee Agreement - 1997 Offering (5)
1.04 Form of Underwriting Agreement - Series 1 Preferred Stock (10)
3.01 Certificate of Incorporation of the Company (1)
3.02 Certificate of Amendment of Certificate of Incorporation of the
Company(1)
3.03 By-Laws of the Company (1)
3.04 Certificate of Designation of Series A Preferred Stock (2)
3.05 Form of Certificate of Designation (7)
4.01 Specimen Certificate for Shares of Common Stock (2)
4.02 Specimen Certificate for Shares of Series A Preferred Stock (2)
4.03 Revised Form of Common Stock Purchase Warrant Agreement (5)
4.04 Revised Specimen Certificate for Common Stock Purchase Warrants (3)
4.05 Revised Form of Underwriters' Purchase Option - 1997 Offering (5)
4.06 Form of Representative's Lock-up Letter (2)
4.07 Form of Representative's Purchase Option Agreement (10)
4.08 Preferred Stock Agency Agreement (10)
4.09 Preferred Warrant Agency Agreement (10)
4.10 Specimen of Preferred Warrant (7)
4.11 Specimen of Series 1 Preferred Stock (7)
5.01 Opinion of Lester Morse P.C. (10)
10.01 Agreement to Acquire the Assets of The Natural Baby Company, Inc.,
(the "Acquisition Agreement")(1)
10.02 Addendum to Acquisition Agreement (1)
10.03 Escrow Agreement under the Acquisition Agreement (1)
10.04 Form of Consulting Agreement with Jane Martin (1)
10.05 Asset Purchase Agreement between the Company and its Parent (1)
10.06 Promissory Note from the Company and its Parent (1)
10.07 Form of Bridge Loan Agreement (1)
10.08 Form of Financial Consulting Agreement with Fairchild Financial
Group, Inc. (1)
10.09 Credit Facility with United National Bank and Trust Company (2)
10.10 Lease for Company's principal offices and telemarketing center (2)
10.11 Employment Agreement with William L. Miller (2)
10.12 Revised Employment Agreement with Jeanne E. Miller (10)
10.13 Incentive Compensation Plan (2)
10.14 1997 Long-Term Stock Incentive Plan (2)
10.15 Amendment to Asset Purchase Agreement between the Company
and its Parent (2)
10.16 Form of Amendment to Bridge Loan Agreement (4)
10.17 Amended Form of Stock Repurchase Agreement and Note (5)
II-1
<PAGE>
10.18 Second Addendum to Acquisition Agreement (5)
10.19 First Addendum to Escrow Agreement (6)
10.20 Third Addendum to Acquisition Agreement (6)
10.21 Agreement with The Havana Group, Inc. (9)
10.22 Form of new Financial Consulting Agreement with Fairchild Financial
Group, Inc. (10)
10.23 Employment Agreement with William T. Evans (10)
10.24 Other Leases (7)
23.01 Consent of Hausser + Taylor LLP (10)
23.02 Consent of Lester Morse P.C. [included in Exhibit 5.01]
27.00 Revised Financial Data Schedule (8)
-----------
(1) Incorporated by reference to the Registrant's Form SB-2 Registration
Statement, file no. 333-19423, filed with the Securities and Exchange
Commission on January 8, 1997.
(2) Incorporated by reference to the Registrant's Amendment No. 1 to Form
SB-2 Registration Statement, file no. 333-19423, filed with the
Securities and Exchange Commission on March 14, 1997.
(3) Incorporated by reference to the Registrant's Amendment No. 2 to Form
SB-2 Registration Statement, file no. 333-19423, filed with the
Securities and Exchange Commission on April 2, 1997.
(4) Incorporated by reference to the Registrant's Amendment No. 3 to Form
SB-2 Registration Statement, file no. 333-19423, filed with the
Securities and Exchange Commission on April 14, 1997.
(5) Incorporated by reference to the Registrant's Amendment No. 4 to Form
SB-2 Registration Statement, file no. 333-19423, filed with the
Securities and Exchange Commission on June 3, 1997.
(6) Incorporated by reference to the Registrant's Amendment No. 5 to Form
SB-2 Registration Statement, file no. 333-19423, filed with the
Securities and Exchange Commission on June 25, 1997.
(7) Filed herewith.
(8) Previously filed in connection with reports under the Securities and
Exchange Act of 1934
(9) Incorporated by reference to the Registrant's Form 10-K filed for its
fiscal year ended December 31, 1997.
(10) Previously filed in prior amendment to this Registration Statement.
II-2
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all the requirements for filing on Form SB-2, and authorized this
Registration Statement to be signed on its behalf by the undersigned, in the
City of Canton, State of Ohio, on this 28th day of December, 1998.
KIDS STUFF, INC.
By: /s/ WILLIAM L. MILLER
------------------------------
William L. Miller, Chairman of the Board
and Chief Executive Officer
In accordance with the requirements of the Securities Act of 1933, as
amended, this Registration Statement was signed by the following persons in the
capacities and on the dates stated.
SIGNATURE TITLE DATE
- ------------------------ ------------------------ -----------------
/s/ WILLIAM L. MILLER Chairman of the Board, December 28, 1998
- ------------------------ Chief Executive Officer
William L. Miller Treasurer, Secretary and
Chief Financial and
Accounting Officer
/s/ JEANNE E. MILLER Executive Vice President December 28, 1998
- ------------------------ and Director
Jeanne E. Miller
/s/ CLARK D. SWISHER Director December 28, 1998
- ------------------------
Clark D. Swisher
/s/Alfred Schmidt
- ------------------------ Director December 28, 1998
Alfred Schmidt
II-3
<PAGE>
EXHIBIT INDEX
1.01 Revised Form of Underwriting Agreement - 1997 Offering (5)
1.02 Revised Form of Selected Dealers Agreement - 1997 Offering (5)
1.03 Revised Form of Warrant Exercise Fee Agreement - 1997 Offering (5)
1.04 Form of Underwriting Agreement - Series 1 Preferred Stock (10)
3.01 Certificate of Incorporation of the Company (1)
3.02 Certificate of Amendment of Certificate of Incorporation of the
Company(1)
3.03 By-Laws of the Company (1)
3.04 Certificate of Designation of Series A Preferred Stock (2)
3.05 Form of Certificate of Designation (7)
4.01 Specimen Certificate for Shares of Common Stock (2)
4.02 Specimen Certificate for Shares of Series A Preferred Stock (2)
4.03 Revised Form of Common Stock Purchase Warrant Agreement (5)
4.04 Revised Specimen Certificate for Common Stock Purchase Warrants (3
4.05 Revised Form of Underwriters' Purchase Option - 1997 Offering (5)
4.06 Form of Representative's Lock-up Letter (2)
4.07 Form of Representative's Purchase Option Agreement (10)
4.08 Preferred Stock Agency Agreement (10)
4.09 Preferred Warrant Agency Agreement (10)
4.10 Specimen of Preferred Warrant (7)
4.11 Specimen of Series 1 Preferred Stock (7)
5.01 Opinion of Lester Morse P.C. (10)
10.01 Agreement to Acquire the Assets of The Natural Baby Company, Inc.,
(the "Acquisition Agreement")(1)
10.02 Addendum to Acquisition Agreement (1)
10.03 Escrow Agreement under the Acquisition Agreement (1)
10.04 Form of Consulting Agreement with Jane Martin (1)
10.05 Asset Purchase Agreement between the Company and its Parent (1)
10.06 Promissory Note from the Company and its Parent (1)
10.07 Form of Bridge Loan Agreement (1)
10.08 Form of Financial Consulting Agreement with Fairchild Financial
Group, Inc. (1)
10.09 Credit Facility with United National Bank and Trust Company (2)
10.10 Lease for Company's principal offices and telemarketing center (2)
10.11 Employment Agreement with William L. Miller (2)
10.12 Revised Employment Agreement with Jeanne E. Miller (10)
10.13 Incentive Compensation Plan (2)
10.14 1997 Long-Term Stock Incentive Plan (2)
10.15 Amendment to Asset Purchase Agreement between the Company
and its Parent (2)
10.16 Form of Amendment to Bridge Loan Agreement (4)
10.17 Amended Form of Stock Repurchase Agreement and Note (5)
10.18 Second Addendum to Acquisition Agreement (5)
10.19 First Addendum to Escrow Agreement (6)
10.20 Third Addendum to Acquisition Agreement (6)
10.21 Agreement with The Havana Group, Inc. (9)
10.22 Form of new Financial Consulting Agreement with Fairchild Financial
Group, Inc. (10)
<PAGE>
10.23 Employment Agreement with William T. Evans (10)
10.24 Other Leases (7)
23.01 Consent of Hausser + Taylor LLP (10)
23.02 Consent of Lester Morse P.C. [included in Exhibit 5.01]
27.00 Revised Financial Data Schedule (8)
-----------
(1) Incorporated by reference to the Registrant's Form SB-2 Registration
Statement, file no. 333-19423, filed with the Securities and Exchange
Commission on January 8, 1997.
(2) Incorporated by reference to the Registrant's Amendment No. 1 to Form
SB-2 Registration Statement, file no. 333-19423, filed with the
Securities and Exchange Commission on March 14, 1997.
(3) Incorporated by reference to the Registrant's Amendment No. 2 to Form
SB-2 Registration Statement, file no. 333-19423, filed with the
Securities and Exchange Commission on April 2, 1997.
(4) Incorporated by reference to the Registrant's Amendment No. 3 to Form
SB-2 Registration Statement, file no. 333-19423, filed with the
Securities and Exchange Commission on April 14, 1997.
(5) Incorporated by reference to the Registrant's Amendment No. 4 to Form
SB-2 Registration Statement, file no. 333-19423, filed with the
Securities and Exchange Commission on June 3, 1997.
(6) Incorporated by reference to the Registrant's Amendment No. 5 to Form
SB-2 Registration Statement, file no. 333-19423, filed with the
Securities and Exchange Commission on June 25, 1997.
(7) Filed herewith.
(8) Previously filed in connection with reports under the Securities and
Exchange Act of 1934
(9) Incorporated by reference to the Registrant's Form 10-K filed for its
fiscal year ended December 31, 1997.
(10) Previously filed in prior amendment to this Registration Statement.
<PAGE>
Exhibit 3.05
Form of Certificate of Designation
<PAGE>
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES 1 PREFERRED STOCK
OF
KIDS STUFF, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
I, Jeanne Miller, President of Kids Stuff, Inc (the
"Corporation"), a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation"), in accordance with
the provisions of Section 103 thereof, DO HEREBY CERTIFY:
That, pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation of the said Corporation, the said
Board of Directors on December 9, 1998, adopted the following resolution
creating the terms and conditions of the series of 1,500,000 shares of Series 1
Preferred Stock, $.001 par value per share, designated as Series A Preferred
Stock:
Upon motion duly made, seconded and unanimously carried, it
was
RESOLVED, that pursuant to the authority vested in the Board
of Directors of this Corporation in accordance with the provisions of its
Certificate of Incorporation, a series of Preferred Stock of the Corporation be
and it hereby is created, and that the designation and amount thereof and the
voting powers, preferences and relative, participating, optional and other
special rights of the shares of such series, and the qualifications, limitations
or restrictions thereof are as follows:
1. Number and Designation.
The designation of the series of Preferred Stock, $.001 par value per
share, authorized by this resolution shall be "Series 1 Cumulative Convertible
Voting Preferred Stock" (the "Series 1 Preferred Stock"). The number of shares
of Series 1 Preferred Stock authorized by this resolution shall be 1,500,000.
2. Rank.
The Series 1 Preferred Stock shall, with respect to rights on
liquidation, winding up and dissolution, rank prior to (i) all classes of Common
Stock, $.001 par value per share, of the Corporation (the "Common Stock") and
(ii) the Corporation's Series A Preferred Stock, $.001 par value per share (the
"Series A Preferred Stock"). All equity securities of the Corporation to which
the Series 1 Preferred Stock ranks prior (whether upon liquidation, dissolution,
winding up or otherwise), including the Common Stock, and the Series A Preferred
Stock, are collectively referred to herein as the "Junior Securities." All
equity securities of the Corporation to which the Series 1 Preferred Stock ranks
junior
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(whether upon liquidation, dissolution, winding up or otherwise) are
collectively referred to herein as the "Senior Securities." All equity
securities of the Corporation with which the Series 1 Preferred Stock ranks on a
parity (whether upon liquidation, dissolution, winding up or otherwise) are
collectively referred to herein as the "Parity Securities". The Series 1
Preferred Stock shall be subject to the creation of Junior Securities, Senior
Securities and Parity Securities; provided, that no Senior Securities shall be
issued after the date of this Certificate without the prior approval of at least
a majority in interest of the outstanding Series 1 Preferred Stock, voting as a
class.
3. Dividends.
The holders of shares of Series 1 Preferred Stock shall be entitled to
receive, per share, before any dividends or other distributions of any kind
shall be declared or paid upon or set aside for any class of stock of the
Corporation ranking as to dividends or upon liquidation junior to the Series 1
Preferred Stock (including but not limited to the Common Stock), out of funds
legally available for that purpose, cumulative dividends in cash or, subject to
the provisions of this Section 3 in shares of Common Stock, at the option of the
Board of Directors of the Corporation, at the rate of $.45 per annum,
(calculated on the basis of a 360-day year and counting the actual number of
days elapsed), as such amount may be adjusted in the same manner as adjustments
are made to the Conversion Rate pursuant to the provisions of subparagraphs 6
hereof, and no more from the date of initial issuance of the subject Series 1
Preferred Stock to the date of payment of such dividends, commencing on the date
of issuance of the Series 1 Preferred Stock and payable annually on the last
business day of April each year in which the Series 1 Preferred Stock shall be
outstanding, commencing April 30, 1999. Each such dividend shall be paid to the
holders of record of shares of the Series 1 Preferred Stock as they appear on
the stock register of the Corporation on such record date, not exceeding 30 days
nor less than 10 days preceding the payment date of such dividend as shall be
fixed by the Board of Directors of the Corporation or a duly authorized
Committee thereof. At the election of the Board of Directors of the Corporation
or a duly authorized Committee thereof, the annual dividend payments following
the date of initial issuance of the subject shares of Series 1 Preferred Stock
may be paid in kind, in shares of Common Stock, by the Corporation, if so paid
by the issuance of such shares no later than sixty (60) days following the
respective dividend payment dates. The dividend payment in kind shall equal that
number of shares of Common Stock rounded up to nearest whole number determined
by dividing the cash dividend payment amount by 100% of the then "fair market
value" of a share of Common Stock (with such fair market value established as
the price per share for the Common Stock valued at the average closing sales
price of the Common Stock on the OTC Electronic Bulletin Board, NASDAQ or an
Exchange, during the ten trading days ending on the tenth day before the
dividend payment date) times the number of shares of Series 1 Preferred Stock
owned on the record date.
4. Rights on Liquidation, Dissolution or Winding Up.
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, the holders of shares of Series 1 Preferred Stock then outstanding
shall be entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders, whether from capital, surplus or earnings,
before any payment shall be made to the
2
<PAGE>
holders of any junior securities of any class of stock of the Corporation
(including but not limited to the Common Stock and Series A Preferred Stock), an
amount equal to ($ ) per share (the "Liquidation Amount Per Share"),
as such Liquidation Amount Per Share may be adjusted in the same manner as
adjustments are made to the Conversion Rate pursuant to the provisions of
subparagraphs 6 hereof, plus an amount equal to unpaid dividends, whether
declared or undeclared, if any, thereon regardless of whether there have been
net profits or net assets legally available for payment of dividends. If upon
any liquidation, dissolution or winding up of the Corporation, the assets of the
Corporation available for distribution to its stockholders shall be insufficient
to pay to the holders of shares of Series 1 Preferred Stock the full amounts to
which they respectively shall be entitled, as well as similar payments on any
other class of stock ranking on a party or senior to the Series 1 Preferred
Stock upon liquidation, then the holders of shares of Series 1 Preferred Stock
and the holders of such other classes of stock, shall share ratably in any
distribution of assets in proportion to the full respective distributable
amounts to which they are entitled. In the event of any liquidation, dissolution
or winding up of the Corporation, after payment shall have been made to the
holders of shares of Series 1 Preferred Stock of the full amount to which they
shall be entitled as aforesaid, the holders of any shares of any class of stock
of the Corporation ranking as to dividends or upon liquidation junior to the
Series 1 Preferred Stock (including but not limited to the Common Stock and
Series A Preferred Stock) shall be entitled, to the exclusion of the holders of
shares of Series 1 Preferred Stock, to share, according to their respective
rights and preferences, in all remaining assets of the Corporation available for
distribution to its stockholders.
(b) A consolidation or merger of the Corporation with or into another
corporation or sale or conveyance of all or substantially all the property and
assets of the Corporation will not deemed to be a liquidation, dissolution or
winding-up, voluntary or involuntary, of the Corporation for the purposes of the
foregoing paragraph.
5. Voting.
Each share of Series 1 Preferred Stock shall have one vote per share
voting together with the Common Stock except as otherwise provided by Delaware
Corporation law.
6. Conversion.
(a) Commencing on __________, 2000 and up until the close
of business on the day preceding the Redemption Date, as herein defined, the
holders of the Certificates shall be able to convert their Series 1 Preferred
Stock into Common Stock based upon the applicable Conversion Ratio. The initial
Conversion Ratio shall be ____ shares of Common Stock for each 1.0 share of
Series 1 Preferred Stock, subject to adjustment as described herein.
(b) Series 1 Preferred Stock certificates in denominations of
one or whole number multiples thereof may be converted into Common Stock at the
then applicable Conversion Ratio. The Series 1 Preferred Stock shall be deemed
to have been converted immediately prior to the close of business on the
Conversion Date, provided that the
3
<PAGE>
Certificate representing such Series 1 Preferred Stock, with the conversion form
thereon duly executed by the Registered Holder thereof or his attorney duly
authorized in writing, has been received by the Preferred Agent as defined
herein. The person entitled to receive the securities deliverable upon such
conversion shall be treated for all purposes as the holder of such securities as
of the close of business on the Conversion Date. If Series 1 Preferred Stock in
denominations other than one or whole number multiples thereof shall be
converted at one time by the same Registered Holder, the number of full shares
of Common Stock which shall be issuable upon conversion thereof shall be
computed on the basis of the aggregate number of full shares of Common Stock
issuable upon such exercise. As soon as practicable on or after the Conversion
Date and in any event within five business days after such date, if one or more
shares of Series 1 Preferred Stock have been converted, the Preferred Agent on
behalf of the Company shall cause to be issued to the person or persons entitled
to receive the same, a Common Stock certificate or certificates for the shares
of Common Stock deliverable upon such conversion, and the Preferred Agent shall
deliver the same to the person or persons entitled thereto. Upon the conversion
of any one or more Series 1 Preferred Stock, the Preferred Agent shall promptly
notify the Company in writing of such fact and of the number of securities
delivered upon such conversion.
(c) The Company shall not be obligated to issue any fractional
share interests upon the conversion of any Series 1 Preferred Stock, nor shall
it be obligated to issue scrip in lieu of fractional interests. All fractional
shares or fractional interests will be rounded up to the nearest whole share.
(d) In the event the Company shall, at any time or from time
to time after the date hereof, issue any shares of Common Stock as a stock
dividend to the holders of Common Stock, or subdivide or combine the outstanding
shares of Common Stock and/or Series 1 Preferred Stock into a greater or lesser
number of shares (any such issuance, subdivision or combination being herein
called a "Change of Shares"), then, and thereafter immediately before the date
of such Series 1 Preferred Stock record date for each Change of Shares, the
Conversion Ratio for the Series 1 Preferred Stock in effect immediately prior to
such Change of Shares shall be changed by the board of directors acting in good
faith to a new Conversion Ratio based upon a proportionate change to the
Conversion Ratio under the then applicable circumstances so that the holder of
the Series 1 Preferred Stock is in the same position as if the holder converted
the Series 1 Preferred Stock into Common Stock immediately before the Change of
Shares.
(e) In case of any reclassification or change of outstanding
shares of Common Stock issuable upon conversion of the Series 1 Preferred Stock
(other than a change in par value, or from par value to no par value, or as a
result of subdivision or combination), or in case of any consolidation or merger
of the Company with or into another corporation (other than a merger with a
subsidiary in which merger the Company is the continuing corporation and which
does not result in any reclassification or change of the then outstanding shares
of Common Stock or other capital stock issuable upon exercise of the Series 1
Preferred Stock) or in case of any sale or conveyance to another corporation of
the property of the Company as an entirety or substantially as an entirety,
then, as a condition of such reclassification, change, consolidation, merger,
sale or conveyance, the Company, or such successor or purchasing corporation, as
the case may
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<PAGE>
be, shall make lawful and adequate provision whereby the Registered Holder of
each Series 1 Preferred Stock then outstanding shall have the right thereafter
to receive on conversion of the Series 1 Preferred Stock, the kind and amount of
securities and property receivable upon such reclassification, change,
consolidation, merger, sale or conveyance by a holder of the number of
securities issuable upon conversion immediately prior to such reclassification,
change, consolidation, merger, sale or conveyance and shall forthwith file at
the Corporate Office of the Preferred Agent, a statement signed by its Chairman,
Chief Executive Officer or President and by its Treasurer or an Assistant
Treasurer or its Secretary or an Assistant Secretary evidencing such provision.
Such provisions shall include provision for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in Section
6(d). The above provisions of this Section 6(e) shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales or conveyances.
(f) Irrespective of any adjustments or changes in the
Conversion Ratio and the number of shares of Common Stock issuable upon
conversion of the Series 1 Preferred Stock, the Series 1 Preferred Stock
Certificates theretofore and thereafter issued shall, unless the Company shall
exercise its option to issue new Certificates, continue to express the
Conversion Ratio and the number of shares purchasable thereunder as expressed in
the Certificates when the same were originally issued.
(g) After each adjustment of the Conversion Ratio pursuant to
this Section 6, the Company will promptly prepare a certificate signed by the
Chairman, Chief Executive Officer or President, and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary, of the Company
setting forth: (i) the Conversion Ratio as so adjusted, (ii) the number of
shares of Common Stock purchasable upon conversion of each share of Series 1
Preferred Stock, after such adjustment, and (iii) a brief statement of the facts
accounting for such adjustment. The Company will promptly file such certificate
with the Preferred Agent and cause a brief summary thereof to be sent by
ordinary first class mail to each Registered Holder at his last address as it
shall appear on the registry books of the Preferred Agent. No failure to mail
such notice nor any defect therein or in the mailing thereof shall affect the
validity thereof. The affidavit of an officer of the Preferred Agent or the
Secretary or an Assistant Secretary of the Company that such notice has been
mailed shall, in the absence of fraud, be prima facie evidence of the facts
stated therein.
(h) The Corporation shall at all times reserve and, keep
available out of its authorized but unissued shares of Common Stock, solely for
the purpose of effecting the conversion of Series 1 Preferred Stock, the full
number of shares of Common Stock then deliverable upon the conversion or
exchange of all shares of Series 1 Preferred Stock at the time outstanding. The
Corporation shall take at all times such corporate action as shall be necessary
in order that the Corporation may validly and legally issue fully paid and
nonassessable shares of Common Stock upon the conversion of Series 1 Preferred
Stock in accordance with the provisions hereof.
(i) No fractional shares of Common Stock or scrip representing
fractional shares of Common Stock shall be issued upon any conversion of Series
1 Preferred Stock,
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<PAGE>
but, in lieu thereof, the number of shares issuable upon conversion shall be
rounded up to the nearest whole number of shares.
7. Redemption.
(a) Commencing on or after ____________, 2000, (the "Initial
Redemption Date"), the Company may redeem the entire Series 1 Preferred Stock at
$7.20 per share (the "Redemption Price") on at least 30 days prior written
notice to the Registered Holders of the Series 1 Preferred Stock, commencing on
the Initial Redemption Date. All Series 1 Preferred Stock must be redeemed if
any are redeemed. The Redemption Price shall be appropriately and proportionably
adjusted by the Board of Directors of the Company by corporate resolution for
all stock splits, stock dividends, recapitalizations and the like of Series 1
Preferred Stock and notice of any adjustment shall be sent promptly to the
holders of Series 1 Preferred Stock.
(b) In the event the Company exercises its right to redeem all
of the Series 1 Preferred Stock, it shall give or cause to be given notice to
the Registered Holders of the Series 1 Preferred Stock, by mailing to such
Registered Holders a notice of redemption, first class, postage prepaid, at
least by the thirtieth (30th) day before the date fixed for redemption, at their
last address as shall appear on the records of the Preferred Agent. Any notice
mailed in the manner provided herein shall be conclusively presumed to have been
duly given whether or not the Registered Holder receives such notice. At the
time of the mailing to the Registered Holders of the Series 1 Preferred Stock of
the notice of redemption, the Company shall deliver or cause to be delivered to
the Representative a similar notice telephonically and confirmed in writing.
(c) The notice of redemption, which may not be mailed until on
or after the Initial Redemption Date, shall specify (i) the redemption price,
(ii) the date fixed for redemption, (iii) the place where the Series 1 Preferred
Stock Certificates shall be delivered and the Redemption Price shall be paid,
and (iv) that the right to convert the Series 1 Preferred Stock shall terminate
at 5:00 p.m. (New York City Time) on the business day immediately preceding the
date fixed for redemption. The date fixed for the redemption of the Series 1
Preferred Stock shall be the Redemption Date. No failure to mail such notice nor
any defect therein or in the mailing thereof shall affect the validity of the
proceedings for such redemption except as to a Registered Holder (a) to whom
notice was not mailed or (b) whose notice was defective. An affidavit of the
Preferred Agent or the Secretary or Assistant Secretary of the Company that
notice of redemption has been mailed shall, in the absence of fraud, be prima
facie evidence of the facts stated therein.
(d) Any right to convert a Series 1 Preferred Stock shall
terminate at 5:00 p.m. (New York City Time) on the business day immediately
preceding the Redemption Date. The Redemption Price payable to the Registered
Holders shall be paid against cancellation of the certificates pursuant to
instructions given in the notice of redemption.
8. Subordination.
In the event that any holder of any shares of Series 1
Preferred Stock shall receive any payment on account of any dividend on,
redemption or liquidation of, or other
6
<PAGE>
amount payable with respect to, any shares of Series 1 Preferred Stock which, in
accordance with the terms hereof or any other note, indenture, contract,
agreement, order or other legal restriction then binding upon the Corporation,
the holder of such Series 1 Preferred Stock is not then entitled to receive,
such holder will forthwith return the same to the Corporation in the form
received, and until so returned will hold the same in trust for the Corporation.
9. Definitions.
"Preferred Agent"-shall mean American Stock Transfer & Trust
Company or its authorized successor.
IN WITNESS WHEREOF, Kids Stuff, Inc. has caused this
certificate to be signed by its President, Jeanne Miller and attested by its
Secretary, William Miller this __ day of ________________, 1998.
------------------------------
Jeanne Miller, President
ATTEST:
- ---------------------------
William Miller, Secretary
<PAGE>
Exhibit 4.10
Specimen of Preferred Warrant
<PAGE>
VOID AFTER ___________, 2001 AND
SUBJECT TO EARLIER REDEMPTION
WARRANT CERTIFICATE TO PURCHASE ONE SHARE OF SERIES 1 PREFERRED STOCK
Kids Stuff, Inc. PREFERRED WARRANTS
No. KDSPW CUSIP 49380U 12 6
THIS CERTIFIES THAT, FOR VALUE RECEIVED
or registered assigns (the "Registered Holder") is the owner of the number of
Preferred Warrants to purchase Series 1 Preferred Stock (the "Preferred
Warrants") specified above. Each Preferred Warrant initially entitles the
Registered Holder to purchase, subject to the terms and conditions set forth in
this Certificate and the Preferred Warrant Agency Agreement (as hereinafter
defined), one fully paid and non-assessable share of Series 1 Preferred Stock,
$.001 par value, of KIDS STUFF, INC., a Delaware corporation (the "Company"), at
any time from ____________, 2000, and prior to the Expiration Date (as
hereinafter defined), upon the presentation and surrender of this Preferred
Warrant Certificate with the Subscription Form on the reverse hereof duly
executed, at the corporate office of American Stock Transfer & Trust Company, 40
Wall Street, New York, NY 10005 as Preferred Warrant Agent, or its successor
(the "Preferred Warrant Agent"), accompanied by payment of $6.00, subject to
adjustment (the "Purchase Price"), in lawful money of the United States of
America in cash or by check made payable to the Preferred Warrant Agent for the
account of the Company.
This Preferred Warrant Certificate and each Preferred Warrant represented
hereby are issued pursuant to and are subject in all respects to the terms and
conditions set forth in the Preferred Warrant Agency Agreement (the "Preferred
Warrant Agency Agreement"), dated __________ , 1998, by and between the Company
and the Preferred Warrant Agent.
The Purchase Price and the number of shares of Series 1 Preferred Stock
subject to purchase upon the exercise of each Preferred Warrant represented
hereby are subject to modification or adjustment upon the occurrence of certain
events as provided for in the Preferred Warrant Agency Agreement.
Each Preferred Warrant represented hereby is exercisable at the option of
the Registered Holder, but no fractional interests will be issued. In the case
of the exercise of less than all the Preferred Warrants represented hereby, the
Company shall cancel this Preferred Warrant Certificate upon the surrender
hereof and shall execute and deliver a new Preferred Warrant Certificate or
Preferred Warrant Certificates of like tenor, which the Preferred Warrant Agent
shall countersign, for the balance of such Preferred Warrants.
The term "Expiration Date" shall mean 5:00 P.M. New York City Time on
__________ , 2001. If such date shall in the State of New York be a Saturday,
Sunday, holiday or a day on which the banks are authorized to close, then the
Expiration Date shall mean 5:00 P.M. (New York City Time) the next following day
which in the State of New York is not a Saturday, Sunday, holiday or a day on
which banks are authorized to close.
<PAGE>
The Company shall not be obligated to deliver any securities pursuant to
the exercise of this Preferred Warrant unless a registration statement under the
Securities Act of 1933, as amended (the "Act"), with respect to such securities
is effective or an exemption thereunder is available. The Company has covenanted
and agreed that, if required by the Act, it will file a registration statement
under the Act, use its best efforts to cause the same to become effective, to
keep such registration statement current, if required under the Act, while any
of the Preferred Warrants are outstanding, and deliver a prospectus which
complies with Section 10(a)(3) of the Act to the Registered Holder exercising
this Preferred Warrant. This Preferred Warrant shall not be exercisable by a
Registered Holder in any state where such exercise would be unlawful.
This Preferred Warrant Certificate is exchangeable, upon the surrender
hereof by the Registered Holder at the corporate office of the Preferred Warrant
Agent, for a new Preferred Warrant Certificate or Preferred Warrant Certificates
of like tenor representing an equal aggregate number of Preferred Warrants, each
of such new Preferred Warrant Certificates to represent such number of Preferred
Warrants as shall be designated by such Registered Holder at the time of such
surrender. Upon due presentment and payment of any tax or other charge imposed
in connection therewith or incident thereto, for registration of transfer of
this Preferred Warrant Certificate at such office, a new Preferred Warrant
Certificate or Preferred Warrant Certificates representing an equal aggregate
number of Preferred Warrants will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Preferred Warrant Agency
Agreement.
Prior to the exercise of any Preferred Warrant represented hereby, the
Registered Holder shall not be entitled to any rights of a stockholder of the
Company, including, without limitation, the right to vote or to receive
dividends or other distributions, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided in the Preferred
Warrant Agency Agreement.
Subject to the provisions of the Preferred Warrant Agency Agreement, this
Preferred Warrant shall be redeemed by the Company at a redemption price of
$1.20 per Preferred Warrant, at any time commencing after _____________, 2000,
in the event that the Company redeems its Series 1 Preferred Stock.
Prior to due presentment for registration of transfer hereof, the Company
and the Preferred Warrant Agent may deem and treat the Registered Holder as the
absolute owner hereof and of each Preferred Warrant represented hereby
(notwithstanding any notations of ownership or writing hereon made by anyone
other than a duly authorized officer of the Company or the Preferred Warrant
Agent) for all purposes and shall not be affected by any notice to the contrary,
except as provided in the Preferred Warrant Agreement.
This Preferred Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to
conflicts of law principles.
This Preferred Warrant Certificate is not valid unless countersigned by the
Preferred Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Preferred Warrant
Certificate to be duly executed, manually or in facsimile by two of its officers
thereunto duly authorized and a facsimile of its corporate seal to be imprinted
hereon.
<PAGE>
(please print or type name and address)
and if such number of Preferred Warrants shall not be all the Preferred Warrants
evidenced by this Preferred Warrant Certificate, that a new Preferred Warrant
Certificate for the balance of such Preferred Warrants be registered in the name
of, and delivered to, the Registered Holder at the address stated below.
X
(signature)
(address)
(signature guarantee)
ASSIGNMENT
To Be Executed by the Registered Holder
in Order to Assign Preferred Warrants
FOR VALUE RECEIVED, , hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER:
(please print or type name and address)
of the Preferred Warrants represented by this Preferred Warrant
Certificate, and hereby irrevocably constitutes and appoints attorney to
transfer this Preferred Warrant Certificate on the books of the Company, with
full power of substitution in the premises.
Dated: X
signature guaranteed
<PAGE>
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST CORRESPOND TO THE
NAME AS WRITTEN UPON THE FACE OF THIS Preferred Warrant CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER AND MUST
BE GUARANTEED BY A MEMBER OF THE MEDALLION SIGNATURE PROGRAM.
Countersigned:
AMERICAN STOCK TRANSFER & TRUST COMPANY
(New York, N.Y.)
As Preferred Warrant Agent
By:
Authorized Officer
Dated:
Secretary
President
subscription form
To Be Executed by the Registered Holder in Order to Exercise Preferred Warrant
The undersigned Registered Holder hereby irrevocably elects to exercise
Preferred Warrants represented by this Preferred Warrant Certificate, and to
purchase the Series 1 Preferred Stock issuable upon the exercise of such
Preferred Warrants, and requests that certificates for such Series 1 Preferred
Stock shall be issued in name of
and be delivered to
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER:
(please print or type name and address)
(please print or type name and address)
and if such number of Preferred Warrants shall not be all the Preferred Warrants
evidenced by this Preferred Warrant Certificate, that a new Preferred Warrant
Certificate for the balance of such Preferred Warrants be registered in the name
of, and delivered to, the Registered Holder at the address stated below.
X
(signature)
(address)
(signature guarantee)
assignment
To Be Executed by the Registered Holder in Order to Assign Preferred Warrants
FOR VALUE RECEIVED, , hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER:
(please print or type name and address)
of the Preferred Warrants
represented by this Preferred Warrant Certificate, and hereby irrevocably
constitute and appoints attorney to transfer this referred Warrant Certificate
on the books of the Company, with full power of substitution in the premises.
Dated: X
signature guaranteed
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST CORRESPOND TO THE
NAME AS WRITTEN UPON THE FACE OF THIS PREFERRED WARRANT CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER AND MUST
BE GUARANTEED BY A MEMBER OF THE MEDALLION SIGNATURE PROGRAM.
<PAGE>
Exhibit 4.11
Specimen of Series 1 Preferred Stock
<PAGE>
Kids Stuff, Inc.
KDSP
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
CUSIP 49380U 40 7
SEE REVERSE FOR CERTAIN DEFINITIONS
This Certifies that
Countersigned and Registered:
AMERICAN STOCK TRANSFER & TRUST COMPANY
Transfer Agent
and Registrar
By
Authorized Signature
is the record holder of
FULLY PAID AND NONASSESSABLE SHARES OF SERIES 1 PREFERRED STOCK PAR
VALUE $.001 PER SHARE OF
Kids Stuff, Inc. transferable on the books of the Corporation by the holder
hereof in person or by duly authorized attorney upon the surrender of this
Certificate properly endorsed. This Certificate is not valid unless
countersigned by the Transfer Agent and registered by the Registrar.
Witness the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:
Secretary
President
Kids Stuff, Inc.
CORPORATE
SEAL
DELAWARE
<PAGE>
Exhibit 10.24
Other Leases
<PAGE>
LEASE AGREEMENT
This LEASE AGREEMENT, made at Stark County, Ohio, this 11th day of
November 1996, by and between PAUL DAVID CHILDREN'S 7835 FREEDOM AVE., N.W.
TRUST (hereinafter referred to as "Lessor") and THE DUNCAN HILL GROUP, an Ohio
corporation (hereinafter referred to as "Lessee").
W I T N E S S E T H :
WHEREAS, Lessor is the owner of that certain premises commonly known as
7835 Freedom Avenue, N.W., North Canton, Stark County, Ohio, located on certain
real property situated in the Township of Jackson, Stark County, Ohio, and more
fully described on Exhibit "A" attached hereto and made a part hereof; and
WHEREAS, it is the desire of Lessor to lease a portion of the premises
described on Exhibit "A" to Lessee, representing approximately eleven thousand
seven hundred eighty-four (11,784) square feet of the building located on the
premises.
NOW, THEREFORE, in consideration of the premises set forth hereinabove,
of the mutual covenants and conditions contained hereinafter, and of the payment
of rents by Lessee to Lessor as hereinafter provided, the parties hereto agree
as follows:
1. Lease Term and Rent. Lessor does hereby lease to Lessee, and Lessee
does hereby lease from Lessor, upon the terms and conditions, including rentals,
hereinafter contained, the premises containing approximately eleven thousand
seven hundred eighty-four (11,784) square feet of the building located on the
premises shown on Exhibit "A", such portions of that building to be occupied by
Lessee to be as shown on Exhibit "B" attached hereto (the "Premises") and made a
part hereof, for a term of one (1) year commencing on the 1st day of October,
1996, and extending through and including September 30, 1997, subject to the
early termination right of either party as later set forth in this Section 1.
Lessee shall pay to Lessor monthly rental in the amount of Five Thousand Four
Hundred One Dollars ($5,401.00), payable in advance on or before the first day
of each month after commencement date of this Lease and extending through and
including the termination date of this lease. Lessor and Lessee agree that
Lessee may terminate this lease as of the last day of any calendar month on or
after March 31, 1997; provided, however, in order for such termination to be
effective, such terminating party must give the other party at least sixty (60)
days prior written notice of the termination date.
2. Use. Lessee shall use and occupy the Premises as and for warehouse
and distribution usage only and shall use and occupy the Premises in a careful,
safe and proper manner and shall keep the Premises in a clean and safe condition
in accordance with local ordinances and the lawful direction of proper public
officers. Lessee shall not use or allow the Premises to be used for any purpose
other than as specified herein and shall not permit the Premises to be used for
any unlawful purpose or in any way that will injure the reputation of the
Premises or Lessor, nor permit the Premises to be occupied in whole or in part
by any other person. Lessee shall not use or permit to be used on the Premises
any hazardous substance, flammable liquids or other thing which might cause
injury to person or property or increase the danger of fire or other casualty
in, on or about the Premises.
1
<PAGE>
3. Assignment. Lessee may not assign this Lease or sublet the Premises
or any part of either to any individual or other entity.
4. Covenant of Quiet Enjoyment. Lessor represents, covenants, and
warrants with the Lessee that Lessee shall be entitled to the lawful, peaceable
and quiet possession of the Premises and to occupy and enjoy said Premises
during said term, without any let, hindrance, ejectment or molestation by said
Lessor or any person or persons lawfully claiming under Lessor or claiming any
interest in the Premises so long as Lessee is not in violation of the terms of
this Lease.
5. Real Estate Taxes. Lessor shall be responsible for payment of any
real estate taxes related to the Premises during the term of this Lease and any
renewal term.
6. Insurance After Occupancy. On and after the commencement date of
this Lease, Lessor shall carry and maintain fire and extended coverage insurance
on the building of which the demised Premises is a part in an amount equal to
the full replacement value of such building. On and after the commencement date
of this Lease, Lessee shall carry and maintain public liability insurance to
protect Lessor from any public liability for damage to or injury to persons or
property arising out of Lessee's occupancy of the Premises. Lessee shall also
maintain business interruption insurance and insurance on its own personal
property, contents and leasehold improvements during the term of this Lease. The
amount of public liability insurance coverage shall be in an amount of at least
Three Million Dollars ($3,000,000.00) per occurrence. Any interruption in
Lessee's business or occupancy of the Premises, for whatever reason, shall not
result in any abatement of rent. Lessee shall have included in all policies of
insurance the requirement that the policy shall not be canceled without first
giving Lessor thirty (30) days written notice of such cancellation or
non-renewal. Lessee shall cause a certificate of insurance to be provided by the
insurer to the Lessor showing the named insured, insurance amounts and notice
requirements required hereinabove.
7. Repair and Maintenance of Premises. Lessee shall be responsible for,
at its own expense, all non-structural interior maintenance and repair of that
portion of the building representing the demised Premises. Such obligation of
interior repair shall include the maintenance and repair of all electrical,
plumbing, air conditioning and heating equipment, fire and burglar alarm systems
and all related equipment and systems servicing the demised Premises, whether
installed by Lessee or otherwise. Lessor shall be responsible for all structural
and exterior repairs and maintenance, except as expressly excluded herein,
including the maintenance of all landscaping, parking, driveways and sidewalks.
If Lessee fails to make interior repairs of all non-structural portions of the
demised Premises, or fails to maintain proper maintenance contracts, then in
that event, Lessor will make those repairs or enter into such contracts that are
necessary at the expense of the Lessee.
Lessee shall also be responsible for, at its own expense, all
janitorial service and trash removal service for the demised Premises during the
term of the Lease and any renewal thereof.
2
<PAGE>
8. Alterations and Repairs. Lessee may make any non-structural
alterations and repairs to the interior of the Premises after occupancy, with
the prior written approval of the Lessor, so long as such non-structural
alterations and repairs do not materially and adversely affect the value of the
Premises. Lessee shall not make any structural alterations or repairs without
the prior written consent of Lessor. Lessee shall notify Lessor in writing of
its intent to modify the Premises not less than ten (10) days prior to making
such modifications. In the event Lessor does not object without ten (10) days of
receipt of the written notice, then Lessee may proceed with such alterations.
All alterations or improvements made to the Premise shall become the property of
Lessor upon the expiration or earlier termination of this Lease.
9. Fixtures and Equipment. All fixtures, trade fixtures and/or
equipment of whatsoever nature that have been previously installed and are to be
in the use of the Lessee during the term of this Lease shall be maintained by
Lessee and returned in good working condition upon the termination of the Lease.
All fixtures, trade fixtures and/or equipment of whatsoever nature as shall have
been installed in the building or Premises by the Lessee, whether permanently
affixed thereto or otherwise, shall continue to be property of the Lessee and
may be removed by Lessee, at its option, at the expiration or termination of
this Lease; provided, however, the Lessee shall, at its own expense, repair any
injury to the Premises. All other leasehold improvements, other than fixtures,
trade fixtures and/or equipment installed by Lessee, shall, upon termination of
this Lease, remain with the demised Premises and become the property of the
Lessor.
10. Snow Removal. Lessor shall keep the parking lot and all sidewalks
free from snow, ice and other debris during the term of this Lease and any
renewal thereof. Such snow removal shall be at such times and on conditions
reasonable and customary for buildings of similar use and construction in the
Stark County, Ohio area.
11. Utilities. Lessor shall furnish and provide to Lessee, at Lessor's
expense, water, gas, sewer and electricity to the demised Premises. Lessee shall
pay or cause to be paid any and all hook-up or installation charges for any of
such facilities and shall not commit or permit waste to be committed by Lessee
or any of its agents, employees, invitees or guests of any such utility
services. Lessee shall contract for and make payment for fire and burglar alarm
answering and response services and will provide to Lessor copies of such
contracts.
12. Damage or Destruction by Fire or Other Casualty. In the event that
the demised Premises shall be damaged or destroyed by fire, or by the elements
or other insured casualty during the term of this Lease, Lessor shall cause the
Premises to be repaired or restored, as the case may be, to the extent of
insurance proceeds available, in such manner that the Premises shall be of equal
character and appearance to the Premises immediately prior to such casualty. In
no event shall the rent due hereunder be abated or reduced as a result of any
casualty.
13. Eminent Domain.
(a) In the event that the whole of the Premises shall be taken by
any public authority under the power of eminent domain, then this Lease shall
automatically terminate as of the date possession shall be taken by such public
authority and the rent and other charges payable by Lessee hereunder shall be
paid up to the date of such taking with a proportionate refund by Lessor of such
rent and other charges as may have been paid in advance.
3
<PAGE>
(b) In the event that less than the whole of the Premises shall be
taken by a public authority under the power of eminent domain, Lessor shall, at
its own cost and expense, make all necessary repairs or alterations to the
Premises so as to constitute the remaining Premises a complete architectural
unit, comparably, insofar as possible, to the Premises herein originally leased,
and rent and other charges herein shall be equitably prorated for the remainder
of the term according to the space so taken.
(c) In no event shall Lessee be entitled to any part of the award
of damages for compensation for any taking of the Premises by eminent domain,
but Lessor shall receive the entire amount thereof, without deduction for any
estate or interest of Lessee, except that Lessee may claim, prove and receive
such awards as may be allowed for movable trade fixtures, depreciation or injury
to and cost of removal of stock and trade-in damage to Lessee's business;
provided, however, the award payable to Lessor shall not be reduced thereby.
14. Default - Grounds. The occurrence of any of the following events
shall constitute an Event of Default on the part of Lessee:
(a) Failure to pay any installment of rent or any other sum due and
payable hereunder within five (5) days after written notice of failure to pay on
its due date; or
(b) Default in the performance of any of Lessee's agreements or
obligations hereunder where such default is (except default in the payment of
any installment of rent or other payment of money) continuing for thirty (30)
days after written notice thereof from Lessor to Lessee, provided that if such
default is other than the payment of money and cannot be cured within such
thirty (30) day period, then Lessee will not be in default hereunder if Lessee,
without such thirty (30) day period, commences curing of such default and
diligently and in good faith prosecutes the same to completion.
(c) The voluntary or involuntary adjudication of Lessee in
bankruptcy, its insolvency, or any other act of bankruptcy by Lessee.
(d) Sale of Lessee's interest in the Premises upon execution or
other legal process, or issue of writ from any court levying on the interest of
Lessee in the Premises.
(e) Abandonment of the Premises.
(f) The commission of waste or unnecessary damage done to or on the
Premises, use of the Premises for an unlawful purpose or permitting any
structural alterations of or upon any part of the Premises without the written
consent of Lessor first having been obtained.
4
<PAGE>
15. Lessor's Rights and Remedies Upon Default by Lessee. In the event
Lessee shall be in default of this Lease, Lessor, in addition to all other
rights, remedies or causes of action available to it under equity or law, shall
be entitled to the following rights, options, remedies and relief:
(a) Lessor may re-enter and take possession of the Premises and
remove all persons and property therefrom, without service of notice or resort
to legal process, and without Lessor being deemed guilty of trespass or becoming
liable for any loss or damage which may be occasioned thereby, and thereupon,
this Lease and everything contained on the part of the Lessor to be done and
performed shall cease and determine and be utterly void without prejudice;
provided, however, Lessor may recover and Lessee shall pay all rent up to the
time of such entry and such damages the Lessor may have suffered by reason of
the failure of Lessee to comply with the conditions and covenants of this Lease.
(b) Lessor may relet the Premises or any part thereof at such
rental or rentals and upon such terms and conditions that Lessor, in its sole
discretion, may deem advisable and upon such reletting, Lessor shall receive and
collect the rents therefor applying the same first to the payment of such
expenses that Lessor may have paid, assumed or incurred in recovering possession
of the Premise and expenses for placing the Premises in good order and
condition, or repairing or altering the Premises for reletting and all other
expenses, commissions and charges paid, assumed and incurred by Lessor in
reletting the Premises and the balance, if any, to be applied to Lessee's
remaining rent. Lessee shall pay any deficiency, but Lessee shall not have a
right in or to any excess rent collected by Lessor.
16. Personal Property. All personal property in or on the Premises
shall be at the risk of the Lessee only, and the Lessor shall not be liable for
any damages to said personal property.
17. Inspection. The Lessor and its agents shall have the right to enter
the Premises at all reasonable hours upon advance notice (unless in an
emergency) for the purpose of examining or exhibiting the same or for making any
repairs, decorations, alterations, additions or improvements which they shall
deem necessary for the safety, preservation, or improvement of said Premises.
18. End of Term. The Lessee shall, at the termination of this Lease,
whether by lapse of time or otherwise, return said Premises to the Lessor in as
good condition as when received, loss by ordinary wear, tear, fire and casualty
of the elements excepted, and by midnight of the date of the termination of this
Lease shall remove all rubbish, waste material, and all the Lessee's property
from the Premises, and shall surrender all keys to said Premises in Lessee's
possession whether such keys were provided by the Lessor or by the Lessee.
19. Holdover. Rights acquired under this Lease shall not extend beyond
the term herein granted and each renewal term herein granted, and no holding
over, or continuance in occupancy of the Premises shall cause or be construed to
be an extension of said Lease; but in any and all such cases, the Lessee shall
be a trespasser or tenant-at-will at the option of the Lessor, subject to
removal by said Lessor by summary process and proceedings. The Lessee hereby
agrees to pay for the time the said Lessee shall retain possession of said
Premises, or any part thereof, after the termination of this Lease, at the same
monthly rate plus thirty percent (30%) of rental provided for herein, and to pay
all expenses of the Lessor incurred in enforcing any of the provisions hereof;
but this agreement shall not be held as a waiver by the Lessor of any right of
re-entry as herein set forth.
5
<PAGE>
20. Mutual Indemnities.
(a) Lessee shall indemnify and save harmless Lessor for, from and
against all liabilities, obligations, damages, penalties, claims, costs, charges
and expenses, including reasonable attorneys' fees, which may be imposed upon or
incurred by or asserted against Lessor by reason of any accident, injury or
damage to any person or property arising out of Lessee's use, occupancy or
maintenance of the Premise or any part thereof, unless caused by the intentional
wrongful act or negligence of Lessor. In case any action or proceeding is
brought against Lessor by reason of any such claim, Lessee, upon written notice
from Lessor, shall, at Lessee's sole cost and expense, defend such proceeding by
counsel approved by Lessee in writing.
(b) Lessor shall indemnify and save harmless Lessee for, from and
against all liabilities, obligations, damages, penalties, claims, costs, charges
and expenses, including reasonable attorneys' fees, which may be imposed upon or
incurred by or asserted against Lessee by reason of any accident, injury or
damage to any person or property occurring in, on or about the Premises caused
by the negligent or intentional act of Lessor. In case any action or proceeding
is brought against Lessee by reason of any such claim, Lessor, upon written
notice from Lessee, shall, at Lessor's sole cost and expense, defend such
proceeding by counsel approved by Lessee in writing.
21. Subordination. This Lease shall, at the option of Lessor, be
subject to and subordinate to the lien of any mortgage that may be placed upon
the fee title to the land and buildings of which the Premises herein subleased
form a part, and Lessee shall, upon demand, execute any instrument necessary to
effect such subordination. If Lessee, within seven (7) days after submission of
such instrument, fails to execute the same, Lessor is hereby authorized to
execute the same as attorney-in-fact for Lessee. It is a condition, however, to
the subordination of lien provisions herein provided that Lessor shall procure
from any such mortgagee an agreement, as a part of the mortgage instrument, or
by separate agreement in writing, in recordable form, which shall be delivered
to Lessee, providing, in substance, that so long as Lessee shall faithfully
discharge the obligation on Lessee's part to be kept and performed under the
terms of this Lease, its tenancy will not be disturbed nor this Lease affected
by any default under such mortgage.
22. Abandonment. Should the Lessee vacate or abandon said Premise or
should the leasehold interest be levied on under execution or seized by any
legal process or should the Lessee be declared bankrupt or insolvent or make an
assignment for the benefit of creditors, or should the Lessee violate any of the
terms, conditions, covenants, or restrictions of this Lease, or if a receiver be
appointed for the Lessee's business of estate in any bankruptcy or other
proceeding or otherwise, then and in any of such case, the Lessor may, if so
desired, at once or at any time thereafter Lessor desires, declare such tenancy
terminated, in case the Lessor elects to take advantage of the rights conferred
by the foregoing provisions of this paragraph, or if the Lessee shall vacate or
abandon said Premises or cease to use same for the purpose rented, or if, after
default by Lessee in any covenant of this Lease, the Lessor shall elect to
re-enter, whether with or without legal process, the Lessor is hereby
irrevocably authorized, if Lessor so desires, to remove the Lessee's signs, and
to relet said Premises or any part thereof; and if the Lessor does not from any
cause, including failure to collect rent if re-rented, realize an actual income
from said Premises during the entire original term of said lease equal to the
rental herein agreed to be paid, together with the expenses of reletting and
altering said Premises for any new tenant, the Lessee shall pay any deficit each
month as the same accrues.
6
<PAGE>
23. No Representation by Lessor. Lessee has inspected the Premises and
is accepting the Premises "As Is". Neither Lessor nor its agents have made any
representations, warranties or promises with respect to the suitability or
fitness of the Premises for Lessee's intended use or the condition thereof.
24. Entire Agreement and Possession. This Lease represents the entire
agreement of the parties thereto. The Lessee hereby expressly agrees that the
Lessor has made no statement or promise, has not entered into any undertaking,
verbal or otherwise, in conflict with this Lease or that invalidates, changes,
or enlarges any of its provisions or that makes Lessor liable for any damage
except as expressly provided herein; that Lessor has made no promises or
representations except such as are endorsed hereon respecting the condition of
the Premises or as to the manner of operating the building or as to repairs to
said Premises, and that the taking possession of said Premises by Lessee shall
be evidence that said Premises were in good and satisfactory condition under the
terms of this Lease, when possession of the same was taken, provided that Lessee
shall have a reasonable time to notify Lessor of any defects or work remaining
to be done.
25. Notices. Unless otherwise provided, any notice provided for herein
shall be deemed duly given by the sender thereof to the addressee thereof if in
writing and if mailed to such addressee by registered mail or certified mail,
postage prepaid, return receipt requested, at the "Notice Address" of such
addressee. The time of the giving of any notice shall be the time of receipt
thereof by the addressee or any agent of the addressee, except that in the event
the addressee or an agent of the addressee shall refuse to receive any notice
given by registered mail or certified mail as above provided or there shall be
no person available at the time of delivery thereof to receive any notice, the
time of the giving of such notice shall be the time of such refusal or the time
of such delivery, as the case may be. The Notice Address of the Lessor shall be
Carol David, Trustee of Paul David Children's 7835 Freedom Ave., N.W., Trust,
c/o Mike David, Davco Corp., 7835 Freedom Avenue, N.W., North Canton, Ohio
44720. The Notice Address of Lessee shall be The Duncan Hill Group, 4450 Belden
Village St., N.W., Canton, Ohio 44718, Attention: William L. Miller, President.
If the sender of any notice shall have been previously notified by
the addressee in the manner herein provided of a change of address of such
addressee, such changed address shall thereafter, as to such sender, be deemed
the Notice Address of such addressee.
26. Waiver of Subrogation. Lessor and Lessee each do hereby waive all
rights of recovery and causes of action against the other and their respective
employees, servants, agents and all parties claiming through or under such party
for any damage to the demised Premises and/or the building in which they are
located, or the personal property of Lessee, as the case may be, caused by any
of the perils which are included in a standard fire or extended coverage
insurance policy, notwithstanding the fact that said damages to or destruction
of said building and/or the demised Premises, or the personal property of
Lessee, as the case may be, shall be due to the negligence of either party
hereto or their respective employees, servants, agents, or any parties claiming
through such party. Such waiver shall be null and void if the foregoing waiver
causes the invalidation of such insurance policy. Any and all increases in
insurance premiums attributed to such waiver shall be paid by the beneficiary of
such waiver.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have set their hands by those
duly authorized the day and year first hereinabove written.
Signed and acknowledged "LESSOR"
in the presence of: PAUL DAVID CHILDREN'S
7835 FREEDOM AVE., N.W., TRUST
________________________________ By: S/S Signature Carol David
--------------------------------
________________________________ Carol David, Trustee
"LESSEE"
THE DUNCAN HILL GROUP
________________________________ By: S/S Signature William L. Miller
--------------------------------
________________________________ William L. Miller, President
8
<PAGE>
STATE OF OHIO )
) SS
STARK COUNTY )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named CAROL DAVID, TRUSTEE OF THE PAUL DAVID CHILDREN'S 7835
FREEDOM AVE., N.W., TRUST, who acknowledged that she did sign the foregoing
Lease, and that the same is the free act and deed of said Trust and the free act
and deed of her as the Trustee of such Trust.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal
this 14th day of November 1996.
S/S Signature Melissa D. Fichter
--------------------------------
Notary Public
STATE OF OHIO )
) SS
STARK COUNTY )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named THE DUNCAN HILL GROUP, by William L. Miller, its
President, who acknowledged that he did sign the foregoing Lease, and that the
same is the free act and deed of said Corporation and the free act and deed of
him personally as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal
this 11th day of November 1996.
S/S Signature Christopher Weber
--------------------------------
Notary Public
9
<PAGE>
FIRST AMENDMENT TO LEASE AGREEMENT
This FIRST AMENDMENT TO LEASE AGREEMENT (the "First Amendment") is made
and entered into this 30th day of May, 1997, by and between PAUL DAVID
CHILDREN'S 7835 FREEDOM AVE., N.W., TRUST (the "Lessor") and THE DUNCAN HILL
GROUP (the "Lessee").
R E C I T A L S :
WHEREAS, Lessor and Lessee entered into a certain Lease Agreement dated
November 11, 1996 (the "Lease") for a certain portion of the building situated
in the Township of Jackson, County of Stark, State of Ohio, commonly known as
7835 Freedom Avenue N.W., North Canton, Ohio, and more particularly described in
the Lease (the "Premises").
WHEREAS, Lessee and Lessor have agreed that the Lessee shall lease an
additional five thousand seven hundred ninety-two (5,792) square feet of space
in such building from the Lessor, which additional space is more particularly
set forth in Exhibit "A" attached hereto (the "Additional Space").
WHEREAS, Lessor and Lessee desire to amend the Lease to increase the
amount of space leased by the Lessee under the Lease and to change the lease
payment made by the Lessee to the Lessor under the Lease, subject to the terms
and conditions as set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto do hereby agree as follows:
1. Premises. Effective June 16, 1997, the Lessee shall lease
from the Lessor an additional five thousand seven hundred ninety-two (5,792)
square feet of space at the building located at 7835 Freedom Avenue N.W., North
Canton, Ohio, which Additional Space shall become part of the Premises as
defined in paragraph 1 of the Lease. The Lessee's responsibility for Rent under
paragraph 1 of the Lease shall be adjusted as provided in paragraph 2 of this
First Amendment due to the increased space to be leased by the Lessee.
2. Rent. Effective June 16, 1997, the Lessee shall pay to the
Lessor as monthly rent for the Premises during the remainder of the term of the
Lease the sum of Eight Thousand Fifty-Six and No/100 Dollars ($8,056.00) as
required by the Lease.
3. Joint Use of Dock Area within Additional Space. Lessee
hereby acknowledges and agrees that upon reasonable prior notice to Lessee,
other tenants in the building shall have the right to use the dock area located
within the Additional Space; provided, that such tenants shall not store any
items or goods in the Additional Space and such other tenants shall be
responsible for any damage to the Additional Space or the dock area resulting
from its use thereof.
4. Effect on Other Provisions. Except for the foregoing, the
Lease, as amended, shall continue in full force and effect and shall not be
affected hereby except as expressly provided herein.
5. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Ohio.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
SIGNED AND ACKNOWLEDGED
IN THE PRESENCE OF: "Lessor"
PAUL DAVID CHILDREN'S
7835 FREEDOM AVE., N.W., TRUST
________________________________ By: S/S Signature Carol David
--------------------------------
________________________________ Carol David, Trustee
"LESSEE"
THE DUNCAN HILL GROUP
________________________________ By: S/S Signature William L. Miller
--------------------------------
________________________________ William L. Miller, President
2
<PAGE>
SECOND AMENDMENT TO LEASE AGREEMENT
This SECOND AMENDMENT TO LEASE AGREEMENT (the "First Amendment") is
made and entered into this 20th day of August 1997, by and between PAUL DAVID
CHILDREN'S 7835 FREEDOM AVE., N.W., TRUST (the "Lessor") and THE DUNCAN HILL
GROUP (the "Lessee").
R E C I T A L S :
WHEREAS, Lessor and Lessee entered into a certain Lease Agreement dated
November 11, 1996 (the "Lease") for a certain portion of the building situated
in the Township of Jackson, County of Stark, State of Ohio, commonly known as
7835 Freedom Avenue N.W., North Canton, Ohio, and more particularly described in
the Lease (the "Premises").
WHEREAS, the Lease was amended by a First Amendment to Lease Agreement
(the "First Amendment") dated May 30, 1997;
WHEREAS, Lessor and Lessee desire to further amend the Lease to extend
the term of the Lease and make other changes as set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto do hereby agree as follows:
1. Lease Term. The term of the Lease is hereby extended for a
term of one (1) year commencing on the 1st day of October, 1997, and extending
through and including September 30, 1998, subject to the early termination right
of Lessee as later set forth in this Section 1. Lessor and Lessee agree that
Lessee may terminate this lease as of the last day of any calendar month on or
after March 31, 1998; provided, however, in order for such termination to be
effective, Lessee must give Lessor at least sixty (60) days prior written notice
of the termination date.
2. Effect on Other Provisions. Except for the foregoing, the
Lease, as amended by the First Amendment and this Second Amendment, shall
continue in full force and effect and shall not be affected hereby except as
expressly provided herein.
3. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Ohio.
Page 1
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
SIGNED AND ACKNOWLEDGED
IN THE PRESENCE OF: "Lessor"
PAUL DAVID CHILDREN'S 7835
FREEDOM AVE., N.W., TRUST
________________________________ By: S/S Signature Carol David
--------------------------------
________________________________ Carol David, Trustee
"LESSEE"
THE DUNCAN HILL GROUP
________________________________ By: S/S Signature William L. Miller
--------------------------------
________________________________ William L. Miller, President
2
<PAGE>
THIRD AMENDMENT TO LEASE AGREEMENT
This THIRD AMENDMENT TO LEASE AGREEMENT (the "Third Amendment") is made
and entered into as of the 12th day of April, 1998, by and between CAROL DAVID,
TRUSTEE OF THE PAUL DAVID CHILDREN'S 7835 FREEDOM AVE., N.W.
TRUST (the "Lessor") and THE DUNCAN HILL GROUP (the "Lessee").
R E C I T A L S :
WHEREAS, Lessor and Lessee are parties to a certain Lease Agreement
dated November 11, 1996 (the "Lease") for a certain portion of the building
situated in the Township of Jackson, County of Stark, State of Ohio, commonly
known as 7835 Freedom Avenue N.W., North Canton, Ohio, and more particularly
described in the Lease (the "Premises"); and
WHEREAS, the Lease was amended by a First Amendment to Lease Agreement
dated May 30, 1997 and was further amended by a Second Amendment to Lease
Agreement dated August 20, 1997; and
WHEREAS, Lessor and Lessee have agreed that the Lessee shall lease an
additional nine thousand eighty-one (9,081) square feet of warehouse space at
the Premises from the Lessor, which additional space is more particularly set
forth on Exhibit "A" attached hereto and incorporated herein (the "Additional
Space"); and
WHEREAS, Lessor and Lessee desire to amend the Lease, as amended, to
provide for the lease of the Additional Space by the Lessee and to increase the
lease payment made by the Lessee to the Lessor under the Lease as a result of
the addition of the Additional Space to the Lease, upon the terms and subject to
the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto do hereby agree as follows:
1. Premises. Effective April 13, 1998, the Lessee shall lease
the Additional Space at the Premises from the Lessor upon the terms and subject
to the conditions set forth in the Lease, as amended, and said Additional Space
shall become part of the definition of "Premises" as said term is defined in
Paragraph 1 of the Lease.
2. Rent. Effective April 13, 1998, the Lessee shall pay to the
Lessor as monthly rent for the Premises for the remainder of the term of the
Lease the sum of Twelve Thousand Two Hundred and Eighteen Dollars ($12,218) per
month, payable in advance on the first day of each month during said period in
accordance with the Lease. On or before April 13, 1998, Lessee shall pay to the
Lessor the sum of Two Thousand Four Hundred Ninety-Seven Dollars ($2,497), which
payment shall represent the additional rent due hereunder for the period
commencing April 13, 1998 and ending April 30, 1998.
Page 1
<PAGE>
3. Effect on Other Provisions. Except for the foregoing, the
Lease, as amended, shall continue in full force and effect and shall not be
affected hereby except as expressly provided herein.
4. Governing Law. This Third Amendment shall be governed by
and construed in accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties have executed this Third Amendment as
of the date first above written.
SIGNED AND ACKNOWLEDGED
IN THE PRESENCE OF: "Lessor"
CAROL DAVID, TRUSTEE OF THE PAUL
DAVID CHILDREN'S 7835 FREEDOM AVE.,
N.W. TRUST
________________________________ By: S/S Signature Carol David
--------------------------------
________________________________ Carol David, Trustee
"LESSEE"
THE DUNCAN HILL GROUP
________________________________ By: S/S Signature William L. Miller
--------------------------------
________________________________ William L. Miller, President
2
<PAGE>
FOURTH AMENDMENT TO LEASE AGREEMENT
This FOURTH AMENDMENT TO LEASE AGREEMENT (the "Fourth Amendment") is
made and entered into as of the 1st day of October, 1998, by and between MICHAEL
DAVID, TRUSTEE OF THE PAUL DAVID CHILDREN'S 7835 FREEDOM AVE., N.W.
TRUST (the "Lessor") and THE DUNCAN HILL GROUP (the "Lessee").
R E C I T A L S :
WHEREAS, Lessor and Lessee are parties to a certain Lease Agreement
dated November 11, 1996 (the "Lease") for a certain portion of the building
situated in the Township of Jackson, County of Stark, State of Ohio, commonly
known as 7835 Freedom Avenue N.W., North Canton, Ohio, and more particularly
described in the Lease (the "Premises"); and
WHEREAS, the Lease was amended by a First Amendment to Lease Agreement
dated May 30, 1997, a Second Amendment to Lease Agreement dated August 20, 1997
and a Third Amendment to Lease Agreement dated April 12, 1998; and
WHEREAS, Lessor and Lessee desire to amend the Lease, as amended, to
extend the term of the Lease and to set forth the lease payment to made by the
Lessee to the Lessor during said extended term, all upon the terms and subject
to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto do hereby agree as follows:
1. Lease Term. The term of the Lease, as amended, is hereby
extended for an additional one (1) year term commencing as of the date hereof
and ending at 12:00 a.m. midnight on the 30th day of September, 1999 (the
"Extended Term"). Notwithstanding the foregoing, the Lease, as amended, is
hereby amended to grant to both Lessor and Lessee the right to terminate the
Lease at any time during the Extended Term by providing the other party with no
less than ninety (90) days' written notice of said terminating party's desire to
do so.
2. Rent. As rent for the Premises during the Extended Term,
Lessee shall pay to Lessor the sum of Thirteen Thousand Three Hundred
Twenty-Nine Dollars ($13,329.00) per month, payable in advance on the first day
of each month during said period in accordance with the Lease.
3. Effect on Other Provisions. Except for the foregoing, the
Lease, as amended, shall continue in full force and effect and shall not be
affected hereby except as expressly provided herein.
Page 1
<PAGE>
4. Governing Law. This Fourth Amendment shall be governed by
and construed in accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties have executed this Fourth Amendment as
of the date first above written.
SIGNED AND ACKNOWLEDGED
IN THE PRESENCE OF: "Lessor"
MICHAEL DAVID, TRUSTEE OF THE PAUL
DAVID CHILDREN'S 7835 FREEDOM AVE.,
N.W. TRUST
________________________________ By: S/S Signature Michael David
--------------------------------
________________________________ Michael David, Trustee
"LESSEE"
THE DUNCAN HILL GROUP
________________________________ By: S/S Signature William L. Miller
--------------------------------
________________________________ William L. Miller, President
Page 2
<PAGE>
FIRST AMENDMENT OF LEASE
This First Amendment of Lease Agreement entered into as of the 21st day of
August, 1998, between TRIAD REALTY, LLC., an Ohio Limited Liability Company
(hereinafter called "Lessor") and KID'S STUFF, INC., an Ohio Corporation
(hereinafter called "Lessee").
Whereas (a) by Lease Agreement dated August 27, 1997 (hereinafter called "said
Lease"), the Lessor leased unto Lessee the premises known as 4434 Belden Village
Street and containing approximately 2,200 s.f., (hereinafter called "Demised
Premises") located in Belden Village Tower Mall, 4400 Belden Village Street,
N.W., Canton, Ohio (hereinafter called "the Building") was leased to Lessee for
a term expiring December 31, 2002, and (b) Lessee and Lessor now desire to
relocate the demised premises to a retail space within the same building known
as 4418 Belden Village Street, containing 3,373 square feet, and modify and
amend said Lease.
Now, therefore, in consideration of the mutual covenants, conditions and
agreements hereinafter contained, said Lease is amended as follows effective
August 1, 1998.
1. Demised Premises. The demised premises shall be 3,373 square feet and be
known as 4418 Belden Village Street, Canton, Ohio 44718, and is further
described as shown on Exhibit "A".
2. Annual Base Rent. Lessee's new adjusted base rent for the new demised
Premises, shall be the sum of Twenty-six Thousand Nine Hundred Eighty Four
Dollars per year, payable in equal monthly installments of $2,248.67.
3. Commencement Date. Lessee's monthly rent shall start and be due 30 days
following the date that Lessee takes possession of the Premises. Upon completion
of his work, Lessor will notify Lessee that date on which lessee shall take
possession.
4. Lessor's Work. Lessor shall provide Lessee with the Premises in a "white box"
condition consisting of smooth concrete floor, drywall perimeter walls ready for
primer, and a white 2' x 4' suspended ceiling at the height of 15' AFF.
The existing restrooms will remain "as is" except Lessor will move urinal from
the front rest room to the rear rest room if the fixture is required to remain.
The main electrical panel will remain in the front rest room.
The janitor's room will remain "as is" except the electrical panel will be
removed.
Service HVAC system to insure it is in proper working order and guarantee same
for 6 months.
Install double glass store front doors in south side of building in place of
garage door.
Install 2 x 4 lay-in light fixtures equivalent to one per 100 square feet.
Receptacles, one every 20 feet along perimeter walls.
Any and all additional work requested by Lessee will be at Lessee's expense.
All other terms and conditions of said Lease remain in full force and effect.
<PAGE>
IN WITNESS WHEREOF, Lessor and Lessee have respectively signed triplicate
counterparts of this First Amendment of Lease as of the day, month and year
first above written.
WITNESS LESSOR: TRIAD REALTY, LLC
/s/ Linda Prescott /s/ Roger DeVille
- ----------------------- ------------------------------
Roger DeVille, Managing Member
/s/ Deanna J. Vinton
- -----------------------
KID'S STUFF, INC.
/s/ xxxxxxxxxxxxx /s/ Jeanne E. Miller
- ----------------------- ------------------------------
Jeanne E. Miller
/s/ xxxxxxxxxxxxx
- -----------------------
<PAGE>
Ostendorf Morris
COLLIERS
International
STANDARD OFFICE LEASE
OSTENDORF-MORRIS COMPANY
LEASE AGREEMENT (herein called the "Lease") entered into as of the
_______ day of __________________________ , 199__ , between Sun
Life Assurance Co. of Canada, a Corporation herein called
"Lessor"), and Duncan Hill Co., Ltd. a corporation (herein called
"Lessee").
WITNESSETH:
1. DEMISE. For the rent and term and upon the terms, conditions, limitations and
provisions hereinafter set forth, Lessor leases to Lessee and Lessee hires from
Lessor approximately 6,170 rentable square feet of office space and 1,200
rentable square feet of retail space (herein called the "Premises") and
identified as Suite Number 406 and a portion of Suite 4408 respectively, as
shown outlined and crosshatched in Black, on Exhibit A and Exhibit B,
respectively, attached hereto, in the building known as Belden Village Tower
(herein called the "Building") located at 4450 Belden Village Street, N.W. ,
Canton Ohio, 44718.
2. TERM. The term of this Lease shall be two (2)years___, beginning on the 1st
day of October, 1996, and ending on the 30th day of September, 1998,
unless sooner terminated as hereinafter provided.
3. USE. Lessee shall use and occupy the premises only for office use and retail
and sales and for no other purposes.
4. ANNUAL BASE RENT. Lessee shall pay Lessor as rent for the premises, the sum
AS SHOWN ON ATTACHED RIDER ONE PARAGRAPH 41, payable in advance, without
deduction or set-off, in legal tender of the United States of America, on the
first day of each and every calendar month of the term, at the offices of
Ostendorf-Morris Company (hereinafter called the "Company"), The Diamond
Building, 1100 Superior Avenue, Cleveland, Ohio 44114, or at such other place as
Lessor may, from time to time, in writing, designate. Any rent or other sums
payable by Lessee to Lessor under this Lease which are not paid within five (5)
days after they first become due, will be subject to a late charge of five
percent (5 %) of the amount due. Such late charges will be due and payable as
additional rent on or before the next day on which an installment of rent is
due. Any rent, late charges or other sums payable by Lessee to Lessor under this
Lease which are not paid when due will bear interest at a rate equal to eighteen
percent (18%) per annum, such interest to commence on the date that said payment
was first due and payable, or, at the Lessor's election, if a late charge is
assessed, fifteen (15) days after the date said payment was first due and
payable. Such interest will be due and payable as additional rent on or before
the next installment of rent and will accrue until paid from the date thereof.
Page 1
<PAGE>
6. SECURITY DEPOSIT. Lessee has deposited with Lessor the sum of Six Thousand
One Hundred Ninety Eight and 75/100 Dollars ($6,198.75) as security (herein
called the "security deposit") for the full and faithful performance of every
term and provision of this Lease by Lessee. If Lessee defaults in the
performance of any term or provision hereof, including failure to pay any rent,
adjustments to rent, additional rent or other charges which Lessee is or becomes
obligated to pay, or Lessor otherwise suffers any loss, cost, expense or damage
as a result of any default by Lessee hereunder, Lessor may apply the security
deposit in respect to such default. If all or any portion of the security
deposit is so applied, upon demand by Lessor or Company, Lessee shall
immediately deposit with Lessor a sum sufficient to restore the security deposit
to Lessor in full, and failure to do so shall constitute a further default
hereunder. Upon the expiration of the term of this Lease, provided Lessee has
fully performed every term and provision hereof, the security deposit (or amount
thereof then on deposit with Lessor) shall be returned to Lessee. In the event
of any sale of the Building during the term hereof, Lessor may transfer the
security deposit to the new owner, and upon such transfer, shall be relieved of
any obligation for return of the security deposit to Lessee. Lessor shall be
under no obligation to segregate the security deposit from its own funds and the
security deposit shall not bear interest.
7. BUILDING SERVICES FOR SUITE 406 ONLY. Provided Lessee is not in default under
any of the terms and provisions of this Lease, and except as otherwise provided
below as to Lessee's obligation to pay for certain services, Lessor shall
furnish Lessee with the following services:
(a) cleaning, janitor and window washing services standard for the
Building;
(b) heating or air-conditioning, subject to the terms hereof, on
business days, from 8:00 A.M. to 6:00 P.M., and on Saturdays, from 8:00 A.M. to
12:00 Noon, standard for the Building. Lessee shall pay for all heating and
air-conditioning requested and furnished prior to or following such hours at
rates to be established from time to time by Lessor, subject to all governmental
rules, regulations and guidelines applicable thereto. All requests for heating
or air-conditioning prior to or following such hours, must be submitted, in
writing, to the Company no later than 2:00 P.M. on the last prior business day;
LESSOR shall pay all utilities for HVAC and electric service.
(c) water at standard Building temperatures for normal sanitary
purposes only. Lessee shall pay, at standard Building rates, for water used for
other than normal sanitary purposes and for water wasted;
(d) passenger elevator service on business days, from 8:00 A.M. to 8:00
P.M., and on Saturdays, from 8:00 A.M. to 6:00 P.M.; elevator service via at
least one (1) car per elevator bank at all other times;
The term "business days", as used in this Paragraph 7, shall mean
Monday to Friday, inclusive, excluding (1) Saturdays (except such portion
thereof as is stipulated specifically in subparagraphs (b) and (d) of this
Paragraph 7), (2) Sundays, and (3) all days observed by the Federal and State
governments as legal holidays.
Page 2
<PAGE>
Lessee shall pay Lessor's charges for water, electrical and other
services within ten (10) days after the rendering by Lessor or Company of each
statement on account thereof. (INCLUDED IN BASE RENT). Failure to pay such
charges when due, or to pay any rent or other charge hereunder when due, shall
entitle Lessor, upon not less than five (5) days' written notice, to discontinue
furnishing water, electrical or other services to Lessee. No discontinuance of
services shall be deemed an eviction or disturbance of Lessee's use and
occupancy of the premises, nor render Lessor liable to Lessee for damages, nor
relieve Lessee from the performance of Lessee's covenants and agreements
hereunder.
Lessee agrees that Lessor shall not be liable for damages, by abatement
of Rent or otherwise, for failure to furnish or delay in furnishing any service,
or for any diminution in the quality or quantity thereof, when such failure or
delay or diminution is occasioned, in whole or in part, by any strike, lockout
or other labor trouble, by inability to secure electricity, gas, water, or other
fuel at the Building after reasonable effort so to do, by any accident or
casualty whatsoever, by act or default of Lessee or other parties, or by any
other cause beyond Lessor's reasonable control; and such failures or delays or
diminution shall not be deemed to constitute an eviction or disturbance of the
Lessee's use and possession of the premises or relieve the Lessee from paying
Rent or performing any of its obligations under this Lease. Lessor also reserves
the right to temporarily suspend, delay, or discontinue furnishing any of the
services to be provided by Lessor under this Lease, without abatement or
diminution in Rent and without any liability to Lessee as a result thereof, for
such inspections, cleaning, repairs, replacements, alterations, improvements or
renewals as may, in Lessor's judgment, be desirable or necessary to be made;
provided that such services shall not, to the extent reasonably feasible, be
suspended for such purposes during Lessee's normal business hours unless Lessor
shall, to the extent reasonably possible under the circumstance, have given
Lessee advance notice of any proposed suspension of services.
8. POSSESSION. Taking possession by Lessee shall be conclusive evidence as
against Lessee that the premises were in good order and satisfactory condition
when Lessee took possession. No representation respecting the condition of the
premises or the Building has been made by Lessor to Lessee unless contained
herein; and no promise of Lessor to prepare, alter, or improve the premises for
Lessee's use and occupancy shall be binding upon Lessor unless contained herein
or in Lessor's Work Letter, which Work Letter, if any, has been signed by Lessor
and Lessee and is attached hereto and made a part hereof.
If Lessor is required to perform any space preparation work in the
premises pursuant to a Work Letter, Lessee's obligation to pay the rent reserved
hereunder shall commence upon the date that Lessor has substantially completed
the work specified therein and has so notified Lessee, in writing, or if
Lessor's space preparation work has been delayed due to an act or omission of
Lessee, then at such earlier date as the work would have been completed but for
such act or omission. If such date shall be other than the first day of a
calendar month, the rent for such month shall be prorated on a per-diem basis.
If, with Lessor's consent, Lessee is allowed to occupy or enter the
premises prior to the date of the commencement of the term of this Lease, then
all provisions hereof shall be in full force and effect as soon as Lessee
occupies the premises, and Lessee shall immediately commence paying rent on a
per-diem basis to the date of commencement of the term.
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If Lessor shall be unable to deliver possession of the premises on the
date of the commencement of the term hereby created because of the holding over
of any tenant, or tenants, or for any other cause beyond Lessor's reasonable
control, then the payment of rent shall not commence until the date possession
of the premises is delivered to Lessee. Lessee agrees to accept such allowance
and abatement of rent as liquidated damages, in full satisfaction for the
failure of Lessor to deliver possession on the date of the commencement of the
term, and to the exclusion of all claims and rights which Lessee might otherwise
have by reason of delivery of possession not being made on that date. Failure to
deliver possession on the date of commencement of the term shall not, in any
event, extend or be deemed to extend, the term of this Lease. Unfinished extra
work, if any, undertaken by Lessor for Lessee shall not be considered in
determining the date of delivery of possession to Lessee.
This Lease does not grant any possessory or other rights to light or
air except over property over public streets kept open by public authority, and
Lessor shall not be liable to Lessee for any expense, injury, loss, or damages
resulting from work done in or upon, or by reason of the use of, any adjacent or
nearby building, land, street, or alley.
Lessor and Lessee agree that (a) Lessee shall have the right to place
in the premises, at such locations therein as Lessee may, from time to time,
determine, without overloading floors, Lessee's furniture, trade fixtures and
standard business office machines and equipment; and (b) the foregoing types of
personal property shall be and remain the property of Lessee, and may be removed
by Lessee at any time during the lease term, upon its expiration, or upon its
earlier termination in any manner, Lessee, however, agreeing to repair, at
Lessee's expense, any damage to the premises or the Building caused by such
removal.
9. SURRENDER OF POSSESSION. Upon the expiration of the term or upon the
termination of Lessee's right of possession, whether by lapse of time or at the
option of Lessor as herein provided, Lessee shall, at Lessee's sole cost and
expense, forthwith surrender the premises to Lessor in good order, repair and
condition, ordinary wear excepted, and shall, at Lessee's sole cost and expense,
if Lessor so requires, restore the premises to the condition existing at the
beginning of the term. Any interest of Lessee in the alterations, improvements,
and additions to the premises made or paid for by Lessor or Lessee shall,
without compensation to Lessee, become Lessor's property at the termination of
this Lease by lapse of time or otherwise, and such alterations, improvements,
and additions (including floor coverings) shall be relinquished to Lessor in
good condition, ordinary wear excepted. Prior to the termination of the term of
Lessee's right of possession, Lessee shall remove its office furniture, trade
fixtures, office equipment, and all other items of Lessee's property on the
premises. Lessee shall pay to Lessor, upon demand, the cost of repairing any
damage to the premises and to the Building caused by any such removal. If Lessee
shall fail or refuse to remove any such property from the premises, Lessee shall
be conclusively presumed to have abandoned the same, and title thereto shall
thereupon pass to Lessor without any cost either by set-off, credit, allowance,
or otherwise, and Lessor may, at its option, accept the title to such property
or, at Lessee's expense, may (a) remove the same or any part in any manner that
Lessor shall choose, repairing any damage to the premises caused by such
removal, and (b) store, destroy, or otherwise dispose of the same without
incurring liability to Lessee or any other person.
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10. USE AND OCCUPANCY. In the use and occupancy of the premises, Lessee
shall:
(a) comply with all laws, ordinances, rules, regulations, and orders of
any governmental authorities having jurisdiction over the premises or over the
use and occupancy thereof;
(b) keep and maintain the premises in good order, condition and repair,
and promptly make all repairs or replacements becoming necessary during the
term, including, but without limitation, repairs or replacements of doors, glass
(which shall be replaced with glass of the same size and quality), electrical,
plumbing and sewage lines, equipment and fixtures within, and solely serving the
premises, interior walls, floor covering and ceilings and building appliances of
every kind;
(c) at Lessee's expense, promptly cause to be repaired by a contractor
approved by Lessor any damage to the Building or the premises which results or
arises from Lessee's use and occupancy of the premises;
(d) not install in the premises any apparatus or equipment which shall
interfere with or impair the maintenance or operation of any building system,
including, without limitation, the electrical, plumbing, heating, ventilating,
and air-conditioning systems;
(e) except with the prior written consent of Lessor, not install in the
premises any additional or supplementary air-conditioning equipment; and
(f) not conduct any activity or install in the premises any apparatus
or equipment which shall result (i) in the cancellation of any insurance
covering or relating to the Building, or (ii) without Lessor's prior written
approval, in any increase in insurance premiums in respect of any insurance
covering or relating to the Building. If Lessee shall conduct any activity or
install any apparatus or equipment which shall result in an increase in
insurance premiums, Lessee shall forthwith reimburse Lessor for the amount of
the increase in the insurance premiums;
(g) not to place, permit, or suffer any lien to attach to this Lease or
the leasehold estate created hereby;
(h) not permit any so-called hazardous or toxic wastes or substances
(as defined under any applicable law) to be placed or maintained within the
premises or the Building unless otherwise approved by Lessor in writing.
In the event that Lessee does not timely perform its repair,
replacement or maintenance obligations hereunder, Lessor may, but shall not be
obligated to, perform any such repairs or replacements, or maintain the premises
and the cost and expense of such repair, replacement or maintenance shall be
borne by Lessee as additional rent hereunder due and payable with the next due
installment of rent.
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11. ACCESS TO BUILDING. Lessee, for Lessee and for Lessee's agents,
employees, and invitees, agrees that all such persons desiring to enter or leave
the Building at other than normal business hours in the Building from Monday to
Saturday, both inclusive, and during all hours on Sundays and on all days
observed by the Federal and State governments as legal holidays, shall use such
entrances or exits as may be designated by Lessor, and shall comply with
Building security regulations established from time to time by Lessor with
respect to identification, registration and method of signaling for admission,
so as to establish the right of such persons to enter or to leave the Building.
12. COMMON AREAS. Lessee and Lessee's agents, employees and invitees
shall have the right to use, in common with Lessor and Lessor's tenants and the
agents, employees, and invitees of each, the public sidewalks, entrances,
lobbies, vestibules, stairways, corridors, elevators, public toilets, and other
public areas of the Building, subject, however, to applicable Building rules,
regulations, and security measures; and Lessee and Lessee's agents, employees,
and invitees shall not obstruct or litter, or use for storage, temporary or
otherwise, or for the display of merchandise or services, or for any purpose
other than the intended or normal purpose, any of the public sidewalks,
entrances, lobbies, vestibules, stairways, corridors, elevators, public toilets,
and other public areas of the Building; and no floor mats or runners shall be
placed by Lessee in any Building corridor, lobby or vestibule. Lessee shall not,
at any time, place, leave, or discard any rubbish, paper, articles, or other
objects of any kind whatsoever outside the doors of the premises or in the
corridors or other common areas of the Building.
13. ALTERATIONS AND ADDITIONS. (a) Lessee shall not, without the prior
written consent of Lessor, which consent shall be at Lessor's sole discretion,
make any alterations, improvements, or additions to the premises.
Notwithstanding Lessor's consent to any alteration, improvement or addition to
the premises, Lessor shall retain the option, upon the termination of this
Lease, of requiring Lessee, at its sole cost and expense, to remove any or all
of said alterations, improvements or additions and repair all the damage caused
by such removal. If Lessor consents to any alterations, improvements, or
additions, Lessor may impose such conditions with respect thereto as Lessor
deems appropriate, including, without limitation, requiring Lessee to furnish
Lessor with insurance against liabilities which may arise out of such work and
plans and specifications and permits necessary for such work. The work necessary
to make any alterations, improvements, or additions to the premises, whether
prior to or subsequent to the Commencement Date, shall be done at Lessee's
expense by contractors hired by Lessor, or the Company, except to the extent
Lessor gives its prior written consent to Lessee's hiring its own contractors,
which consent shall be solely within Lessor's discretion. If Lessor shall so
desire, Lessee shall submit to Lessor's or the Company's reasonable supervision
of Lessee's work at Lessee's expense. Lessee shall also pay Lessor for all other
costs and expenses arising in connection with such work, including, without
limitation, additional janitorial, elevator, security, and utility expense.
Lessee shall promptly pay to Lessor, the Company, or the Lessee's contractors,
as the case may be, when due, the cost of all such work, supervision, and other
charges.
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(b) Upon completion of such work, or from time to time as Lessor may
reasonably require, Lessee shall deliver to Lessor, if payment is made directly
to contractors, evidence of payment, contractors affidavits and full and final
waivers of all liens for labor, services, or materials all in form satisfactory
to Lessor. Lessee shall defend and hold Lessor harmless from all costs, damages,
liens and expenses related to such work. Lessee further covenants and agrees not
to suffer or permit any mechanics or materialmen liens or any other liens to be
placed against the Building or premises with respect to work or services claimed
to have been performed for, or materials claimed to have been furnished to, the
Lessee or the premises. If any lien shall at any time be filed against the
Building or premises in connection with such work, services, or materials,
Lessee shall immediately cause it to be released and removed of record. If
Lessee fails to do so, Lessor may, at Lessor's option, cause the same to be
released and removed of record using funds from the security deposit provided
for in Paragraph 6 of this Lease. If such funds are insufficient for such
purpose, Lessor may, at Lessor's option, advance such additional funds for such
purpose. In addition to Lessee's obligation to replenish the security deposit as
provided in Paragraph 6, Lessee shall immediately, upon demand, pay Lessor the
amount of any such additional funds so advanced.
(c) All work done by Lessee, or its contractors, pursuant to this Lease
shall be done in a firstclass workmanlike manner using only good grades of
materials, and shall comply with all insurance requirements and all applicable
laws and ordinances and rules and regulations of governmental departments or
agencies. All such work shall be performed so as not to interfere with or impair
the use and enjoyment of the Building by Lessor and other tenants, and Lessor
may require all or a portion of such work be performed outside business hours.
Subject to Lessor's option contained in the second sentence of subparagraph a)
of this Paragraph 13, all additions, alterations, fixtures, and improvements
(temporary or permanent) in and upon the premises, whether installed by Lessee
or Lessor, shall become Lessor's property, and shall remain upon, and be
surrendered with the premises without disturbance or injury upon the termination
of this Lease by lapse of time or otherwise, all without payment or credit to
Lessee.
14. ASSIGNMENT AND SUBLETTING. (a) Lessee shall not sublet the premises
or any part thereof, not assign this Lease or any interest therein, nor permit
any business to be operated in or from the premises by any person, firm or
corporation other than Lessee, without, in each case, first obtaining the prior
written consent of Lessor, which consent may be given or withheld in Lessor's
sole discretion. Any attempt to assign this Lease or to sublet all or any
portion of the premises, without Lessor's prior written consent, shall be void
and, at Lessor's option, shall constitute an event of default under this Lease.
Any merger, consolidation, liquidation, or sale of substantially all of the
assets of Lessee, or any other assignment, transfer, mortgage, pledge or
encumbrance of this Lease or any interest therein, whether voluntary,
involuntary, by operation of law or otherwise, shall constitute an assignment of
this Lease.
(b) Lessor may impose such conditions to its consent to any subletting
or assignment (which may be withheld by Lessor in its sole discretion) as it may
determine, and notwithstanding any consent to assignment or subletting, both
Lessee and its guarantor, if any, will continue to be liable under this Lease
with the same force and effect as though no assignment or sublease had been
made. If Lessee requests Lessor to consent to any assignment or sublease, Lessee
shall provide Lessor with the name, address, and a description of the business
of the proposed assignee or subtenant and its most recent financial statement
and such other evidence of financial responsibility as Lessor may request.
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(c) Consent by Lessor to any assignment or subletting shall be consent
only as to that particular assignment and subletting, and not to any further
assignment or subletting. In the event Lessor consents to any assignment, both
Lessee and the assignee shall be primarily liable to Lessor hereunder.
(d) In the event any such proposed assignment or sublease provides for,
or Lessee otherwise receives, rent, additional rent, or other consideration in
excess of that provided for in this Lease, Lessee agrees that in the event
Lessor grants its consent, Lessee shall pay Lessor the amount of such excess as
it is received by, or becomes due to, Lessee. Any violation hereof shall be
deemed a material breach of this Lease, as well as an event of default
hereunder.
(e) In the event of any assignment or subletting, whether or not
consented to by Lessor, any options to renew this Lease or expand the premises
shall terminate without further action.
(f) Lessee shall submit any request for Lessor's consent to a sublease
or assignment in writing together with a non-refundable fee of $300.00 to cover
Lessor's consideration of the request.
15. RECAPTURE. (a) Within thirty (30) days after receiving Lessee's
request for Lessor's consent to an assignment of this Lease and the requisite
accompanying information, Lessor shall have the right to (i) grant its consent,
subject to such conditions as it may determine, (ii) withhold its consent, or
(iii) terminate this Lease, on a date reasonably determined by the Lessor, and
release Lessee from its future obligations hereunder.
(b) Within thirty (30) days after receiving Lessee's request for
Lessor's consent to a sublease of all or any portion of the premises and the
requisite accompanying information, Lessor shall have the right to (i) grant its
consent, subject to such conditions as it may determine, (ii) withhold its
consent, or (iii) elect to remove that portion of the premises proposed to be
sublet from this Lease, on a date reasonably determined by the Lessor, in which
event this Lease shall be terminated and suspended as to such proposed sublet
space only and rent for the balance of the premises shall be adjusted from the
date of such suspension on the basis of the remaining square feet compared to
the total square feet in the premises prior to such suspension, all as
determined by Lessor.
16. HOLDING OVER. If Lessee shall remain in possession of the premises
after the expiration of the term of this Lease, then Lessee shall be a tenant
from month to month, and such tenancy shall otherwise be subject to all of the
terms, provisions, covenants, and agreements of this Lease, except that rent
shall be a rate equal to one hundred fifty percent (150%) of the Adjusted Annual
Rental due hereunder over the last twelve (12) months determined on a monthly
basis, and, if Lessor shall suffer any damage or loss as a result of such
holdover, such as losses or damages which may result from Lessor's inability to
timely deliver the premises to a subsequent tenant of the premises, Lessee shall
promptly pay the amount thereof to Lessor.
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17. RIGHTS RESERVED BY LESSOR. Lessor reserves the following rights:
(a) to change the street address of the Building; the name of the
Building; the unit number of the premises; and the arrangement or location of
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets,
or other public parts of the Building without liability to Lessee;
(b) to designate all sources furnishing sign painting, lettering,
vending machines, towel or toilet supplies, or other similar services required
in the premises;
(c) to enter the premises during the last ninety (90) days of the term,
provided Lessee shall have removed substantially all of Lessee's property from
the premises, for the purpose of altering, remodeling, repairing, renovating, or
otherwise preparing the premises for tenanting to others;
(d) to grant anyone the exclusive privilege of conducting any
particular business or activity in the Building;
(e) to enter the premises at all reasonable times (1) for the making of
such inspections, repairs, alterations, improvements, or additions of, or to,
the premises or the Building as Lessor may deem necessary or desirable; (2) to
exhibit the premises to others, and (3) for any purpose whatsoever related to
the safety, protection, preservation, or improvement of the premises or of the
Building or of Lessor's interest therein;
(f) at any time or times, Lessor, either voluntarily or pursuant to
governmental requirement, may, at Lessor's expense, make repairs, alterations,
or improvements in or to the Building or any part thereof, and, during such
times, may temporarily close entrances, doors, corridors, elevators, or other
public facilities; and
(g) to charge Lessee any additional expense (including overtime or
premium costs incurred by Lessor) in the event repairs, alterations, decorating,
or other work in the premises or the Building are, at Lessee's request, not made
during ordinary business hours.
Lessor may exercise all or any of the foregoing rights hereby reserved
without being deemed guilty of an eviction or disturbance of Lessee's use and
occupancy, without being liable in any manner to Lessee, and without elimination
or abatement of rent, or payment of other compensation, and such acts shall in
no way affect this Lease.
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18. REMEDIES OF LESSOR. All rights and remedies of Lessor herein set
forth are in addition to any and all rights and remedies which are or may be
available to Lessor at law or in equity.
(a) If Lessee shall fail to pay any rent reserved herein when due, or
fails to pay Lessor's charges for water, electrical, or other services within
ten (10) days after the rendition of a statement, or defaults in the prompt and
full performance of any of Lessee's covenants and agreements hereunder, or if
the leasehold interest of Lessee be levied upon, under execution or be attached,
or if Lessee makes an assignment for the benefit of creditors, or if a receiver
be appointed for any property of Lessee, or if Lessee abandons the premises,
then, and in any such event, Lessor may, if Lessor so elects, and with or
without notice of such election and with or without demand whatsoever, forthwith
terminates this Lease and the Lessee's right to possession of the premises, or
Lessor may, without terminating this Lease, terminate Lessee's right to
possession of the premises. Lessee hereby waives Lessee's right to trial by jury
in connection with any proceedings by Lessor to enforce any of its rights
against Lessee under this Lease, including, without limitation, any proceedings
to remove Lessee from the premises.
(b) Upon the filing of a petition by or against Lessee under the United
States Bankruptcy Code, (the "Code"), Lessee, as debtor and as debtor in
possession, and any trustee who may be appointed shall (i) timely perform each
and every obligation of Lessee under this Lease until such time as this Lease is
either rejected or assumed by order of the United States Bankruptcy Court; (ii)
pay monthly in advance on the first day of each month as reasonable compensation
for use and occupancy of the premises an amount equal to the Rent and other
charges otherwise due pursuant to this Lease; (iii) provide adequate assurance
of future performance under the Lease; (iv) reject or assume this Lease within
sixty (60) days of the filing of such petition under the Code, and (v) do all
other things of benefit to Lessor otherwise required or permitted under the
Code. Lessee, as debtor and as debtor in possession, and any trustee, shall be
deemed to have rejected this Lease in the event of the failure to comply with
any of the above. Included within and in addition to any other conditions or
obligations imposed upon Lessee or its successor in the event of assumption
and/or assignment is the prior written consent of any mortgagee to which this
Lease has been assigned as collateral security.
(c) Upon termination of this Lease, or upon the termination of Lessee's
right to possession without termination of the Lease, Lessee shall surrender
possession and vacate the premises immediately, and Lessor may enter into and
repossess the premises with or without process of law and remove all persons and
property therefrom in the same manner and with the same right as if this Lease
had not been made, and for the purpose of such entry and repossession, Lessee
waives any notice provided by law or otherwise to be given in connection
therewith.
(d) If Lessee abandons the premises, or if Lessor elects to terminate
Lessee's right to possession only, without terminating the Lease as above
provided, Lessor may remove from the premises any and all property found therein
and such repossession shall not release Lessee from Lessee's obligation to pay
the rent reserved herein. After any such repossession by Lessor without
termination of the Lease, Lessor shall make reasonable efforts to relet the
premises, or any part thereof, as agent of Lessee to any person, firm, or
corporation and for such time and upon such terms as Lessor, in Lessor's sole
discretion, may determine. Lessor may make repairs, alterations, and additions
in and to the premises and redecorate the same to the extent deemed by Lessor
necessary or desirable, and Lessee shall, upon demand, pay the cost thereof,
together with Lessor's expense (including any broker's commission) of reletting.
If the rents collected by Lessor upon any such reletting are not sufficient to
pay monthly the full amount of all rent reserved herein, together with the costs
of such repairs, alterations, additions, redecorating, and expenses, Lessee
shall pay to Lessor the amount of each monthly deficiency upon demand.
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(e) Any and all property which may be removed from the premises by
Lessor may be handled, removed, stored, or otherwise disposed of by Lessor at
the risk and expense of Lessee, and Lessor shall, in no event, be responsible
for the preservation or safekeeping thereof. Lessee shall pay to Lessor, upon
demand, any and all expenses incurred in such removal and all storage charges
against such property so long as the same shall be in Lessor's possession or
under Lessor's control. If any property shall remain in the premises or in the
possession of Lessor and shall not be removed by Lessee within a period of ten
(10) days from and after the time when the premises are either abandoned by
Lessee or repossessed by Lessor under the terms of this Lease, the property
shall conclusively be deemed to have been forever abandoned by Lessee.
(f) Lessor and Lessee agree that all of the goods, chattels, trade
fixtures, and other personal property belonging to Lessee which are or may be
put into the premises during the term, whether exempt or not from sale under
execution or attachment, shall, at all times, be bound with a lien in favor of
Lessor, and shall be chargeable for all rents hereunder and for the fulfillment
of the other covenants and agreements of Lessee herein contained. In the event
that Lessee shall have abandoned the premises, or in the event of any default of
Lessee hereunder, Lessor shall have the right to sell all or any part of said
property at public or private sale, without giving notice to Lessee or any
notice of sale, all notices required by statute or otherwise being hereby
expressly waived, and to apply the proceeds of such sale, first to the payment
of all costs and expenses of conducting the same, or caring for or storing said
property; second, toward the payment of any indebtedness which may be or may
become due from Lessee to Lessor; and, third, to pay to Lessee, on demand, in
writing, any surplus remaining after all indebtedness of Lessee to Lessor has
been fully paid.
(g) In addition to all other rights and remedies of Lessor hereunder,
if Lessee fails to timely perform any of its obligations hereunder, including,
without limitation, monetary obligations, and whether or not Lessor has
terminated this Lease or Lessee's right to possession of the premises, or
either, Lessor may elect to accelerate and make immediately due and payable all
of the rent, additional rent, adjusted rent and any other charges or fees which
are due or may become due hereunder for the remainder of the term of this Lease.
Lessee agrees that Lessor may file suit to recover any sums due under this Lease
from time to time and that no suit or recovery of any portion due Lessor
hereunder shall be any defense to any subsequent action brought for any amount
not theretofore reduced to judgment in favor of Lessor.
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19. LOSS OR DAMAGE TO PROPERTY. (a) All personal property belonging to
Lessee or to any other person located in or about the premises or the Building
shall be there at the sole risk of Lessee or such other person, and neither
Lessor nor Lessor's Company or employees shall be liable for the theft or
misappropriation thereof, nor for any damage or injury thereto, nor for damage
or injury to Lessee, to other persons, or to property caused by water, snow,
frost, steam, heat, cold, dampness, falling plaster, sewers or sewerage, gas,
odors, noise, the bursting or leaking of pipes, plumbing, electrical wiring, and
equipment and fixtures of all kinds, or by any act or neglect of other tenants
or occupants of the Building, or of any other person, or caused in any manner
whatsoever, unless the same shall solely and proximately result from the
negligence of Lessor or Lessor's Company or employees. Lessee will protect,
indemnify, and save harmless Lessor or Lessor's Company or employees from all
losses, costs, or damages sustained by reason of any act or other occurrence
causing injury to any person or property due directly or indirectly to the use
of the premises or any part thereof by Lessee, except losses, costs, or damages
solely and proximately resulting from the negligence of Lessor or Lessor's
Company or employees.
(b) Lessee shall indemnify and save Lessor and mortgagees of the
Building harmless from and against any clean-up costs, remedial or restoration
work, claims, judgments, damages, penalties, fines, costs, liabilities or
losses, including, without limitation, diminution in value of the premises,
damages for the loss or restriction on use of space within the Building, damages
due to adverse impact on marketing of space in the Building, and attorneys',
consultants' and experts' fees, which arise during or after the term of this
Lease as a result of any hazardous or toxic substances being generated or
disposed of in or on, or brought to, the Building by Lessee or any other
occupant of the Premises.
20. INSURANCE. Lessee shall, during the term of this Lease and at
Lessee's own expense, carry comprehensive general liability insurance with a
combined single limit of at least One Million Dollars ($1,000,000) for all
injuries to or death of persons and loss of or damage to property in any one
occurrence, and insurance at no less than the replacement value of (i) all
alterations, additions and improvements Lessee may make to the premises, and
(ii) all of the personal property that Lessee brings within the premises. Such
insurance policy shall name Lessor, the Company and, if requested by Lessor, any
mortgagee of Lessor as additional insureds, and shall contain a provision
requiring that the policy shall not be modified, cancelled, or terminated
without at least thirty (30) days prior written notice to Lessor and the
Company, and, if requested by Lessor, any mortgagee of Lessor. At least twenty
(20) days prior to the time such insurance is first required to be carried by
Lessee and thereafter at least thirty (30) days prior to the expiration of any
such policy, Lessee shall deliver to Lessor a certificate of insurance validly
stamped by the issuing insurance carrier evidencing both the payment of all
premiums due thereon and the coverage outlined above.
21. WAIVER OF SUBROGATION. In the event either party hereto requests a
waiver of subrogation with respect to the Building, premises, and property
therein or occurrences thereon, and if such waiver can be written without
additional premium, or with an additional premium if the party making the
request agrees to pay such additional premium for the other party, as well as
any additional premium for the requesting party's insurance, then there shall
exist mutual waivers of subrogation and each party hereto will waive any and
every claim which arises or may arise in its favor and against the other party
hereto, or anyone claiming through or under them, by way of subrogation or
otherwise, during the term of this Lease or any extension or renewal thereof for
any and all loss of, or damage to, any of its property (whether or not such loss
or damage is caused by the fault or negligence of the other party or anyone for
whom such other party may be responsible), which loss or damage is covered (or
required to be covered hereunder) by valid and collectible fire and extended
coverage insurance policies, to the extent that such loss or damage is recovered
or recoverable under insurance policies required to be carried hereunder or
insurance policies actually carried by the party, and further provided that the
aforesaid waiver shall not affect any "deductibles" on such policies. Such
waivers shall be in addition to, and not in limitation or derogation of, any
other waiver or release contained in this Lease with respect to any loss or
damage to property of the parties hereto. Each party hereto will then
immediately give to each insurance company which has issued to it policies of
fire and extended coverage insurance written notice of the terms of such mutual
waivers, and to have such insurance policies properly endorsed, if necessary, to
prevent the invalidation of such insurance coverages by reason of such waivers.
Upon request, each party shall provide the other party with confirmation from
its insurance company(ies) of compliance with the terms of this Paragraph.
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22. UNTENANTABILITY. If the premises or the Building are made unfit for
occupancy by fire or other casualty, acts of God, or other cause, Lessor may
elect (a) to terminate this Lease as of the date when the premises or the
Building are so made unfit for occupancy, by written notice to Lessee within
ninety (90) days after that date, or (b) to repair, restore, or rehabilitate the
premises or the Building at Lessor's expense within one hundred eighty (180)
days after Lessor is enabled to take possession of all damaged areas and to
undertake reconstruction or repairs; and if Lessor elects so to repair, restore,
or rehabilitate the premises or the Building, this Lease shall not terminate,
but rent shall be abated on a per-diem basis to the extent and for the period
that the premises are unfit for occupancy. In the event Lessor shall proceed
under (b) above and shall not substantially complete the work within said one
hundred eighty (180) day period (excluding from said period loss of time
resulting from delays beyond the reasonable control of Lessor) either Lessor or
Lessee may then terminate this Lease, as of the last day of such one hundred
eighty (180) day period, by written notice to the other not later than ten (10)
days after the expiration of said one hundred eighty (180) day period, computed
as herein provided, and Lessor shall have no liability to Lessee for failure to
restore, repair, or rehabilitate the premises. In the event of termination of
this Lease pursuant to this Paragraph, rent shall be apportioned on a per-diem
basis to and including the effective date of such termination. Except as
provided in this Paragraph, neither party hereto shall have the right to
terminate this Lease by reason of damage to, or destruction of, the premises or
the Building.
23. ESTOPPEL CERTIFICATE BY LESSEE. Lessee agrees that from time to
time, upon not less than ten (10) days' prior request by Lessor, Lessee will
deliver to Lessor (without cost or expense to Lessor or such other party
designated by Lessor) a statement, in writing, certifying (a) that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified, and identifying the
modifications), (b) the dates to which the Rent and other charges have been
paid, (c) that, so far as the person making the certificate knows, Lessor is not
in default under any provision of this Lease, and, if Lessor is in default,
specifying each such default of which the person making the certificate may have
knowledge, and (d) such other information as is reasonably requested by Lessor,
it being understood that any such statement so delivered may be relied upon by
any landlord under any ground or underlying lease, or any prospective purchaser,
mortgagee, or any assignee of any mortgage on the Building.
24. SUBORDINATION OF LEASE. Lessor shall have the right at any time,
and from time to time, to place upon the Building and the land of which the
premises are a part, a mortgage or mortgages which, together with all renewals,
extensions, modifications, and replacements thereof, shall be wholly prior to
the rights of Lessee and this Lease. It is the intention of the parties that
such priority shall be established automatically and that no separate instrument
shall be required to effectuate such subordination of this Lease. Lessee will,
however, at any time and from time to time, upon request of Lessor, promptly
execute and deliver to Lessor, without expense to Lessor, any and all
instruments deemed by Lessor necessary or advisable to subject and subordinate
this Lease and all rights given Lessee hereunder to such mortgage or mortgages.
In the event any proceedings are brought for the foreclosure of any such
mortgage, Lessee covenants that it will, to the extent of the Lessor's interest
affected by such foreclosure, attorn to the purchaser upon any such foreclosure
sale and recognize such purchaser as Lessor under this Lease. Lessee agrees to
execute and delivery to Lessor, without expense to Lessor, at any time and from
time to time, upon the request of Lessor or of any such holder, any instrument
which, in the sole judgment of Lessor, may be necessary or appropriate in any
such foreclosure proceeding or otherwise to evidence such attornment. Lessee
hereby appoints Lessor and the holder of any such mortgage or either of them,
the attorney-in-fact, irrevocably, of Lessee to execute and deliver for and on
behalf of Lessee any such instrument. Lessee further waives the provisions of
any statute or rule of law, now or hereafter in effect, which may give or
purport to give Lessee any right or election to terminate or otherwise adversely
affect this Lease and the obligation of Lessee hereunder in the event any such
foreclosure proceeding is brought, and agrees that this Lease shall not be
affected in any way whatsoever by any such foreclosure proceeding.
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<PAGE>
25. EMINENT DOMAIN. Lessee agrees with Lessor that if the whole or any
part of the premises shall be appropriated, condemned, taken, or otherwise
acquired by any public or quasi-public authority under power of eminent domain,
condemnation, or other proceedings, this Lease and the estate hereby created
shall terminate and wholly expire on the date legal title shall vest in the
appropriator or condemnor, and all rent shall be prorated and adjusted as of
that date. In no event whatsoever shall Lessee have any claim against Lessor by
reason of any appropriation, condemnation, or taking of the whole or any part of
the premises or of the Building, nor shall Lessee have any claim to the amount,
or any portion thereof, that may be awarded as compensation or as damages or
paid as a result of such appropriation and taking; provided, however, that
Lessee shall have the right, to the extent the same does not reduce Lessor's
award of compensation and damages, to bring a separate action against the
condemning authority (but not against Lessor) for the recovery of Lessee's
moving expenses, displacement expenses, loss of business, and damage to Lessee's
personal property which is removable hereunder.
26. NO WAIVER. (a) No receipt of money by Lessor from Lessee with
knowledge of default or breach of any covenants of this Lease, or after the
termination of any suit, or after final judgment for possession of the premises,
shall be deemed a waiver of such default or breach, nor shall it reinstate,
continue, or extend the term of this Lease or effect any such notice, demand, or
suit.
Page 14
<PAGE>
(b) No delay on the part of Lessor in exercising any right, power, or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power, or privilege preclude any other, or
further, exercise thereof or the exercise of any other right, power, or
privilege.
(c) No act done or thing said by Lessor or Lessor's Company or
employees shall constitute a cancellation, termination, or modification of this
Lease, or a waiver of any covenant, agreement, or condition hereof, nor relieve
Lessee from Lessee's obligation to pay the rents reserved herein. Any waiver or
release by Lessor and any cancellation, termination, or modification of this
Lease must be in writing signed by Lessor.
27. EXPENSES OF ENFORCEMENT. Lessee shall pay, upon demand, all of
Lessor's costs, charges and expenses, including, without limitation, attorneys'
fees and out-of-pocket expenses of counsel, Company and others retained by
Lessor incurred in enforcing Lessee's obligations hereunder or incurred by
Lessor in any litigation, negotiation or transaction in which Lessee causes
Lessor to become involved or concerned.
28. QUIET ENJOYMENT. If Lessee shall (1) pay all rent reserved and all
charges for services stipulated herein to be paid by Lessee to Lessor, and (2)
well and faithfully keep, perform, and observe all of the covenants, agreements,
and conditions herein stipulated to be kept, performed, and observed by Lessee,
Lessee shall, at all times during the term of this Lease, have peaceable and
quiet enjoyment of the premises without hindrance of Lessor or any person
lawfully claiming under Lessor, subject, however, to the terms of this Lease and
to any underlying lease or to any mortgage to which this Lease is or has become
subordinate.
29. NOTICES. In every instance where it shall be necessary or desirable
for Lessor to serve any notice or demand upon Lessee, such notice or demand
shall be deemed sufficiently given or made if, in writing, it is mailed to
Lessee by registered or certified United States mail, postage prepaid, addressed
to Lessee at the Building of which the premises are a part, or at such
alternative address as may be set forth at the end of this paragraph, and the
time of giving or making such notice or demand shall be deemed to be the time
when the same was mailed as herein provided. Any notice by Lessee to Lessor must
be sent by registered or certified United States mail, postage prepaid,
addressed to Lessor in care of:
Sun Life Assurance Co. of Canada
c/o Ostendorf-Morris Company
The Diamond Building
1100 Superior Avenue
Cleveland, OH 44114
Page 15
<PAGE>
or at such other place as Lessor or the Company may, from time to time,
designate in writing. Wherever in this Lease, in connection with the breach,
default, or performance of any of the terms, provisions, covenants, and
agreements of Lessee, no period of time or notice is required by the terms
hereof, no notice shall be required as a prerequisite to the exercise of any
right or remedy of Lessor.
Alternative address for Lessee:
72 East Drive, P.O. Box 500
Congress Lake
Hartville, OH 44632
Phone: 330-877-2398
30. RULES AND REGULATIONS. Lessee and Lessee's agents, employees, and
invitees shall faithfully observe, and strictly comply with, the Rules and
Regulations appearing at the end of this Lease and made a part hereof, and with
such further reasonable Rules and Regulations as Lessor may, after notice to
Lessee, from time to time adopt and promulgate. Nothing in this Lease contained
shall be construed to impose upon Lessor any duty or obligation to enforce the
Rules and Regulations (as distinguished from the covenants and agreements) in
any other lease as against any other lessee, and Lessor shall not be liable to
Lessee for violation of the same by any other lessee or the Company, employees,
or invitees of such other lessee.
31. REPRESENTATIVE CAPACITY. In the absence of fraud, no person, firm,
or corporation, or the heirs, personal representatives, successors and assigns,
respectively, thereof, signing this Lease as Company, administrator, executor,
trustee, or in any other representative capacity, shall ever be deemed or held
individually liable hereunder for any reason or cause whatsoever.
32. OFFER BY COMPANY. This Lease is offered to Lessee by the Company
solely in the capacity of a broker and is subject to Lessor's acceptance, and
Lessee has executed this Lease upon the understanding that this Lease shall not
in any way bind Lessor until such time as it has been accepted and signed by
Lessor and an executed counterpart delivered to Lessee.
33. BROKER. Lessee represents and warrants to Lessor, and Lessor
represents and warrants to Lessee that, other than the Company, no broker
negotiated or was instrumental in negotiating or consummating this Lease. Lessor
agrees to pay all fees and commissions, if any, which may become due to Company
by reason of this Lease and renewals or expansions thereof. Lessor and Lessee
agree to indemnify and hold the other harmless from all damages, liability and
expenses, including, without limitation, expenses and reasonable attorneys'
fees, arising from any claims or demands of any broker or finder for any
commission or fee alleged to be due based upon the conduct or action on said
indemnifying party.
Page 16
<PAGE>
34. RECORDING. This Lease shall not be filed for record or recorded. If
Lessee shall so request, Lessor shall provide Lessee with a Memorandum of Lease
satisfying all applicable statutory requirements which Lessee may then file for
record and have recorded.
35. PARTIES BOUND. The covenants, agreements, and conditions contained
in this Lease shall bind and inure to the benefit of Lessor and Lessee and their
respective heirs, legal representatives, successors and assigns, subject,
however, to the provisions hereof requiring the consent of Lessor to any
assignment of this Lease or subletting of the premises.
37. APPLICATION OF PAYMENTS. Lessor shall have the right to apply
payments received from Lessee pursuant to this Lease (regardless of Lessee's
designation of such payments) to satisfy any obligations of Lessee hereunder, in
such order and amounts as Lessor, in its sole discretion, may elect.
38. LIMITATION ON LESSOR'S LIABILITY. It is expressly understood and
agreed by Lessee that none of Lessor's covenants, undertakings, or agreements
are made or intended as personal covenants, undertakings or agreements by
Lessor, and any liability for damage or breach or nonperformance by Lessor shall
be collectible only out of Lessor's interest in the Building, and no personal
liability is assumed by, nor at any time may be asserted against, Lessor or any
of its officers, Company, employees, legal representatives, successors or
assigns, all such liability, if any, being expressly waived and released by
Lessee. Lessee acknowledges that Lessor has the right to transfer its interest
in the land and Building and in this Lease, and Lessee agrees that in the event
of any such transfer, Lessor shall automatically be released from all liability
under this Lease and Lessee agrees to look solely to such transferee for the
performance of Lessor's obligations hereunder.
39. HEADINGS. The captions of paragraphs and subparagraphs are for
convenience only and shall not be deemed to limit, construe, affect, or alter
the meaning of such paragraphs or subparagraphs.
40. ENTIRE AGREEMENT. This Lease, together with the rider attached
hereto, contains the entire agreement of the parties hereto as to the subject
matter hereof, and there are no agreements, promises, covenants, warranties, or
representations other than as set forth herein. The rider attached hereto, and
which is made a part hereof, is particularly identified as Rider Number 1, and
consists of 4 page(s). Exhibits lettered A and B are also attached hereto and
made a part hereof.
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<PAGE>
IN WITNESS WHEREOF, Lessor and Lessee have respectively signed
triplicate counterparts of this First Lease Amendment as of day, month, and year
first above written.
Signed and acknowledged in the presence of:
LESSOR
Sun Life Assurance Company
of Canada
S/S Signature Kimberly A. Marchetti S/S Signature (George M. Collins)
- ----------------------------------- ----------------------------------
President
Kimberly A. Marechetti
- -----------------------------------
Printed Name
S/S Signature Joyce T. Bowen S/S Signature (Thomas V. Pedulb)
- ----------------------------------- ----------------------------------
For Secretary
Joyce T. Bowen
- -----------------------------------
Printed Name
LESSEE
Duncan Hill Co., Ltd.
William L. Miller S/S Signature (William L. Miller)
- ----------------------------------- ----------------------------------
President
William L. Miller
- -----------------------------------
Printed Name
Jeanne E. Miller S/S Signature (Jeanne E. Miller)
- ----------------------------------- ----------------------------------
Printed Name Vice President
WITNESSES:
Joyce L. Duncan
Charles S. Andes
Page 18
<PAGE>
RIDER NUMBER ONE
THIS RIDER NUMBER ONE, COMPRISING PARAGRAPH 41 to 48, INCLUSIVE, IS
ANNEXED TO AND FORMS A PART OF THE LEASE AGREEMENT DATED AS OF THE _____DAY OF
_________________________ BETWEEN SUN LIFE OF CANADA, AS LESSOR, AND DUNCAN HILL
GROUP, LTD AS LESSEE, COVERING SUITE 406 OF THE BELDEN VILLAGE TOWER, 4450
BELDEN VILLAGE STREET, N.W., CANTON, OH 44718.
- --------------------------------------------------------------------------------
41. ANNUAL BASE RENT FOR SUITE 406:
a) Beginning October 1, 1996, Lessee shall pay to Lessor as rent for
the premises for year one the annual sum of Sixty Four Thousand
Seven Hundred Eighty Five and no/100 dollars ($64,785.00) payable
in monthly installments of Five Thousand Three Hundred Ninety Eight
and 75/100 dollars ($5,398.75);
b) Beginning October 1, 1997, Lessee shall pay to Lessor as rent for
the premises for year two the annual sum of Sixty Seven Thousand
Eight Hundred Seventy and no/100 dollars ($67,870.00) payable in
monthly installments of Five Thousand Six Hundred Fifty Five and
83/100 dollars ($5,655.83);
42. ANNUAL BASE RENT FOR SUITE 4408:
a) Beginning November 1, 1996, Lessee shall pay to Lessor as rent for
the premises for year one the annual sum of Nine Thousand Six
Hundred and no/100 dollars ($9,600.00) payable in monthly
installments of Eight Hundred and no/100 dollars ($800.00).
b) Beginning October 1, 1997, Lessee shall pay to Lessor as rent for
the premises for year two the annual sum of Nine Thousand Six
Hundred and no/100 dollars ($9,600.00) payable in monthly
installments of Eight Hundred and no/100 dollars ($800.00).
43. SPACE PREPARATION - SUITE 406: Lessor, at Lessor's sole expense,
shall provide the following improvements to suite 406:
a) Replace brown cove base with gray cove base.
b) Paint entire suite with color selected by Lessee from building
standard selection.
c) Clean carpet in entire suite and repair "rolls", if possible, in
three (3) offices
d) Replace damaged, bowed, missing or stained ceiling tile.
e) Provide door hardware and doors where missing. f) Install electrical
wall plates where missing.
g) Open three (3) offices into one (1) conference area in suite 407.
Install two (2) doors and frames into suite 406 and install
demising wall separating the conference area from the balance of
suite 407. Paint conference room, install new carpeting selection
from building standard selection book.
h) Complete construction of public corridor.
i) Lessor shall at its expense, install ceiling terminations where
missing.
j) Lessor shall relocate one (1) HVAC vent in reception area.
k) Lessor shall repair wall at window mullion in one office.
l) Lessor shall finish construction and level unfinished floor in the
old suite #409.
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<PAGE>
Lessee acknowledges that some of the above items will be completed after
occupancy and will cooperate with Lessor and Lessor's contractors in
improvements.
44. SPACE PREPARATION - SUITE 4408 (First Floor Retail): Lessee is responsible
for suite construction and all Jackson Twp. and Stark County permits and
drawings. Lessor to approve final working drawings prior to commencement of
construction. Lessor, at Lessor's sole expense, shall sprinkle the entire space
and construct a wall to demise said premises. Lessor, at Lessor's sole expense
shall install a corridor wall from Lessee's space to rear existing entrance
door. Lessee and Lessee's architect and contractors will cooperate with Lessor
and Lessor's architect and contractors in scheduling Lessee's construction, to
allow for installation of fire suppression system and demising walls.
45. SUITE 4408 UTILITIES: Lessee shall pay to Lessor a seventy five percent
(75%) proration of the utilities for Suite 4408 (on a monthly basis) including
electric, gas, water and sewer.
46. RIGHT OF FIRST OFFER: Lessee shall have the right of first offer on vacant
contiguous fourth floor office space.
47. MAINTENANCE OF SUITE 4408 BY LESSEE: Lessor shall be under no obligation to
make repairs, alterations, or improvements in or to the premises except those
herein specifically agreed to be made or performed by Lessor.
All of the obligations of Lessee under this Paragraph 47 are in addition to
those obligations of Lessee set forth in Paragraph 10 or elsewhere in this
Lease.
Lessee, at Lessee's expense, shall keep and maintain the interior (including,
without limitation, the electrical; lighting, plumbing, heating, and any
air-conditioning or ventilating systems serving the premises, and any
installations made by Lessee which serve the premises, but which extend from
other portions of the Building, all door and window hardware and glass) of the
premises in good order, condition and repair.
Page 2
<PAGE>
In furtherance of, and not in limitation of, Lessee's obligation to keep and
maintain the premises in good order, condition and repair, Lessee agrees with
the Lessor that Lessee, at Lessee's expense:
a. will arrange for provide all janitor, porter or cleaning
(including, without limitation, cleaning of interior windows and
door glass cleaning, all on a schedule reasonable satisfactory to
the Lessor) services necessary for the premises;
b. will keep the premises in a clean, slightly and sanitary condition,
complying with all applicable requirements of Jackson Twp. and/or
Stark County, Ohio, and through Lessee's own employees or by means
of a competent exterminating service, free from vermin and rodents;
c. will keep open and clean all grease traps and all sewer and/or
discharge lines from the premises to the building primary sewer
lines;
d. will permit Lessor, Lessor's Agent, contractors and employees
access to the premises at all reasonable times for the making of
inspections, repairs for which Lessor is responsible under this
lease, alteration, or improvements or additions of, or to, the
Building or the premises;
e. will receive those shipments of food merchandise and any other
items being delivered through the Building's rear receiving area.
Lessee shall permit no waste, damage, or injury to the premises, not do, or
permit to be done, on the premises any act or thing which will invalidate or be
in conflict with any fire insurance policies or increase the rate for insurance
covering the Building, or which shall, or might, subject Lessor to any liability
or responsibility for injury to any person or persons, or to property, by reason
of any business or operation being carried on by Lessee in the premises.
48. EXTENSION PRIVILEGE OF LESSEE: Provided that Lessee is not then in default
under this Lease Agreement, Lessor hereby grants to Lessee the privilege of
extending, subject to the provisions of this paragraph, the term of this Lease
Agreement for two periods of one (1) year each, commencing on the first day
following the Lease Termination Date and ending twelve (12) months thereafter
(which said one {1} year period is hereinafter called "said extended term"),
for, upon and under all of the covenants, (excepting those relating to the
amount of Annual Base Rent to be paid by Lessee), agreements and conditions in
this Lease contained; and the amount of Annual Base Rent be paid by Lessee
during said extended terms shall be determined in accordance with the provisions
of subparagraphs (c) and (d) below:
a. Lessee shall exercise the extension privilege granted by
subparagraph (a) above by giving to Lessor not later than six (6)
months prior to the Lease Termination Date written notice of
Lessee's election so to extend the term of the Lease.
b. If Lessee does not notify Lessor, in accordance with subparagraph
(a) above, then Lessor shall be under no obligation to negotiate
with Lessee with respect to said extension, and Lessor, without
liability to Lessee, may lease said premises to any person, firm or
corporation for a term to commence after the Lease Termination
Date. Furthermore, Lessor shall be under no obligation, as outlined
in Paragraph 17e above, to provide Lessee prior notice for the
purposes of showing or exhibiting said space to prospects.
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<PAGE>
c. During the first extended term for suite 406, Lessee shall pay to
lessor the annual sum of Seventy One Thousand Three Hundred Eighty
and 50/100 dollars ($71,380.50) per year payable in equal monthly
installments of Five Thousand Nine Hundred Forty Eight and 38/100
dollars ($5,948.38).
During the first extended term for suite 4408, Lessee shall pay to
Lessor the annual sum of Nine Thousand Six Hundred and no/100
Dollars ($9,600.00), payable in equal monthly installments of Eight
Hundred and no/l00 dollars ($800.00).
d. During the second extended term for suite 406, Lessee shall pay to
Lessor the annual sum of Seventy Four Thousand Four Hundred Eighty
Four and no/100 dollars ($74,040.00) payable in equal monthly
installments of Six Thousand Two Hundred Seven and no/l00 dollars
($6,170.00).
During the second extended term for suite 4408, Lessee shall pay to
Lessor the annual sum of Nine Thousand Six Hundred and no/l00
dollars ($9,600.00), payable in equal monthly installments of Eight
Hundred and no/l00 dollars ($800.00).
Page 4
<PAGE>
OSTENDORF-MORRIS
COLLIERS
International
FIRST AMENDMENT OF LEASE
This First Amendment of Lease Agreement entered into as of the 25th day
of September 1997, between Sun Life Assurance Co. of Canada (hereinafter called
"Lessor") and Duncan Hill Co., LTD, a corporation (hereinafter called "Lessee").
WITNESSETH
Whereas, (a) by Lease Agreement dated September 23, 1996 (hereinafter
called "said Lease"), Suite 4408 consisting of approximately 1,200 rentable
square feet, (hereinafter called "Demised Premises") located in Belden Village
Tower, 4450 Belden Village Street, N.W., Canton, Ohio (hereinafter called "the
Building") was leased to Lessee for a term expiring September 30, 1998 and (b)
Lessor and Lessee now desire to modify and amend said Lease.
Now, therefore, in consideration of the mutual covenants, conditions
and agreements hereinafter contained, said Lease is amended as follows,
effective October 1, 1997.
1. Term. The term of this Agreement is hereby extended for an
additional period of Three (3) years, beginning October 1, 1998 and ending
September 30, 2001.
2. Demised Premises. The demised premises shall be expanded from
approximately 1,200 rentable square feet to approximately 1,577 rentable square
feet. Lessor shall construct a partition wall and one (1) door and frame for the
expanded area of the leased premises on or about November 1, 1997, subject to
the approval by the Stark County Building Department.
3. Annual Base Rent. Beginning November 1, 1997, or at such time as the
lessor completes its obligations in item 2 above, Lessee shall pay Lessor as
base rent for the Premises the annual sum of Twelve Thousand Six Hundred Sixteen
and No/100 Dollars ($12,616.00) payable in equal monthly installments of One
Thousand Fifty One and 33/100 Dollars ($1,051.33) payable in advance, without
deduction or set-off, in legal tender of the United States of America, on the
first day of each and every calendar month of the term, at the offices of
Ostendorf-Morris Company (hereinafter called the "Company"), The Diamond
Building, 1100 Superior Avenue, Cleveland, Ohio 44114, or at such other place as
Lessor may, from time to time, in writing, designate. Any rent or other sums
payable by Lessee to Lessor under this Lease which are not paid within five (5)
days after they first become due, will be subject to a late charge of five
percent (5%) of the amount due. Such late charges will be due and payable as
additional rent on or before the next day on which an installment of rent is
due. Any rent, late charges or other sums payable by Lessee to Lessor under this
Lease which are not paid when due will bear interest at a rate equal to eighteen
percent (18%) per annum, such interest to commence on the date that said payment
was first due and payable, or, at the Lessor's election, if a late charge is
assessed, fifteen (15) days after the date said payment was first due and
payable. Such interest will be due and payable as additional rent on before the
next installment of rent and will accrue until paid from the date thereof.
Page 1
<PAGE>
4. Extension Privilege of Lessee. Paragraph 48 of the original lease,
Extension Privilege of Lesee, pertaining to suite 4408 only, is hereby deleted.
Lessees extension privilege for Suite 406 shall remain.
5. Other Lessee hereby agrees to complete the installation of the
ceiling in the original leased premises, in exchange for a one (1) time rental
credit of One Thousand Six Hundred and No/100 Dollars ($1,600.00).
All other terms and conditions of said Lease remain in full force and
effect.
IN WITNESS WHEREOF, Lessor and Lessee have respectively signed
triplicate counterparts of this First Amendment of Lease as of the day, month,
and year first above written.
Signed and acknowledged LESSOR
in the presence of:
- -------------------------------
Signature Sun Life Assurance Co. of Canada
By S/S Signature George M. Collins
- ------------------------------- -----------------------------------
Print Name For President
And by Thomas V. Redulb
- ------------------------------- -------------------------------
Signature For Secretary
- ------------------------------
Print Name
LESSEE
S/S Signature Gregory W. Chase Duncan Hill Co., LTD.
- ------------------------------ ---------------------
Gregory W. Chase By S/S Signature William L. Miller
- ------------------------------ ----------------------------------
Print Name William L. Miller, President
S/S Signature A. Jae Thomas And by S/S Signature Jeanne E. Miller
- ------------------------------ ------------------------------
A. Jae Thomas Jeanne E. Miller, Vice President
- ------------------------------
Print Name
Page 2
<PAGE>
SECOND AMENDMENT OF LEASE
This Second Amendment of Lease Agreement entered into as of the _____ day of
April, 1998, between TRIAD REALTY, LLC., an Ohio Limited Liability Company
(hereinafter called "Lessor") and Duncan Hill Co., LTD., a corporation
(hereinafter called "Lessee").
Whereas (a) by Lease Agreement dated September 23, 1996 (hereinafter called
"said Lease)," Suite 406 consisting of 6,170 rentable square feet, (hereinafter
called "Demised Premises") located in Belden Village Office Tower, 4450 Belden
Village Street, N.W., Canton, Ohio (hereinafter called "the Building") was
leased to Lessee for a term expiring September 30, 1998 and (b) Lessor and
Lessee now desire to modify and amend said Lease.
Now, therefore, in consideration of the mutual covenants, conditions and
agreements hereinafter contained, said Lease is amended as follows effective May
1, 1998.
1. Demised Premises. The demised premises shall be expanded from 6,170 square
feet to 7,317 square feet and include the area commonly known as Suite 407. The
demised premises shall be delivered "as is".
2. Annual Base Rent. Beginning May 1, 1998, Lessee shall pay Lessor as base rent
for the newly expanded Premises, the monthly amount of Six Thousand Seven
Hundred Seven and 25/100 Dollars ($6,707.25), payable in advance, without
deduction or set-off, in legal tender of the United States of America, on the
first day of each and every month of the term, at the offices of TRIAD REALTY,
LLC., 3951 Convenience Circle, Suite 301, Canton, Ohio 44718, or at such other
place as Lessor may, from time to time, in writing, designate. Any rent or other
sums payable by Lessee to Lessor under this Lease which are not paid within five
(5) days after they first become due, will be subject to a late charge of five
percent (5%) of the amount due. Such late charges will be due and payable as
additional rent on or before the next day on which an installment of rent is
due. Any rent, late charges or other sums payable by Lessee to lessor under this
Lease which are not paid when due will bear interest at a rate equal to eighteen
percent (18%) per annum, such interest commence on the date that said payment
was first due and payable, or, at the Lessor's election, if a late charge is
assessed, fifteen (15) days after the date said payment was first due and
payable. Such interest will be due and payable as additional rent on or before
the next installment of rent and will accrue until paid from the date thereof.
3. Future Rent. The future rent for Suite 406 shall be calculated to include the
additional 1,147 square feet described in this Amendment. During the first
extended term for Suite 406, the annual amount of Eighty Four Thousand Six
Hundred Fifty Seven and 69/100 Dollars ($84,657.69) and monthly amount of Seven
Thousand Fifty Four and 81/100 Dollars ($7,054.81) shall replace the amounts
originally prescribed in said Lease.
During the second extended term for Suite 406, the annual amount of Eighty Seven
Thousand Eight Hundred Four and no/100 Dollars ($87,804.00) and the monthly
amount of Seven Thousand Three Hundred Seventeen and no/100 Dollars shall
replace the amounts originally prescribed in said Lease.
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<PAGE>
4. Common Hallway. At a certain point in time in the future, Lessor may, with
proper notice to Lessee, re-take a portion of the expanded space to construct a
common area hallway. At that time, Lessor will recalculate Lessee's rentable
square footage and Lessee's monthly rent will be adjusted accordingly.
All other terms and conditions of said Lease remain in full force and effect.
IN WITNESS WHEREOF, Lessor and Lessee have respectively signed triplicate
counterparts of this Second Amendment of Lease as of the day, month, and year
first above written.
WITNESS LESSOR: TRIAD REALTY, LLC.
S/S Signature Linda Prescott S/S Signature Roger DeVille
- ---------------------------- --------------------------------
Roger DeVille, Managing Member
Robert M. Brown, Jr.
- --------------------
DUNCAN HILL CO., LTD.
S/S Signature William L. Miller
--------------------------------
William L. Miller, President
S/S Signature Jeanne E. Miller
--------------------------------
Jeanne E. Miller, Vice President
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