EXHIBIT 10.3
GROSS LEASE FORM
w/ BASE YEAR
EXPENSE STOP
OFFICE LEASE
FOR
PHARMACY BUYING ASSOCIATION, INC.
SUITE 000
XXXXXXXX XXXXX I
0000 XXXXXXXXX XXXXXX
XXXXXX XXXX
XXXXXXXX 00000
Lessor: ENTERPRISE PROPERTIES, L. L.C., A
MISSOURI LIMITED LIABILITY COMPANY
Lessee: PHARMACY BUYING ASSOCIATION, INC.,
A MISSOURI CORPORATION
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into to be
effective as of July 7, 1999 by and between Lessor and Lessee (as defined
herein), who agree that, in consideration of the obligations of Lessee to pay
rent as herein provided, Lessor hereby leases the Premises (as defined herein)
to Lessee and Lessee hereby leases the Premises from Lessor, subject to all of
the terms, covenants and conditions hereof, as follows:
ARTICLE 1 - DEFINED TERMS, GENERAL CONDITIONS AND PREMISES
Section 1.1 DEFINED TERMS. The terms listed below ("Defined Terms") shall
have the following meanings throughout this Lease:
(a) Lessor: Enterprise Properties, L.L.C., a Missouri limited liability
company
(b) Lessee: Pharmacy Buying Association, Inc., a Missouri corporation
(c) Building: The two story office building located at
0000 Xxxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
(d) Premises: The space depicted on Exhibit "A" to be commonly known as
Suite 100 (see Article 2)
(e) Property: The Building, adjacent building and improved space and all
grounds, parking lots, and common areas associated
therewith, and the land on which they are situated.
(f) Rentable Area of the Premises (approx.): 4,756 r/s/f.
(g) Rentable Area of the Building (approx.): 35,035 r/s/f.
(h) Lessee's Pro Rata Share: 13.6%.
(i) Term: A period of thirty-six (36) months beginning on the Commencement
Date and ending on the Expiration Date. (see Article 2).
(j) Commencement Date: January 1, 2000 (it is noted that Lessee is
currently in possession of a portion of the
Premises pursuant to a prior lease) (see Section
2.2).
(k) Expiration Date: December 31, 2002.
(l) Base Rent (see also Articles 3 and 4) payable as follows:
Monthly Annual
Base Rent Base Rent
January 1, 2000 through December 31, 2000 $4,557.83 $54,693.96
January 1, 2001 through December 31, 2001 $4,756.00 $57,072.00
January 1, 2002 through December 31, 2002 $4,954.17 $59,450.00
(m) Base Year for Operating Expenses and Taxes: 1999 (see Section 4.2).
(n) Security Deposit: $-0- n/a
(o) Permitted Use: general business offices (see Article 6).
(p) Lessee's Address for Notices: to Lessee at the Premises.
(q) Lessor's Address
for Notices: Enterprise Properties, L.L.C. with a copy to:
c/o Jury & Associates, Inc. Xxxx X. Xxxxxx
0000 X. 00xx Xxxxxx, Xxxxx 000 Xxxxxxxxxx
Xxxxxxxx Xxxx, XX 00000 Properties, L.L.C.
Attn: Xxxxxx X. Jury 00000 Xxxxxxx
Xxxxxxxx Xxxx,
XX 00000
(r) Lessor's Address For Payment of Rent: do Jury & Associates, Inc. (at
address provided above)
(s) Brokers: Jury & Associates, Inc.
(t) Date of Lease: July 7,1999.
(u) Lessor's Construction/Remodeling Allowance: $5,000.00
(see Exhibit "C").
(v) Normal Hours: Monday through Friday, from 8:00 a.m. to 6:00 p.m., and
on Saturday from 9:00 a.m. to 1:00 p.m., excepting state
and/or federal holidays.
ARTICLE 2 - COMMENCEMENT DATE
Section 2.1 DELIVERY OF PREMISES. The parties acknowledge that Lessee is
currently in possession of and occupies the Premises pursuant to a prior lease
which was entered into on or about October 26, 1992, as amended by four
subsequent Lease Amendments (as amended, the "1992 Lease"). The 1992 Lease shall
continue in force and effect to govern Lessee's occupancy of the Premises
through its scheduled expiration on December 31, 1999. Upon expiration of the
1992 Lease, the Term of this Lease will commence, and Lessee will continue in
uninterrupted occupancy of the Premises, which is hereby accepted by Lessee in
"as is" "where is" condition and configuration.
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Section 2.2 COMMENCEMENT DATE. The Term of this Lease shall be deemed to
commence on January 1, 2000 (i.e., immediately on expiration of the Term of the
1992 Lease).
Section 2.3 QUIET ENJOYMENT. Lessor covenants and agrees that Lessee, upon
performing, observing and keeping the covenants, agreements and conditions of
this Lease on its part to be kept, shall peaceably and quietly hold, occupy and
enjoy the Premises during the Term of this Lease without interference from
Lessor subject to the terms and provisions of this Lease.
ARTICLE 3 - RENT
Section 3.1 BASE RENT. Lessee shall pay the Base Rent as computed and
adjusted from time to time, in advance, on or before the first day of each
calendar month. In addition to the payment of Base Rent, Lessee shall also pay
its Pro Rata Share of any Excess Operating Expenses and Excess Taxes computed
pursuant to Section 4.2 of this Lease.
Section 3.2 SPECIAL CHARGES FOR SPECIAL SERVICES. Lessee agrees to pay to
Lessor all charges for any services, utilities, goods or materials furnished by
Lessor at Lessee's request which are not required to be furnished by Lessor
under this Lease without separate charge or reimbursement (payment to be made
within 5-days of invoice).
Section 3.3 DEFINITION OF RENT. All payments of Base Rent and any and all
fees, charges, costs, expenses, insurance obligations, late charges, interest,
Taxes and Operating Expense and Tax Adjustments (as described in Article 4), and
all other payments or reimbursements which are attributable to, payable by, or
the responsibility of Lessee under this Lease, constitute "rent" (collectively,
"Rent"). Any Rent payable to Lessor by Lessee for any fractional month shall be
prorated based on a thirty (30) day month. All payments owed by Lessee under
this Lease shall be paid to Lessor in lawful money of the United States of
America at the Lessor's Address for Payment of Rent set forth in Section 1.1, or
such other address as Lessor notifies Lessee in writing from time to time. All
payments by Lessee shall be paid without demand, deduction, offset or
counterclaim.
Section 3.4 LATE CHARGE. Lessor and Lessee agree that if Lessor does not
receive a payment of Rent within five (5) days after the date that such payment
is due, Lessee shall pay to Lessor a late charge equal to the greater of five
percent (5%) of the delinquent amount, or $50.00. Further, all portions of Rent
not paid within thirty (30) days following its due date and all late charges
associated therewith shall bear interest at the rate of 10% per annum (the
"Interest Rate"), beginning on the due date and continuing until such Rent, late
charges and interest are paid in full. Acceptance of any late charge and/or
interest by Lessor shall not cure or waive Lessee's default, nor prevent Lessor
from exercising, before or after such acceptance, any and all of the rights and
remedies of Lessor for a default provided by this Lease or at law or in equity.
Payment of the late charge and/or interest is not an alternative means of
performance of Lessee's obligation to pay Rent when due.
ARTICLE 4 - ADJUSTMENTS TO RENT
Section 4.1 BASE RENT INCREASE. Base Rent shall be increased periodically
during the Term in accordance with the Base Rent Schedule set forth in Section
1.1.
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Section 4.2 OPERATING EXPENSE AND TAX ADJUSTMENTS. During the Term of this
Lease and any extension or renewal thereof, Lessee shall pay, as additional
rent, Lessee's Pro Rata Share of any increase in Lessor's Operating Expenses (as
hereinafter defined) for the Building, over and above the amount of such
Operating Expenses Lessor incurred during the Base Year ("Excess Operating
Expenses"), and Lessee's Pro Rata Share of any increase in Taxes (as hereinafter
defined) for the Property, over and above the amount of such Taxes incurred
during the Base Year ("Excess Taxes"), all computed as follows:
(a) Lessor may reasonably estimate in advance the amounts Lessee shall owe
for Excess Operating Expenses and Excess Taxes for any full or partial year of
the Term. In such event, Lessee shall pay such estimated amounts, on a monthly
basis, together with Lessee's payment of Base Rent.
(b) Within one hundred twenty (120) days after the end of each calendar
year, or as soon thereafter as practicable, Lessor shall provide a statement
(the "Statement") to Lessee showing: (i) the amount of actual Operating Expenses
and Taxes for such prior calendar year, (ii) any amount paid by Lessee toward
Excess Operating Expenses and Excess Taxes during such calendar year on an
estimated basis, and (iii) any revised estimate of Lessee's obligations for
Excess Operating Expenses and Excess Taxes for the current calendar year. If the
Statement shows that Lessee's estimated payments were less than Lessee's actual
obligations for such year, Lessee shall pay the difference, whether or not the
Term has expired or terminated. If the Statement shows an increase in Lessee's
estimated payments for the current calendar year, Lessee shall pay the
difference between the new and former estimates, for the period from January 1
of the current calendar year through the month in which the Statement is sent.
Lessee shall make such payments within thirty (30) days after Lessor sends the
Statement, and shall commence making the increased payment with the next rent
payment due. If the Statement shows that Lessee's estimated payments exceeded
Lessee's actual obligations, Lessee shall receive a credit of such difference
against payments by Lessee of Excess Operating Expenses and Excess Taxes next
due. If the Term shall have expired and no further payments by Lessee shall be
due, Lessee shall receive a refund of such difference within thirty (30) days
after Lessor sends the Statement, provided Lessee was/is not in default of this
Lease.
(c) So long as Lessee's obligations hereunder are not materially adversely
affected, Lessor reserves the right to reasonably change, from time to time, the
manner or timing of billing the foregoing payments. No delay by Lessor in
providing the Statement (or separate Statements) shall be deemed a default by
Lessor or a waiver of Lessor's right to require payment of Lessee's obligations
for actual or estimated Excess Operating Expenses or Excess Taxes.
(d) If the Term commences other than on the 1st day of January, or ends
other than on the 31st day of December, Lessee's obligations to pay estimated
and actual amounts for such first or final calendar years shall be prorated to
reflect the portion of such years included in the Term. Such proration shall be
made by multiplying the total estimated or actual amount (as the case may be)
for such calendar year by a fraction, the numerator of which shall be the number
of days of the Term during such calendar year, and the denominator of which
shall be 365.
Section 4.3 OPERATING EXPENSES AND TAXES DEFINED. "Operating Expenses" are
defined to be the sum of all costs, expenses, and disbursements, of every kind
and nature
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whatsoever, incurred by Lessor in connection with the ownership, management,
use, maintenance, operation, administration and repair of all or any portion of
the Building and such portion of the Property supporting the Building, and all
areas appurtenant thereto which provide access to or otherwise benefit the
Property, including, but not limited to: (a) All utility costs not otherwise
charged directly to Lessee or any other tenant of the Property; (b) All wages
and benefits and costs of employees or independent contractors engaged in the
operation, supervision, maintenance and security of the Property; (c) All
expenses for janitorial, maintenance, landscape, license fees, security and
safety services; (d) All repairs to and physical maintenance of the Property;
(e) The annual amortization of costs, if any, incurred by Lessor for any capital
improvements installed or paid for by Lessor and required by any new (or change
in) laws, rules or regulations of any governmental or quasi-governmental
authority; (f) The annual amortization of costs, if any, of any equipment,
device or capital improvement purchased or incurred as a labor-saving measure,
to reduce utility consumption, or to effect other economies in the operation or
maintenance of the Property (provided the annual amortized cost does not exceed
the actual cost savings realized and such savings do not redound primarily to
the benefit of any particular tenant); (g) The annual amortization of costs, if
any, for exterior perimeter window draperies or blinds provided by Lessor and
floor coverings and wall coverings in the public areas of the buildings within
the Property; and (h) Reasonable management fees, accounting fees, insurance.
The annual amortization of costs as required above shall be determined by Lessor
in its reasonable judgement. Operating Expenses shall not include Taxes. "Taxes"
shall include all taxes, assessments, levies, and governmental charges levied or
assessed on, imposed upon or attributable to the Property (collectively,
"Taxes"). Operating Expenses and Taxes shall be computed according to the cash
and/or the accrual basis of accounting, as Lessor may elect, to maintain
consistency from year to year, in accordance with standard and reasonable
accounting principles employed by Lessor.
Section 4.4 REVIEW OF OPERATING EXPENSES. The determination of Operating
Expenses and Taxes and allocations of Excess Operating Expenses and Excess Taxes
to Lessee shall be made in good faith by Lessor and, absent clerical error,
shall be binding on Lessee; provided, however, Lessee shall have a period of
thirty (30) days following receipt of each Statement, within which to review and
inspect, at Lessor's office during normal business hours, Lessor's books and
records concerning such charges for the preceding calendar year period in
question. If Lessee shall not have availed itself of such inspection, Lessee
shall be deemed to have accepted as final and determinative the amounts shown on
the Statement.
ARTICLE 5 - SECURITY DEPOSIT
n/a - intentionally deleted
ARTICLE 6 - USE
Lessee shall only use and occupy the Premises for the Permitted Use
described in Section 1.1. Lessee agrees, subject to Lessor's obligation to
provide basic janitorial services, to maintain the Premises in a clean, orderly
and healthful condition and to comply with all laws, ordinances, rules and
regulations pertaining to Lessee's occupancy and use of the Premises. Lessee
shall not do or permit to be done in or about the Property nor bring, keep or
permit to be brought or kept therein, anything which is prohibited by the
attached Exhibit "E" or by any standard form fire insurance policy or which will
in any way increase the existing rate of, or
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affect, any fire or other insurance upon the Building or its contents, or which
will cause a weight load or stress on the floor or any other portion of the
Premises in excess of the weight load or stress which the floor or other portion
of the Premises is designed to bear. Lessee, at Lessee's sole cost, shall comply
with all laws affecting the Premises, including but not limited to ADA, and with
the requirements of any Board of Fire Underwriters or other similar body now or
hereafter instituted, and shall also comply with any order, directive or
certificate of occupancy issued pursuant to any laws which affect the condition,
use or occupancy of the Premises. Lessor shall not be liable to Lessee for any
other occupant's or tenant's failure to conduct itself in accordance with the
provisions of this Article 6, and Lessee shall not be released or excused from
the performance of any of its obligations due to any such failure.
ARTICLE 7 - ALTERATIONS AND ADDITIONS
Section 7.1 LESSEE'S RIGHTS TO MAKE ALTERATIONS. Lessee, at its sole cost
and expense, shall have the right upon receipt of Lessor's consent, to make
alterations, additions or improvements to the Premises if such alterations,
additions or improvements are made in accordance with this Article 7, are normal
for general office use, do not adversely affect the utility or value of the
Premises or the Building for future tenants, do not alter the exterior
appearance of the Building, are not of a structural nature, do not require
excessive removal expenses and are not otherwise prohibited under this Lease
(collectively, "Alterations"). All such Alterations shall be made in conformity
with the requirements of Section 7.2 below. Once the Alterations have been
completed, such Alterations shall thereafter be treated as Tenant Improvements.
Section 7.2 LESSEE'S INSTALLATION OF ALTERATIONS. Any Alterations installed
by Lessee during the Term shall be done in strict compliance with all of the
following: (a) No such work shall proceed without Lessor's prior approval of (i)
Lessee's contractor(s); (ii) certificates of insurance from a company or
companies approved by Lessor, furnished to Lessor by Lessee's contractor(s), for
combined single limit bodily injury and property damage insurance covering
comprehensive general liability, in an amount not less than One Million Dollars
($1,000,000) per person and per occurrence and endorsed to show Lessor as an
additional insured, and for workers' compensation as required by law, endorsed
to show a waiver of subrogation by the insurer to any claims Lessee's contractor
may have against Lessor, Lessor's agents, employees, contractors and other
tenants of the Property (provided, however, nothing in this Section 7.2(a) shall
release Lessee of its other insurance obligations hereunder); and (iii) detailed
plans and specifications for such work; (b) All such work shall be done in a
first-class workmanlike manner and in conformity with a valid building permit
and all other permits and licenses when and where required, copies of which
shall be furnished to Lessor before the work is commenced, and any work not
acceptable to any governmental authority or agency having or exercising
jurisdiction over such work, or not reasonably satisfactory to Lessor, shall be
promptly replaced and corrected at Lessee's expense (Lessor's approval or
consent to any such work shall not impose any liability upon Lessor); and (c)
Lessee shall at all times keep the Premises, the Building and the Property free
from any liens arising out of any work performed, materials furnished, or
obligations incurred by or for Lessee. Lessee agrees to indemnify, defend and
hold Lessor harmless from and against any and all claims for mechanics',
materialmen's or other liens in connection with any Alterations, repairs, or any
work performed, materials furnished or obligations incurred by or for Lessee.
Lessor reserves the right to enter the Premises for the
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purpose of posting such notices of non-responsibility as may be permitted by
law, or desired by Lessor.
Section 7.3 DISPOSITION OF TENANT IMPROVEMENTS AT END OF LEASE. All
Alterations and Tenant Improvements made by or for Lessee shall be deemed to be
part of the Premises and shall be surrendered to Lessor in good condition upon
expiration of the Term or earlier termination of this Lease without compensation
to Lessee. Lessee shall completely remove all of Lessee's personal property,
including moveable furniture, trade fixtures, and equipment not attached to the
Building or the Premises, prior to the expiration of the Term; provided,
however, that Lessee shall repair all damage caused by such removal, and any of
Lessee's personal property not so removed shall, at the option of Lessor,
automatically become the property of Lessor, who may retain or dispose of said
personal property, without liability.
Section 7.4 LESSEE'S MAINTENANCE OF PREMISES. Lessee shall, at Lessee's
sole cost and expense, keep the Premises in good and sanitary condition and
repair at all times during the Term. All damage, injury or breakage to any part
or portion of the Premises, and all damage, injury or breakage to any portion of
the Property caused by the willful or negligent act or omission of Lessee or
Lessee's agents, employees, contractors, visitors or invitees (collectively,
"Lessee's Employees"), shall be promptly repaired or replaced by Lessee, at
Lessee's sole cost and expense, to the satisfaction of Lessor; provided,
however, that Lessee shall be entitled to receive reimbursement to the extent
that the cost of any such repair or replacement is received by Lessor from
insurance maintained by Lessor as part of Operating Expenses. Lessor may make
any repairs or replacements which are not made by Lessee within a reasonable
amount of time (except in the case of emergency when such repairs or
replacements can be made immediately), and charge Lessee for the cost of such
repairs and replacements. Notwithstanding the foregoing, Lessor shall remain
responsible to maintain, as a part of the Operating Expenses, mechanical, HVAC,
electrical and plumbing systems in the Building, in accordance with other
provisions of this Lease. Lessee shall be solely responsible for the design and
function of all of Lessee's improvements whether or not installed by Lessor at
Lessee's request.
Section 7.5 PERSONAL PROPERTY TAXES AND GOVERNMENTAL ASSESSMENTS. Lessee
shall pay, prior to delinquency, all personal property taxes, charges, duties
and government fees, charges and/or assessments (collectively, "Assessments")
assessed against or levied on Lessee's occupancy, or on trade fixtures,
furnishings, equipment or other personal property contained in the Premises
(collectively, "Personal Property"). Lessee shall cause such Assessments upon
its Personal Property to be billed separately from Lessor's property and shall
indemnify, defend and hold Lessor harmless from and against the payment of all
such Assessments.
ARTICLE 8 - BUILDING SERVICES - LESSOR'S REPAIRS
Section 8.1 STANDARD BUILDING SERVICES. Subject to the full performance by
Lessee of all of Lessee's obligations under this Lease, Lessor shall furnish the
Premises with standard building services and utilities as set forth in the
attached Exhibit "D."
Section 8.2 ADDITIONAL SERVICES. Lessee agrees to immediately pay on demand
all reasonable charges imposed by the Lessor from time to time for all building
services and utilities supplied to or used by Lessee in excess of or in addition
to those standard building services and
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utilities which Lessor agrees to provide to Lessee in accordance with Exhibit
"D" (said excess and additional building services and utilities are referred to
as "Additional Services"). Lessor may at any time cause a switch and/or metering
system to be installed at Lessee's expense to measure the amount of building
services, utilities and/or Additional Services consumed by Lessee or used in the
Premises. Lessee agrees to pay Lessor for all such Additional Services as shown
by said meters, at the rates charged for such services by the utility furnishing
the same, if applicable.
Section 8.3 INTERRUPTION OF SERVICES. Services may be temporarily
interrupted for (a) any accident, emergency, governmental regulation, Act of God
or other cause beyond Lessor's reasonable control; or (b) the making of any
repairs, replacements, additions, alterations or improvements to the Premises or
the Property until said repairs, additions, alterations or improvements shall
have been completed. No such interruption, reduction or cessation of any such
building services or utilities shall constitute an eviction or disturbance of
Lessee's use or possession of the Premises or Property, or an ejection or
eviction of Lessee from the Premises, or a breach by Lessor of any of its
obligations, or entitle Lessee to be relieved from any of its obligations under
this Lease. In the event of any such interruption, reduction or cessation,
Lessor shall use reasonable diligence to restore such service as soon as
possible where it is within Lessor's reasonable control to do so.
Section 8.4 LESSOR'S REPAIRS. So long as no Event of Default (as herein
defined) has occurred, and remains uncured, Lessor shall maintain the
mechanical, HVAC, electrical, and plumbing systems for the Premises, and the
structural elements and the public and common areas of the Building, as same may
exist from time to time, except for non-insured damage or wear and tear which is
the result of a negligent or willful act or omission of Lessee or Lessee's
Employees. Lessor shall have no obligation to make repairs under this Article
until a reasonable time after receipt of written notice of the need for such
repairs. In no event shall any payments owed by Lessee under this Lease be
abated on account of Lessor's failure to make repairs under this Article. Lessor
and Lessor's employees shall have the right to enter the Premises at reasonable
times to make any alterations, additions, improvements, repairs or replacements
to the Premises or the Property which Lessor may deem necessary or desirable.
Lessor shall give reasonable notice to Lessee of Lessor's intent to enter the
Premises, except, however, in an emergency situation, in which case no prior
notice shall be required.
ARTICLE 9 - ASSIGNMENT AND SUBLETTING
Section 9.1 RIGHT TO ASSIGN AND SUBLEASE. Lessee may assign its interest in
this Lease or in the Premises, or sublease all or any part of the Premises, or
allow any other person or entity to occupy or use all or any part of the
Premises, only after first obtaining Lessor's prior written consent, and only if
(a) Lessee is not then in default of this Lease, (b) such assignment or sublease
does not conflict with or result in a breach of the Permitted Use of the
Premises, and (c) such proposed assignee or sublessee of Lessee's proposed
assignment or sublease is reasonably acceptable to Lessor (i.e., is comparable
in quality, financial standing and business reputation to Lessee and whose
business operations are compatible with the business operations of the then
tenants in the Building). Any assignment, encumbrance or sublease without
Lessor's prior written consent shall be voidable, at Lessor's election, and
shall constitute a default by Lessee. No consent to an assignment, encumbrance,
or sublease shall constitute a further waiver
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of the provisions of this Article. As a condition for obtaining Lessor's consent
to any assignment, encumbrance or sublease, Lessee shall reimburse Lessor's
processing costs and attorneys' fees incurred in determining whether to give
such consent and/or in the preparation and review of documents required
therewith. Notwithstanding any permitted assignment or subletting, Lessee shall
at all times remain directly, primarily and fully responsible and liable for all
payments owed by Lessee under this Lease and for compliance with all obligations
under the terms, provisions and covenants of this Lease to be performed by
Lessee.
Section 9.2 AFFILIATED COMPANIES/RESTRUCTURING OF BUSINESS ORGANIZATION.
Occupancy of all or part of the Premises by a parent or wholly owned subsidiary
company of Lessee or by a wholly owned subsidiary company of Lessee's parent
company (collectively, "affiliated companies") shall not be deemed an assignment
or subletting provided that any such affiliated companies were not formed as a
subterfuge to avoid the obligations of this Article, and such entity fully
assumes the obligations of Lessee herein. If Lessee is a corporation,
unincorporated association, trust or general or limited partnership, then the
sale, assignment, transfer or hypothecation of any shares, partnership interest,
or other ownership interest of such entity which from time to time in the
aggregate exceeds twenty-five percent (25%) of the total outstanding shares,
partnership interests or ownership interests of such entity or which effects a
change in the management or control of Lessee, or the dissolution, merger,
consolidation, or other reorganization of such entity, or the sale, assignment,
transfer or hypothecation of more than forty percent (40%) of the value of the
assets of such entity, shall be deemed an assignment subject to the provisions
of this Article.
Section 9.3 SURRENDER OF LEASE. The voluntary or other surrender of this
Lease by Lessee, or a mutual cancellation of this Lease, shall not work a
merger, and shall, at the option of Lessor, terminate all or any existing
subleases or subtenancies, or may, at the option of Lessor, operate as an
assignment to it of Lessee's interest in any or all such subleases or
subtenancies.
ARTICLE 10 - SUBSTITUTED PREMISES
n/a - intentionally deleted
ARTICLE 11 - INDEMNIFICATION; INSURANCE
Section 11.1 INDEMNIFICATION. Lessee shall at its expense defend,
indemnify, and hold Lessor and Lessor's agents, contractors, licensees,
employees, directors, officers, partners, trustees and invitees (collectively,
"Lessor's Employees") harmless from and against any and all claims, arising out
of or in connection with Lessee's use of the Premises or the Property, the
conduct of Lessee's business, any activity, work or things done, permitted or
allowed by Lessee in or about the Premises or the Property, Lessee's or Lessee's
Employees' nonobservance or nonperformance of any statute, ordinance, rule,
regulation, or other Law, or any negligence or willful act or failure to act of
Lessee or Lessee's Employees.
Section 11.2 INSURANCE. Lessee shall have the following insurance
obligations:
(a) Liability Insurance. Lessee shall obtain and keep in full force a
policy of comprehensive general liability and property damage insurance
(including automobile, personal injury, broad form contractual liability and
broad form property damage) under which Lessee is
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named as the insured and Lessor and Lessor's managing agent are named as
additional insureds and under which the insurer agrees to indemnify, defend and
hold Lessor and its managing agent harmless from and against any and all costs,
expenses and liabilities arising out of or based upon the indemnification
obligations of this Lease. The minimum limits of liability shall be a combined
single limit with respect to each occurrence of not less than One Million
Dollars ($1,000,000.00). The policy shall contain a cross liability endorsement
and shall be primary coverage for Lessee and Lessor for any liability arising
out of Lessee's and Lessee's Employees' use, occupancy, maintenance, repair and
replacement of the Premises and all areas appurtenant thereto. Such insurance
shall provide that it is primary insurance and not "excess over" or contributory
with any other valid, existing and applicable insurance in force for or on
behalf of Lessor. The policy shall not eliminate cross-liability and shall
contain a severability of interest clause. (b) Lessee's Property Insurance.
Lessee at its cost shall maintain on all of its Personal Property and Lessee's
Improvements and Alterations, in, on, or about the Premises, a policy of
standard fire and extended coverage insurance, with theft, vandalism and
malicious mischief endorsements, to the extent of at least full replacement
value without any deduction for depreciation. The proceeds from any such policy
shall be used by Lessee for the repair, replacement and restoration of such
Personal Property, Lessee Improvements and Alterations. (c) Workers'
Compensation. Lessee shall maintain Workers' Compensation and Employer's
Liability insurance as required by law. (d) Business Interruption. Lessee shall
maintain loss of income and business interruption insurance in such amounts as
will reimburse Lessee for direct or indirect loss of earnings attributable to
all perils commonly insured against by prudent tenants or attributable to
prevention of access to the Premises or to the Building as a result of such
perils but in no event in an amount less than the Rent and all additional rent
payable hereunder for twelve (12) months.
A certificate of the policy(ies) shall be deposited with Lessor at least
ten (10) days prior to the date which Lessor estimates the Commencement Date
will occur provided that Lessee is given written notice of such estimated
Commencement Date (but in no event shall Lessee be obligated to deposit such
policy or certificate with Lessor sooner than five (5) days following such
written notice from Lessor), and on renewal of the policy not less than twenty
(20) days before expiration of the term of the policy. The insurance obligations
of Lessee hereunder and/or the limits on such insurance as described herein
shall in no event waive, release or discharge Lessee of any or all other
obligations and liabilities of Lessee contained in this Lease or otherwise. All
the insurance required under this Lease shall: (i) Be issued by insurance
companies authorized to do business in the State of Missouri, with a reasonably
acceptable financial rating; (ii) Be issued as a primary policy; (iii) Contain
an endorsement requiring thirty (30) days' written notice from the insurance
company to both parties and to Lessor's lender before cancellation or change in
the coverage, scope, or amount of any policy; and (iv) With respect to property
loss or damage by fire or other casualty, a waiver of subrogation must be
obtained.
Section 11.3 ASSUMPTION OF RISK. Lessee, as a material part of the
consideration to Lessor, hereby assumes all risk of damage to Lessee's Personal
Property, tenant improvements and Alterations, or injury to persons, in, upon or
about the Premises and/or the Property from any cause (except for damage or
injury caused by the gross negligence or willful misconduct of Lessor) and
Lessee hereby waives all such claims against Lessor. Lessee shall give prompt
notice to Lessor in case of fire or accidents in the Premises or in the
Building. Further, and with
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the exception of Lessor's gross negligence or willful misconduct, Lessor and
Lessor's Employees shall have no liability to Lessee or any of Lessee's
Employees for any damage, loss, cost or expense incurred or suffered by any of
them (including any damage to Lessee's business), and Lessee hereby waives any
claim with respect to Lessor's and Lessor's Employees' acts or omissions
hereunder, including, without limitation, any claims relating to maintenance,
repair, restoration and/or replacement of the Premises, the Building or the
Property, and/or exercise of any other right reserved by or granted herein to
Lessor.
Section 11.4 ALLOCATION OF INSURED RISKS/SUBROGATION. Lessor and Lessee
release each other from any claims and demands of whatever nature for damage,
loss or injury to the Premises and/or the Building, or to the other's Property
in, on or about the Premises and the Building, that are caused by or result from
risks or perils insured against under any insurance policies carried by or
required to be carried by Lessor and/or Lessee under this Lease. Lessor and
Lessee shall cause each insurance policy obtained by them or either of them to
provide that the insurance company waives all right of recovery by way of
subrogation against either Lessor or Lessee in connection with any damage
covered by such policy. Neither Lessor nor Lessee shall be liable to the other
for any damage caused by fire or any of the other types of risks commonly
insured against under any insurance policy required by this Lease. For the
purposes hereof, any insurance deductible and/or level of self insurance shall
be deemed to be full insurance.
ARTICLE 12 - DAMAGE OR DESTRUCTION
If, at any time prior to the expiration or termination of this Lease, the
Premises or the Building or the Property is totally or partially damaged or
destroyed from a fire or other casualty, which damage renders the Premises
inaccessible or unusable to Lessee in the ordinary course of its business,
Lessor may elect, at its sole option, either to (a) terminate this Lease as of
the date of such fire or other casualty, by written notice to Lessee within
sixty (60) days after notice to Lessor of the occurrence of such damage or
destruction; or (b) without termination of this Lease, advise Lessee within
sixty (60) days of Lessor's intent to repair, and then proceed with due
diligence to repair or restore such damage or destruction within one hundred
eighty (180) days thereafter. If Lessor cannot complete the repair and
restoration within such period, Lessee shall have the option to cancel this
Lease. If Lessor elects to repair or restore such damage or destruction, this
Lease shall continue in full force and effect but a proportionate reduction of
Base Rent shall be allowed Lessee for such portion of the Premises as shall be
rendered inaccessible or unusable to Lessee, and which is not used by Lessee,
during the period of time that such portion is unusable or inaccessible and not
used by Lessee. No damages, compensation or claim shall be payable by Lessor for
any inconvenience, any interruption or cessation of Lessee's business, or any
annoyance, arising from any damage to or destruction of all or any portion of
the Premises or the Building or the Property regardless of the cause thereof.
Lessee shall look to its own casualty insurance for protection against business
losses and, as a material inducement to Lessor's entering into this Lease,
irrevocably waives and releases any other rights or claims against Lessor.
ARTICLE 13 - EMINENT DOMAIN
Section 13.1 PERMANENT TAKING - WHEN LEASE CAN BE TERMINATED. If the whole
of the Premises, or so much of the Premises as to render the balance unusable by
Lessee, shall be
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taken under the power of eminent domain, this Lease shall automatically
terminate as of the date of final judgment in such condemnation, or as of the
date possession is taken by the condemning authority, whichever is earlier. A
sale by Lessor under threat of condemnation shall constitute a "taking" for the
purpose of this Article. No award for any partial or entire taking shall be
apportioned and Lessee assigns to Lessor all awards which may be made in such
taking or condemnation, together with all rights of Lessee to such award,
including, without limitation, any award or compensation for the value of all or
any part of the leasehold estate created hereby; provided that nothing contained
in this Article shall be deemed to give Lessor any interest in or to require
Lessee to assign to Lessor any award made to Lessee for (a) the taking of
Lessee's Personal Property, or (b) interruption of or damage to Lessee's
business, or (c) Lessee's unamortized cost of the Lessee improvements to the
extent paid for by Lessee; provided further that Lessee's award shall in no
event diminish the award to Lessor.
Section 13.2 PERMANENT TAKING - WHEN LEASE CANNOT BE TERMINATED. In the
event of a partial taking which does not result in a termination of this Lease
under Section 13.1, Base Rent shall be proportionately reduced based on the
portion of the Premises rendered unusable, and Lessor shall restore the Premises
or the Building to the extent of available condemnation proceeds.
Section 13.3 TEMPORARY TAKING. No temporary taking of the Premises or any
part of the Premises and/or of Lessee's rights to the Premises or under this
Lease shall terminate this Lease or give Lessee any right to any abatement of
any payments owed to Lessor pursuant to this Lease; any award made to Lessee by
reason of such temporary taking shall belong entirely to Lessee; provided,
however, it does not reduce any award to Lessor.
Section 13.4 EXCLUSIVE REMEDY. This Article shall be Lessee's sole and
exclusive remedy in the event of a taking or condemnation. Upon termination of
this Lease pursuant to this Article, Lessee and Lessor hereby agree to release
each other from any and all obligations and liabilities with respect to this
Lease except such obligations and liabilities which arose or accrued prior to
such termination.
ARTICLE 14 - DEFAULTS
Section 14.1 DEFAULT BY LESSEE. Each of the following events shall be an
"Event of Default" (sometimes referred to herein as a "default") by Lessee and a
material breach of this Lease: (a) Lessee shall fail to make any payment owed by
Lessee under this Lease, as and when due, and such failure is not cured within
three (3) days following written notice thereof to Lessee (any such notice shall
be in lieu of, and not in addition to, any notice required by law); (b) Lessee
shall fail to observe, keep or perform any of the terms, covenants, agreements
or conditions under this Lease that Lessee is obligated to observe or perform,
other than that described in subsection (a) above, for a period of thirty (30)
days after notice to Lessee of said failure; provided, however, that if the
nature of Lessee's default is such that more than thirty (30) days are
reasonably required for its cure, then Lessee shall not be deemed to be in
default under this Lease if Lessee shall commence the cure of such default so
specified within said thirty (30) day period and diligently prosecute the same
to completion; (c) Lessee shall (i) make any general arrangement or assignment
for the benefit of creditors; (ii) become a "debtor" as defined in 11 U.S.C.
Section 101 or any successor statute thereto (unless, in case of a petition
filed against
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Lessee, the same is dismissed within 60 days); (iii) the appointment of a
trustee or receiver to take possession of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where possession
is not restored to Lessee within thirty (30) days; or (iv) the attachment,
execution or other judicial seizure of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where such
seizure is not discharged within thirty (30) days; provided, however, in the
event that any provision of this subparagraph is contrary to any applicable law,
such provision shall be limited to the extent necessary to be effective; or (d)
The vacating or abandonment of the Premises by Lessee.
Section 14.2 DEFAULT BY LESSOR. Lessor shall not be deemed to be in default
in the performance of any obligation required to be performed under this Lease
unless Lessor has failed to perform such obligation within thirty (30) days
after the receipt of written notice from Lessee specifying in detail Lessor's
failure to perform; provided, however, that if the nature of Lessor's obligation
is such that more than thirty (30) days are required for its performance, then
Lessor shall not be deemed in default if it shall commence such performance
within thirty (30) days and thereafter diligently pursue the same to completion.
If Lessor does not cure the default, Lessee may exercise such rights or remedies
as shall be provided or permitted under this Lease and by law to recover any
damages proximately caused by such default. Notwithstanding anything to the
contrary contained in this Lease, Lessee's remedy for any breach or default of
this Lease by Lessor shall be limited to an action for damages. Lessee agrees
that, in the event that it becomes entitled to receive damages from Lessor,
Lessee shall not be allowed to recover from Lessor consequential damages or
damages in excess of the out-of-pocket expenditures incurred by Lessee as a
result of a default by Lessor. In any event, Lessor's liability to Lessee for
damages resulting from Lessor's breach of any provision or provisions of this
Lease shall not exceed Lessor's equity interest in the Building and Lessee shall
look solely to Lessor's estate in the Building for collection. Lessee hereby
waives and relinquishes any right which Lessee may have to terminate this Lease
or withhold any payment owed, on account of any damage, condemnation,
destruction or state of disrepair of the Premises.
ARTICLE 15 - LESSOR'S REMEDIES AND RIGHTS
Section 15.1 TERMINATION OF LEASE. In the event of any default by Lessee,
Lessor shall have the right, in addition to all other rights available to Lessor
under this Lease or now or later permitted by law or equity, to terminate this
Lease by providing Lessee with a notice of termination. Upon termination, Lessor
may recover any damages proximately caused by Lessee's failure to perform under
this Lease, or which are likely in the ordinary course of business to be
incurred, including any amount expended or to be expended by Lessor in an effort
to mitigate damages, as well as any other damages to which Lessor is entitled to
recover under any statute now or later in effect. Lessor's damages include the
worth, at the time of any award, of the amount by which the unpaid Rent for the
balance of the Term after the time of the award exceeds the amount of the Rent
loss that the Lessee proves could be reasonably avoided. Damages to which Lessor
is entitled shall bear interest at the Interest Rate set forth herein, or if
less, the maximum rate allowed by law.
Section 15.2 CONTINUATION OF LEASE. Lessee acknowledges that in the event
Lessee has breached this Lease and abandoned the Premises, this Lease shall
continue in effect for so long as Lessor does not terminate Lessee's right to
possession, and Lessor may enforce all its rights
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and remedies under this Lease, including the right to recover the Rent as it
becomes due under this Lease. Acts of maintenance or preservation or efforts to
re-let the Premises or the appointment of a receiver upon initiative of Lessor
to protect Lessor's interest under this Lease shall not constitute a termination
of Lessee's right to possession.
Section 15.3 RIGHT OF ENTRY. In the event of any Event of Default by
Lessee, Lessor shall also have the right, with or without terminating this
Lease, to enter the Premises and remove all persons and personal property from
the Premises, such property being removed and stored in a public warehouse or
elsewhere at Lessee's sole cost and expense for at least thirty (30) days, and
after such thirty (30) day period, Lessor shall have the right to discard or
otherwise dispose of such property without liability therefor to Lessee or any
other person. No removal by Lessor of any persons or property in the Premises
shall constitute an election to terminate this Lease. Such an election to
terminate may only be made by Lessor in writing, or decreed by a court of
competent jurisdiction. Lessor's right of entry shall include the right to
remodel the Premises and re-let the Premises. All costs incurred in such entry
and re-letting shall be paid by Lessee. Rents collected by Lessor from any other
tenant which occupies the Premises shall be offset against the amounts owed to
Lessor by Lessee. Lessee shall be responsible for any amounts not recovered by
Lessor from any other tenant which occupies the Premises. Any payments made by
Lessee shall be credited to the amounts owed by Lessee in the sole order and
discretion of Lessor, irrespective of any designation or request by Lessee. No
entry by Lessor shall prevent Lessor from later terminating this Lease by
written notice.
Section 15.4 NO REDEMPTION. Lessee hereby waives, for itself and all
persons claiming by and under Lessee, all rights and privileges which it might
have under any present or future law to redeem the Premises or to continue this
Lease after being dispossessed or ejected from the Premises.
Section 15.5 RIGHT TO PERFORM. If Lessee fails to perform any covenant or
condition to be performed by Lessee, Lessor may perform such covenant or
condition at its option, after notice to Lessee (except in the case of an
emergency, where no notice shall be required). All costs incurred by Lessor in
so performing shall immediately be reimbursed to Lessor by Lessee, together with
interest at the rate of 10% computed from the due date. Any performance by
Lessor of Lessee's obligations shall not waive or cure such default. All costs
and expenses incurred by Lessor, including reasonable attorneys' fees (whether
or not legal proceedings are instituted), in collecting Rent or enforcing the
obligations of Lessee under this Lease shall be paid by Lessee to Lessor upon
demand.
Section 15.6 CUMULATIVE REMEDIES. No remedy or election provided, allowed
or given by any provision of this Lease shall be deemed exclusive unless so
indicated, but shall, whenever possible, be cumulative with all other remedies
in law or in equity.
ARTICLE 16 - SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE
Section 16.1 OBLIGATIONS OF LESSEE. This Lease and the rights granted to
Lessee by this Lease are and shall be subject and subordinate at all times to
(a) all ground or underlying leases affecting all or any part of the Property
now or later existing and all amendments, renewals, modifications, supplements
and extensions of this Lease, and (b) all deeds of trust or mortgages
14
now or later affecting or encumbering all or any part of the Property and/or any
ground or underlying leasehold estate; provided, however, that if Lessor elects
at any time to have Lessee's interest in this Lease be or become superior,
senior or prior to any such instrument, then upon receipt by Lessee of written
notice of such election, this Lease shall be superior, senior and/or prior to
such instrument. On request, Lessee shall execute all instruments and other
documents required or desired by any lender or lessor confirming the
subordination and/or superiority, as applicable, of this Lease.
Section 16.2 LESSOR'S RIGHT TO ASSIGN. Lessor shall have the right to sell,
encumber, convey, transfer, and/or assign any and all of its rights and
obligations under this Lease, including but not limited to assignment to any
mortgagee or trust deed beneficiary as additional security. Nothing in this
Lease shall empower Lessee to do any act without Lessor's prior written consent
which may encumber the title of the owner as to any part of the Property.
Section 16.3 ATTORNMENT BY LESSEE. In the event of the cancellation or
termination of any or all ground or underlying leases affecting all or any part
of the Property in accordance with its terms or by the surrender thereof,
whether voluntary, involuntary or by operation of law, or by summary
proceedings, or in the event of any foreclosure of any or all mortgages or deeds
of trust encumbering all or any part of the Property by trustee's sale,
voluntary agreement, deed in lieu of foreclosure, or by the commencement of any
judicial action seeking foreclosure, Lessee, at the request of the then landlord
under this Lease, shall attorn to and recognize (a) the ground or underlying
lessor under the ground or underlying lease being terminated or canceled, and
(b) the beneficiary or purchaser at the foreclosure sale, as Lessee's landlord
under this Lease, and Lessee agrees to execute and deliver at any time upon
request of such ground or underlying lessor, beneficiary, purchaser, or their
successors, any and all instruments to further evidence such attornment. Lessee
hereby waives its right, if any, to elect to terminate this Lease or to
surrender possession of the Premises in the event of any such cancellation or
termination of such ground or underlying lease or foreclosure of any mortgage or
deed of trust.
Section 16.4 ESTOPPEL CERTIFICATES. Lessee shall, at any time and from time
to time upon request of Lessor, within ten (10) days following request from
Lessor, execute, acknowledge and deliver to Lessor a certificate ("Estoppel
Certificate") in writing in such form as Lessor or any of its lenders,
prospective purchasers, lienholders or assignees may deem appropriate. Lessee's
failure to deliver the Estoppel Certificate within this ten (10) day period
shall constitute an Event of Default.
Section 16.5 SALE BY LESSOR. In the event Lessor shall sell, assign, convey
or transfer (collectively a "conveyance") all or any part of its interest in the
Property, Lessee hereby attorns to such transferee, assignee ("new owner"), and
upon consummation of such conveyance, Lessor shall automatically be freed and
relieved from all liability and obligations accruing under this Lease or to be
performed from and after the date of such conveyance. In the event of such
conveyance, Lessor shall also transfer the balance of the Security Deposit, if
any, to such new owner, and Lessor shall thereupon be relieved of all liability
with respect to the Security Deposit.
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ARTICLE 17 - RULES AND REGULATIONS
Lessee shall faithfully observe and comply with the rules and regulations
pertaining to the Property ("Rules"), a copy of which are attached as Exhibit
"E," and all reasonable modifications and additions to the Rules from time to
time put into effect by Lessor; provided, however, that no modifications or
additions to the Rules shall materially interfere with Lessee's permitted use of
the Premises. Lessor shall not be responsible to Lessee for the nonperformance
of any of the Rules by any other occupant or tenant of the Property.
ARTICLE 18 - HOLDING OVER
Lessee shall surrender possession of the Premises immediately upon the
expiration of the Term or termination of this Lease. If Lessee shall continue to
occupy or possess the Premises after such expiration or termination, then unless
Lessor and Lessee have otherwise agreed in writing, Lessee shall be deemed to be
a trespasser. Notwithstanding such status, all of the terms, provisions and
conditions of this Lease shall apply to Lessee's holdover occupancy except those
terms, provisions and conditions pertaining to the Term, and except that the
Base Rent shall be immediately adjusted upward upon the expiration or
termination of this Lease to one hundred fifty percent (150%) of the Base Rent
for the Premises in effect immediately prior to the expiration or termination of
this Lease. This holdover occupancy may be terminated by Lessor upon ten (10)
days' prior notice to Lessee. In the event that Lessee fails to surrender the
Premises upon such termination or expiration, then Lessee shall indemnify,
defend and hold Lessor harmless against all loss or liability resulting from or
arising out of Lessee's failure to surrender the Premises, including, but not
limited to, any amounts required to be paid to any tenant or prospective tenant
who was to have occupied the Premises after said termination or expiration and
any related attorneys' fees and brokerage commissions. No payment of money by
Lessee to Lessor after the termination of this Lease by Lessor, or after the
giving of any notice of termination to Lessee by Lessor which Lessor is entitled
to give Lessee under this Lease, shall reinstate, continue or extend the Term of
this Lease or shall affect any such notice given to Lessee prior to the payment
of such money, it being agreed that after the service of such notice or the
commencement of any suit by Lessor to obtain possession of the Premises, Lessor
may receive and collect when due any and all payments owed by Lessee under this
Lease, and otherwise exercise any and all of its rights and remedies. The making
of any such payments by Lessee or acceptance of same by Lessor shall not waive
such notice of termination, or in any manner affect any pending suit or judgment
obtained.
ARTICLE 19 - MISCELLANEOUS
Section 19.1 ATTORNEYS' FEES. If either Lessor or Lessee commences or
engages in, or threatens to commence or engage in, any action, litigation or
arbitration ("legal action") against the other party arising out of or in
connection with this Lease, the Premises, the Building or the Property,
including, but not limited to, any action for recovery of any payment owed by
either party under this Lease, or to recover possession of the Premises, or for
damages for breach of this Lease, the prevailing party shall be entitled to have
and recover from the losing party reasonable attorneys' fees and other costs
incurred in connection with said legal action and in preparation for said legal
action. If Lessor becomes involved in any legal action, threatened or actual, by
or against anyone not a party to this Lease, but arising by reason of or related
to any
16
act or omission of Lessee or Lessee's Employees, Lessee agrees to pay Lessor's
reasonable attorneys' fees and other costs incurred in connection with said
action.
Section 19.2 AUTHORIZATION TO SIGN LEASE. If Lessee is a corporation, each
individual executing this Lease on behalf of Lessee represents and warrants that
he/she is duly authorized to execute and deliver this Lease on behalf of Lessee
in accordance with a duly adopted resolution of Lessee's Board of Directors, and
Lessee warrants and represents that this Lease is binding upon Lessee in
accordance with its terms. If Lessee is a corporation, Lessee shall,
concurrently with its execution of this Lease, deliver to Lessor upon its
request a certified copy of a resolution of its Board of Directors authorizing
the execution of this Lease. If Lessee is a partnership or trust, each
individual executing this Lease on behalf of Lessee represents and warrants that
he/she is duly authorized to execute and deliver this Lease on behalf of Lessee
in accordance with the terms of such entity's partnership agreement or trust
agreement, respectively, and Lessee warrants and represents that this Lease is
binding upon Lessee in accordance with its terms. If Lessee is a partnership or
trust, Lessee shall, concurrently with its execution of this Lease, deliver to
Lessor upon its request such certificates or written assurances from the
partnership or trust as Lessor may request authorizing the execution of this
Lease.
Section 19.3 BROKERS. Lessor and Lessee each hereby represent and warrant
to the other that it has not engaged or dealt with any real estate brokers,
salespersons, finders or other persons entitled to any compensation relating to
this Lease, other than those listed in Section 1.1. If Lessee's representation
and warranty contained in this paragraph is inaccurate, then Lessee hereby
agrees to indemnify, defend and hold Lessor harmless from and against any and
all liabilities, costs and expenses (including, without limitation, attorneys'
fees) incurred by Lessor in connection with the claims of any brokers,
salespersons, finders or other persons not listed in Section 1.1.
Section 19.4 CONFIDENTIALITY. Lessee agrees to keep this Lease document and
the terms of this Lease, and the covenants, obligations and conditions contained
in this Lease strictly confidential and not to disclose such matters to any
other landlord or broker.
Section 19.5 COVENANTS, CONDITIONS AND STANDARDS. (a) All provisions,
whether covenants or conditions, on the part of Lessee shall be deemed to be
both covenants and conditions; (b) Unless this Lease provides for a contrary
standard, whenever in this Lease the consent or approval of the Lessor or Lessee
is required, such consent or approval shall not be unreasonably withheld or
delayed (except, however, with respect to any Lessor consent, for matters which
could possibly have an adverse effect on the Building's mechanical, life safety,
HVAC, ventilation, electrical systems, or structural integrity, or which could
affect the exterior appearance of the Building, Lessor may withhold such consent
or approval in its sole discretion but shall act in good faith).
Section 19.6 EXHIBITS. All Exhibits, and any Riders, which are attached to
this Lease are hereby incorporated by this reference and made a part of this
Lease.
Section 19.7 FORCE MAJEURE. Lessor shall not be chargeable with, liable
for, or responsible to Lessee for anything or in any amount for any failure to
perform or delay caused by: fire; earthquake; explosion; flood; hurricane; the
elements; acts of God or the public enemy;
17
actions, restrictions, limitations or interference of governmental authorities
or agents; war; invasion; insurrection; rebellion; riots; strikes or lockouts;
inability to obtain necessary materials, goods, equipment, services, utilities
or labor; or any other cause which is beyond the reasonable control of Lessor;
and any such failure or delay due to said causes shall not be deemed a breach or
default by Lessor.
Section 19.8 GENDER, DEFINITIONS AND HEADINGS. The words "Lessor" and
"Lessee" as used herein shall include the plural as well as the singular and,
when appropriate, shall refer to action taken by or on behalf of Lessor or
Lessee by their respective employees, agents or authorized representatives.
Words in masculine or neuter gender include the masculine, feminine and neuter.
If there is more than one person constituting Lessee, the obligations hereunder
imposed upon such persons constituting Lessee shall be joint and several. The
paragraph headings of this Lease are not a part of this Lease and shall have no
effect upon the construction or interpretation of any part hereof. Except as
otherwise provided to the contrary in this Lease, the terms, conditions and
agreements of this Lease shall apply to and bind the heirs, successors, legal
representatives and permitted assigns of the parties hereto. Any reference to
the word "persons" shall, when appropriate, be deemed to include a corporation,
any entity, individual, partnership, limited liability company, joint venture,
trust and/or association, etc.
Section 19.9 GOVERNING LAW. This Lease shall be governed by and construed
pursuant to the laws of the State of Missouri.
Section 19.10 HAZARDOUS MATERIALS. Lessor represents that, to the best of
Lessor's knowledge, except for cleaning solvents, de-icing supplies, typical
office and Building maintenance supplies, etc., there are presently no
biologically or chemically active or other hazardous substances or materials,
the use, storage or disposal of which is regulated by statute (collectively,
"Hazardous Materials") on, under, above or about the Premises or the Property
except as is typical for general office operations. Lessor will not consent to
any other tenant or third parties bringing, storing or releasing any such
Hazardous Materials on, under, above or about the Premises or the Property.
Lessee shall not (either with or without negligence) cause or permit the escape,
disposal or release of any Hazardous Materials. Lessee shall not allow the
storage or use of Hazardous Materials in any manner not sanctioned by law or by
the highest standards prevailing in the industry for the storage and use of such
substances or materials, nor allow to be brought into the Property any such
materials or substances except office and/or cleaning supplies used in the
ordinary course of Lessee's business, and then only after written notice is
given to Lessor of the identity of such substances or materials. Without
limitation, the term "Hazardous Materials" shall include those described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 6901 et seq., any applicable state or local laws, and
the regulations adopted under these acts. If any lender or governmental agency
shall ever require testing to ascertain whether or not there has been any
release of Hazardous Materials, then the reasonable costs thereof shall be
reimbursed by Lessee to Lessor upon demand as additional rent if such
requirement applies to the Premises. In addition, Lessee shall execute
affidavits, representations and the like from time to time at Lessor's request
concerning Lessee's best knowledge and belief regarding the presence of
Hazardous Materials on the Premises. In all events, Lessee shall indemnify
Lessor and Lessor's Employees in the manner elsewhere provided in this Lease
from any release of Hazardous Materials on the Premises or the Property,
occurring while Lessee is in possession of the
18
Premises, or elsewhere if caused by Lessee, Lessee's Employees or persons acting
under Lessee. These covenants shall survive expiration and termination of this
Lease.
Section 19.11 INSPECTIONS AND ACCESS. Lessor may enter the Premises at all
reasonable hours by means of a master key or otherwise for any reasonable
purpose. If Lessee shall not be present to open and permit an entry into the
Premises when such entry by Lessor is necessary or permitted under this Lease,
Lessor may enter by means of a master key without liability to Lessee, and
without affecting this Lease.
Section 19.12 NAME OF BUILDING. Lessee shall not use any name, insignia or
logotype of the Building or the Property or any picture of the Building or the
Property in its advertising, stationery or any other manner. Lessor expressly
reserves the right, in Lessor's discretion, to change the name, insignia, or
logotype of the Building or the Property without in any manner being liable to
Lessee.
Section 19.13 NO OFFER. The submission of this Lease to Lessee shall not be
deemed an offer to lease the Premises to Lessee. This Lease shall only become
binding upon Lessor and Lessee when it is fully executed and a fully-executed
original is delivered by Lessor to Lessee.
Section 19.14 NOTICES. All notices, requests, consents, approvals, payments
in connection with this Lease, or communications that either party desires or is
required or permitted to give or make to the other party, shall only be deemed
to have been given, made and delivered, when made or given in writing and
personally served, or deposited in the United States mail, certified or
registered mail, return receipt requested, postage prepaid, to the respective
addresses of Lessee or Lessor as set forth in Section 1.1, above. Lessor or
Lessee may from time to time designate other addresses for notice purposes by
written notice to the other in accordance herewith.
Section 19.15 PARKING. Lessor shall maintain an unsecured open air
automobile parking lot ("Parking Facilities") adjacent to the Building. Lessee's
privileges during the term hereof with respect to the Parking Facilities shall
be in accordance with the provisions of the attached Exhibit "F."
Section 19.16 RECORDATION. Neither this Lease nor any abstract hereof shall
be recorded by Lessee.
Section 19.17 RIGHT TO PERFORMANCE. All covenants and agreements to be
performed by Lessee under this Lease shall be performed by Lessee at Lessee's
sole cost and expense. If Lessee shall fail to perform, and such failure shall
continue for five (5) days after notice thereof to Lessee (notice shall not be
required in cases of emergency), Lessor may, but shall not be obligated to do
so, without waiving or releasing Lessee from any such obligations, perform any
such act on Lessee's part. All costs incurred by Lessor with respect to any such
performance by Lessor (including reasonable attorneys' fees) shall be
immediately paid by Lessee to Lessor.
Section 19.18 SEPARABILITY. The illegality, invalidity or un-enforceability
of any term, condition, or provision of this Lease shall in no way impair or
invalidate any other term, provision or condition of this Lease, and all such
other terms, provisions and conditions shall remain in full force and effect.
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Section 19.19 TIME IS OF THE ESSENCE. Time shall be of the essence for each
of the provisions hereof.
Section 19.20 WAIVER. The waiver by Lessor or Lessee of any term, covenant,
agreement, provision or condition (collectively "obligation(s)") contained in
this Lease shall not be deemed to be a waiver of any subsequent breach of the
same or of any other obligation, nor shall any failure to enforce compliance
with any or all of the obligations of this Lease (except as expressly provided
in this Lease), or any custom or practice which may develop between the parties
in the administration of this Lease, be construed to waive or lessen the right
of Lessor or Lessee to insist upon the performance by the other in strict
accordance with all of the obligations and provisions of this Lease. The
subsequent acceptance by Lessor of any payment owed by Lessee to Lessor under
this Lease shall not be deemed to be a waiver of any preceding breach by Lessee
of any obligation or provision of this Lease, other than the failure of Lessee
to make the specific payment so accepted by Lessor, regardless of Lessor's or
Lessee's knowledge of such preceding breach at the time of the making or
acceptance of such payment.
Section 19.21 ENTIRE AGREEMENT. This Lease, taken together with the
Exhibits attached hereto, constitutes the entire agreement of the parties
respecting the Premises and all other matters covered or mentioned in this
Lease, and supersedes all prior oral or written negotiations, agreements or
understandings with respect thereto. This Lease may not be amended except by an
instrument in writing signed by both parties.
IN WITNESS WHEREOF, the parties have executed this Lease to be effective as
of the date first set forth above.
LESSOR: LESSEE:
Enterprise Properties, L.L.C. Pharmacy Buying Association, Inc.,
a Missouri limited liability company a Missouri corporation
By:_________________________________ By:____________________________________
Xxxx X. Xxxxxx, its Manager Xxxx Xxxxx, its President, CEO/CFO
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