EXHIBIT 10.18
WESTCHASE PARK OFFICE BUILDING LEASE
THIS LEASE, made this 12th day of October, 2001, by and between CROWN
DIVERSIFIED INDUSTRIES CORP. (hereinafter referred to as "Landlord"), and
CONNECTRIA CORPORATION, a Missouri corporation (hereinafter referred to as
"Tenant");
WITNESSETH:
1. LEASED PREMISES. Landlord hereby demises and leases to Tenant that
certain space known and numbered as Suite 300, 00000 Xxxxx Xxxxxxxxx, Xxxxx
Xxxxx, Xxxxxxxx 00000, containing approximately 7,713 rentable square feet of
space, (hereinafter referred to as the "Premises"), plus the use of all common
areas in and around Landlord's building (is hereinafter referred to as the
"Property"). Said space shall be used exclusively for general office use. Tenant
acknowledges that Landlord has made no representation with respect to any
alterations, repairs, or improvements to be constructed within the Premises
except for those items set forth in Exhibit "B". Landlord shall use commercially
reasonable standards, consistently applied, in determining the size of the
rentable area of the Premises and the rentable area of other premises at the
Property.
2. COMMENCEMENT. The term of this Lease shall be five (5) years, and zero
months commencing on the later of (i) January 1, 2002, or (ii) the date upon
which Landlord delivers possession of the space to Tenant. Delivery of
possession of the space by Landlord to Tenant shall be defined as the date on
which Landlord has substantially completed Landlord's Work in accordance with
Exhibit B, attached hereto and incorporated herein by reference, and shall not
be extended due to the failure of the Tenant to complete any portion of Tenant's
Work, the failure of Tenant to apply for or receive applicable permits related
to Tenant's Work, or the failure of the Landlord to complete any portion of
Landlord's Work caused by the failure of the Tenant to complete any portion of
Tenant's Work. Subject to executing the Lease and having mutually agreed upon
Plans and Specification on or before October 12, 2001, if Landlord does not
complete Landlord's Work on or before January 1, 2002 then, if for any reason
other than delays caused by Tenant in breach of its obligations hereunder, (i)
the rent shall be abated from and after January 1, 2002 two (2) days for each
day from and after January 1, 2002 until Landlord's Work is completed.
3. RENT. (a) Base. Tenant shall pay to Landlord as base rent for said
Premises the sum of One Hundred Forty Six Thousand Five Hundred Forty Seven and
00/100 Dollars ($146,547.00), per annum, payable in equal monthly installments
of Twelve Thousand Two Hundred Twelve and 25/100 Dollars ($12,212.25) for the
periods January 1, 2002, through December 31, 2004; and One Hundred Fifty Four
Thousand Two Hundred Sixty and 00/100 Dollars ($154,260.00) per annum, payable
in equal monthly installment of Twelve Thousand Eight Hundred Fifty-Five and
00/100 Dollars ($12,855.00) for the periods January 1, 2005, through December
31, 2006 each, on the first day of each calendar month, in advance, without
setoff or deduction, at the office of Landlord.
(b) Additional. Tenant shall pay to Landlord as additional rent, and in the
manner set forth in 3(a), above, Tenant's pro-rata share of any increase in
taxes and operating expenses over the actual taxes and operating expenses
incurred by Landlord for the 2002 calendar year. Notwithstanding any other
provision of this Lease to the contrary, taxes and operating expenses shall not
increase by more than ten percent (10%) over the immediately preceding calendar
year. Tenant's pro-rata share shall be payable to Landlord monthly, without
interest accruing thereon, based upon the previous year's taxes and operating
expenses, with a final adjustment to be made between Landlord and Tenant within
thirty (30) days after receipt of Landlord's statement at the end of each
calendar year. Tenant's pro-rata share shall be equitably adjusted for any
partial month(s) or year(s) of the term of this Lease. Tenant's pro-rata share
is 12.45% of the Property. Taxes shall include without limitation any tax,
assessment, or governmental charge ("Tax") imposed against the Property.
Notwithstanding the foregoing, the term Tax as defined herein shall not include
franchise, estate, inheritance, income, or other taxes measured or determined
based upon Landlord's income, including without limitation any taxes on rentals
payable by Tenant (except to the extent the same may be assessed or levied in
substitution for ad valorem real estate taxes) or on income derived from
mortgages or deeds of trust encumbering the Leased Premises, or on any gain
realized by Landlord in connection with the sale of the Leased Property. In the
event Landlord is assessed with a Tax which Landlord, in its sole
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discretion, deems excessive, Landlord may challenge said Tax or may defer
compliance therewith to the extent legally permitted; and in the event thereof
Tenant shall be liable for its pro-rata share of all costs in connection with
such challenge. Operating expenses shall include the total costs and expenses
incurred by Landlord in operating and maintaining the Property including,
without limitation, management fees not to exceed five percent (5%) of gross
rentals from the Property, costs for repairs and maintenance, ground lease
payments, and premiums for liability, property damage, fire, workers
compensation, rent and any and all other insurance carried by Landlord on or for
the Property.
Operating expenses shall also include the amortized cost of any capital
improvement made after completion of initial construction of the Property which
reduces other operating expenses, but in an amount not to exceed the reduction
of operating expenses for the relevant year. Operating expenses shall not
include capital improvements (other than aforesaid), franchise taxes or income
taxes, nor the cost of any work performed for any tenant finish
Notwithstanding any other provision of this Lease to the contrary, the following
items shall be excluded from operating expenses:
(1) leasing commissions, fees and costs, advertising and promotional
expenses and other costs incurred in procuring tenants;
(2) tenant improvement work for any tenant, including tenant;
(3) financing costs including interest and principal amortization of
debts;
(4) rental on ground leases or other underlying leases;
(5) wages, bonuses and other compensation of employees above the grade of
building manager, and fringe benefits other than insurance plans and
tax-qualified benefit plans;
(6) any liabilities, costs or expenses associated with or incurred in
connection with the removal, enclosure, encapsulation or other
handling of asbestos or other hazardous or toxic materials or
substances not caused by Tenant;
(7) costs of any items for which Landlord is or is entitled to be paid or
reimbursed by insurance;
(8) increased insurance or real estate taxes assessed specifically to any
tenant of the Property or for which Landlord is entitled to
reimbursement from any other tenant;
(9) charges for electricity, water, or other utilities and applicable
taxes for which Landlord is entitled to reimbursement from any other
tenant;
(10) cost of any HVAC, janitorial or other services provided to tenants on
an extra cost basis after regular business hours;
(11) cost of correcting defects in the design, construction or equipment
of, or latent defects in, the Property;
(12) cost of any work or service performed on an extra cost basis for any
tenant at the Property to a materially greater extent or in a
materially more favorable manner than furnished generally to the other
tenant at the Property;
(13) cost of any work or services performed for any facility other than the
Property;
(14) any cost representing an amount paid to a person, firm, corporation or
other entity related to Landlord that is in excess of the amount which
would have been paid in the absence of such relationship;
(15) any cost of painting or decorating any interior parts of the Property
other than common areas;
(16) Landlord's general overhead not directly attributable to operation and
management of the Property (e.g., the activities of Landlord's
officers and executives or professional development expenditures);
(17) attorneys' fees, accounting fees and other expenditures incurred in
connection with negotiations, disputes and claims of other tenants at
the Property or with other third parties, except as specifically
otherwise provided in this Lease;
(18) cost of any alterations, additions, changes, repairs, replacements or
other items which, under generally accepted accounting principles, are
properly classified as capital expenses, including, but not limited
to, replacement of the building roof and structural repairs, except to
the extent Landlord is expressly allowed to recover such costs
pursuant to this lease;
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(19) lease payments for rental equipment (other than equipment for which
depreciation is properly charged as an expense) that would constitute
a capital expenditure if the equipment were purchased;
(20) late fees or charges incurred by Landlord due to late payment of
expenses;
(21) costs due to Landlord's violation of any governmental rule or
authority;
(22) cost of complying with the Americans With Disabilities Act, whether
such costs are classified as capital items or expenses under generally
accepted accounting principles; and
(23) Costs associated with converting CFC based HVAC equipment to HCFC
based HVAC equipment.
Within ninety (90) days after receipt of each year-end statement, Tenant or its
authorized agent shall have the right, at Tenant's sole cost and expense, to
inspect and audit Landlord's records with respect to Tenant's proportionate
share of expenses, which audit shall be at Landlord's office during Landlord's
normal business hours, and upon five (5) days prior written notice. Except as
aforesaid, Landlord shall not be obligated to provide Tenant with detailed
summaries and receipts for all expenses incurred by the Property; but Landlord
shall provide Tenant with a statement setting forth such expenses, categorized
by class and amount. If the audit determines that Tenant's payment of additional
rent exceeded Tenant's obligations for the calendar year, then Landlord shall
credit the excess to the next installment(s) of additional rent. If the audit
determines that Tenant's payment of additional rent was less than Tenant's
obligations for the calendar year, Tenant shall pay such deficiency to Landlord
in the next installment(s) of additional rent.
(c) Late Charge. In the event Tenant is late by more than ten (10) days in
the payment of any Base Rent or Additional Rent, Tenant shall be assessed a late
charge for Landlord's increased administrative expenses, which late charge shall
be equal to three (3%) percent, per month, of all outstanding rent owed
Landlord.
4. SERVICES. Landlord shall maintain the Premises and common areas of the
Property in good order and condition and Landlord shall provide the following
services:
(a) Landlord shall provide service of electricity, water and sewer,
elevator service, and air conditioning and heat for normal purposes only, in
Landlord's judgment, Monday through Friday from 7:00 a.m. to 6:00 p.m., and
Saturday from 8:00 a.m. to 4:00 p.m., Sundays and holidays excepted. Landlord
reserves the right, if consumption of electricity exceeds that required for
normal office use, or if Tenant increases the normal use of air conditioning and
heat, to charge Tenant, as Additional Rent, for such additional use of
electricity at a rate of consumption to be determined by Landlord's independent
engineer or by a submeter to be furnished and installed at Tenant's expense.
After hour service of air conditioning / heat and lights shall be provided at a
cost of $12.50 per hour and invoiced monthly. Notwithstanding any other
provision of this Lease to the contrary, Tenant shall have access to the
Premises at all times, seven (7) days per week, 24 hours per day.
(b) Landlord shall provide public restroom supplies, window washing, and
janitorial service to the Premises in the manner customarily furnished to
comparable office buildings in the area.
(c) Landlord shall provide not more than thirty (30) parking spaces (at a
ratio of 4:1,000 RSF) to Tenant on the parking lots of the Property on an
unallocated basis. Landlord shall reserve two (2) parking spaces under the
overhang at the south side of the building for the exclusive use of Tenant.
(d) Landlord shall maintain the exterior and interior of the Property
including without limitation lawn and shrub care, snow removal, and maintenance
of all structural, roof, mechanical and electrical equipment, excluding only
those items specifically excepted elsewhere in this Lease.
Landlord shall make reasonable efforts to provide the foregoing services,
but in no event shall Landlord be liable for damages, nor shall the rent be
abated due to any failure to furnish or any delay in furnishing any of the
foregoing services which are caused by Landlord's inability to secure
electricity, fuel, supplies, machinery, equipment or labor, or which are caused
by necessary repairs or improvements to the Premises; nor shall the temporary
failure to furnish such services be construed as a constructive eviction of
Tenant or relieve Tenant from the duty of observing and
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performing any of the provisions of this Lease, provided Landlord uses
reasonable efforts to cure such interruption.
5. DESTRUCTION. If the Premises or the Property are damaged in whole or in
part by casualty so as to render the Premises untenantable, and if the damages
cannot be repaired within one hundred twenty (120) days from the date of said
casualty, this Lease shall terminate as of the date of such casualty. If the
damages can be repaired within said one hundred twenty (120) days, and Landlord
does not elect within thirty (30) days after the date of such casualty to repair
same, then either party may terminate this Lease by written notice served upon
the other. In the event of any such termination, the parties shall have no
further obligations to the other, except for those obligations accrued through
the date of such casualty; and upon such termination, Tenant shall immediately
surrender possession of the Premises to Landlord. Should Landlord elect to make
such repairs, this Lease shall remain in full force and effect, and Landlord
shall proceed with all due diligence to repair and restore the Premises to a
condition substantially similar to that condition which existed prior to such
casualty. In the event the repair and restoration of the Premises extends beyond
one hundred twenty (120) days after the date of such casualty due to causes
beyond the control of Landlord, this Lease shall remain in full force and
effect, and Landlord shall not be liable therefor; but Landlord shall continue
to complete such repairs and restoration with all due diligence; provided,
however, if the repair and restoration of the Premises is not completed within
one hundred fifty (150) days after the date of such casualty, Tenant may
terminate this Lease upon written notice to Landlord. Tenant shall not be
required to pay any rent for any period in which the Premises are untenantable.
In the event only a portion of the Premises are untenantable, Tenant's rent
shall be equitably abated in proportion to that portion of the Premises which
are so unfit.
6. LANDLORD'S RIGHTS. (a) Landlord may close the Property, to the general
public, at 6:00 p.m. Monday through Friday, 4:00 p.m. on Saturday, and all day
Sunday and holidays, or such other hours as Landlord may reasonably determine,
after which admittance may be gained only under such regulations as may from
time to time be prescribed by Landlord.
(b) Landlord may designate the source and grade of all materials and all
personnel for all construction, repairs and maintenance which Landlord is
obligated to perform under this Lease, whether the same is within the Premises
or about the Property.
(c) Landlord may have pass keys to the Premises.
(d) Landlord may enter the Premises to make reasonable repairs as required
from time to time upon reasonable advance notice to Tenant. Tenant hereby grants
to Landlord such license or easements in or over the Premises as shall be
reasonably required for the installation or maintenance of facilities to serve
the Property and/or the premises of any other tenant. Landlord shall use its
best efforts to minimize any interference with Tenant's use of the Premises.
Tenant also hereby grants to Landlord the right to enter the Premises to examine
or show same to existing or prospective fee owners, ground lessees, mortgagees
upon reasonable advance notice to Tenant. And Tenant also hereby grants to
Landlord the right to enter the Premises to show other tenants during the last
ninety (90) days of the lease term upon reasonable advance notice to Tenant.
7. ALTERATIONS AND REPAIRS. Landlord does not warrant either expressly or
impliedly the condition or fitness of the Premises except as herein set forth.
Tenant shall keep the Premises in good repair, without expense to Landlord;
Tenant shall not allow any waste or misuse of the utilities; Tenant shall pay
for all damages to the Property caused by any waste, misuse or negligence of the
Premises; and upon the termination of this Lease, Tenant shall yield up the
Premises to Landlord together with all of Tenant's keys and attached fixtures
and improvements, in the same condition as when leased, reasonable wear and tear
excepted. Tenant may not make any alterations to the Premises without the prior
written consent of Landlord, which approval shall not be unreasonably
conditioned delayed or withheld; provided that Tenant shall have the right to
perform Tenant's Work and to make any alterations from time to time which do not
involve any structural changes to the building and which cost less than Five
Thousand Dollars ($5,000.00) to complete. All improvements which may be made by
or on behalf of Tenant shall become the property of Landlord, and shall be
surrendered with the Premises upon the termination of this Lease. Tenant shall
make all repairs to the interior of the Premises, unless same shall be caused by
the negligence of Landlord; and, in the event Tenant shall fail to make such
repairs promptly and adequately after written demand therefore by Landlord,
Landlord may make such repairs, in which event Tenant shall pay to Landlord, as
Additional Rent, the cost of such repairs.
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8. SUBLETTING AND ASSIGNING. Tenant shall not assign or sublet the Premises
nor allow the same to be used or occupied by any other person or for any other
use than herein specified, without the prior written consent of Landlord, which
shall not be unreasonably conditioned, delayed or withheld. In the event
Landlord grants its consent to any sublease or assignment, same shall not
constitute a release of Tenant from the full performance of Tenants obligations
under this Lease. Further, in the event of any such sublease or assignment,
Tenant shall reimburse Landlord for all reasonable attorneys' fees in connection
with reviewing and/or drafting any appropriate documents to effect such transfer
of Tenant's interests in an amount not to exceed $500.00. Notwithstanding any
provisions to the contrary contained herein, Tenant may assign this Lease or
sublet the Premises or any portion thereof, without Landlord's consent, to any
corporation which controls, is controlled by or is under common control with
Tenant, or to any corporation resulting from the merger or consolidation with
Tenant, or to any person or entity which acquires substantially all the assets
of Tenant as a going concern of the business that is being conducted on the
Premises, provided that said assignee assumes, in full, the obligations of
Tenant under this Lease.
9. DEFAULT AND HOLDING OVER. If Tenant shall default in the payment of any
rent, or breach any covenant or agreement of this Lease (hereinafter singularly
or collectively referred to as "Default"), and if such Default shall continue
for five (5) days after written notice thereof from Landlord, or if Tenant makes
an assignment for the benefit of creditors, files or has filed against it a
petition in bankruptcy, or is adjudicated insolvent, Landlord may terminate this
Lease, with process of law, and expel and remove Tenant, or any other person in
occupancy, together with their property, and repossess the Premises; and
thereupon all expenses (including reasonable legal fees) as Landlord incurs in
recovering possession of the Premises shall immediately become due. Landlord may
relet the Premises after taking possession thereof upon terms satisfactory to
Landlord. However, in such event, Tenant shall be liable for all costs of
reletting, including any brokers' fees and, in the event the rent payable under
any subletting is less than the rent payable under this Lease, Tenant shall be
liable for the difference thereof. Notwithstanding any other provision of this
Lease to the contrary, if any term, condition or covenant to be performed by
Tenant (with the exception of the payment of rent) is such that it cannot
reasonably be performed within fifteen (15) days, such default shall be deemed
to have been cured if Tenant commences such performance within said fifteen (15)
period and thereafter diligently undertakes to complete the same.
If this Lease is terminated, Tenant shall, without demand therefore,
immediately surrender the Premises peaceably to Landlord in as good condition as
when delivered to Tenant, reasonable wear and tear excepted. If Tenant shall
remain in possession of the Premises after the termination of this Lease, and
hold over for any reason, Tenant shall be deemed guilty of forcible detainer;
and Tenant shall pay to Landlord monthly rent equal to 150% of both the base
rent and that additional rent which was payable hereunder during the last month
prior to Landlord's notice of termination as well as any other damages incurred
by Landlord as a result of such holdover. Should any of Tenant's property remain
within the Premises after the termination of this Lease, it shall be deemed
abandoned; and Landlord shall have the right to store or dispose of same at
Tenant's cost and expense. All of the aforesaid rights of Landlord shall be in
addition to any remedies which Landlord may have at law or in equity.
Notwithstanding any other provision of this Lease to the contrary, Landlord
shall use commercially reasonable efforts to mitigate Landlord's damages as a
result of Tenant's default, and any rent received from any party for all or any
part of the Premises shall be credited against Tenant's obligations hereunder.
If either party defaults in the performance or observance of any of the terms,
conditions, covenants or obligations contained in this Lease and the
non-defaulting party obtains a judgment against the defaulting party, then the
defaulting party agrees to reimburse the non-defaulting party for reasonable
attorneys' fees incurred in connection therewith.
10. RIGHT TO CURE TENANT'S DEFAULT. If Tenant is in Default under any
provision of this Lease, other than the payment of rent, and Tenant has not
cured same within five (5) days after receipt of Landlord's written notice,
Landlord may cure such Default on behalf of Tenant, at Tenant's expense;
provided, however, that if the default is such that it cannot reasonably be
cured within fifteen (15) days, such default shall be deemed to have been cured
if Tenant commences such performance within said fifteen (15) day period and
thereafter diligently
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undertakes to complete the same. Landlord may also perform any obligation of
Tenant, without notice to Tenant, should Landlord deem the performance of same
to be an emergency. Any monies expended by Landlord to cover such Default(s) or
resolve any deemed emergency shall be payable by Tenant as "additional rent." If
Landlord incurs any such expense, including reasonable attorney's fees, in
instituting, prosecuting and/or defending any action or proceeding by reason of
any emergency or Default of Tenant, Tenant shall reimburse Landlord for same,
(as "Additional Rent"), with interest thereon at ten (10%) percent annually from
the date such payment is due Landlord.
11. HOLD HARMLESS. Landlord shall not be liable to Tenant for any damages
to the Premises or Property, nor for any damages to Tenant on or about the
Property, nor for any other damages arising from the action or negligence of
Tenant, co-tenants or other occupants of the Property. Tenant hereby releases,
discharges and shall indemnify, hold harmless and defend Landlord, at Tenant's
sole cost and expense, from all losses, claims, liability, damages, and expenses
(including reasonable attorney's fees) for any damage or injury to person or
property of the parties hereto or of third persons, caused by Tenant's use or
occupancy of the Premises, Tenant's breach of any covenant under this Lease, or
Tenant's use of any equipment, facilities or property in, on, or adjacent to the
Property.
In the event any suit shall be instituted against Landlord by any third
person for which Tenant is hereby indemnifying and holding Landlord harmless,
then (i) Landlord shall give Tenant prompt notice thereof; (ii) Tenant shall
defend such suit at Tenant's sole cost and expense with counsel reasonably
satisfactory to Landlord; (iii) Landlord shall cooperate with Tenant in the
defense of such claim, and (iv) Landlord shall not settle or compromise any such
claim so long as Tenant is diligently defending against such claim by
appropriate proceedings.
Landlord shall defend and indemnify Tenant, and save Tenant harmless from and
against any and all liability, damages, costs, or expenses, including attorneys'
fees arising from any accident, injury, or damage, howsoever and by whomsoever
caused, to any person or property occurring in or about the Property, provided
that the foregoing provision shall not be construed to make Landlord responsible
for loss, damage, liability, or expenses resulting from injuries to third
parties caused by the negligence of Tenant or of any officer, contractor,
licensee, agent, servant, employee, guest, invitee, or visitor of Tenant.
In the event any suit shall be instituted against Tenant by any third
person for which Landlord is hereby indemnifying and holding Tenant harmless,
then (i) Tenant shall give Landlord prompt notice thereof; (ii) Landlord shall
defend such suit at Landlord's sole cost and expense with counsel reasonably
satisfactory to Tenant; (iii) Tenant shall cooperate with Landlord in the
defense of such claim, and (iv) Tenant shall not settle or compromise any such
claim so long as Landlord is diligently defending against such claim by
appropriate proceedings.
12. CONDEMNATION. If the whole or any part of the Property or the premises
shall be taken in condemnation, either Tenant or Landlord may terminate this
Lease as of the taking date, by giving written notice of same within sixty (60)
days after the taking date, provided in the case of termination by Tenant that
the Premises (or the remaining portion thereof) may no longer be adequately used
for the purpose set forth in Paragraph 1 of this Lease. If neither Tenant nor
Landlord shall exercise its option, then this Lease shall terminate on the
taking date only as to that portion of the Premises so taken, and the rent and
other charges payable by Tenant shall be reduced proportionally. Landlord shall
be entitled to the entire condemnation award for all realty and improvements.
Tenant shall be entitled to any award for Tenant's leasehold interest, personal
property, the unamortized value of any improvements made by Tenant and the costs
of relocation provided Tenant independently petitions for same. Notwithstanding
the aforesaid, if any condemnation takes a portion of the parking area and same
does not result in a reduction of the minimum required parking ratio below that
established by local Code or Ordinance, this Lease shall continue in full force
and effect without modification.
13. INSURANCE. Tenant, at Tenant's sole cost and expense, shall maintain in
full force and effect policies providing "all risk" insurance coverage
protecting against physical damage (including, but not limited to, fire,
lightning, extended coverage perils, vandalism, sprinkler leakage, water damage,
collapse, and other special extended perils) to the extent of 100% of the
replacement cost of Tenant's property and improvements during the term of this
Lease, as well as broad form comprehensive or commercial general liability
insurance insuring Landlord and Tenant jointly
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against any liability (including bodily injury, property damage and contractual
liability) arising out of Tenant's use or occupancy of the Premises, with a
combined single limit of not less than $1,000,000, or for a greater amount as
may be reasonably required from time to time, and in policy form and content
satisfactory to Landlord. Landlord shall be named as an additional insured. All
policies shall be with companies licensed to do business in the state where the
Property is located, and rated A+:XV in the most current issue of Best's Key
Rating Guide. Tenant shall furnish Landlord with certificates of same prior to
occupancy, or otherwise upon Landlord's request; and further, such insurance
shall provide that not less than thirty (30) days written notice be given to
Landlord before any such policies be canceled or substantially changed to reduce
the insurance provided thereby. All such policies shall be primary and
non-contributing with or in excess of any insurance carried by Landlord. Tenant
shall not do any act which may make void or voidable any insurance on the
Premises or Property; and, in the event Tenant's use of the Premises shall
result in an increase in Landlord's insurance premiums, Tenant shall pay to
Landlord upon demand, as additional rent, an amount equal to such increase in
insurance.
Landlord and Tenant hereby mutually waive any and all right of recovery
against one another, directly or by way of subrogation or otherwise, due to the
negligence of either party, their agents or employees, for real or personal
property damage occurring to the Premises, the Property, or any personal
property located therein, from perils insured against in the aforesaid policies
(whether or not such insurance is carried). Each party shall have the
affirmative duty to inform their respective insurance carriers of this Paragraph
and the mutual waiver of subrogation contained herein.
14. MORTGAGES. This Lease shall be subordinated to any first mortgages,
deeds of trust or underlying leases (hereinafter referred to as "Mortgages"),
now of record or, at the option of Landlord, hereafter placed of record. In the
event Landlord exercises its option to further subordinate this Lease, Tenant
shall at the option of the holder of said Mortgage attorn to said holder. Tenant
shall, at the written request of Landlord, execute such further assurances as
Landlord deems desirable to confirm such subordination. Notwithstanding any
other provision of this Lease to the contrary, as a condition to any future
subordination, Landlord shall, to the best of the Landlord's ability, request
and attempt to obtain a non-disturbance agreement in a form provided by Tenant
from the holders of such Mortgages which arise after the date of this Lease.
15. LIENS. Tenant shall not mortgage or otherwise encumber or allow to be
encumbered its interest herein without obtaining the prior written consent of
Landlord, which consent shall not be unreasonably conditioned, delayed or
withheld. Should Tenant cause any lien or other encumbrance (hereinafter
referred to as "Encumbrance") to be filed, against the Premises or the Property,
Tenant shall dismiss or bond against same within thirty (30) days after the
filing of any such Encumbrance. If Tenant fails to remove said Encumbrance
within said thirty (30) days, Landlord shall have the absolute right to cause
same to be cured by whatever measures Landlord shall deemed convenient,
including without limitation payment of such Encumbrance (in which event Tenant
shall reimburse Landlord for same as "additional rent"); and Landlord shall be
afforded all remedies at law or in equity available to either Landlord or
Tenant.
16. GOVERNMENT REGULATIONS. Tenant, at Tenant's sole cost and expense,
shall conform with all laws and requirements of any Municipal, State or Federal
authorities now in force, or which may hereafter be in force, as well as any
requirement of Landlord's insurance carrier, pertaining to the Premises or to
Tenant's use of the Premises. The judgment of any court, or an admission of
Tenant in any action or proceeding at law, whether Landlord be a party thereto
or not, shall be conclusive of the fact as between Landlord and Tenant.
17. NOTICES. All rents which are required to be paid by Tenant shall be
delivered by the United States Mail, postage prepaid, addressed to the parties
hereto at their respective addresses below; and all notices that are required to
be given hereunder shall be in writing and delivered by United States registered
or certified mail, postage prepaid, addressed to the parties hereto at their
respective addresses below:
TENANT: LANDLORD:
CONNECTRIA CORPORATION CROWN DIVERSIFIED INDUSTRIES Xx.
Xxxxxxx X. Xxxxxxxx CORP.
President & CEO x/x Xxxxx Xxxxxxxxxx
00000 Olive 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xx. Xxxxx, XX 00000 Xx. Xxxxx, XX 00000
Initialed:
/s/ RSW
7
Either party may designate a different address by giving notice to the other
party of same at the address set forth above.
18. OWNERSHIP. Notwithstanding anything in this Lease to the contrary, the
term "Landlord" as used in this Lease, shall be defined as the current owner(s)
of the Property. In the event of any transfer of the Property, the party
conveying same shall thereafter be automatically relieved of all personal
liability with respect to Landlord's performance of any obligations thereafter
occurring or covenants thereafter to be performed, provided all transferees
shall expressly assume and agree to perform all of Landlord's obligations under
this Lease, including, without limitation, the obligation to return the security
deposit described in Paragraph 19. It is intended hereby that all obligations
under this Lease shall be binding upon the owner(s) of the Property only during
that owner(s)' respective period(s) of ownership of said Property.
19. SECURITY DEPOSIT. Tenant has deposited with Landlord the sum of Twelve
Thousand Two Hundred Twelve and 25/100 Dollars ($12,212.25) as security for the
full and faithful performance of Tenant's obligations under this Lease. If
Tenant should be in Default as set forth in Paragraph 9 of this Lease, Landlord
may apply all or a part of this security deposit for the payment of any sum in
Default or for the payment of any amount which Landlord expended by reason of
such Default. If any portion of said deposit is so applied, Tenant shall, within
five (5) days after written demand therefore, deposit with Landlord an amount
sufficient to restore the security deposit to its original amount. At the end of
the lease term or earlier termination of this Lease, in no event later than
thirty (30) days after the last day of the lease term, Landlord shall return the
security deposit to Tenant.
20. ESTOPPEL CERTIFICATES. Tenant agrees, upon written request by Landlord,
to execute and return to Landlord within fifteen (15) days, a statement in
writing certifying that this Lease is unmodified and in full force and effect,
that Tenant has no defenses, offsets or counterclaims against its obligations to
pay the rent and to perform its other covenants under this Lease, that there are
no incurred Defaults of Landlord or Tenant, and setting forth the dates to which
the rent and other charges have been paid, and any other information reasonably
requested by Landlord. In the event Tenant fails to return such statement within
said fifteen (15) days, setting forth the above or, alternatively, setting forth
those lease modifications, defenses and/or uncured Defaults, Tenant shall be in
default hereunder or, at Landlord's election, it shall be deemed that Landlord's
statement is correct with respect to the information therein contained. Any such
statement delivered pursuant to this Paragraph may be relied upon by any
prospective purchaser, mortgagee, or assignee of any mortgagee of the Property.
21. BROKERAGE. The parties warrant that they have dealt with no other
broker or person in connection with this transaction other than Colliers Xxxxxx
Xxxxxx Xxxxxx representing Landlord. Landlord shall pay all commissions due and
payable to said broker. Each party shall indemnify the other from any and all
liability for the breach of this representation and warranty on its part and
shall pay any compensation to any other broker or person who may be entitled
thereto. This provision shall survive the termination of this Lease.
22. SEVERABILITY. Should any provision of this Lease be unenforceable, it
shall be severable from this Lease; and this Lease shall remain in full force
and effect and be binding upon the parties hereto as though said provision had
not been included.
23. PERSONAL PROPERTY TAXES. Tenant shall timely pay all taxes assessed
against Tenant's personal property and all improvements to the Premises in-
excess of Landlord's standard installations. If said personal property and
improvements are assessed with the property of Landlord, Tenant shall pay to
Landlord Tenant's share of such taxes within ten (10) days after receipt of
Landlord's statement setting forth the amount of such taxes.
24. QUIET ENJOYMENT. Tenant, upon paying the rents herein reserved and
performing and observing all of the other terms, covenants and conditions of
this Lease on the Tenant's part to be performed and observed hereunder, shall
peaceably and quietly have, hold and enjoy the demised premises during the term
hereof, subject, nevertheless, to the terms of this Lease and to the provisions
of any mortgages, underlying leases, agreements and encumbrances to which this
Lease is or may be subordinated.
Initialed:
/s/ RSW
8
25. OPTION TO TERMINATE. At any time after the completion of thirty -six
(36) months from the commencement date of this Lease, Tenant shall have the
right to terminate this Lease. Said option to terminate shall be exercised by
Tenant (i) notifying Landlord in writing of its intent to terminate one hundred
eighty (180) days prior to the date of termination, (ii) not being in default,
(iii) paying all rent and additional rent through the date of termination , and
(iv) paying compensation for the privilege of termination, in an amount equal to
the unamortized Tenant Improvement allowance and Lease commissions, which
equates to $2,950.00 for each remaining month of the lease term from the date of
termination.
26. MISCELLANEOUS.
(a) All of the covenants of Tenant hereunder shall be deemed, and construed
to be "conditions" as well as "covenants" as though both words were used in each
separate instance.
(b) This Lease shall not be recorded by Tenant without the prior written
consent of Landlord, which consent shall not be unreasonably conditioned,
delayed or withheld.
(c) The paragraph headings appearing in this Lease are inserted only as a
matter of convenience, and in no way define or limit the scope of any paragraph.
(d) Submission of this Lease shall not be deemed to be an offer, or an
acceptance, or a reservation of the Premises; and Landlord shall not be bound
hereby until Landlord has delivered to Tenant a fully executed copy of this
Lease, signed by the parties hereto on the last page of this Lease in the spaces
herein provided. Until such delivery, Landlord reserves the right to exhibit and
lease the Premises to other prospective tenants.
(e) This Lease demises real estate located in the State of Missouri, and
shall be governed by the laws of such State.
(f) All the terms of this Lease shall extend to and be binding upon the
parties hereto and their respective heirs, executors, administrators, successors
and assigns.
(g) Landlord warrants that the showers located in the third floor restrooms
shall be maintained during the lease term and will not be removed.
(h) Landlord hereby represents and warrants to Tenant as follows:
(i) Landlord is solely vested with fee simple title to the Property,
including the parking lot serving the Property, and has full right and lawful
authority to lease the Premises to Tenant without the consent of any other
party;
(ii) As of the commencement date of this Lease, the Property and the
Premises (with the exception of any improvements to be constructed by Tenant)
will be in compliance with all applicable zoning and building codes; subdivision
or indenture restrictions; ordinances and regulations; fire, environmental,
occupational safety and health standards and similar standards established by
law.
(iii) There is not pending or, to the knowledge of Landlord,
threatened any litigation, mechanic's liens or claims of liens, condemnation
proceedings, administrative actions or judicial proceedings of any type relating
to the Premises, including, without limitation, disputes with subcontractors or
material suppliers, owners of adjacent properties, governmental authorities or
prior owners of the Property.
(iv) There are no leases, subleases, licenses, concessions or other
agreements, written or oral, granting to any person or entity the right to use
or occupy any portion of the Premises.
(v) To the best of Landlord's knowledge, all building systems
(including without limitation, electrical, plumbing, sewer, mechanical and HVAC)
have been completed in a good and workmanlike manner and in accordance with the
plans and specifications therefor, and are in proper working order and do not
require any repairs or replacements which have not been made.
Initialed:
/s/ RSW
9
(vi) To the best of Landlord's knowledge, the roof, walls, floor and
other structural components of the building are structurally sound and free of
any material defects and do not require any repairs or replacements which have
not been made; and
(vii) To the best of Landlord's knowledge, no hazardous materials have
been incorporated into the building, are located on or under the Property, or
affect the Premises.
27. OPTION TO EXTEND.
(a) Landlord hereby grants to Tenant the right and option to extend the
original lease term for two (2) successive periods of three (3) years each (each
such extended term being referred to herein as, an "Extension Term" and,
collectively, the "Extension Terms"). Each Extension Term shall be upon the same
terms and conditions contained in this Lease for the initial term except (i)
this provision giving two (2) extension options shall be amended to reflect the
remaining options to extend, if any and (ii) the Base Rent shall be adjusted as
set forth below (the "Rent Adjustment"). Tenant shall exercise such option by
delivering to Landlord, no later than three (3) months prior to the expiration
of the then effective lease term, written notice of Tenant's desire to extend
the lease term. Unless Landlord otherwise agrees in writing, Tenant's failure to
timely exercise such option shall waive it. Landlord shall notify Tenant of the
amount of the Rent Adjustment no later than thirty (30) days prior to the
commencement of the applicable Extension Term. If Tenant properly exercises its
option to extend, Landlord and Tenant shall execute an amendment to the Lease
reflecting the amount of the Base Rent due under the Extension Term.
(b) The Base Rent for each of the Extension Terms shall equal the
then-current Base Rent increased by the same percentage of increase in the BLS
Index (as hereinafter defined) over the immediately preceding lease term or
Extension Term. As used in this Lease, the term "BLS Index" shall mean the
Producer Price Index for Finished Goods (1982=100), published by the Bureau of
Labor Statistics, United States Department of Labor. If the Bureau of Labor
Statistics shall discontinue publication of said BLS Index or shall adopt a new
method of computing the BLS Index, the parties agree to use a published price
index as comparable as possible to the BLS Index prior to the change in such
method.
(c) Notwithstanding the foregoing, in no event shall the Base Rent payable
during any subsequent lease year or Extension Term as adjusted hereby be less
than the Base Rent paid during the immediately preceding lease year or Extension
Term.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and sealed
this Lease the day and year first above written.
TENANT: LANDLORD:
CONNECTRIA CORPORATION CROWN DIVERSIFIED INDUSTRIES
CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxx X. Xxxxx Xx.
--------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxxx Xxx X. Xxxxx, Xx.
President
Initialed:
/s/ RSW
10
EXHIBIT A
WestChase Office Building
00000 Xxxxx
Xx. Xxxxx, XX 00000
Suite 300 +/-7,713 r.s.f.
[Diagram of office building]
Initialed:
/s/ RSW
11A
Exhibit "A" to Office Lease
dated as of 10/12 , 2001, by and between
CROWN DIVERSIFIED INDUSTRIES CORP.,
as Landlord,
and
CONNECTRIA CORPORATION, A MISSOURI CORPORATION
as Tenant,
for Leased Premises in
WestChase Park Office Building
00000 Xxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
BUILDING FLOOR PLAN
Initialed for Initialed for
identification identification
by Tenant: by Tenant:
/s/ RSW /s/ JM
--------------- ---------------
Initialed:
/s/ XXX
00
Xxxxxxx "X" to Office Lease
dated as of 10/12 , 2001, by and between
CROWN DIVERSIFIED INDUSTRIES CORP.,
as Landlord,
and
CONNECTRIA CORPORATION, A MISSOURI CORPORATION
as Tenant,
for Leased Premises in
WestChase Park Office Building
00000 Xxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
WORK
Initialed for Initialed for
identification identification
by Tenant: by Tenant:
/s/ RSW /s/ JM
--------------- ---------------
Initialed:
/s/ RSW
12
WORK
This Exhibit B is a description of the work and obligations of Landlord and
Tenant with respect to the design and construction of the Leased Premises.
Landlord's Work
1. Landlord shall, at Landlord's expense, cause the Premises to be altered
and improved pursuant to plans and specifications (the "Plans and
Specifications") satisfactory to Landlord and Tenant. "Landlord's Work" shall
consist of the following:
a. Construct corridors to connect both stair xxxxx. Includes new
carpet in lobby and new paint and wallpaper in restrooms.
b. Demo three (3) offices and file room and restore ceiling at these
areas.
c. Remove all low voltage wiring.
d. Install two (2) doors in new corridor into tenant's space. Both
doors to have cadcam locks.
e. Remove all furniture, except three (3) file cabinets recessed in
the wall behind the receptionist area. File cabinets are for
Tenant's use throughout the term at no cost but will remain in
the space upon expiration of the Lease as part of the Leased
Premises.
f. Tenant shall have use of doors and frames removed at areas of
demo.
g. Replace any stained or damaged ceiling tiles through out.
h. Remove cabinetry in existing mail room/ copy room.
i. Demo the drywall ceiling in the hallway in front of mail room/
copy room if the corridor wall is in-filled with drywall or leave
ceiling "as -is" if new suite entry door is installed.
j. Repair holes and replace any stained or damaged ceiling tiles in
the fitness room.
k. Tenant, at Tenant's discretion, can elect to use the built in
front reception desk or have it removed.
l. All work in Plans and Specifications from Tenant to be mutually
agreed upon.
2. In addition to Landlord's work above, Landlord will provide a Tenant
Improvement Allowance of $77,130.00 to be use towards, but not limited
to, the following improvements to be completed by Tenant: permits,
architectural plans, demolition, dry wall, carpentry, cabinets,
electric, acoustical, plumbing, painting, flooring, blinds, clean-up,
HVAC, supervision, low voltage wiring, moving expenses, signage,
upgrades over building standard, plumbing, cabinetry, phone wiring,
computer wiring, and any other work not specified above under
Landlord's Work (collectively, "Landlord's Work"). Landlord shall pay
the Tenant Improvement Allowance to Landlord's contractor in one or
more installments within fifteen (15) days after Landlord's receipt
and approval of invoices and lien waivers, as appropriate, which
approval shall not be unreasonably conditioned, delayed or withheld.
Landlord will provide a letter of credit for the balance of any unused
Tenant Improvement Allowance to be used to offset base rent.
Landlord shall supply Tenant with a cost analysis in writing of
Landlord's Work versus Work to be provided under the Tenant
Improvement Allowance.
Tenant's Work
l. Landlord shall permit, and hereby grants to, representatives, agents,
employees, surveyors, contractors, appraisers and engineers designated by Tenant
access to and the right to enter upon the Premises and the Property prior to the
Commencement Date to examine, inspect, measure and test the Leased Premises and
the improvements and equipment located thereon. Tenant shall, at its expense,
repair any damage to the Premises caused by Tenant's inspection or testing
thereof. If Tenant has approved the Plans and Specifications, then Tenant, and
its agents,
Initialed:
/s/ RSW
13
employees and contractors, shall have the right to enter onto the Premises to
complete Tenant's Work and ready the Premises for Tenant's occupancy, including,
but not limited to the right to move furniture and other personal property in
the Premises from and after December 15, 2001, and to make such alterations and
install such equipment and fixtures as Tenant may deem necessary without the
necessity of paying any rent therefor but otherwise on the terms and subject to
the conditions of this Lease.
Condition of Leased Premises
Except to the extent set forth in this Lease, Tenant certifies that no
representations as to the condition of the Premises or agreements as to the
construction improvements of the Premises have been made by Landlord or its
agents or representatives to Tenant, either directly or indirectly, prior to or
at the execution of this Lease.
Initialed:
/s/ RSW
14
Exhibit "C" to Office Lease
dated as of 10/12 , 2001, by and between
CROWN DIVERSIFIED INDUSTRIES CORP.,
as Landlord,
and
CONNECTRIA CORPORATION, A MISSOURI CORPORATION
as Tenant,
for Leased Premises in
WestChase Park Office Building
00000 Xxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
RULES AND REGULATIONS
Initialed for Initialed for
identification identification
by Tenant: by Tenant:
/s/ RSW /s/ JM
--------------- ---------------
Initialed:
/s/ RSW
15
EXHIBIT C
RULES AND REGULATIONS
1. Tenant shall not inscribe any inscription or post, or in any manner display
any sign, notice, picture, placard or poster, or any advertising matter
whatsoever, anywhere in or about Premises at places visible (either
directly or indirectly as an outline or shadow on a glass pane) from
anywhere outside of the Premises or from public and common area within
Premises, without first obtaining Landlord's written consent thereto and
Landlord shall specify the color, size, style and material to be used. No
showcase shall be placed in front of or in the lobbies or corridors of the
Premises and Landlord reserves the right to remove all showcases so placed
and all signs other than those above provided for, without notice and at
the expense of the Tenant responsible.
2. All exterior and interior signs and corridors must be installed by Landlord
or someone designated by it, and the actual cost thereof shall be paid by
the Tenant and all such signs are so placed at the risk of the Tenant.
3. If a Tenant desires telegraphic or telephone connections, the Landlord will
direct the electricians as to where the wires are to be introduced and
without such direction no boring or cutting for wires shall be permitted.
4. The Landlord retains the power to prescribe the weight and proper position
of safes and mechanical equipment. All safes, furniture, boxes, bulky
articles and packages shall be moved in to or out of said building or from
one part of the building to another under supervision of Landlord and at
such times and according to such regulations as may be designated by the
Landlord and at the entrance designated by the Landlord and each tenant
shall be responsible for all damage to the walls, floors, or other parts of
the building caused by or connected with any moving or delivery in to or
removal horn the building any safe, furniture, boxes or bulky articles
while in the building at Tenant's instance but no moving out shall occur
without the written consent of the Landlord in each instance. The premises
shall not be overloaded. No engine, boiler, or other machinery shall be put
upon the premises by any Tenant.
5. No Tenant shall do or permit anything to be done in said premises which
will be dangerous to life or limb or which will tend to create a nuisance
or injure the reputation of the building, or use burning fluid, camphene,
alcohol, kerosene, or anything except steam, gas or electricity in lighting
or heating said premises; or install any air conditioning or air cooling
apparatus without the written consent of Landlord; or in any way injure or
annoy them, or conflict with the laws or with the regulations of the fire
department, or with any insurance policy upon said building or any
regulations of any governmental agency or municipality having jurisdiction,
or use the premises for any illegal or immoral purposes, and no beer, wine,
or intoxicating liquor shall be sold in said building without written
consent of the Landlord in each instance.
6. The sidewalk, passages, lobbies, corridors, elevators and stairways shall
not be obstructed by Tenant; or used except for ingress and egress from and
to offices and storeroom.
7. The doors, skylights, windows, and transoms that reflect or admit light
into passageways or into any place in said building shall not be covered or
obstructed by Tenant. The water closets and other apparatus shall not be
used for any purpose other than those for which they were constructed and
no sweeping, rubbish, rags, or other substances shall be thrown therein.
Any damage resulting to them from misuse shall be borne by the Tenant who
shall cause it.
8. Tenant and its employees and guests are not to injure or deface the
building nor the woodwork, nor the walls of the premises, nor carry on upon
the premises any noisome, noxious, noisy, or offensive business nor conduct
an auction therein. No interference in any way with the other Tenants or
those having business with them.
9. No room or rooms shall be occupied or used as sleeping or lodging
apartments.
Initialed:
/s/ XXX
00
00. Tenant shall, when leaving premises at close of business, or unoccupied at
any time, lock all doors and for any default or carelessness in this
respect shall make good all injury sustained by other Tenants and by the
Landlord or by either of them, for damages resulting from such default or
carelessness.
11. No animal or bird shall be allowed in any part of the building.
12. Any person or persons, other than the janitor or janitress of Landlord, who
shall be employed for the purposes of cleaning premises shall be employed
at Tenant's cost and Landlord shall be in no way responsible for any loss
of property on or from the premises, however occurring, or any damage done
to the furniture or other effects of any Tenant by the janitor or janitress
furnished by the Tenant or anyone under him.
13. No Tenant shall accumulate or store in the premises covered by this Lease
any waste paper, discarded records, paper files, sweepings, rags, rubbish
or other combustible matter and Tenant shall surrender such matter to
Landlord without compensation to be handled and disposed of by Landlord.
Nothing shall be thrown by Tenant, their employees or guests, out of the
window or doors, down the passages or skylights or over balcony rails of
the building.
14. Tenant shall contract with the appropriate waste hauler to dispose of any
infectious or hazardous waste as defined by state, city, or county codes.
15. The Landlord reserves the right to exclude from the building all drunken
persons, idlers, and peddlers, solicitors and generally persons or a
character or conduct to create disturbance and persons entering in crowds
or in such unusual numbers as to cause inconvenience to the tenants of the
building.
16. Landlord reserves the right to designate, on a non-discriminatory basis, in
writing to the Tenant, those parking spaces for Tenant's employees that
will assure, in Landlord's judgment, maximum availability of parking for
all the building tenants, patients and clients. In the event said
designated parking is not adhered to by Tenant's employees, Landlord
reserves the right to tow or impound vehicles of Tenant's employees at the
vehicle owner's expense.
17. The building has been designated a smoke-free environment. Tenants, their
employees, and their visitors are prohibited from smoking within the
building including all common areas and suites.
18. Landlord reserves the right to change these rules and to make such other
further reasonable rules and regulations either as it affects one or all
tenants as in its judgment from time to time be needed for the safety, care
and cleanliness of the premises, for the preservation of good order therein
or for any other cause and when said changes are made, such modified or new
rules shall be deemed a part thereof with the same effect as if written
herein, when a copy shall have been delivered to the Tenant or left with
some person in charge of the demised premises.
Initialed:
/s/ RSW
17
