Exhibit 10.6
LEASE AGREEMENT
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THIS LEASE AGREEMENT (this "Lease") is made and entered into as of
the 1st day of April, 1997, by and between DOCKHORN PROPERTIES, L.L.C., a Kansas
limited liability company (the "Landlord"), and INTERNATIONAL MEDICAL TECHNICAL
CONSULTANTS, INC., a Kansas corporation (the "Tenant"), with respect to the
following facts and objectives.
RECITALS:
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A. Landlord owns those certain tracts of real property described as
set forth on Exhibit A, attached hereto and incorporated herein by this
reference, upon which are located (i) a building containing approximately 15,680
square feet of gross leasable area, commonly known and numbered as 00000 Xxxxxxx
Xxxxxxxxx, Xxxxxx, Xxxxxx; (ii) a building containing approximately 19,160
square feet of gross leasable area, commonly known and numbered as 00000 Xxxxxx
Xxxxx, Xxxxxx, Xxxxxx; and a building containing approximately 32,400 square
feet of gross leasable area, commonly known and numbered as 00000 Xxxxxxx
Xxxxxxxxx, Xxxxxx, Xxxxxx (collectively referred to herein as the "Premises").
B. Landlord and Tenant desire to enter into this Lease to evidence
their agreements with respect to Tenant's occupancy of the Premises from and
after the Commencement Date of this Lease.
NOW, THEREFORE, in consideration of the Rent herein reserved and the
mutual promises and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant agree as follows:
1. Grant of Lease; Reservations.
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1.01. Landlord hereby leases and lets the Premises to Tenant, and
Tenant hereby accepts and leases the Premises from Landlord, upon and subject to
the terms, conditions, covenants and provisions of this Lease.
1.02. Landlord excepts and reserves the right to place, install,
maintain, carry through, repair and replace such utility lines, pipes, wires,
tunneling and the like in, over and upon the Premises as may be reasonably
necessary or advisable for the servicing of the Premises or of other tracts or
parcels of land owned by Landlord adjacent to, near or around the Premises, but
this provision shall in no way limit or otherwise modify Tenant's
responsibilities set forth elsewhere in this Lease including, without
limitation, those requiring maintenance and repair by Tenant. Landlord agrees
that if any such installation results in damage to any of Tenant's property or
improvements, Landlord will restore said improvements to substantially the same
condition as existed prior to said installation, all at Landlord's expense. Any
such work shall be done at such time so as to minimize any inconvenience to
Tenant and its business invitees.
2. Term; Memorandum of Lease.
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2.01. The term of this Lease (the "Term") shall commence on the
date of this Lease (sometimes herein called the "Commencement Date") and shall
continue for a period of ninety (90) months expiring at midnight on September
30, 2004. The term "Lease Year" whenever used in this Lease shall mean the
twelve (12) consecutive calendar months commencing April 1st and ending on the
next succeeding March 31st.
2.02. Upon the request of either of them, Landlord and Tenant agree
to execute an
instrument in recordable form setting forth the Commencement Date and expiration
date of the Term of this Lease and such other matters as may be mutually agreed
upon. Said instrument may be recorded by either party at its cost, but this
Lease shall not be recorded.
2.03. Tenant shall have the option to renew the Term of this Lease
for one (1) renewal term of ninety (90) months (the "Renewal Term"). This
renewal option shall be exercised by written notice from Tenant to Landlord at
least six (6) months prior to the end of the initial Term. If Tenant exercises
its renewal option, this Lease shall continue unchanged for the Renewal Term,
except that: (i) there shall not be any further renewal or extension options
upon expiration of the Renewal Term; and (ii) the Rent payable by Tenant during
the Renewal Term shall continue to be adjusted on annual basis as set forth in
paragraph 3.02 hereof. Even if Tenant exercises this renewal option, the renewal
shall not be effective unless Tenant has materially performed all of its
obligations under this Lease which have accrued as of the date that Tenant
exercises this renewal option and as of the date on which the Renewal Term
commences. If the renewal is not effective as set forth above, Landlord shall be
entitled to lease the Premises to any third party free and clear of any claim or
interest of Tenant.
3. Rent and Late Charges.
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3.01. Tenant agrees to pay for the use and occupancy of the
Premises during the entire Term of this Lease, at the times and in the manner
herein provided, the Monthly Rent (as adjusted) described below. As used in this
Lease, the term "Rent" means, collectively, the Monthly Rent (as adjusted) and
any other charges, sums or amounts to be paid by Tenant described in this Lease.
3.02. During the first year Lease Year, Tenant shall pay to
Landlord the following rent amounts:
Gross Leasable Rental Rate
Building Square Footage (per square foot) Monthly Rent
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16300 College 15,680 $20.50 $ 26,786.67
16400 College 19,160 $18.00 $ 28,740.00
11011 Eicher 32,400 $18.00 $ 48,600.00
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Total $104,126.67
Rent for the first Lease Year shall be payable in monthly
installments of One Hundred Four Thousand One Hundred Twenty-Six and 67/100
Dollars ($104,126.67) each, in advance, on the first day of each calendar month
commencing on the Commencement Date (the "Monthly Rent"). Thereafter, during the
Term and any Renewal Term, the amount of the Monthly Rent shall be adjusted
annually commencing with the 1st day of the second Lease Year (April 1, 1998)
after the Commencement Date and on each one-year anniversary thereof (each an
"Adjustment Date"). On each Adjustment Date, the Monthly Rent shall be increased
by two and two/thirds percent (2.66%). Each Adjustment Date, Landlord shall give
Tenant written notice of the adjusted Monthly Rent and the amount of the monthly
payments of same.
3.03. Rent payable by Tenant under this Lease shall be paid when
due without notice or prior demand and shall be paid by Tenant to Landlord at
00000 Xxxxxxxx, Xxxxxxxx Xxxx, Xxxxxx 00000, or at such other place as may be
designated from time to time by notice from Landlord to Tenant. Rent shall be
payable without notice, demand or set-off.
3.04. Any Rent unpaid for more than fifteen (15) days after the
date when due and/or received and accepted more than fifteen (15) days after the
due date shall be subject to a late charge of Two Thousand Five Hundred Dollars
($2,500.00). Late charges shall be due from Tenant on or before the next due
date for the purpose of defraying Landlord's administrative expenses
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incident to the handling of such overdue payments. Any default in the payment of
Rent shall not be considered cured unless and until said late charges are paid
by Tenant. In the event of a default in payment of late charges, Landlord shall
have the same remedies as upon default in the payment of Rent. Late charges
shall be in addition to any other rights or remedies provided to Landlord by
this Lease or as allowed by law. In the event Rent (including Monthly Rent or
late charges) are not paid within thirty (30) days following the due date
thereof, such sums shall bear interest at a rate equal to two percentage points
(2%) above the then publicly announced prime interest rate as set forth in the
Wall Street Journal. Interest shall be due from Tenant on or before the next
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rental due date and shall accrue from the date that such Rent becomes due and
payable hereunder. Interest shall continue to accrue up to and including the
date Rent is paid. Any default in the payment of Rent shall not be considered
cured unless and until actually paid by Tenant. Upon default in the payment any
applicable interest, Landlord shall have the same remedies as upon default in
payment of Rent. Interest shall be in addition to any other rights or remedies
provided to Landlord by this Lease or as allowed by law.
3.05. Landlord and Tenant agree that Monthly Rent shall include all
operating expenses of the Premises, including, but not limited to, those
expenses set forth on Exhibit B attached hereto; provided, however, that in no
event shall Landlord's cost of operating the Premises in any Lease Year exceed
that amount set forth on Exhibit B, which are the actual operating expenses of
00000 Xxxxxxx Xxxx. and 11011 Eicher for calendar year 1996 on a per-square-foot
basis, and an estimated amount of the annual operating expenses for 00000
Xxxxxxx Xxxx., calculated on a per-square-foot basis by dividing the operating
expenses of 11011 Eicher for calendar year 1996 by the total square footage of
such building ("Operating Expense Base"). The parties agree that commencing with
the second Lease Year (April 1, 1998), the Operating Expense Base shall be
increased by two and two-thirds percent (2.66%) per Lease Year. In the event
Landlord's cost per square foot in any Lease Year for the items set forth on
Exhibit B exceeds the Operating Expense Base, then Tenant shall be liable for
any overage at its sole cost. Landlord shall provide Tenant with an itemized
statement detailing such overage, and Tenant shall pay the amount of such
overage to Landlord as additional rent within thirty (30) days of receipt of
such statement.
4. Condition of Premises; Zoning; ADA; Estoppel Certificate.
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4.01. Landlord agrees to cause the Premises to be inspected by a
recognized architect within thirty (30) days after the Commencement Date to
measure the square footage of the Premises and to insure that the Premises
structural and mechanical condition complies with BOMA standards. The cost of
such architect shall be divided evenly between Landlord and Tenant. After any
adjustments agreed to by Landlord and Tenant arising from such inspection,
Tenant agrees to accept the Premises in its then present condition as delivered
by Landlord to Tenant hereunder. Thereafter, Landlord shall make no warranties,
expressed or implied, concerning the physical or other condition of the Premises
or the buildings or improvements thereon or their suitability for Tenant's
purposes, other than as expressly set forth herein.
4.02. Landlord represents and warrants to Tenant that: (i) the
Premises are presently zoned to permit Tenant's use of the Premises as
contemplated by this Lease; and (ii) the Premises as delivered to Tenant on the
Commencement Date are in compliance with the Americans with Disabilities Act (42
U.S.C. (S) 12101 et seq.), and all regulations, guidelines and interpretations
promulgated thereunder from time to time (collectively, as the same may be
amended or supplemented from time to time, and together with any successors
thereto, the "ADA"). Landlord and Tenant agree that any modifications or repairs
required to the Premises due to an amendment to the ADA shall be at Landlord's
sole expense. The parties further agree that any modifications or repairs
required to the Premises under the ADA due to improvements of or modifications
to the Premises made by Tenant shall be at Tenant's sole expense, and subject to
Landlord's prior written review and approval.
4.03. From time to time during the Term of this Lease, as it may be
extended, Tenant
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agrees that it will, at the request of Landlord or any lender or Landlord,
promptly, and in any event within seven (7) days after written request, execute,
acknowledge and deliver, in a form satisfactory to Landlord or its lender, an
estoppel certificate in the form requested, addressing the same to whomsoever
Landlord or its lender designates. Such estoppel certificate shall state, among
other things: whether this Lease is in full force and effect; whether this Lease
has been modified or amended, and, if so, identifying and describing any such
modification or amendment; the date to which Rent and any other charges have
been paid; whether Tenant knows of any default on the part of Landlord or has
any claim against Landlord and, if so, specifying the nature of such default or
claim; and stating such other facts or providing such other information as
reasonably may be requested.
5. Use of Premises; Compliance With Laws.
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5.01. Tenant agrees to occupy and use the Premises (and the
buildings and improvements thereon) only for office, light warehouse, medical
testing, laboratory and related uses as presently being conducted by Tenant in
its normal course of business and Tenant shall not use or occupy the buildings
or other improvements on the Premises, or any portion thereof, for any other
purpose or purposes without the prior written consent of Landlord first
obtained, which consent shall not be unreasonably withheld.
5.02. Tenant agrees to comply with all laws, ordinances, orders,
rules and regulations now or hereafter in force affecting the Premises and/or
the buildings or other improvements thereon, or the use thereof, and not to
conduct in, or permit the use of, the Premises or any part thereof for any
illegal or improper purpose or use.
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6. Environmental Matters. Tenant agrees that it shall: not cause
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or permit any hazardous substances or hazardous materials to be brought on,
used, stored, generated or exposed or released on or in the Premises except in
strict accordance and compliance with all applicable environmental laws; not
discharge, dispose of or emit, or permit to be discharged, disposed of, leaked
or emitted, any hazardous substances or hazardous materials in the air,
atmosphere, ground, water supply or sewer systems except only as may be
permitted by applicable environmental laws and then only in strict accordance
and compliance therewith; disclose to Landlord the names and approximate amounts
of hazardous materials and hazardous substances, if any, that Tenant stores,
uses, generates or disposes of on or in the Premises; not place, construct,
erect or install or permit to be used in or on the Premises any above ground or
underground storage tanks, whether for fuel, chemicals or any other substances,
or fluids or materials except with the prior written consent of Landlord; obtain
and maintain in existence all permits, licenses or similar authorizations
required of Tenant by all applicable environmental laws (and provide Landlord
with copies thereof); and provide Landlord with true copies of all notices or
other communications received by Tenant from any governmental authority alleging
or claiming any violation of any applicable environmental law by Tenant with
respect to the Premises or Tenant's operations thereon together with Tenant's
proposed response thereto including any remedial actions to be undertaken.
Tenant agrees to and shall indemnify, defend and hold Landlord and its members
harmless from and against any and all claims, damages, fines, judgments,
settlements, penalties, costs or losses (including, without limitation, any
decrease in the value of the Premises) arising, during or after the Term of this
Lease, directly or indirectly from any breach or default by Tenant, its
employees, agents, contractors or invitees, of any of the foregoing provisions
including, without limitation, any injury or damage to persons or property of
Landlord, other persons on or around the Premises or properties adjacent
thereto, arising from any spill, seepage, leakage, release, discharge, emission,
generation, storage or disposal of hazardous substances or hazardous materials
which results in damage or contamination. This indemnification includes, without
limitation, any and all costs incurred in or because of any investigation of the
Premises or Tenant's use of or operations or activities therein or thereon and
any clean-up, removal, restoration or remediation mandated by any governmental
authority or reasonably required by Landlord's environmental consultants.
Without limiting the foregoing, in the event of any spill, seepage, leakage,
release, emission, generation, or disposal of hazardous substances or hazardous
materials in or upon the Premises caused or permitted by Tenant, its employees,
agents, contractors or invitees that results in damage or contamination, Tenant
shall promptly upon discovery or notification thereof, whether during or after
the Term of this Lease, at its sole cost and expense, take any and all actions
to return the Premises to substantially the same condition as existed prior to
the presence of any such hazardous substances or hazardous materials thereon or
therein. Tenant shall obtain Landlord's approval for any such remedial actions,
which approval shall not be unreasonably withheld or delayed. If known prior to
the expiration of the Term of this Lease and if any remediation or clean has not
been fully completed by such expiration date, Landlord shall have and is hereby
granted the unilateral right (but not the obligation) to extend the Term of this
Lease on a month-to-month basis (and on all of the same terms and conditions as
then prevail) until such remediation or clean-up is completed by giving written
notice of extension to Tenant. The provisions of the indemnity contained herein
shall survive the expiration or sooner termination of this Lease and shall inure
to the benefit of and be enforceable by any person or entity which purchases the
Premises from Landlord or by any lender of or to Landlord which forecloses any
mortgage, deed of trust or other security interest it may have in the Premises.
For all purposes hereof, the terms "hazardous materials" and "hazardous
substances" shall mean all materials, substances, or wastes defined as such
under all applicable environmental laws together with any oil, petroleum,
petroleum products or by-products, medical or infectious wastes, explosives,
asbestos, nuclear or radioactive materials, and polychlorobiphenyls. For all
purposes of this Lease, the phrase "applicable environmental laws" means common
law and all statutes, laws, ordinances, acts, rules, regulations (temporary,
interim or final), decrees, orders and rulings of all federal, state, county or
municipal governments and any political subdivisions, agents, departments,
commissions, boards, bureaus or instrumentalities of any of them which have
jurisdiction of or over the Premises and which relates or pertains to health,
the environment, oil, chemicals, petroleum products, explosives, underground or
above ground storage tanks, hazardous substances, hazardous materials, solid,
medical, infectious or other wastes, radioactive materials,
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air quality or water quality, including, without limitation, the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended (by,
among others, the Superfund Amendments and Reauthorization Act), the Resource
Conservation and Recovery Act, as amended, the Clean Air Act, as amended, the
Clean Water Act, as amended, the Toxic Substances Control Act, as amended, the
Safe Drinking Water Act, as amended, the Federal Insecticide, Fungicide and
Rodenticide Act, as amended, and the environmental control laws of the State of
Kansas, as amended.
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7. Services. During the term of the Lease, Landlord shall
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furnish heat, water, electricity, air-conditioning, security, janitor and
cleaning services which, in Landlord's judgment, are necessary for the
comfortable occupation and use of the Premises as permitted under paragraph 5.01
of this Lease. Tenant shall be responsible, at its sole expense, for obtaining
and maintaining local and long distance telephone service. Landlord shall
maintain the Premises, including permanent building components such as heating,
air-conditioning and ventilating systems and the like, and the associated off-
street parking facilities in good condition and repair. Landlord's failure to
furnish the services provided for in this paragraph shall not render Landlord
liable in any respect for damages to either person or property, nor shall it
affect any of Tenant's obligations under this Lease. Landlord's sole liability
shall be to use diligent prosecution in furnishing the services referred to in
this paragraph. Tenant shall have no claim for rebate of rent or damages on
account of any interruption in those services. Tenant's sole remedy in the event
of interruption of any service would be to compel Landlord to exercise diligent
prosecution in furnishing the service, if Landlord is not doing so; provided,
however, that if such services are interrupted for a period of five (5)
consecutive business days or more such that all or any portion of the Premises
are rendered unusable, then Tenant shall be entitled to an abatement of Rent for
such portion of the Premises from the time of such interruption until such
services are resumed.
8. Maintenance and Repair of the Premises.
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8.01. Subject to the provisions of Section 3.05 of this Lease,
Landlord shall be responsible, at Landlord's sole expense, for all repairs and
maintenance of the interior and exterior of the Premises caused by normal wear
and tear in the use and occupancy of the Premises by Tenant. This shall include,
without limiting the generality of the foregoing, all utility meters, pipes and
conduits, roofs, foundations, structures, parking lot surfaces and markings,
curbs, sidewalks, driveways, docks, landscaped and planted areas, exterior and
interior portions of all doors, windows, plate glass, interior and exterior
lighting fixtures and lamps, heating, ventilating and air conditioning units and
systems, all plumbing and sewage facilities, all electrical installations,
systems and equipment, exterior and interior walls, partitions, floors, floor
covering, ceilings, all interior painting and all interior and exterior building
appliances and similar equipment or fixtures originally installed or thereafter
placed in said buildings and improvements.
8.02. Any repairs or maintenance required to the Premises by
Tenant's use which cannot be reasonably characterized as "normal wear and tear"
shall be the responsibility of Tenant, and performed at Tenant's sole expense.
In the event Tenant fails to make those repairs or replacements and to do that
work provided herein as Tenant's obligation within ninety (90) days after
written notice or demand given by Landlord or, if such repairs and work are of a
character that the same cannot be completed within thirty days, Tenant fails to
commence the diligent prosecution of such repairs or work within at least ninety
90)days after written notice from Landlord of the need therefor and diligently
continues to prosecute the same, without interruption, to completion, Landlord
may, at its option, perform the same, and any and all expenses incurred by
Landlord in such connection shall be payable by Tenant to Landlord immediately
upon demand. If Tenant disputes or desires to contest Landlord's notice of
repairs or work to be done, then within thirty (30) days after Landlord's
written notice, Tenant may submit the matter to arbitration as provided for in
this paragraph. If Tenant fails to submit any such matter to arbitration or cure
or commence cure within such 30 day period, Landlord may proceed to make such
repairs. Nothing herein shall imply any duty upon the part of Landlord to do any
such work which under the provisions of this Lease Tenant is required to
perform, and the performance thereof by Landlord shall not constitute a waiver
of Tenant's default for failure to perform the same. Landlord shall not be
liable in any event for inconvenience, annoyance, disturbance, loss of business
or other damage by Tenant by reason of making such repairs or the performance of
any such work in the Premises or the buildings or improvements thereon. Tenant
shall also have the right to submit to arbitration any dispute as to the amount
of any repairs made by Landlord in the event Tenant fails to make the same if
commenced within ten (10) days after Landlord's written demand for
reimbursement.
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If it becomes necessary under the immediately preceding paragraph to
arbitrate a matter, then Landlord and Tenant shall mutually agree upon an
arbitrator within ten (10) days after the earlier of (a) expiration of Tenant's
period for payment or cure or (b) Tenant's notice to Landlord disputing the
repairs and requesting arbitration. If they shall be unable to agree within such
ten (10) day period, then each shall have five (5) days to select an arbitrator
and notify the other party to this Lease of their selection. If either Landlord
Tenant does not select an arbitrator and so notify within such five (5) day
period, then the arbitrator selected by the other party shall have the sole
right to arbitrate this matter. The two arbitrators selected shall have ten (10)
days after the selection of the last one of them to mutually agree upon a third
arbitrator. Thereafter, the three arbitrators shall have thirty (30) days to
consider any evidence presented by Landlord and Tenant and render a decision by
majority. If such decision requires payment of any sum by Tenant or Landlord,
such sum shall be paid in full to Landlord or Tenant, as the case may be, within
ten (10) days after the decision is rendered. If it is not paid within such ten
(10) day period, such sum shall be deemed to be Rent and Landlord may
immediately, without waiting an additional ten (10) days or providing additional
written notice, exercise its rights for Tenant's default set forth below in this
Lease. The majority decision of the arbitrators shall be final and conclusive
and enforceable under the Kansas Uniform Arbitration Act.
9. Landlord's Right of Entry.
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9.01. Landlord, its agents, employees, contractors and designees
shall have the right, during the Term of this Lease, as it may be extended, to
enter upon the Premises (and the buildings or any of the other improvements
located thereon) for all lawful purposes and to whatever extent necessary or
appropriate to enable Landlord to exercise all of its rights under this Lease,
including, without limiting the generality of the foregoing, the right to enter
for the following purposes:
(i) To perform certain provisions of this lease on Tenant's
behalf as set forth elsewhere herein;
(ii) To inspect the Premises (and the buildings and all other
improvements thereon) for the purpose of ascertaining the
condition of the same and in order to ascertain that the same
are being maintained by Tenant as required under the
provisions of this Lease; and
(iii) To exhibit the Premises and the buildings and other
improvements thereon to others.
Tenant shall make no claim for damages or inconvenience caused by
any such entry. Landlord and Tenant agree that, except in the cases of
emergency, Landlord shall use its best efforts to notify Tenant prior to any
entry, and enter upon the Premises only during normal business hours.
9.02. The exercise by Landlord of its right of entry herein granted
shall not constitute an eviction of Tenant, and the Rent payable under this
Lease shall not xxxxx by reason thereof.
10. Changes or Additions to Buildings; Surrender at Termination.
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10.01. Tenant agrees not to alter, revise, change, add to or remove
any part or portion of the buildings or the other improvements or erect any
other improvements of any nature on the Premises without the prior written
consent of Landlord which will not be unreasonably withheld or delayed. Nothing
herein contained shall prohibit Tenant from making interior, non-structural
changes or renovations to the buildings not exceeding $40,000 in the aggregate
over the Term (excluding expenditures for a security system) of this Lease
without Landlord's consent; provided, however, that (i) Tenant shall be required
to obtain Landlord's consent, not to be unreasonably withheld, prior to any
installation of a security system and (ii) in no event shall Tenant be required
to obtain the consent of Landlord to an upgrading of the Premises' existing
wiring. Landlord may condition its consent on, among other things, the delivery
of completion and/or performance bonds
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or other security to insure completion of the work lien free.
10.02. Tenant may install in or upon the Premises such trade
fixtures and equipment as Tenant considers essential or desirable for the
conduct of business therein. Such items shall be considered removable business
property and referred to in this Lease as "Tenant's Property". Tenant shall have
the right to remove any of Tenant's Property at any time. Landlord shall have no
right to assert any lien or equitable charge against any of Tenant's Property,
inventory or other personal property. Any damage caused to the Premises by the
removal of Tenant's Property shall be repaired by Tenant at its sole cost and
expense, whether before or after the expiration or termination of this Lease.
10.03. On the last day of the Term of this Lease, as it may be
extended, or on the sooner termination thereof, all improvements not otherwise
already vested in Landlord and located on the Premises shall be deemed to be a
part of the Premises, title thereto shall be vested in Landlord, and Tenant
shall (i) peaceably surrender to Landlord the Premises, together with the
buildings and all improvements thereon as a part thereof, without disturbance,
molestation, injury or any further claim thereto by Tenant; and (ii) deliver the
Premises (together with the buildings and all improvements thereon) to Landlord
in good order, condition and repair (normal wear and tear and damage by insured
casualty excluded); and (iii) remove from the Premises, at the sole expense of
Tenant, Tenant's Property (and any of Tenant's Property not so removed prior to
the termination of this Lease, may, at the option of Landlord and without
limiting Landlord's right to compel removal thereof, be deemed abandoned); and
(iv) deliver any and all keys to the buildings and improvements on the Premises,
which Tenant may possess, to Landlord at the place designated by Landlord for
the payment of Rent. Surrender of keys by Tenant prior to or at the expiration
or termination of this Lease and receipt of same by Landlord shall not release
Tenant from any obligations, liabilities or conditions to be performed by Tenant
pursuant to the provisions of this Lease. Any damage to the Premises or the
buildings or improvements thereon caused by Tenant in the removal of Tenant's
Property shall be repaired by and at Tenant's sole expense promptly following
removal.
11. Assignment and/or Subletting.
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11.01. Tenant shall not sublet or license all or any portion of the
Premises nor assign its interest under this Lease to any person without the
prior written consent of Landlord, which Landlord shall not unreasonably
withhold. No sublease, license or assignment consented to by Landlord shall
relieve Tenant of primary liability for all of Tenant's obligations hereunder
including, without limitation, Rent obligations. For purposes hereof assignment
shall include transfer by merger, consolidation, reorganization or operation of
law, a transfer of more than fifty percent (50%) of Tenant's stock, or the sale
of substantially all of Tenant's assets.
11.02. Landlord may freely assign its interest in this Lease to a
third party.
12. Mechanics' and Other Liens.
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12.01. Tenant shall not suffer any mechanic's or materialmen's lien
to be filed against the Premises, or any part thereof, by reason of work, labor,
services or materials performed by or furnished to Tenant or anyone holding any
part of the Premises under Tenant. If any such lien shall at any time be filed,
Tenant shall, within thirty (30) days after the filing thereof, cause such lien
to be discharged of record by payment, or by bond, or by order of a court of
competent jurisdiction, or otherwise or shall commence the contest of said lien
and provide Landlord with reasonably adequate security against such contested
claim. In the event of Tenant's failure to discharge or commence contest of any
such lien within such period, Landlord shall have the right and privilege, at
Landlord's option, of removing said lien by paying the full amount thereof or by
bonding or in any other manner Landlord deems appropriate, without investigating
the validity thereof and irrespective of the fact that Tenant may contest the
propriety or the amount thereof, and any amount so paid,
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including any attorneys' fees and all expenses connected therewith and interest
at the rate set forth in paragraph 3.04 on any sums paid or advanced shall be
deemed to be additional Rent due from Tenant to Landlord and shall be repaid to
Landlord immediately on rendition to Tenant of a statement therefor. Tenant will
defend, indemnify and save harmless Landlord from and against all loss, claims,
damages, costs or expenses suffered by Landlord by reason of any repairs,
installations or improvements made by Tenant.
12.02. Nothing in this Lease shall be construed to authorize Tenant,
or any person dealing with or under Tenant, to charge the Rents of the Premises,
or the interest of Landlord in the estate of the Premises, or the interest of
Landlord in the Premises or any part thereof, with a mechanics' or materialmen's
lien or with any other lien of similar kind whatsoever, and under no
circumstances shall Tenant be construed to be the agent, employee or
representative of Landlord in the making of any alterations to or improvements
on the Premises, but on the contrary, the right or power to charge or impose any
lien or claim of any kind whatsoever against Landlord's Rents or against the
Premises or against any part thereof is hereby denied.
12.03. Tenant shall not create or suffer to be created or imposed a
security interest, encumbrance, mortgage or any other lien of any kind
whatsoever against or on the Premises or against or on any improvements,
additions or other construction made by Tenant on or to the Premises or against
or on any equipment or fixtures installed by Tenant therein (other than Tenant's
Property as defined above, its inventory and its interest in this Lease), and
should any security interest or lien be created or imposed in breach of the
foregoing provisions, Landlord shall be entitled to discharge the same by
exercising the rights and remedies afforded it under paragraph 12.01.
10
13. Indemnification of Landlord; Liability Insurance.
------------------------------------------------
13.01. Tenant covenants and agrees that it will protect, indemnify,
save harmless and defend Landlord, its members, agents and employees, from and
against any and all loss, cost, damage, expense, and claims for damage, death or
injury of any kind whatsoever to any person or any property howsoever occurring
in, upon or about the Premises or the buildings or other improvements thereon,
or arising from any accident, injury, death or damage occurring outside the
Premises where such accident, damage, death or injury results or is claimed to
have resulted from an act or omission on the part of Tenant or Tenant's
contractors, subtenants, licensees, concessionaires, agents, representatives,
servants or employees, other than and excluding any acts or omissions of
Landlord and/or its agents constituting willful, wanton or gross negligence.
This indemnity and hold harmless agreement shall include indemnity arising from
any accident, injury, death or damage to the person and property of Tenant, its
employees and all persons on the Premises or the buildings and other
improvements thereon, at Tenant's invitation or sufferance, and shall include
indemnity against all costs, claims, expenses, penalties, liens, attorneys' fees
and liabilities incurred in or in connection with any claim or proceeding
brought thereon, and the defense thereof. If any action or proceeding is brought
against Landlord, its members, agents or employees, by reason of any of the
aforementioned causes, Tenant, upon receiving notice thereof from Landlord,
agrees to defend such action or proceeding by competent counsel at Tenant's sole
expense.
13.02. Tenant agrees to maintain at its expense in full force,
during the entire Term of this Lease, as it may be extended, comprehensive
general public liability insurance under which Landlord, its lenders, if any,
and Tenant are named as insureds, and under which the insurer agrees to defend
and indemnify Landlord and hold it harmless from and against all cost, loss,
damages, expense and/or liability arising out of or based upon any and all
accidents, death, injuries and/or damages of any kind whatsoever to any person
or any property howsoever occurring and claimed to have been suffered upon the
Premises, the buildings and improvements thereon (including parking lots), or
the sidewalks, driveways or approaches immediately adjoining the same other than
and excluding any acts or omissions of Landlord and/or its agents constituting
willful, wanton or gross negligence. Each such policy shall be issued by a
reputable insurance company or companies reasonably satisfactory to Landlord,
having an A.M. Best's rating of B+VIII or higher, authorized to do business in
the State of Kansas, be non-cancelable with respect to Landlord except upon at
least thirty (30) days' prior written notice to Landlord, and a certificate or
duplicate original thereof shall be delivered to Landlord. The minimum limits of
liability of such insurance shall be One Million Dollars ($1,000,000.00) in the
event of injury or death to any one person and not less than One Million Dollars
($1,000,000.00) in the event of injury or death arising by reason of one
occurrence, and Five Hundred Thousand Dollars ($500,000.00) with respect to
damage to property. Such policy shall also insure the performance by Tenant of
the indemnity agreement set forth in paragraph 13.01 above. A current
certificate of such insurance showing the coverage, notice time requirement, and
contractual liability required of Tenant under this paragraph 13.02 shall be
deposited with Landlord at all times during the Term of this Lease or any
extension thereof.
13.03. Tenant agrees to use and occupy the Premises and the
buildings and improvements thereon at its own risk and hereby releases to the
full extent permitted by law Landlord, its members, agents and employees, from
all claims and demands of every kind resulting from any accident, damage, death
or injury occurring therein other than for acts or omissions of Landlord or its
agents constituting willful, wanton or gross negligence. Landlord shall have no
responsibility or liability for any loss of or damage to the improvements,
equipment, fixtures or other personal property of Tenant or its invitees.
14. Casualty Insurance on Buildings and Improvements; Business
----------------------------------------------------------
Interruption Insurance.
----------------------
14.01. Commencing with the Commencement Date of this Lease and
continuing throughout the Term hereof, Landlord agrees to keep, at its expense,
the buildings and any and all
11
improvements, additions and alterations made by Tenant, Landlord or anyone else
upon the Premises insured with a reputable insurance company or companies
reasonably satisfactory to Landlord, having an A.M. Best's rating of B+VIII or
higher, authorized to do business in Kansas, in an amount equal to one hundred
percent (100%) of their full replacement cost (by means of standard replacement
cost endorsement) for everything above the slab. Landlord shall annually review
and update such coverage. Any such policy shall contain a waiver of subrogation
clause and shall provide protection against loss or damage by fire and by other
perils commonly covered under the full standard extended coverage endorsement
then in use, together with vandalism and malicious mischief coverage, coverage
against damage caused by earthquake, and coverage against sprinkler damage.
Landlord shall furnish to Tenant at all times during the Term of this Lease, and
any extension thereof, a current certificate or duplicate copy of any such
insurance policy or policies. Subject to the rights of any of Landlord's lenders
under any mortgages affecting the Premises, where Landlord is obligated to
repair or restore the Premises or improvements thereon, the proceeds from the
above described insurance shall be used for the sole purpose of rebuilding and
repairing said Premises and improvements.
14.02. Tenant agrees that in the event that any of Tenant's fixtures
or personal property on the Premises is damaged or destroyed by fire or by any
cause which is insurable (whether or not actually insured), the right, if any,
of Tenant against Landlord to recover for such damage or destruction is hereby
waived and released.
14.03. Anything herein to the contrary notwithstanding, the parties
acknowledge that Landlord's lenders under any mortgages affecting the Premises
may have the right to take all insurance proceeds and apply them to indebtedness
thereon instead of permitting use for repair and such rights shall be paramount.
15. Damage or Destruction by Fire or Other Peril.
--------------------------------------------
15.01. In the event any building or other improvements on the
Premises, or any part thereof, shall be damaged by fire or other casualty so
that such building(s) temporarily cannot be reasonably and effectually occupied
and used by Tenant for the purposes for which this Lease is entered into, then
the Monthly Rent payable to Landlord shall nonetheless continue during such time
as said Premises are unfit for Tenant's occupancy.
15.02. Unless paragraph 15.04 below applies, in the event any
building(s) or improvements are destroyed or damaged by fire or other
unavoidable casualty, whether or not insured, Tenant shall immediately commence
to rebuild, repair, or replace, at its sole cost less any available insurance
proceeds, such building(s) and improvements in substantially as good condition
as they were prior to such fire or casualty, and shall complete such rebuilding,
repairing, or replacement within ninety (90) days from the date of said fire or
casualty. The Monthly Rent provided herein shall continue during the time of
such damage repair.
15.03. In any event, where Landlord is obligated to repair or
restore the Premises, whether wholly or partially damaged or destroyed, unless
paragraph 14.03 above is applicable, the proceeds from the above described
casualty insurance shall be used for the sole purpose of rebuilding and
repairing said improvements. In the event that the election to terminate this
Lease in paragraph 15.04 below is exercised, then all such insurance company
proceeds shall be paid to Landlord and the holder of any real estate mortgage,
as their interests may appear.
15.04. In the event any building(s) on the Premises are destroyed or
damaged by fire or other unavoidable casualty to the extent of fifty percent
(50%) or more, as reflected by the estimate of the adjuster for the insurance
company insuring the Premises, either Landlord or Tenant shall have the option
to declare this Lease ended and terminated, provided it gives notice of this
election to the other party within thirty (30) days of the loss or destruction.
If neither Tenant nor Landlord exercises its right to terminate this Lease, then
rebuilding or repairs will commence and be
12
made as provided in paragraph 15.02 above.
15.05. It is further agreed that in no event shall the Term hereof
be extended as a result of any damage or destruction to the Premises.
16. Condemnation or Eminent Domain.
------------------------------
16.01. If all or any material portion of any building(s) on the
Premises is taken for any public or quasi-public use under any governmental law,
ordinance, or regulation or by right of eminent domain or by private purchase in
lieu thereof, and such taking renders any such building unsuitable for Tenant's
continuing use in the reasonable discretion of Landlord, this Lease, at the
option of Landlord or Tenant, shall terminate and the Monthly Rent shall xxxxx
during the unexpired portion of this Lease, effective with the physical taking
of such portion of the Premises. Separate awards for damage to the respective
interests of Landlord and Tenant hereunder shall be made if permitted by law and
each shall be entitled to receive or retain such award as shall be made to it,
and the termination of this Lease shall not affect the rights of the respective
parties to the awards. If the law only provides one award, it shall be equitably
divided between Landlord and Tenant. Equitable division of condemnation proceeds
shall be made by taking into account each party's investment and interest in the
portion of the property and the improvements so taken, the economic effect on
the portion, if any, not taken, and said taken portion's economic value, giving
due consideration to the number of years which would have remained in the Term
of this Lease as it could have been extended.
16.02. If this Lease is not terminated subsequent to a taking for
any public or quasi-public use under any governmental law, ordinance, or
regulation, or by right of eminent domain, or by a private purchase in lieu
thereof, the Monthly Rent payable hereunder during the unexpired portion of this
Lease shall not be reduced. Separate awards shall be made in such event for
damages to the respective interests of Landlord and Tenant hereunder or, if the
law only permits one award, it shall be equitably divided as set forth above.
16.03. Landlord shall immediately notify Tenant of any notice which
Landlord may receive from any governmental authority concerning the temporary or
permanent requisition of any portion of the Premises. In the event of any
temporary requisition not requiring repairs or modifications to the Premises,
Tenant shall be entitled to negotiate for, receive and retain the entire amount
of the net award but Monthly Rent shall not xxxxx.
17. Attornment and Subordination.
----------------------------
17.01. In the event of any sale or other transfer by Landlord of
the Premises, which sale or transfer involves the assignment and/or transfer of
Landlord's interest in this Lease, then Tenant shall attorn to such purchaser
and/or assignee or transferee upon any such sale or transfer and recognize such
purchaser, assignee or transferee as Landlord under this Lease.
17.02. Upon the request of any interested party, Tenant shall
execute, acknowledge and deliver an instrument, in form and substance
satisfactory to such party, evidencing the attornment provided for above.
17.03. Landlord reserves the right to subject and to subordinate
this Lease and any modification thereof at all times to the lien of any
mortgage, deed of trust or other security interest in or on the Premises.
Therefore, this Lease and any modification thereof shall be subject and
subordinate in law and equity to any existing or future mortgage, deed of trust,
security interest or other encumbrance placed by Landlord, its successors and
assigns, upon Landlord's interest in the Premises or upon any portion of the
Premises or which may be included with any adjoining premises; provided,
however, that in each such case Landlord shall cause the holder of any such
13
mortgage or similar instrument to agree in writing that in the event of any sale
of the Premises under foreclosure proceedings instituted on said holder's
mortgage or deed of trust, or voluntary transfer in lieu thereof, this Lease
shall not be divested or in any way affected so long as Tenant shall not be in
default under the terms of this Lease. Tenant covenants and agrees to execute
and deliver upon demand such further instrument or instruments subordinating
this Lease to the lien of any such mortgage, deed of trust, security interest or
encumbrance as shall be requested by Landlord and/or any mortgagee or proposed
mortgagee.
17.04. Upon written demand by the holder of any mortgage, deed of
trust, security interest or other encumbrance covering any part of the Premises,
Tenant shall forthwith execute, acknowledge and deliver an agreement in favor of
and in the form customarily used by such encumbrance holder, by the terms of
which Tenant will agree to give prompt written notice to such encumbrance holder
in the event of any casualty damage to the Premises or in the event of any
default on the part of Landlord under this Lease, and will agree to allow such
encumbrance holder a reasonable length of time after notice to cure or cause the
curing of such default (including time to obtain possession of the Premises by
legal proceedings) before exercising Tenant's rights of self-help under this
Lease, if any, or terminating or declaring a default under this Lease.
18. Waste or Nuisance. Tenant shall not commit or suffer to be
-----------------
committed: (i) any waste in or upon the Premises or the buildings or
improvements thereon; (ii) any nuisance; or (iii) any use in violation of any
law or ordinance or regulation of any governmental authority. Tenant shall, at
Tenant's sole cost, comply with all of the requirements of all governmental
authorities (including without limitation those requiring replacements,
additions, repairs and alterations, structural or otherwise), and with all
directions, rules, regulations and recommendations of Tenant's hazard insurer or
insurers, now in force, or which may hereafter be in force, pertaining to the
maintenance, use and occupancy of the Premises.
14
19. Defaults and Remedies.
---------------------
19.01. In the event (each of which events shall be sometimes
referred to as an "Event of Default"):
(i) The Monthly Rent (or any installment thereof), or any item
of additional Rent, shall be unpaid on the date payment is
required by the provisions hereof and shall remain so for a
period of fifteen (15) days after Landlord gives Tenant
written notice of such default; or
(ii) Subject to the provisions of the U.S. Bankruptcy Code, this
Lease, without the prior written consent of Landlord, or any
interest therein, or the Premises, or the buildings and
improvements thereon, or any part thereof, or any estate
hereby created, devolve upon or pass to any trustee,
receiver, trustee in bankruptcy, debtor in possession,
assignee, assignee for the benefit of creditors, appointee,
or to any other person or entity by operation of law or
otherwise; or
(iii) The Premises, or the buildings or other improvements
thereon, or any part thereof, shall be used in violation of
the provisions of paragraph 5 hereof; or
(iv) Tenant fails to observe or perform any of the other
covenants, terms or conditions set forth in this Lease and
such failure continues for a period of thirty (30) days
after written notice thereof is given by Landlord to Tenant
(unless such failure reasonably cannot be cured within such
30-day period and Tenant commences to cure such failure
within such 30-day period and continues diligently without
interruption to pursue the curing of the same until
completed); or
(v) Repetition of any failure to timely pay when due any Rent
and such failure is repeated for three (3) consecutive
months or a total of four (4) months in any period of twelve
(12) consecutive months regardless of prior cures; or
(vi) Repetition of any failure to observe or perform any of the
other covenants, terms or conditions set forth in this Lease
more than three (3) times, in the aggregate, in any period
of twelve (12) consecutive months regardless of prior cures;
THEN and upon the occurrence of any such Event of Default, Landlord shall have
the right at any time, at its option, without further notice, and with or
without process of law, and in addition to any and all other rights or remedies
Landlord may have hereunder or otherwise:
(a) To terminate this Lease and the Term hereof, and with or
without process of law, to re-enter the Premises and the
buildings and other improvements thereon, either by force or
otherwise, and without being in any manner liable therefor,
and to take possession thereof and to remove all persons
therefrom and Tenant shall have no further claim therein or
right hereunder; or
(b) Without terminating this Lease or the Term hereof, to re-
enter the Premises and the buildings and other improvements
thereon either by force or otherwise and to take possession
thereof without being in any manner liable therefor, and to
remove all persons therefrom, and to change the locks on the
doors and to exclude Tenant therefrom, and to make such
alterations and repairs as Landlord shall determine may be
necessary to relet the Premises, and to relet the same or
any part or parts thereof, either in the name of Landlord or
otherwise, for a term or terms which may at Landlord's
option be less than or exceed the period which may otherwise
have constituted the balance of the Term of this Lease and
upon such terms and conditions as Landlord in its sole
discretion may deem advisable (but in no event shall
Landlord be under any duty to relet the Premises other than
to use reasonable
15
efforts under the circumstances to do so). Upon each
reletting all rentals received by Landlord from such
reletting shall be applied: first, to the payment of any
indebtedness other than Rent or other charges under this
Lease from Tenant to Landlord; second, to the payment of any
cost and expense of such reletting, including, brokerage
fees and attorneys' fees and costs of such alterations and
repairs; and third, to the payment of Rent and other charges
due and unpaid hereunder. In no event shall Tenant be
entitled to receive any surplus of any sums received by
Landlord on a reletting in excess of the Rent and other
charges payable hereunder. If such Rent and other charges
received from such reletting during any month are less than
those to be paid during that month by Tenant hereunder,
Tenant shall pay any such deficiency together with the costs
of reletting, if any, to Landlord (notwithstanding the fact
that Landlord may have received rental in excess of the
rental and other charges payable hereunder in previous or
subsequent months), such deficiency to be calculated and
payable monthly. During any period during which the Premises
are not relet, Tenant shall pay to Landlord any indebtedness
other than Rent or other charges due under this Lease from
Tenant to Landlord, the cost and expense of any attempted
reletting as defined above and the Rent and other charges
due and unpaid hereunder, such deficiency to be calculated
and paid monthly; or
(c) With or without re-entry into possession of the Premises but
without termination of this Lease, to bring suit for the
collection of Rent and for damages (including, without
limitation, reasonable attorneys' fees and the cost of
repairing and reletting the Premises as more specifically
set forth in (b) above). Commencement of any action by
Landlord for Rent and damages shall not be construed as an
election to terminate this Lease and shall not absolve or
discharge Tenant from any of its obligations or liabilities
for the remainder of the Term; or
(d) To retake possession of the Premises from Tenant by process
of law, summary proceedings, or otherwise. Commencement of
any action by Landlord for re-entry shall not be construed
as an election to terminate this Lease and shall not absolve
or discharge Tenant from any of its obligations or
liabilities for the remainder of the Term; or
(e) To terminate this Lease and all of Tenant's rights in or to
the Premises at any time after the Premises are relet, if
prior termination has not occurred.
19.02. It shall not be a default hereunder if Tenant shall vacate
the Premises but continues to pay Rent hereunder; provided, however, that Tenant
agrees to pay to Landlord on demand as additional Rent any increased insurance
premium or cost incurred by Landlord as a result of the Tenant vacating the
Premises.
19.03. No re-entry or taking possession of the Premises by Landlord,
as provided in clauses (b) or (d) of paragraph 19.01 above, shall be construed
as an election on Landlord's part to terminate this Lease until a notice of such
intention is given to Tenant (all other demands and notices of forfeiture or
other similar notices being hereby expressly waived by Tenant). Upon the service
of such notice of termination, the Term of this Lease shall automatically
terminate. Notwithstanding any reletting without termination, Landlord may at
any time thereafter elect to terminate this Lease for such previous breach in
the manner herein provided.
19.04. Nothing herein contained shall be construed as obligating
Landlord to use other than best efforts under the circumstances to relet the
whole or any part of the Premises. In the event of any entry or taking
possession of the Premises and the buildings and improvements thereon, Landlord
shall have the right but not the obligation, to remove therefrom all or any part
of Tenant's personal property located therein and may place the same in public
or private storage at the expense and risk of Tenant.
16
19.05. Should Landlord elect to terminate this Lease under the
provisions of subparagraphs (a) or (e) of paragraph 19.01 above, Landlord shall
thereupon, without waiting for the end of the Term of this Lease, be entitled to
recover from Tenant, for Tenant's failure to perform and observe Tenant's
covenants herein contained, the worth at the time of termination of the amount
of Rent reserved in this Lease for the balance of the Term hereof over the then
reasonable rental value of the Premises for the same period.
19.06. In the event of a breach or threatened breach of Tenant of
any of the covenants or provisions hereof, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or in equity as if
re-entry, summary proceedings and other remedies were not herein provide for.
Mention in this Lease of any particular remedy shall not preclude Landlord from
any other remedy, in law or in equity.
19.07. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any lawful cause, or in the event of Landlord
lawfully obtaining possession of the Premises.
19.08. No receipt of monies by Landlord from or for the account of
Tenant or from anyone in possession or occupancy of the Premises after the
termination in any way of this Lease or after the giving of any notice of
termination, shall reinstate, continue or extend the Term of this Lease or
affect any notice given to Tenant prior to the receipt of such money, it being
agreed that after the service of notice of termination or the commencement of a
suit, or after final judgment for possession of the Premises, Landlord may
receive and collect any Rent or other amounts due Landlord and such payment
shall not in any respect reinstate this Lease and shall not waive, affect or
impair such notice, suit or judgment.
19.09. Landlord's rights and remedies shall be cumulative and may
be exercised and enforced concurrently. Any right or remedy conferred upon
Landlord under this Lease shall not be deemed to be exclusive of any other right
or remedy it may have.
19.10. Except as otherwise provided in this Lease, Landlord shall
be in default under this Lease if Landlord fails to perform any of its
obligations hereunder and said failure continues for a period of thirty (30)
days after receipt of written notice thereof from Tenant to Landlord (unless
such failure cannot reasonably be cured within thirty (30) days and Landlord
shall have commenced to cure said failure within said thirty (30) days and
thereafter continues diligently without unnecessary interruption to pursue the
curing of the same to completion). Upon such default by Landlord, Tenant may
exercise any remedies it may have at law or in equity but shall not set-off
against Rent due. Any recovery or judgment awarded against Landlord shall be
limited to its interest in the Premises as it may then be encumbered.
20. Notices.
-------
20.01. Whenever any notice, consent, approval or authorization
(hereafter referred to as "Notice") is required or permitted under this Lease,
the same shall be in writing, and any oral notice, consent, approval or
authorization shall be of no effect.
20.02. All Notices by Tenant to Landlord shall be delivered by hand
(which includes express courier delivery) or sent by registered mail or
certified mail, return receipt requested, postage prepaid, addressed to Landlord
as follows: Dockhorn Properties, L.L.C., 00000 Xxxxxxxx, Xxxxxxxx Xxxx, Xxxxxx
00000, or at such other address or addresses as may from time to time hereafter
be designated by Landlord to Tenant by like Notice.
20.03. Until Landlord is notified otherwise by Tenant, all Notices
from Landlord to Tenant shall be deemed to have been duly given if delivered by
hand or sent by registered mail or certified
17
mail, return receipt requested, postage prepaid, addressed to Tenant as follows:
International Medical Technical Consultants, Inc., 00000 Xxxxxxx Xxxxxxxxx,
Xxxxxx, Xxxxxx 00000 (with a copy to PRA International, Inc., American Center,
0000 Xxxxx Xxxx., Xxxxx 000, Xxxxxx, XX 22182), or at such other address or
addresses as may from time to time hereafter be designated by Tenant to Landlord
by like Notice.
20.04. All mailed Notices shall be effective upon being deposited
in the United States mail in the manner prescribed above. However, the time
period in which a response to any Notice must be given shall commence to run
from the date of receipt shown on the return receipt or a commercial delivery
service receipt of the Notice by the addressee thereof. Rejection or other
refusal to accept, or the inability to deliver because of changed address of
which no Notice was given, shall be deemed to be receipt of the Notice as of the
date of such rejection, refusal or inability to deliver.
20.05. If Landlord elects to send statements to Tenant for the Rent
and for other charges owing by Tenant hereunder and thereafter discontinues such
practice (which Landlord shall have the right to do), Tenant shall nevertheless
make the payments to Landlord required under this Lease on or before the dates
that the same become due.
21. Quiet Enjoyment. Tenant, subject to the terms and provisions
---------------
of this Lease, upon paying the Rent and other charges herein reserved and
observing, keeping and performing all of the terms, covenants and conditions of
this Lease on Tenant's part to be observed, kept and performed, may peaceably
and quietly have, hold and enjoy the Premises during the Term hereof, subject,
nevertheless, to the terms of this Lease, and to any mortgages, agreements and
encumbrances to which this Lease is or may be subordinated.
18
22. Miscellaneous.
-------------
22.01. In the event Tenant remains in possession of the Premises or
any part thereof after termination of this Lease for default or after this Lease
has ended by its terms or otherwise and without the execution of a new lease,
Tenant shall remain subject to all of the conditions, provisions and obligations
of this Lease insofar as same are applicable, and furthermore Tenant shall be
deemed to be holding the Premises in unlawful detainer and shall be liable,
until Tenant vacates the Premises, for the payment monthly to Landlord at the
rate of one hundred twenty-five percent (125%) of the amount of Monthly Rent
provided for in this Lease for such period, but such payment shall in no way
limit Landlord's remedies under this Lease or otherwise.
22.02. Any holding over after the expiration of the Term hereof,
provided, however, that Landlord shall have first consented in writing to any
such holding over, shall be construed to be a tenancy from month to month at the
Rents herein specified (prorated on a monthly basis) and shall otherwise be on
the terms and conditions herein specified so far as applicable.
22.03. A waiver by either party of any breach or breaches, default
or defaults, of the other party hereunder shall not be deemed or construed to be
a continuing waiver of such breach or default, nor as a waiver or permission,
express or implied, of any subsequent breach or default, unless such waiver be
in writing. Acceptance by Landlord of any installment of Rent subsequent to the
date the same should have been paid shall in no manner alter or affect the
covenant and obligation of Tenant to pay subsequent installments of Rent
promptly upon the due date. No receipt of money by Landlord after the
termination or expiration in any way of this Lease shall reinstate, continue or
extend the Term.
22.04. If any term, covenant, condition or provision of this Lease
or the application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, all other provisions of this Lease, or the
application of such terms or provisions to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each and every other term, covenant, condition and provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
22.05. All rights and liabilities herein given to or imposed upon
the respective parties shall, except as may be otherwise herein restricted,
prohibited or provided, extend to and bind the several respective successors and
permitted assigns of the parties.
22.06. No payment by Tenant or receipt by Landlord of a lesser
amount than the Rent and other charges herein reserved shall be deemed to be
other than on account of the earliest stipulated Rent or other charges nor shall
any endorsement or statement on any check or in any letter accompanying any
check be deemed an accord and satisfaction.
22.07. In connection with the rights, obligations and performance
of this Lease, Landlord acting as such shall in no event be construed or held to
be a partner or associate of Tenant in the conduct of Tenant's business or
otherwise, or, as Landlord, a joint venturer or a member of a joint enterprise
with Tenant, nor shall Landlord as such be liable for any debts incurred by
Tenant in the conduct of Tenant's business, but it is understood and agreed that
the relationship between the parties hereto is and at all times shall remain
that of Landlord and Tenant.
22.08. In the event either party shall be delayed or hindered in or
prevented from the performance of any act required hereunder by reason of fire,
catastrophe, acts of God or the public enemy, government prohibitions, strikes,
lockouts, civil commotions, inability to obtain materials or labor by reason of
governmental regulations or prohibitions, failure of power or other utilities,
or other reason of a like nature not the fault of the party delayed in
performing work or doing acts required under the terms of this Lease, then
performance of such act shall be excused for the period of the delay, and the
period for the performance of any such act shall be extended for a period
equivalent to the period of such delay. The provisions of this paragraph 19.08
shall not (a)
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operate to excuse Tenant from prompt payment of Rent nor any other
payment or charge required by the terms of this Lease, nor (b) be applicable to
delays resulting from the inability of a party to obtain financing to proceed
with its obligations under this Lease because of a lack of funds.
22.09. This Lease shall be governed exclusively by the provisions
hereof and by the laws of the State of Kansas, as the same may from time to time
exist.
22.10. Tenant represents and warrants that it is a validly existing
Kansas corporation fully qualified to do business in Kansas and that the person
or persons executing this Lease on behalf of Tenant are duly authorized to sign
and execute this Lease.
22.11. The captions, paragraph numbers and any index or table of
contents appearing in this Lease in no way define, limit, construe or describe
the scope or intent of such paragraphs of this Lease. The language in all parts
of this Lease shall in all cases be construed as a whole according to its fair
meaning, and not strictly for nor against either Landlord or Tenant, and should
a court be called upon to interpret any provision(s) hereof no weight shall be
given to, nor shall any construction or interpretation be influenced by, any
presumption of preparation of a lease by Landlord or by Tenant.
22.12. Each term and each provision of this Lease to be performed
by Tenant shall be construed to be both a covenant and a condition.
22.13. The submission of this Lease by Landlord to Tenant for
examination shall not be deemed to constitute an offer by Landlord or a
reservation to Tenant of an option to lease, and this Lease shall become
effective as a binding instrument only upon the execution and delivery thereof
by both Landlord and Tenant.
22.14. All obligations of Tenant which by their nature involve
performance, in any particular, after the end of the Term, or which cannot be
ascertained to have been fully performed until after the end of the Term, shall
survive the expiration or sooner termination of the Term of this Lease.
22.15. This Lease and any Exhibits attached hereto and forming a
part hereof, set forth all the covenants, promises, agreements, conditions and
understandings between Landlord and Tenant concerning the Premises. There are no
oral agreements or understandings between the parties hereto affecting this
Lease, and this Lease supersedes and cancels any and all previous negotiations,
arrangements, agreements and understandings, if any between the parties hereto
with respect to the subject matters hereof, including the prior lease between
the parties described in the Recitals to this Lease, and none thereof shall be
used to interpret or construe this Lease. Except as herein otherwise expressly
provided, no subsequent alteration, amendment, change or addition to this Lease
shall be binding upon Landlord or Tenant unless reduced to writing and signed by
them.
22.16. Time is of the essence with respect to the performance of
the respective obligations of Landlord and Tenant set forth in this Lease.
22.17. When liquidated damages are specified anywhere in this
Lease, it is understood and agreed that said sum is to be paid because actual
damages will be difficult or impossible to ascertain with accuracy. In any
action or proceeding by Landlord against Tenant to enforce any of the provisions
of this Lease or to recover payment of any claim under or to recover damages for
the default or breach of any provisions hereof, Landlord shall be entitled to
recover from Tenant all costs and expenses in any such action, including
reasonable attorneys' fees and costs, whether before or at trial or on appeal.
23. Tenant Finish Allowance. Landlord and Tenant agree that in
-----------------------
lieu of Landlord constructing certain improvements to the Premises to induce
Tenant to enter into this Lease with
20
Landlord, Landlord shall grant to Tenant an allowance of Seven and 50/100ths
Dollars ($7.50) per square foot for the entire Premises to construct
improvements to the Premises. Such allowance shall be granted by Landlord to
Tenant on annual basis, pro rated over the original Term of the Lease. Subject
to paragraph 10 hereof, any improvements or modifications to the Premises
proposed by Tenant shall be subject to the prior written consent and approval of
Landlord; provided, however that such consent and approval shall not be
unreasonably withheld.
24. Guaranty. Landlord and Tenant agree that this Lease is
--------
conditioned upon Landlord receiving the guaranty of PRA International, Inc.,
Tenant's parent corporation, of all of Tenant's obligations and duties
hereunder. At the execution of this Lease, Tenant shall deliver to Landlord a
guaranty executed by PRA International, Inc. in the form attached hereto as
Exhibit C.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed by their respective duly authorized officers or representatives in
multiple counterpart copies, each of which shall be deemed an original but
constitute one and the same instrument, as of the date first set forth above.
THIS LEASE CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY
BE ENFORCED BY THE PARTIES.
LANDLORD: TENANT:
DOCKHORN PROPERTIES, L.L.C. INTERNATIONAL MEDICAL TECHNICAL
CONSULTANTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ X.X. Xxxxxxxx
------------------------------ ------------------------------
Printed Name: Xxxxxxx X. Xxxxxxxx Printed Name: Xxxxxxx X. Xxxxxxxx
-------------------- --------------------
Title: Member Title: Executive Vice President
---------------------------
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EXHIBIT A
Legal Description of Premises
TRACT 1:
All of that part of the Southwest Quarter of Section 8, Township 13, Range
24, in the City of Lenexa, Xxxxxxx County, Kansas, more particularly
described as follows:
Commencing at the Southwest corner of said Southwest Quarter; thence
North 88 degrees 02' 50" East along the South line of said Southwest
Quarter, 1078.93 feet; thence North 02(Degree) 21' 02" West, 85.0 feet to
a point on the East right-of-way line of Xxxxxx Drive, as now established,
and the Point of Beginning; thence continuing North 02(Degree) 21' 02"
West along said right-of-way line, 439.97 feet; thence North 42(Degree)
38' 52" East along the Southeast right-of-way line of the intersection of
Xxxxxx Drive and 110th Street, 42.13 feet, to a point on the South right-
of-way line of said 110th Street, as now established; thence North
88(Degree) 02' 50" East along said right-of-way line, 320.69 feet; thence
South 02(Degree) 13' 25" East, 499.97 feet, to a point on the North right-
of-way line of College Boulevard, as now established; thence South
88(Degree) 02' 50" West along said right-of-way line, 319.37 feet; thence
North 47(Degree) 09' 06" West along the Northeast right-of-way line of the
intersection of College Boulevard and Xxxxxx Drive, 42.57 feet, to the
Point of Beginning
TRACT 2:
All of that part of the Southwest Quarter of Section 8, Township 13, Range
24, in the City of Lenexa, Xxxxxxx County, Kansas, more particularly
described as follows:
Commencing at the Southwest corner of the Southwest Quarter of said
Section 8; thence North 88(Degree) 02' 50" East along the South line of
the Southwest Quarter of said Section 8, a distance of 586.36 feet; thence
North 01(Degree) 57' 10" West, perpendicular to said South line, a
distance of 55.0 feet, to a point on the North right-of-way line of
College Boulevard, as now established, and to the Point of Beginning;
thence continuing North 01(Degree) 57' 10" West, a distance of 526.78
feet; thence North 87(Degree) 38' 58" East, a distance of 427.80 feet, to
a point on the West right-of-way line of Xxxxxx Drive, as now established;
thence South 02(Degree) 21' 02" East, along the West right-of-way line of
said Xxxxxx Drive, a distance of 499.76 feet; thence South 42(Degree) 38'
58" West, continuing along said West right-of-way line, a distance of
42.13 feet, to a point on the North right-of-way line of said College
Boulevard; thence South 88(Degree) 02' 50" West, along said North
right-of-way line, a distance of 401.67 feet, to the Point of Beginning
EXHIBIT B
Operating Expenses
The term "Operating Expenses" shall include the total costs and expenses
incurred in operating and maintaining the Premises, including, but not limited
to, the cost and expense of the following:
(i) real estate taxes and special assessments (but specifically
excluding any penalties or fines);
(ii) fire and casualty insurance for the Premises; and
(iii) repairs and maintenance of the Premises, including, but not limited
to, snow removal, gardening, landscaping, planting, replanting, and
replacing flowers and shrubbery; cleaning, striping and resurfacing
and repair of parking areas, electricity, water, gas and other
utilities (including all capital expenditures reasonably expected
to reduce the cost of any utilities, but not to include local and
long distance telephone service); maintenance and replacement of
fixtures and bulbs; elevators and service contracts thereon;
parking operating systems; sanitary control, extermination, removal
of rubbish, garbage and other refuse; security systems and policing
of the Building; sewer charges; machinery and equipment used in the
operation and inspection of the Building and depreciation thereof;
replacement of paving, curbs and walkways and drainage facilities;
music program services and loud speaker systems; heating,
ventilating and air conditioning and maintenance and repair of the
systems and fixtures not chargeable to a particular tenant;
cleaning and janitorial services and cleaning supplies; maintenance
of decorations, lavatories and elevators; maintenance and repair of
building roof and exterior walls and glass; landscaping and fire
sprinkler systems; licenses, permits and inspection fees.
Operating Expense Base:
16300 College - $6.87 per square foot
11011 Eicher - $4.83 per square foot
16400 College - $4.83 per square foot
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EXHIBIT C
Guaranty
See attached.
3
GUARANTY
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THIS GUARANTY is given by PRA INTERNATIONAL, INC., a Delaware
corporation ("Guarantor"), to DOCKHORN PROPERTIES, L.L.C. ("Landlord") to induce
Landlord to enter into a lease of certain office buildings located at 16300
College Blvd., 00000 Xxxxxxx Xxxx. and 11011 Eicher, Lenexa, Kansas (the
"Lease") with INTERNATIONAL MEDICAL TECHNICAL CONSULTANTS, INC., a Kansas
corporation (the "Tenant").
NOW, THEREFORE, in consideration of the substantial benefits to be
derived by Guarantor therefrom and as an inducement to Landlord to enter into
the Lease with Tenant, Guarantor hereby agrees as follows:
1. Guarantor directly, absolutely independently, primarily,
unconditionally and continually, irrevocably guarantees to Landlord, its
successors and assigns, the full and punctual payment and performance by Tenant
when due of all obligations and duties of Tenant to Landlord arising under or in
connection with the Lease (collectively referred to herein as the "Tenant
Obligations"). If, at any time, default shall be made by Tenant in the
performance or observance of the Tenant Obligations, Guarantor will pay, keep,
perform and observe the same, as the case may be, in the place and stead of
Tenant.
2. Any act of Landlord, its agents, successors or assigns,
consisting of a waiver of any of the terms or conditions of the Tenant
Obligations, or the giving of any consent to any manner or thing relating
thereto, or the granting of any indulgences or extensions of time to Tenant, or
to the release of any collateral providing security for the full performance of
the Tenant Obligations, or the failure of Landlord to resort to any remedy
provided at law or in equity, may be done and taken without notice to Guarantor
and without releasing the obligations of Guarantor hereunder and Guarantor
hereby expressly waives any notice of non-payment, non-performance or
non-observance, or proof of notice or demand, in order for Landlord to claim
under this Guaranty.
3. The obligations of Guarantor hereunder shall not be released by
Landlord's receipt, application or release of security given for the performance
and observance of the Tenant Obligations, nor by any modification of any
agreement between Landlord and Tenant, but in case of any such modification the
liability of Guarantor shall be deemed modified in accordance with the terms of
any such modification.
4. The liability of Guarantor hereunder shall in no way be affected
by: any lack of validity or enforceability of the Lease, the release or
discharge of Tenant in any creditors' receivership, bankruptcy or other
proceedings; the impairment, limitation or modification of Tenant or the estate
of Tenant in bankruptcy, or of any remedy for the enforcement of the Tenant
Obligations resulting from the operation of any present or future provision of
the bankruptcy laws or other statute or from the decision in any court; the
rejection or disaverment of any Tenant Obligation in any such proceedings; the
assignment or transfer of any Tenant Obligation; any disability or other defense
of Tenant; the cessation from any cause whatsoever of the liability of Tenant;
or the impairment or release of any collateral securing the full performance of
the Tenant Obligations.
5. This Guaranty shall apply to all of the Tenant Obligations, and
any modification, extension or renewal thereof and substitutions therefor.
6. This Guaranty may not be changed, modified, discharged or
terminated orally or in any manner other than by an agreement in writing signed
by Landlord and Guarantor.
7. To the extent allowed by applicable law, Guarantor shall pay all
costs incurred including reasonable attorneys' fees in the event collection or
enforcement efforts are commenced
against Guarantor by the placement of this Guaranty into the hands of an
attorney, such costs and reasonable attorneys' fees to be paid whether or not
action or actions are commenced or continued to judgment.
8. Guarantor's liability herein is primary, direct, absolute,
continual and unconditional and is independent of the obligations of Tenant or
any other guarantor. A separate action may be brought and the obligations of
Guarantor may be immediately enforced without necessity of any action against
Tenant or collateral or the resort by Landlord to any remedy at law or in equity
and a separate action may be prosecuted against Guarantor whether or not action
or actions are brought against Tenant and whether or not Tenant is joined in any
such action and Guarantor hereby waives the benefit of any enforcement thereof.
9. This Guaranty shall inure to the benefit of Landlord, and its
successors and assigns.
10. This Guaranty shall be binding on Guarantor, and its successors
and assigns.
11. This Guaranty shall be governed by and construed under the laws
of the State of Kansas.
12. Upon making any payment to Landlord hereunder, Guarantor shall
be subrogated to the rights of Landlord against Tenant with respect to such
payment; provided that Guarantor shall not enforce payment by way of subrogation
until all amounts payable by Tenant to Landlord under the Lease have been paid
in full.
13. This Guaranty has been duly authorized, executed and delivered
by Guarantor and constitutes a legal, valid and binding obligation of Guarantor
enforceable in accordance with its terms. The execution and delivery of this
Guaranty and the consummation of the transactions contemplated hereby will not
conflict with or constitute a breach , or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Guarantor pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which Guarantor is a party or by
which it may be bound , or to which any of its property or assets may be
subject, nor will such action result in any violation of the provisions of the
certificate or articles of incorporation or other organizing documents or bylaws
of Guarantor, or any applicable law, administrative regulation or administrative
or court decree known to it after reasonable investigation.
IN WITNESS WHEREOF, Guarantor has executed and delivered this
Guaranty to Landlord as of the 1st day of April, 1997.
PRA INTERNATIONAL, INC.
"Guarantor"
By: /s/ X.X. Xxxxxxxx
---------------------------------
Name: X.X. Xxxxxxxx
-------------------------------
Title: Executive Vice President
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