Exhibit 10.5
XXXX X. XXXXXXX BUILDING
LEASE AGREEMENT
THE STATE OF MISSOURI )
)
COUNTY OF XXXXXX )
This Lease Agreement (hereinafter called the "Agreement"), entered into as
of this 14 day of DECEMBER, 2004, by and between Lessor and Lessee hereinafter
named.
SECTION 1: DEFINITIONS AND BASIC TERMS. The following definitions and basic
provisions shall apply in this Lease Agreement:
A) "Lessor": The Plaza Associates, a Missouri General Partnership
B) "Lessee": XXXX X. XXXXXXX HOTELS, INC.
C) "Leased Premises": approximately 884 square feet of rentable area in
XXXX X. XXXXXXX BUILDING, (hereinafter called the "Building") located at 300
Xxxx X. Xxxxxxx Xxxxxxx, Xxxxx #000, Xxxxxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxxx, as
outlined on the floor plan of the Building attached hereto as Addendum A
together with any area used for special stairs or electrical, mechanical or
telephone closets and which are for the exclusive use of Lessee. Although there
may have occurred minor variations in construction of the Building and
completion of the Leased Premises, for the purpose of this Agreement, Lessee
acknowledges that the rentable area for the Leased Premises is as stated above.
The term "rentable area", as used herein, shall include any structural columns
or projections which are an integral part of the Building and which are located
within the Leased Premises, but shall not include areas used for Building
stairs, fire towers, elevator shafts, flues, vents, stacks, pipe shafts or
vertical ducts.
D) "Lessee Proportionate Share": The 1.5% being the relationship of the
rentable area of the Leased Premises to the rentable area of the Building
(57,840 square feet).
E) "Lease Term": A period of one (1) year beginning on the 1st day of
JANUARY 1, 2005, and terminating on DECEMBER 31, 2005, or such date as Lessee
shall occupy the Leased Premises, whichever occurs first. Lessee agrees to enter
into a Supplemental Lease Agreement with Lessor, setting forth the lease
commencement date.
F) "Base Rental": The total sum of $14,320.80 payable to Lessor at 000 Xx.
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxx 00000, or such other place as may
be designated to Lessee by Lessor in writing, shall be due and payable in equal
monthly
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installments of $1,193.40 in advance and without demand or offset on the first
day of each calendar month during the Lease Term or any renewal period hereof;
the first of such installments shall be paid on the date hereof. If Lessee's
occupancy under this Agreement commences on any day other than the first day of
a calendar month, then a prorata portion of the Base Rental applicable to the
partial first month of occupancy shall be paid on or before the first day of
occupancy and shall be in addition to the total Base Rental set forth above.
G) "Security Deposit": Shall be the sum of $ -0- and paid to Lessor on the
date hereof. Lessor and Lessee mutually agree that the Security Deposit shall be
deposited and held in the management company's property management account, and
no interest shall be payable to Lessee.
SECTION 2: DEMISE OF LEASED PREMISES. In consideration of the mutual
covenants and agreements herein contained and subject to the same, Lessor hereby
demises, leases and rents to Lessee and Lessee hereby takes and accepts from
Lessor the Leased Premises for the term specified herein all upon the terms and
conditions as set forth in this Agreement.
SECTION 3: SERVICES BY LESSOR. During the Standard Building Hours, Lessor
shall furnish Lessee the following services: hot, cold and refrigerated water at
those points provided for general use of all tenants; electrical service for
ordinary office machines and uses excluding any business machine or other
equipment of high electrical consumption characteristic (any special electrical
service shall be at Lessee's expense); heated and refrigerated air conditioning
in season, at such time as Lessor normally furnishes these services to all
tenants in the Building and at such temperatures and amounts as are considered
by Lessor to be standard, such service on Sundays and holidays are to be
optional on the part of the Lessor; elevator service in common with other
tenants in the Building; janitorial cleaning services as may, in the judgement
of Lessor, be reasonably required. Such services shall be on a five-day-week
basis; and Lessor may provide such security service as may, in the sole
judgement and discretion of Lessor, be reasonably required. Lessor shall not be
liable in damages or otherwise for failure, stoppage or interruption of any such
service described or contemplated herein, nor shall the same be construed as an
eviction of Lessee, work an abatement of rental or relieve Lessee from any
covenant or agreement set forth herein. In the event of any failure, stoppage or
interruption of such service, Lessor shall use reasonable diligence to resume
service promptly.
Standard Building Hours shall be from 7:00 A.M. until 7:00 P.M., Monday through
Friday, excluding Holidays, and from 8:00 A.M. until 1:00 P.M. on Saturdays.
SECTION 4: PAYMENT OF INCREASED BUILDING COSTS. The Base Rental provided
for herein includes a stipulated allowance in the amount of THE 2004 ACTUAL
COSTS per square foot of rentable area for repairing, maintaining and operating
the
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Building, Parking Area and other land area surrounding the Building (the
Building, the Parking Area and other land area herein collectively termed the
"Property") during the first calendar year of the Lease Term. "BASIC COSTS", AS
THAT TERM IS HEREINAFTER DEFINED, SHALL BE CALCULATED PER SQUARE FOOT BASED ON
THE RENTABLE AREA OF THE LEASED PREMISES. The term "Basic Costs" as used herein
shall mean all expenses, costs and disbursements of every kind and nature which
Lessor shall pay or become obligated to pay because of, or in connection with
the ownership, operation, repairs and maintenance of the Property, computed on a
cash basis and in accordance with generally accepted accounting principals and
consistently applied including but not limited to the following:
i. wages and salaries to be allocable to the Property of all employees
directly engaged in the operation and maintenance of the Property,
including taxes, insurance and all other benefits related thereto;
ii. management fees related to the management of the Property;
iii. all costs of supplies and materials used in the operation, repair
and maintenance of the Property;
iv. costs of all utilities for the Property (excluding utilities
separately metered to and actually paid directly by other tenants);
v. the cost of maintenance, repair and services to the Property
including security services, window cleaning, elevator maintenance,
janitorial service, pest control, landscaping and waste removal;
vi. cost of all casualty and liability insurance applicable to the
Property and any personal property used in connection with the operation,
repair or maintenance of the Property;
vii. all taxes, assessments or other governmental charges from any
federal, state, county, municipal or other taxing authority now or
hereafter imposing any taxes or fees on the Property;
viii. the cost of repairs and general maintenance of the Property;
ix. a reasonable amortization charge (exclusive of any finance
charges) on account of any capital expenditure incurred in reduction of the
Basic Costs or incurred to comply with any requirements of any in force
governmental regulations by authorities having jurisdiction over the
Property or necessary for the health or satisfaction of the tenants of the
Building.
At least thirty (30) days prior to the commencement of each calendar year
during the term of this Agreement, Lessor shall prepare an estimate of the Basic
Costs for such
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calendar year and if Lessor, in its reasonable judgement, determines that the
aggregate of the Basic Costs for such calendar year (calculated on a per square
foot basis using the rentable area of the Building as set forth in Section 1 of
this Agreement) will exceed THE 2004 ACTUAL COSTS, Lessor shall give written
notice to Lessee of the estimated Basic Costs, expressed in terms of dollars per
square foot, the amount the Basic Costs will exceed THE 2004 ACTUAL COSTS per
square foot and the monthly amount of additional rental payable by Lessee with
respect to the increase in Basic Costs, Commencing with the first monthly
payment in the calendar year, the Lessee shall pay to Lessor in addition to the
Base Rental, an amount equal to l/12th of Lessor's estimated increase in the
Basic Costs (expressed in terms of dollars per square foot calculated as
aforesaid) multiplied by the rentable area of the Leased Premises as set forth
in Section 1 of this Agreement. Within a reasonable time after each calendar
year, Lessor shall perform such computations that are necessary to determine the
actual amount of the Basic Costs and the prorata portion payable by Lessee under
this paragraph for such calendar year whereupon, if the Lessee shall have
overpaid, Lessor shall within thirty (30) days after such determination refund
to Lessee the amount of such excess. But if the Lessee shall have underpaid, the
Lessor shall invoice Lessee for the amount of the underpayment, such
underpayment shall be due and payable following the receipt by Lessee of
invoice.
SECTION 5: PAYMENT OF RENTAL. Lessee hereby covenants and agrees to pay
promptly when due all Base Rental and Adjusted Base Rental, all additional
rental and any other charges payable by Lessee under the provisions of this
Agreement and Lessee further covenants and agrees that all such rental or other
charges due and unpaid as of the date of termination of this Agreement shall be
deemed due and payable on such termination date. Lessee especially agrees that
the covenants recited in this Section shall survive the expiration of the term
of the Agreement.
SECTION 6: MAINTENANCE AND REPAIRS BY LESSOR. Lessor, without extra charge
except as provided herein, shall provide for the cleaning and maintenance of the
public portions of the Building, including painting and landscaping surrounding
the Building, keeping with the usual standard for first class office buildings
in Springfield, Missouri. Unless otherwise expressly stipulated herein, Lessor
shall not be required to make any improvements or repairs of any character on
the Leased Premises during the term hereof, except such repairs as may be
required by normal maintenance operations, which shall include repairs to the
exterior of walls, corridors, floors, windows, roof and other structural
elements and equipment of the Building, and other such additional maintenance as
may be necessary because of damage by persons other than Lessee, its agents,
employees, licensees, invitees or visitors.
SECTION 7: PARKING AND SERVICE AREAS. Lessor shall have the right as it
deems necessary to designate and xxxx certain parking spaces within the parking
area of the Property as visitor parking. Lessor shall have control and
enforcement of the movement and parking of Lessee's employee automobiles and all
other vehicles in the parking area and upon all drives and service areas
appurtenant to the Building. Lessor
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may from time to time adopt and change rules and regulations relating thereto,
Lessor shall not be liable for any losses sustained by Lessee or its employees
from the theft of, or for any damage to, any vehicle or other equipment
(including any contents thereof) while located on the parking area or upon the
drives and service areas appurtenant to the Building.
SECTION 8: REPAIR AND MAINTENANCE BY LESSEE. Lessee shall at its own cost
and expense maintain and keep the Leased Premises in good repair and condition.
Lessee agrees not to commit or allow any waste or damage to be committed on any
portion of the Leased Premises; Lessee shall at its own cost and expense repair
or replace any damage or injury done to the Leased Premises, the Building or any
part thereof, caused by Lessee, its agents, employees, licensees or visitors.
Upon the expiration or termination of this Agreement (by lapse of time or
otherwise), Lessee agrees to deliver up the Leased Premises to Lessor in as good
condition as on the date the Leased Premises were first occupied by Lessee,
except for ordinary wear and tear. Should Lessee fail to make such repairs or
replacements promptly, Lessor may, at its option and among other remedies, enter
the Leased Premises without such entering causing or constituting an
interference with the possession of the Leased Premises by Lessee, make such
repairs or replacements and Lessee shall pay the cost thereof to Lessor on
demand. Lessee shall maintain the Leased Premises in full compliance with all
federal, state and/or local laws, codes and regulations applicable to the Leased
Premises.
SECTION 9: USE AND VIOLATION OF INSURANCE COVERAGE. The Leased Premises are
to be used by Lessee solely for office purposes and no other purpose; Lessee
shall not use, occupy, or permit the use or occupancy of the Leased Premises for
any purpose which is, directly or indirectly, in violation of any federal, state
and/or local law, ordinance or governmental regulation, code or order; or permit
the maintenance of any public or private nuisance; or do or permit any act or
thing which may disturb the quiet enjoyment of any other tenant of the
Building; or keep any substance or carry on or permit any operation which might
emit offensive odors or conditions into other portions of the Building; or
permit anything to be done or fail to do anything which would increase the fire
and extended coverage insurance rate on the Building or contents, and if there
is any increase in insurance rates by reason of acts of Lessee, Lessee shall pay
such increase promptly upon demand therefor by Lessor. Lessee shall not obstruct
the sidewalks, entries, passages, vestibules, halls, elevators or stairways of
the Building and shall not use the same for any purpose other than ingress and
egress to and from the Leased Premises.
SECTION 10: ALTERATIONS. Lessee agrees that it will not make or allow to
be made any alterations, physical additions or improvements in or to the Leased
Premises without first obtaining the written consent of the Lessor. In any
instance where Lessor grants such consent, Lessor may, among other things grant
such consent upon the condition that Lessee's contractors, laborers and
materialmen must work in harmony with and not interfere with any other work
being conducted on behalf of Lessor or any
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other tenant of the Building. All alterations, improvements or additions,
whether temporary or permanent in character, made by Lessor or Lessee in or
upon the Leased Premises shall remain on and be surrendered with the Leased
Premises pursuant to Section 11 below upon the expiration or sooner termination
of this Lease, except Lessee shall, upon demand by Lessor, at Lessee's sole cost
and expense, forthwith and with all due diligence remove all or any alterations,
improvements or additions, including any wiring or cables, made or installed by
Lessee which are designated by Lessor to be removed, and Lessee shall forthwith
and with all due diligence, and at its sole cost and expense, repair and restore
the Leased Premises to their original condition, reasonable wear and tear
excepted. Lessee shall promptly pay to Lessee's contractors, when due, the cost
of all such work and of all decorating required by reason thereof, and upon
completion, deliver to Lessor, evidence of payment and waivers of all liens for
labor, services or materials, and furthermore, Lessee shall defend and hold
Lessor, the Leased Premises and the Building and the Property harmless from all
costs, damages, liens for labor, services or materials relating to such work and
defend and hold Lessor harmless from all costs, damages, liens and expenses,
including, without limitation, reasonable attorneys' fees related thereto. The
obligations of Lessee as set forth in this Section 10 shall survive the
expiration or termination of the Lease Term of this Agreement.
SECTION 11: FURNITURE, FIXTURES AND PERSONAL PROPERTY OF LESSEE. Lessee may
remove its trade fixtures, office supplies and personal property not attached to
the Building, provided: (a) such removal is made prior to the expiration or
termination of this Agreement; (b) Lessee is not in default of any obligation or
covenant of this Agreement at the time of such removal; and (c) Lessee promptly
repairs all damage caused by such removal at Lessee's expense. All other
property within the Leased Premises and any alterations or additions to the
Leased Premises (including wall-to-wall carpeting, paneling or other wall
covering) and any other article attached or affixed to the floor, wall or
ceiling of the Leased Premises shall become the property of the Lessor upon the
expiration or termination of this Agreement and shall remain upon and be
surrendered with the Leased Premises as a part thereof at the expiration or
termination of this Agreement by lapse of time or otherwise. If, however, Lessor
so requests in writing or pursuant to Section 10 hereof, Lessee will, prior to
vacating the Leased Premises, remove any and all alterations, additions,
fixtures, equipment and personal property placed or installed by it in the
Leased Premises and will repair any damage caused by such removal at Lessee's
expense.
SECTION 12: ASSIGNMENT AND SUBLEASE. Lessee shall not sell, convey,
transfer or assign this Agreement or any part thereof, or any rights created
hereby, or mortgage or pledge the same through a change in ownership of Lessee
or otherwise, or sublet the Leased Premises, or any part thereof, or allow it to
be assigned by operation of law or otherwise, or subject to any lien of any type
or nature including, but not limited to, mechanic's liens, without the prior
written consent of Lessor. Provided, further, any assignment or sublease shall
not release Lessee from any obligation or liability hereunder.
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SECTION 13: SUBORDINATION TO MORTGAGE. This Agreement is and shall always
be subject and subordinate to the lien of any mortgages, deeds of trust or other
security instrument which are now or shall at any future time be placed by
Lessor upon the Property, the Building, the Leased Premises or Lessor's rights
hereunder and to any and all renewals, extensions, rearrangements, modifications
or consolidations thereof; provided that, in the event of a foreclosure under
any such security instrument, the holder thereof shall forthwith notify Lessee
of such holder's election to either (1) ratify and adopt this Agreement, in
which case Lessee shall attorn to such holder and/or to such holder's successor,
or (2) terminate this Agreement effective six (6) months following such notice.
Such subordination shall be self-operative and no further instrument of
subordination need be required by any security holder. In confirmation of such
subordination, Lessee agrees to execute promptly any instrument deemed necessary
by Lessor to further effect the subordination of this Agreement to any such
security interest.
SECTION 14: FIRE AND OTHER CASUALTY. In the event the Leased Premises is
partially or totally destroyed or damaged by fire or other casualty, Lessor may,
at its option, terminate this Agreement, and in such event, the Base Rental
hereunder shall be prorated for such month during which Lessor's termination
occurs and shall not be due thereafter. In the event the Lessor does not so
terminate this Agreement, then, subject to the following provisions of this
Section 14, Lessor may proceed as soon as is reasonably practicable, at its sole
cost and expense to the extent of Lessor's insurance proceeds available, if any,
to repair and restore the Leased Premises to substantially the same condition as
that before the damage occurred; provided, further, the Base Rental due from
Lessee hereunder shall be abated during the period of restoration to the extent
of the unusable portion of the Leased Premises. In the event Lessor does not
complete such repair and restoration within six (6) months from the date of
damage or destruction, Lessee may terminate this Agreement. In the event the
damage or destruction to the Leased Premises through fire or other casualty is
directly or indirectly attributable to any act of fault or negligence on the
part of Lessee, and/or its agents, employees, licensees, or invitees, then (i)
such damage or destruction to the Leased Premises, the Building, and/or the
Property shall be promptly repaired by Lessee, at its sole cost and expense;
(ii) the Base Rental shall not xxxxx during such period of restoration and
refurbishment; (iii) Lessee shall not be entitled to terminate this Agreement;
and (iv) Lessee shall fully reimburse Lessor for all costs and expenses,
including responsible attorneys' fees, incurred by Lessor on behalf of Lessee in
connection with undertaking the obligations of Lessee hereunder.
SECTION 15: INSURANCE. During the term of the Agreement, Lessee shall
obtain and maintain at the Lessee's sole cost and expense (i) fire and extended
coverage insurance covering the Leased Premises and improvements thereon and
contents thereof, on a full replacement cost basis, insuring against all risks
or direct physical loss and damage, excluding unusual perils like earth
movement, flood and war; and (ii) comprehensive public liability insurance for
death, injury and property loss and damage,
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with a combined single limit coverage of not less than $1,000,000. The Lessee
shall list the Lessor as an additional insured on all of the policies and shall,
upon written request of Lessor, provide Lessor with proof of payment within
thirty (30) days after the due date of such premiums. Such policies of insurance
shall also provide that the same may not be cancelled in whole or in part by the
insurer without such insurer giving thirty (30) days' written notice to Lessor
of its intention to cancel the policies.
SECTION 16: LIABILITY AND INDEMNITY. Lessee agrees to indemnify and save
Lessor harmless from all claims for injury to persons (including death) or for
damage to property arising from or out of Lessee's use and occupancy of the
Leased Premises or from an act or omission of invitees, or of any other third
party (including costs and expenses of defending against such claims) from or by
whomsoever caused.
Lessee agrees to use and occupy the Leased Premises and other facilities
of the Building, the Parking Area and all drives and other areas appurtenant
thereto, at its own risk and hereby releases Lessor, its agents and employees,
from all claims for any damage or injury to persons (including death) or
property to the full extent permitted by law.
Lessee agrees that Lessor shall not be responsible or liable to Lessee, its
agents, employees, customers or invitees, for damage or injury to persons
(including death) or property occasioned by the acts or omission of any other
tenant or such tenant's agents, employees, customers or invitees within the
Leased Premises, the Building, the Parking Area and all drives and other areas
appurtenant thereto, from or by whomsoever caused.
SECTION 17: DEFAULT BY LESSEE. Lessee covenants and agrees that if Lessee
shall make default in the payment of any Base Rental, Adjusted Base Rental or
other charges required to be made by it to Lessor hereunder, or in the faithful
performance of any other covenant to be performed by it hereunder, then Lessor
may exercise any and all remedies available at law or in equity, including, but
not limited to, declare this Agreement terminated and without additional notice
to Lessee the Lessor or any of its agents may reenter the Leased Premises and
remove all persons and property therefrom, with or without legal process and
without prejudice to any of Lessor's other legal rights hereunder and/or, Lessor
may take possession of the Leased Premises and re-let the same for the remainder
of the term hereof for the account of Lessee, it being understood that under any
of said options, Lessee shall remain liable for all rental and other sums
payable under the provisions hereof. In the event of any reentry by Lessor,
Lessee hereby expressly waives all claims for damages by reason hereof, as well
as all claims for damages by reason of any eviction proceedings or proceedings
by way of sequestration or any other legal proceedings which Lessor may employ
to recover any sums due hereunder or possession of the Leased Premises.
SECTION 18: LIEN FOR RENT. To secure the payment of rental and other
charges required to be made by Lessee hereunder, and the faithful performance of
all
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other covenants of this Agreement required to be performed by Lessee, Lessee
hereby gives to Lessor security interest in and to all property which may be
placed in or upon the Leased Premises and the proceeds of any insurance which
may accrue to Lessee by reason of damage to or destruction of any such property.
All exemption laws are hereby waived by Lessee. This security interest is given
in addition to the Lessor's statutory lien(s) and shall be cumulative thereto.
This security interest may be foreclosed with or without Court proceedings, by
public or private sale, with or without notice, and Lessor shall have the right
to become purchaser upon being the highest bidder at such sale. Upon request of
Lessor, Lessee agrees to execute Uniform Commercial Code financing statements
relating to the aforesaid security interest.
SECTION 19: TRANSFER BY LESSOR. Lessor may pledge, hypothecate, transfer or
assign all or any part of this Agreement. Upon the transfer or conveyance of all
or any portion of the Property, without further agreement of the parties, Lessor
shall be relieved of and from any liability with respect to the obligations and
covenants of Lessor contained in this Agreement arising out of any act or
occurrence after the date of such transfer and the purchaser at such sale or any
subsequent sale shall be deemed, without further agreement of the parties, to
have assumed and agreed to carry out the Lessor's covenants under this
Agreement.
SECTION 20: ATTORNEY'S FEES. In the event Lessor or Lessee defaults in the
performance of any of the terms, covenants, agreements or conditions contained
in this Agreement and the other party hereto places the enforcement of this
Agreement, or any part thereof, or the collection of any rent or any other
charges due, or to become due hereunder, or recovery of the possession of the
Leased Premises in the hands of any attorney, or files suit upon the same, it is
agreed that the defaulting party shall pay the reasonable attorney's fees
incurred by the party not in default.
SECTION 21: NON-WAIVER. Neither acceptance of rent by Lessor nor failure by
Lessor to complain of any action, non-action, or default of Lessee, whether
singular or repetitive, shall constitute a waiver of any of Lessor's rights
hereunder. Waiver by Lessor of any rights for any default of Lessee shall not
constitute a waiver of any right for either a subsequent default of the same
obligation or any other default. No act or thing done by Lessor or its agents
shall be deemed to be an acceptance of surrender of the Leased Premises, and no
agreement to accept a surrender of the Leased Premises shall be valid unless it
is in writing and signed by a duly authorized officer or agent of Lessor.
SECTION 22: RULES AND REGULATIONS. Lessee agrees to comply with all such
rules and regulations of the Building which are attached as Addendum B, and any
amendments thereto. Lessor shall have the right at all times to change the rules
and regulations or to amend them in any reasonable manner as may be deemed
advisable by Lessor, all of which changes and amendments will be sent by Lessor
to Lessee in writing and shall be thereafter carried out and observed by Lessee.
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SECTION 23: ACCESS BY LESSOR. Notwithstanding any provision hereof to the
contrary, Lessor, its agents and employees, shall have access to and the right
to enter upon the Leased Premises at any reasonable time to examine the
condition thereof, to clean, repair or make alterations required or deemed
necessary or desirable to be made by Lessor, to show the Leased Premises to
prospective purchasers or tenants, and for any other purpose deemed reasonable
by Lessor.
SECTION 24: BANKRUPTCY BY LESSEE. In the event of any of the following: the
filing or execution or occurrence of a petition in bankruptcy or other
insolvency proceedings by or against Lessee; or petition or answer seeking
relief under any provision of the Bankruptcy Act; or any assignment for the
benefit of creditors or composition; or a petition or other proceeding by or
against Lessee for the appointment of a trustee, receiver or liquidator of
Lessee or any of Lessee's property; or a proceeding by any governmental
authority for the dissolution or liquidation of this Agreement; this Agreement
may, at the option of Lessor, be terminated immediately by the mailing of notice
to Lessee.
SECTION 25: HOLDING OVER. Upon the expiration and/or termination of this
Agreement for any reason, Lessor shall have the right to reenter and resume
possession of the Leased Premises. If Lessee should remain in possession of the
Leased Premises after expiration and/or termination of this Agreement without
the execution by Lessor and Lessee of a new lease agreement, then Lessee shall
be deemed to be occupying the Leased Premises as a tenant-at-sufferance subject
to all the covenants of this Agreement except the amount of Base Rent, and the
Base Rent for any such holdover period shall be 200% of the Base Rent being paid
by Lessee immediately prior to the expiration and/or termination date, and
Lessee shall indemnify Lessor and hold Lessor harmless from any claims which may
be asserted by any third party who is unable to enter or occupy the Leased
Premises because of Lessee's holdover occupancy thereof, from or by whomsoever
caused.
SECTION 26: CONDEMNATION. If all or any portion of the Property is
condemned during the term of this Agreement, the Lessor shall have the right to
all proceeds resulting from the condemnation. In the event of a total
condemnation of the Property during the term hereof, this Agreement and the
tenancy conveyed herein shall terminate as of the date of such taking, and the
Base Rental due hereunder shall be prorated for the month during which the
taking occurs with none being due after such taking. In the event of a partial
or less than total condemnation of the Property, the Lessee shall have the right
to terminate this Agreement if such taking results in the violation of any
applicable federal, state, or municipal law or ordinance by virtue of Lessee
conducting its then-existing business thereon, but Lessee shall not have the
right of termination if no such violation results. If the Agreement is not
terminated as a result of such partial taking, the Lessor shall reduce the
rental of the Leased Premises in direct proportion to that part of the Leased
Premises taken as a result of the condemnation.
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SECTION 27: SIGNS. Lessee shall not place any signs, letters, symbols, or
other identifying marks anywhere upon, about or within the Building and its
Parking Areas, or upon the exterior of the doors, walls, windows, or other
visible areas of the Leased Premises, without the prior written approval of
Lessor.
SECTION 28: SEVERABILITY. This Agreement shall be construed in accordance
with the laws of the State of Missouri. If any clause or provision hereof is
held to be illegal, invalid or unenforceable, under present or future laws
effective during the term hereof, then it is the intention of the parties hereto
that the remainder of this Agreement shall not be affected thereby and shall be
construed as if such provision had not been contained herein.
SECTION 29: SECURITY DEPOSIT. Upon the occurrence of any default by Lessee,
or the failure of Lessee to remove any alteration, improvement or addition when
requested by Lessor to do so pursuant to Section 10 and 11 herein, Lessor, may
from time to time, without prejudice to any other remedy, use the security
deposit paid to Lessor by Lessee herein provided to the extent necessary to make
good any arrearage of Base Rent or any other damage, injury or expense or
liability cause to Lessor by such event of default and the remaining balance of
such security deposit to be returned by Lessor to Lessee upon the termination of
this Agreement. Such security deposit shall not be considered as an advance
payment of rent or a measure of Lessor's damages in case of default by Lessee.
SECTION 30: RELOCATION OF LESSEE. Lessor reserves the option and right to
require Lessee to relinquish the Leased Premises and to relocate in another area
of comparable size in the Building designated by Lessor. Lessor shall be
responsible for all expenses with respect to any required location and all
repairs necessary to the designated area to conform with Lessee's requirements
under this Agreement. If the Lessor elects to relocate the Lessee, the area to
which the Lessee is relocated shall be deemed the Leased Premises for all
purposes and this Agreement shall continue in full force and effect for the
remainder of the term.
SECTION 31: NOTICES. Whenever in this Agreement it shall be required or
permitted that the notice or demand be given or served by any party hereto to or
upon another, such notice or demand shall be given or served (and shall not be
deemed to have been given or served unless) in writing and delivered personally
or forwarded by Certified or Registered Mail, postage prepaid, addressed to the
appropriate party at the address shown at the signature line. Such addresses may
be changed from time to time by any party by serving notice as above provided.
SECTION 32: OBLIGATIONS OF SUCCESSORS. It is mutually agreed that all the
provisions hereof are to be construed as covenants and agreements as though the
words imparting such covenants were used in each separate paragraph hereof, and
that, except as restricted by the provisions of Section 12 hereof entitled
"Assignment and
/s/ Xxxx X. Xxxxxxx
----------------------------------------
Initials
11
Sublease" all the provisions hereof shall bind and inure to the benefit of the
parties hereto, their respective heirs, legal representatives, successors and
assigns.
SECTION 33: ENTIRE AGREEMENT. This instrument and any attached Addendums A,
B, C and D collectively constitute the entire agreement between the Lessor and
Lessee, and no other promises or representations shall be binding unless made in
writing and signed by Lessor and Lessee. The appendices attached to this
Agreement are made a part hereof by this reference.
SECTION 34: PARAGRAPH CAPTIONS. Paragraph captions herein are for Lessor's
and Lessee's convenience only and neither limit nor amplify the provisions of
this Agreement.
SECTION 35: FORCE MAJEURE. In the event that Lessor shall be delayed,
hindered or prevented from the performance of any acts required hereunder by
reason of acts of God, riots, terrorism, fire, strike or the unavailability of
materials, then performance of such acts shall be excused for the period of the
delay, and the period for the performance of any such acts shall be extended for
a period equivalent to the period of such delay.
SECTION 36: WAIVER OF JURY TRIAL. AS A SPECIFICALLY BARGAINED INDUCEMENT
FOR LESSOR TO AGREE TO LEASE THE PREMISES TO LESSEE, LESSEE HEREBY EXPRESSLY
WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATED TO THIS
LEASE OR ARISING IN ANY WAY FROM LESSEE'S USE OF THE PREMISES OR LESSOR'S
OBLIGATIONS RELATED THERETO.
IN WITNESS WHEREOF, the Lessor and Lessee, acting herein by duly authorized
individuals, have caused these presents to be executed in multiple counterparts,
each of which shall have the force and effect of an original, as of the day and
year first written above.
"LESSEE" "LESSOR"
XXXX X. XXXXXXX HOTELS, INC. The Plaza Associates
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
--------------------------------- ------------------------------------
Name: Xxxx X. Xxxxxxx
-------------------------------
Date: 12-14-04 Date: 12-14-04
Address: Address:
---------------------------- -------------------------------
/s/ Xxxx X. Xxxxxxx
----------------------------------------
Initials
12
ADDENDUM A
LEASED PREMISES
(FLOOR PLAN)
XXXX X. XXXXXXX XXXXXX XXXXXXXX
0XX XXXXX
00
XXXXXXXX X
RULES AND REGULATIONS
1. Lessee shall not paint, display, inscribe, maintain or affix any sign,
picture, advertisement, notice, lettering or direction on any part of the
outside or inside of the Building, or on any part of the inside of the Leased
Premises which can be seen from the outside of the Leased Premises, except on
hallway doors of the Leased Premises, and then only such name or names or matter
and in such color, size, style, character and material as may be first approved
by Lessor in writing. Lessor reserves the right to remove at Lessee's expense
all matter other than the above provided for without notice to Lessee.
2. In advertising or other publicity, without Lessor's prior written
consent, Lessee shall not use the name of the Building except as the address of
its business and shall not use pictures of the Building in advertising or
publicity.
3. Lessee shall not obstruct sidewalks, entrances, passages, courts,
corridors, vestibules, halls, elevators and stairways in and about the Building.
Lessee shall not place objects against glass partitions or doors or windows
which would be unsightly from the Building corridor.
4. Lessee shall not waste electricity, water or air conditioning and agrees
to cooperate fully with Lessor to assure the most effective operation of the
Building's heating and air conditioning, and shall refrain from attempting to
adjust any controls. Lessee shall keep corridor doors closed. Lessor shall not
permit any objects to be placed on or dropped into any grills or devices in the
Leased Premises utilized for heating or air conditioning.
5. Lessee assumes responsibility for protecting its space from theft,
robbery and pilferage which includes keeping doors locked and other means of
entry to the Leased Premises closed.
6. If Lessee requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain and comply with, Lessor's instructions in their
installation.
7. The Lessor may require that all persons who enter or leave the Building
at any time, if determined by Lessor from time to time to be necessary for the
protection of the Building, must identify themselves to watchmen, by
registration or otherwise.
8. The bringing into the Building, taking therefrom, or removal therein of
furniture, fixtures or supplies, when of large weight or bulk, shall be done at
such times as the custodian of the Building shall arrange therefor. All damage
to the Building caused by taking in, putting out or moving the same during the
time it is in or on the Leased Premises shall be repaired at the expense of the
Lessee owning or using same.
14
9. Lessee will permit access to the Leased Premises to Lessor at all
reasonable times for inspection and cleaning and for such repairs, alterations,
additions, installations and removals, including among others, pipes, wires and
other apparatus, as Lessor may deem proper or useful for serving the Leased
Premises or other part of the Building.
10. The maximum weight per square foot in each room shall not exceed
seventy-five (75) pounds, without prior written approval of Lessor.
11. Lessee shall comply with all federal, state and municipal laws,
ordinances and regulations and shall not directly or indirectly make any use of
the Leased Premises which may be prohibited by any laws, ordinances or
regulations thereof or which shall be dangerous to person or property.
12. Lessee shall be responsible for the observance of all of the foregoing
by Lessee's employees, agents, clients, customers, invitees and guests.
13. Lessee shall not at any time permit its employees to park in any areas
of the Parking Area designated as "visitor parking".
14. Lessee will not (i) install or operate any internal combustion engine,
boiler, machinery, refrigerator, heating or air conditioning apparatus in or
about the Leased Premises, (ii) carry on any mechanical business in or about the
Leased Premises without written permission of Lessor, (iii) exhibit, sell, or
offer for sale, use, rent or exchange in the Leased Premises or building any
article, thing or service except those ordinarily embraced within the permitted
use of the Leased Premises specified in the Lease Agreement, (iv) use the Leased
Premises for housing, lodging or sleeping purposes, (v) permit preparation of or
warming of food in the Leased Premises or permit food to be brought into the
Leased Premises for consumption therein (warming of coffee and individual
lunches of employees excepted) except by express permission of Lessor, (vi)
place any radio or television antennae on the roof or on or in any part of the
inside or outside of the Building other than the inside of the Leased Premises,
(vii) operate or permit to be operated any musical or sound producing instrument
or device inside or outside the Leased Premises which may be heard outside the
Leased Premises, (viii) operate any electrical device from which may emanate
electrical waves which may interfere with or impair radio or television
broadcasting or reception from or in the Building or elsewhere, (ix) bring or
permit to be in the Building any bicycle or other vehicle or dog (except in the
company of a blind person) or other animal or bird, (x) make or permit any
objectionable noise or odor to emanate from the Leased Premises, (xi) disturb,
solicit or canvass any occupant of the Building, (xii) or do anything in or
about the Leased Premises tending to create or maintain a nuisance or do any act
tending to injure the reputation of the Building.
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ADDENDUM C
GUARANTY
In consideration of the Lessor entering into the Lease Agreement dated the
______ day of DECEMBER, 2004, between THE PLAZA ASSOCIATES, Lessor, and XXXX X.
XXXXXXX HOTELS, INC., Lessee, referring to SUITE 701 and to be occupied by the
Lessee for a lease term of ONE (1) year at a rental rate of ONE THOUSAND ONE
HUNDRED NINETY THREE AND 40/100 DOLLARS ($1,193.40) per month, all as more
specifically provided in said Agreement.
The undersigned do hereby expressly guarantee to the Lessor, its successors
and assigns, the prompt payment by the Lessee of the rent and faithful
performance by the Lessee of each and all of the terms, covenants and conditions
of said Agreement required to be performed by Lessee.
The undersigned expressly hereby waive notice of nonperformance or default
by or on behalf of said, Lessee, and further expressly hereby waive any legal
obligation or necessity for Lessor to proceed first against said Lessee or to
exhaust any remedy Lessor may have against said Lessee, it being understood that
in the event of default or failure of performance in any respect by said Lessee,
Lessor may proceed and have right of action solely against either the
undersigned or said Lessee, or jointly against the undersigned and said Lessee.
The undersigned agree that any modification, waiver, change or extension of
any terms, covenants or conditions of said Agreement, which Lessee and Lessor
may hereinafter elect to make, shall not in any way affect or impair guarantors'
unconditional liability to Lessor. This guaranty shall continue during the term
of the Agreement and any extension thereof and until the surrender of the Leased
Premises to the Lessor in the manner provided for in said Agreement. This
guaranty shall not be diminished by any payment of rent or performance of the
terms and conditions of the Agreement by the guarantors, until each and all of
Lessee's lease obligations have been fully discharged.
In the event suit or action be brought upon this guaranty, the undersigned
do hereby agree to pay reasonable attorneys fees and all court costs incurred by
Lessor (if plaintiff is the prevailing party in such action).
This guaranty shall be binding upon the heirs, legal representatives,
successors and assigns of the undersigned and shall inure to the benefit of the
successors and assigns of the Lessor.
The obligations of the undersigned hereunder be joint and several.
Dated this __________ day of DECEMBER, 2004.
By:
------------------------------------
Name:
----------------------------------
"Lessee"
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ADDENDUM D
BROKERAGE RELATIONSHIP DISCLOSURE
When you enter into a discussion with a real estate salesperson regarding a real
estate transaction, you should be offered the options available to you regarding
the type of agency or relationship you desire.
THE DUTIES OF THE BROKER IN A REAL ESTATE TRANSACTION DO NOT RELIEVE A SELLER
(LANDLORD) OR A BUYER (TENANT) FROM THE RESPONSIBILITY TO PROTECT THEIR OWN
INTEREST. YOU SHOULD CAREFULLY READ ALL DOCUMENTS TO ASSURE THEY ADEQUATELY
EXPRESS YOUR UNDERSTANDING OF THE TRANSACTION. A REAL ESTATE LICENSEE IS A
PERSON QUALIFIED TO ADVISE ABOUT REAL ESTATE SALES / LEASING. IF LEGAL OR TAX
ADVICE IS DESIRED, CONSULT AN ATTORNEY OR TAX ADVISER.
ACKNOWLEDGMENT OF REAL ESTATE BROKERAGE RELATIONSHIPS
--------------------------------------------------------------------------------
SELLER (LANDLORD) LIMITED AGENCY. The undersigned prospective Buyer (Tenant)
acknowledges that Buyer (Tenant) has been informed orally upon first contact and
no later than the first showing if Buyer (Tenant) is not working with a Broker,
or the undersigned Selling (Leasing) Broker has been informed orally upon first
contact (if applicable), and by executing this written disclosure, before
presenting an offer that: (1) The undersigned Listing Brokers or their
salespersons are acting on behalf of the Seller (Landlord); (2) Any commission
will be paid directly or indirectly by the Seller (Landlord); and (3)
Information given to the salesperson by the prospective Buyer (Tenant) may be
disclosed to the Seller (Landlord).
I/WE ACKNOWLEDGE RECEIPT OF THE MISSOURI BROKER DISCLOSURE FORM, AND A COPY
OF THIS CONFIRMATION AND ACCEPT THE RELATIONSHIPS STATED HEREON.
(Tenant) /s/ Xxxx X. Xxxxxxx Date
--------------------------------- -------------
(Tenant) Date
--------------------------------- -------------
Listing Broker: Plaza Realty & Management services, Inc.
by /s/ Xxxx Xxxxxxx Date 12-8-04
---------------------------------------
Authorized Salesperson
Selling (Leasing) Broker
-------------------------------------
by Date
--------------------------------------- -------------
Authorized Salesperson Xxxx if Designated Agent
------
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