Exhibit 10.12
COMMERCIAL LEASE
THIS LEASE, is made and entered into this _____day of May, 2006 by and
between Xxx Xxxx, Inc. (hereinafter called "Landlord"), and IMI Global, Inc.,
with a mailing address of ________________________________, (hereinafter called
"Tenant").
ARTICLE I
LEASED PREMISES
SECTION 1.01. LEASED PREMISES.
Landlord owns or controls the tract of land in the City of Platte City,
County of Platte, and State of Missouri, described in Exhibit "A", attached
hereto and incorporated herein by reference. Said land, together with all
buildings and improvements now or hereinafter erected thereon, is located at 0xx
& Xxxx, Xxxxxx Xxxx, XX 00000 (hereinafter called the "Building").
SECTION 1.02. COMMON AREAS.
The term "Common Areas" shall be deemed to mean all areas, improvements,
space, equipment and special services in or at the Building provided by Landlord
for the common or joint use and benefit of tenants of the Building, their
officers, employees, agents, servants, customers and other invitees, including
without limitation all parking areas, driveways, entrances, exits, retaining
walls, landscaped areas, pedestrian walkways, courts, access roads, stairs,
ramps and sidewalks, maintenance buildings, and on-site signs identifying the
Building.
SECTION 1.03 DESCRIPTION OF LEASED PREMISES.
Landlord does hereby lease, demise and let unto the Tenant and Tenant
hereby leases and rents from Landlord the premises (hereinafter called the
"Leased Premises") now located on the First Floor of the premises being
approximately One Thousand Five Hundred (1,500) square feet. The parties agree
that the space is difficult to measure and mutually agree that One Thousand Five
Hundred (1,500) square feet shall be the basis of pro-ration and CAM.
SECTION 1.04. TERM.
The initial term (the "Initial Term") of this Lease shall be six months and
shall automatically renew itself unless one party to the agreement gives the
other party at least ninety (90) days notice prior to the expiration of the then
term of the Lease.
SECTION 1.05. RESERVATIONS.
Landlord reserves to itself, the use of the roof, exterior walls and the
area above and below the Leased Premises, together with the right and obligation
to install, maintain, use, repair and replace pipes, ducts, conduits, wires and
structural elements leading through the Leased Premises and which serve other
parts of the Building. The use and occupation by the Tenant of the Leased
Premises shall include a revocable license to use in common with the others
entitled thereto, the common areas, as may be designated from time to time by
Landlord, subject, however, to the terms and conditions of this lease and the
rules and regulations for the use thereof as prescribed from time to time by the
Landlord.
ARTICLE II
RENT
SECTION 2.01. FIXED MINIMUM RENT.
During the first year of the Initial Term of this Lease, a fixed minimum
rent (the "Minimum Rent"), is Six Thousand and 00/100 Dollars ($6,000.00)
payable in advance, on the first day of each and every month at the rate of One
Thousand and 00/100 Dollars ($1,000.00) per month.
Beginning July 15, 2006 and on each Effective Anniversary of the
Effective Date of this Agreement, Landlord shall receive an increase to the Base
Rent equal to the increase in the Bureau of Labor Statistics Consumer Price
Index for all urban consumers (CPI-U) for the twelve (12) month period ending
four months prior to the anniversary date.
SECTION 2.02. ADDITIONAL RENT (CAM).
In addition to the Minimum Rent, Tenant shall pay as additional rent
(the "Additional Rent"), in the amount of Two Dollars ($2.00) per square foot of
leased premises, it being agreed in advance that the square footage leased by
IMI Global, Inc. is One Thousand Five Hundred square feet (1,500 sq. ft.). It is
further agreed that Tenant's portion of the additional rent charges shall be Two
Hundred Fifty Dollars ($250.00) per month based on Twenty-six percent (26%) of
the building. In the event the actual additional rent costs exceed the $2.00 per
square foot price then the Landlord will assume the additional charges. The
additional rent is to be payable on the 1st day of each month. In the event the
funds from the common area maintenance charge remain at the end of the lease,
then they will be retained by the Landlord and used for common area charges the
next year. In the event that the lease is not renewed, and the common area
charges do not equal the amount paid out, then the Landlord may retain this sum
for the purpose of covering additional charges.
SECTION 2.03. COMMON AREA.
The common area charges are deemed to be the following:
1. All city and county property tax
2. All insurance charges
3. Trash
4. Water
5. Mowing
6. Snow removal
7. Outside maintenance
8. Special Assessments
The additional rent does not cover inside capital improvements and
maintenance which are the responsibility of the Tenant.
The additional rent does not cover the janitor or cleaning supplies for
that portion of the leased area and common area on the first floor. The uility
proration as set forth in Paragraph 4.01 shall be on the basis of 62% for the
Second Floor, 26% for the First Floor and 5% additional space and 7% for common
area.
ARTICLE III
SECURITY DEPOSIT
SECTION 3.01. SECURITY DEPOSIT.
None Required.
ARTICLE IV
UTILITIES
SECTION 4.01. UTILITIES.
All utilities that may be billed directly by the utility company to
Tenant will be paid directly by Tenant. If a utility cannot be billed directly
to Tenant, it will be paid by Landlord together with any utilities for the
common areas throughout the Building. The costs of all utilities billed to
Landlord shall be paid by Tenant on a monthly basis as Additional Rent on a pro
rata share based on all utility bills payable upon the Building during the
preceding month, divided by the pro rata share of the gross leasable space of
the Building occupied by Tenant. Landlord shall notify the Tenant in writing of
its pro-rata share of each utility xxxx each month, and Tenant shall pay the
same within ten (10) days of the notice thereof. For purposes of this paragraph,
utilities include any charge for refuse service to the Building. Tenant's pro
rata share is subject to Section 2.02 hereof.
ARTICLE V
TAXES
SECTION 5.01. PAYMENT OF REAL ESTATE TAXES.
Landlord will pay directly to the applicable taxing authority all taxes,
assessments, and other charges, general or special, ordinary or extraordinary,
including any installments, levied or imposed by any lawful authority against or
in any respect to the Building of which the Leased Premises are a part; subject
always to Tenant's obligation for reimbursement as set forth in Section 3.02
hereof.
SECTION 5.02. TENANT'S TAX OBLIGATION.
A. The Tenant's tax obligation shall be paid from the CAM charge.
B. In the event that any governmental authority having jurisdiction over
the Building shall impose a tax and/or assessment (other than an income or
franchise tax) either upon or against the rentals payable by Tenants in the
Building to Landlord or upon or against the business of renting land or
buildings, either by way of substitution for real estate taxes as defined above,
or in addition thereto, said tax or assessment shall be paid by Tenant as
Additional Rent, with the Tenant's proportionate share of such Additional Rent
to be determined in the same manner as his proportional share of real estate
taxes.
C. Tenant shall be responsible for and shall pay when due any and all
taxes, assessments, license fees and public charges, of whatever kind or nature,
including but not limited to general or special assessments, assessed during the
term of this Lease against any leasehold interest, or against Tenant's business
in the Leased Premises, or personal property of any kind owned by, or placed in,
upon or about the Leased Premises by Tenant.
D. In the event that, after the commencement of this Lease, any
governmental authority imposes a new or different tax, charge or levy which is
billed or charged to the Building and/or the Landlord, and such tax, charge or
levy is attributable to, derived from or based upon Tenant's leasehold interest,
Tenant's occupancy of or doing business in the Leased Premises, Tenant's sales
or receipts, or personal property of any kind owned by, or placed in, upon or
about the Leased Premises by Tenant; such tax, charge or levy shall be paid by
Tenant as Additional Rent, with Tenant's proportional share of such Additional
Rent to be determined in the same manner as his proportional share of real
estate taxes.
ARTICLE VI
INDEMNITY AND INSURANCE
SECTION 6.01. INDEMNIFICATION.
Tenant shall protect, indemnify and save harmless Landlord, its
mortgagees, lenders, officers, agents, servants and employees, from and against
any and all liability and expense of any kind (including attorney fees) arising
from injuries, damage or loss to persons or property or loss of life (whether of
Tenant or other persons) on or about the Building or Leased Premises or any part
thereof; and arising from injuries, damages or loss to persons or property or
loss of life (whether of Tenant or other persons) sustained or occurring
elsewhere then on or about the Leased Premises arising out of the use or
occupancy of the Leased Premises by Tenant on or account of or based upon any
fact, omission, fault, negligence or misconduct of Tenant. Tenant agrees to
promptly notify Landlord of any claim, action, proceeding or suit instituted or
threatened against the Landlord. In the event Landlord is made a party to any
action for damages which Tenant has indemnified Landlord against, then Tenant
shall pay all costs and shall provide effective counsel approved by Landlord in
such litigation or shall pay, at Landlord's option, the reasonable attorney fees
and costs incurred in connection with said litigation by Landlord.
Landlord shall protect, indemnify and save harmless Tenant, its owners,
officers, agents, servants and employees, from and against any and all liability
and expense of any kind (including attorney fees) arising from injuries, damage
or loss to persons or property or loss of life on or about the Building or
Leased Premises or any part thereof; and arising from injuries, damages or loss
to persons or property or loss of life sustained or occurring elsewhere than on
or about the Leased Premises arising out of the use of occupancy of the common
areas of the Leased Premises on or account of or based upon any fact, omission,
fault, negligence or misconduct of Landlord. Landlord agrees to promptly notify
Tenant of any claim, action, proceeding or suit instituted or threatened against
the Tenant. In the event Tenant is made a part to any action for damages which
Landlord has indemnified by Tenant against, then Landlord shall pay all costs
and shall provide effective counsel approved by Tenant in such litigation or
shall pay, at Tenant's option, the reasonable attorney fees and costs incurred
in connection with said litigation by Tenant.
SECTION 6.02. INSURANCE PROVIDED BY TENANT.
As a part of the CAM charges Tenant shall pay its share of a liability
policy providing insurance coverage for the Landlord.
Landlord shall not have any liability to Tenant for any loss or damage
incurred by Tenant by reason of fire or other casualty including, but not
limited to, loss of business property and income or profits, unless such loss or
casualty is caused by the negligence or willful misconduct of Landlord or its
agents.
SECTION 6.03. INSURANCE COSTS FOR BUILDING.
During the term of this Lease, or any renewal term, Lessor shall keep
Insurance Coverage (as hereinafter defined) on the Building against loss or
damage by fire and other casualty. As a part of the CAM charges will be the fire
and extended coverage insurance on the building. It is expressly understood that
Landlord's insurance does not include business interruption or leasehold
coverage for the benefit of Tenant, except that in the event insurance coverage
is for contents etc. within the building and is purchased on the same policy
then Tenant shall have the obligation to pay that portion of the insurance
coverage applicable to the contents.
Tenant agrees that, if any property owned by it and located in the Leased
Premises shall be damaged or destroyed by an insured peril, and provided such
loss shall not have been caused by Landlord's negligence or willful misconduct,
Landlord shall not have any liability to Tenant, nor to any insurer of Tenant,
for, or in respect of such damage or destruction.
SECTION 6.04. NOTICE OF CASUALTY.
Tenant shall give Landlord prompt notice in case of casualty damage to
or accidents in the Leased Premises.
ARTICLE VII
CONDUCT OF BUSINESS BY TENANT
SECTION 7.01. USE OF LEASED PREMISES.
Office space for computer business.
ARTICLE VIII
MAINTENANCE OF LEASED PREMISES
SECTION 8.01. MAINTENANCE BY LANDLORD.
Landlord agrees to maintain and keep in good repair, at its sole cost,
the roof and exterior of the outside walls of the Building in which the Leased
Premises are located, and the mechanical, electrical and plumbing systems of the
Building which service the Leased Premises; provided that Landlord's obligation
to make any such repairs shall not extend to any of said conditions which may
have been created by the negligence of Tenant, its agents, employees, invitees,
licensees or contractors; provided further, that Landlord's obligation to make
any such repairs shall not be applicable to any exterior improvements placed
upon the Leased Premises, or otherwise in the Building, by or specifically for
Tenant, the maintenance of any such items shall be the specific responsibility
of Tenant. All other maintenance expense shall be paid for from the CAM charges.
SECTION 8.02. MAINTENANCE BY TENANT.
Tenant agrees to maintain and keep in good repair, at its sole cost,
the interior of the Leased Premises, including but not limited to (a) the
interior lighting; (b) windows, including sashes; (c) doors, including frames,
locks and hardware; (d) signs, ceiling and floor coverings therein; and (e)
fixtures, equipment, machinery, controls, appliances, sprinkler systems and
utility lines, and appurtenants thereof as are used in connection with the
electrical, plumbing, heating, air conditioning and ventilating system or
systems for the Leased Premises provided such items are within the Leased
Premises, and any other mechanical system in the Leased Premises. If Tenant
fails to make any repairs required hereunder, Landlord may demand that the
Tenant make the same forthwith; and if the Tenant refuses or neglects to
commence such repairs within thirty (30) days and complete the same within a
reasonable period of time, Landlord may make or cause such repairs to be made,
and shall not be responsible to Tenant for any loss or damage that may accrue to
his stock or business by reason thereof; and if Landlord makes or causes such
repairs to be made, Tenant agrees to pay to Landlord, on demand, the cost
thereof. Tenant is not obligated to maintain any utility or mechanical system
which passes over, through or under the Leased Premises for the purpose of
providing services to another Tenant or to Common Areas.
SECTION 8.03. INSTALLATION OF ELECTRICAL, COMPUTER EQUIPMENT AND OUTSIDE LINES.
Any outside, electrical or telephone lines shall be installed by the
Tenant, any computer or other electrical equipment which causes or which will
cause excessive utility expense or interfere with other tenants shall not be
installed without approval of the Landlord. If Tenant installs any electrical
equipment that overloads the lines in the Leased Premises, or the Building, the
Tenant shall, at its expense, make whatever changes are necessary to comply with
the requirements of the insurance underwriters or governmental authorities
having jurisdiction, and shall be responsible for paying any damage caused
thereby to the other tenants in the Building. Landlord shall not be required to
supply electric service to the Leased Premises in excess of the capacity that is
now existing. No electric, telephone, or computer lines, or other overhead lines
shall be installed outside overhead without express consent of the Landlord.
SECTION 8.04. TENANT'S LIENS.
Tenant will not create or permit to be created or to remain and will
discharge, any lien (included but not limited to, the liens of mechanics,
laborers or materialmen for work or materials alleged to be done or furnished in
connection with the Leased Premises), encumbrance or other charge upon the
Leased Premises or any part thereof, or upon Tenant's leasehold interest
therein; provided, the Tenant shall not be required to discharge any such liens,
encumbrances or charges as may be placed upon the Leased Premises by the act of
Landlord.
Tenant shall have the right to contest, in good faith and by appropriate
legal proceedings, the validity or amount of any mechanics, laborers or
materialmen's lien or claimed lien. In the event of such contest, Tenant shall
give to Landlord security in a form acceptable to Landlord, and in an amount not
less than any such lien or claimed lien, to insure payment thereof and to
prevent any sale, foreclosure or forfeiture of the Leased Premises or any part
thereof by reason of such non-payment. on final determination of such lien or
claim for lien, Tenant will immediately pay any judgment rendered, with all
proper costs and charges and shall have such lien released or judgment satisfied
at Tenant's expense; upon such payment and release or satisfaction Landlord will
promptly return to Tenant such security as Landlord shall have received in
connection with such contest. Landlord reserves the right to enter the Leased
Premises to post or keep posted notices of non-responsibility for such lien.
Tenant will pay, protect and indemnify Landlord within ten (10) days after
demand therefor, from and against all liabilities, losses, claims, damages,
costs and expenses, including attorney fees, incurred by Landlord by reason of
the filing of any lien and/or removal of the same.
SECTION 8.05. TENANT'S SIGNS.
Landlord shall make space available to Tenant on the exterior portion of
the Building on which Tenant can place its name, along with the names of other
Tenants of the Building and subject to Landlord's lettering criteria. Apart from
the foregoing, Tenant will not place or cause to be placed or maintained on any
exterior door, wall, window, building entry or store front of the Leased
Premises or the Building any sign, awning or canopy or advertising matter or
other thing of any kind, and will not place or maintain any exterior lighting,
plumbing fixture or protruding object or any decoration, sign, lettering or
advertising matter on the glass of any window or door of the Leased Premises or
the Building without first obtaining written approval and consent by the
Landlord.
All Tenant signs shall be installed and maintained at Tenant's expense.
Landlord may erect a structure to accommodate Tenant's signs and if a structure
is so erected, the structure will be maintained by Landlord, but all Tenant
signs erected therein or thereon shall be erected and maintained at Tenant's
sole expense.
SECTION 8.06. TENANT TO KEEP FREE OF OBSTRUCTIONS, TRASH, DEBRIS, SNOW AND ICE.
Tenant shall at all times keep the walkways, porches, doorways and
entryways providing ingress and egress to the Leased Premises free of all
obstructions including, but not limited to, trash, debris, snow and ice
accumulations. In the event such obstructions or accumulations are not promptly
removed by Tenant, the same may be removed by Landlord and the cost thereof
shall be payable by Tenant as Additional Rent.
ARTICLE IX
PARKING
SECTION 9.01. PARKING OF VEHICLES.
Tenant agrees that it, its agents and employees will park their vehicles
only in such areas as the Landlord from time to time designates for employee
parking areas. No vehicle shall be parked in any area not designated for parking
(including any of the adjoining streets or roads). Tenant's customers shall
share the parking available with the employees, customers and invitees of other
tenants within the Building on a first come, first served basis.
ARTICLE X
ACCESS TO PREMISES
SECTION 10.01. ACCESS TO PREMISES.
Landlord or Landlord's agent, upon reasonable notice and at reasonable
times, shall have the right to enter the Leased Premises to examine the same,
and, within the last three (3) months of the term of the Lease (or any renewal
term) to show the Leased Premises to prospective purchasers or tenants of the
Building, and to make such repairs, alterations, improvements or additions as
Landlord may reasonably deem necessary or desirable, provided Landlord, or its
agents, shall not materially interfere with Tenant's business; Landlord shall be
allowed to take all material into and upon said Leased Premises that may be
required therefor without the same constituting an eviction of Tenant, in whole
or in part, and the rent shall in no way xxxxx while said repairs, alterations,
improvements or additions are being made, provided Landlord, or its agents,
shall not materially interfere with Tenant's business. If Tenant, or its agents,
shall not be present to open and permit an entry into said Leased Premises at
any time, when for any reason an entry therein shall be necessary or
permissible, Landlord or Landlord's agents may enter the same, without rendering
Landlord or such agents liable therefor, and without in any manner affect any
obligations or covenants of this Lease.
ARTICLE XI
ASSIGNMENT
SECTION 11.01. ASSIGNMENT.
Tenant will not voluntarily or involuntarily assign (by operation of law
or otherwise), mortgage, pledge, or sublet this Lease in whole or in part, or
all or any part of the Leased Premises, without the prior written consent of
Landlord in each instance, which consent shall not be unreasonably withheld or
delayed. The consent by Landlord to any assignment or subletting shall not
constitute a waiver of the necessity for such consent to any subsequent
assignment or subletting. Tenant shall pay all costs, expenses and reasonable
attorney fees that may be incurred or paid by Landlord in processing,
documenting or administering any request by Tenant for Landlord's consent
required pursuant to this paragraph. Any consent by Landlord to an assignment or
subletting as provided for in this paragraph shall not release Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained, and Tenant shall remain ultimately liable for all payments and
compliance with all other covenants under this Lease. If at any time during the
Lease term any part or all of the capital shares of Tenant, if Tenant shall be a
corporation' shall be transferred by sale, assignment, bequest, inheritance,
operation of law or other disposition so as to result in a change of the
effective vote control of Tenant as of the date of this Lease, Tenant shall
promptly notify Landlord in writing of such change, and Landlord may terminate
this Lease at any time after such change in control by giving Tenant sixty (60)
days prior written notice of such termination.
ARTICLE XII
EMINENT DOMAIN
SECTION 12.01. EMINENT DOMAIN.
If the whole of the Leased Premises shall be taken or acquired by any
public or quasi-public authority under the power or threat of eminent domain,
the Lease term shall cease as of the date possession shall be taken by such
public authority and Tenant shall pay rent up to that date with an appropriate
refund by Landlord of such rent as may have been paid in advance for any period
subsequent to the date possession is taken. If less than all of the Leased
Premises shall be so taken, the Lease term shall cease only on the part so taken
as of the date possession shall be taken by such authority and Tenant shall pay
rent up to that day with appropriate refund by Landlord for such rent as may
have been paid in advance for any period subsequent to the date that possession
is taken; thereafter, the Minimum Rent and Additional Rent shall be adjusted on
a prorata basis based upon the number of square feet taken. However, if the part
of the Leased Premises so taken leaves space no longer suitable, in the
reasonable opinion of Tenant, for the conduct of Tenant's business, then Tenant
may elect to terminate the Lease term and Tenant shall pay rent up to the day
possession is taken.
SECTION 12.02. DAMAGES.
All compensation awarded or paid for any taking or acquiring under the
power or threat of eminent domain, whether the whole or any part of the Leased
Premises or Building, shall be property of Landlord, whether such damages shall
be awarded as compensation for the diminution in value of the leasehold or to
the fee of the Leased Premises or otherwise, and Tenant hereby assigns to
Landlord all of the Tenant's right, title and interest in and to any and all
such compensation; provided, however, that Landlord shall not be entitled to any
award specifically made to Tenant for the taking of Tenant's trade fixtures,
furniture or leasehold improvements to the extent of the cost to Tenant of said
improvements, less depreciation computed from the date of said improvements to
the expiration of the original term of this Lease. Notwithstanding anything
herein to the contrary, Tenant expressly retains the right to pursue a separate
action for loss of Tenant's business, depreciation to and cost or removal of
stock and trade fixtures, moving and other reimbursable expenses for the Tenant.
ARTICLE XIII
DESTRUCTION BY FIRE OR OTHER CAUSE
SECTION 13.01. PARTIAL DESTRUCTION BY FIRE OR OTHER CAUSE.
If the Leased Premises shall be partially damaged by fire or other
casualty or cause without the fault or neglect of Tenant, the damage shall
promptly be repaired by and at the expense of Landlord and the rent until such
repairs shall be made shall be apportioned according to the part of the Leased
Premises which is unusable by Tenant. If such partial damage is due to the fault
or neglect of Tenant, without prejudice to any other rights and remedies of
Landlord, the damages shall be repaired by Landlord but there shall be no
apportionment or abatement of rent and the Tenant shall pay to the Landlord any
deductible not covered by the proceeds of insurance. In no event shall the
Landlord be required to repair or replace Tenant's stock in trade, fixtures,
furniture, furnishings, floor coverings or equipment. No penalty shall accrue
for reasonable delay which may arise by reason of an adjustment of insurance on
the part of Landlord and/or Tenant, for reasonable delay on account of "labor
troubles" or any other cause beyond Landlord's control. If the Leased Premises
or the Building are substantially damaged by fire or other cause, then either
Landlord or Tenant may elect to terminate this Lease upon written notice to the
other party, and Landlord's sole obligation to Tenant shall be the appropriate
refund by Landlord of such rent as may have been paid in advance for any period
subsequent to the date of such destruction, and the return of the security
deposit.
ARTICLE XIV
ALTERATION OF LEASED PREMISES
SECTION 14.01. ALTERATION OF LEASED PREMISES.
Except for minor non-structural changes or alterations, Tenant shall not
alter or change the Leased Premises in any manner without first obtaining
written permission of Landlord. Landlord in its sole discretion may approve or
disapprove any plans for proposed alteration or changes in the Leased Premises,
in whole or in part.
ARTICLE XV
LANDLORD'S LIEN
SECTION 15.01. LANDLORD'S LIEN.
The Landlord is hereby granted a lien, in addition to any statutory lien
that may exist, on all merchandise, furniture, trade fixtures and other personal
property of Tenant in the Leased Premises, to secure the payment of any rent or
other sums due under this Lease; such property shall not be moved therefrom
until all arrearages shall have been discharged. Landlord shall have the right,
upon a default in the payment of any rent or other sum due under this Lease, to
enter the Leased Premises and take possession of all such property without
liability whether for trespass, eviction, forcible entry or conversion, or
otherwise and to sell the same (Tenant hereby waiving the benefit of all laws
exempting property from execution, levy and sale on distress or judgment), with
or without notice, at public or private sale (at which Landlord may purchase)
and apply the proceeds thereof, less all expenses incurred in connection with
the exercise of Landlord's rights hereunder, as a credit against any sums due
from Tenant to Landlord. Any surplus shall be paid to Tenant, and Tenant shall
pay any deficiency forthwith. Alternatively, the lien hereby granted may be
foreclosed in any manner provided by law.
ARTICLE XVI
DEFAULT BY TENANT
SECTION 16.01. DEFAULT BY TENANT.
A. In the event of: (i) any failure of Tenant to pay any rental or other
charges due hereunder for more than ten (10) days after the same shall be due;
or (ii) any failure of Tenant to perform any other of the terms, conditions or
covenants of this Lease to be observed or performed by Tenant for more than
thirty (30) days after written notice of such default shall have been given to
Tenant; or (iii) if Tenant or any guarantor of this Lease shall become bankrupt
or insolvent, or file any debtor proceedings, or take or have taken against
Tenant or any guarantor of this Lease in any Court pursuant to any statute,
either of the United States or of any state, a petition in bankruptcy or
insolvency or for reorganization or for appointment of a receiver or a trustee
of all or a portion of Tenant's or any such guarantor's property; or (iv) if
Tenant or any such guarantor makes an assignment for the benefit of creditors,
or petitions for or enters into any agreement; or (v) if Tenant shall abandon
the Leased Premises or suffer this Lease to be taken under any writ of
execution; then Landlord, in addition to the other rights or remedies it may
have, shall have the immediate right of re-entry and remove all persons and
property from the Leased Premises; and such property may be removed and stored
in a public warehouse or elsewhere at the cost of, and for the account of
Tenant, and without being deemed guilty of trespass, or becoming liable for any
loss or damage which may be occasioned thereby. It is expressly agreed by Tenant
that Minimum Rent and CAM charges and any other monthly payments due under this
Lease are due on the days specified herein; and utility reimbursement shall be
paid within ten (10) days after receipt of the invoice or notice thereof. Any
charge for Minimum Rent, CAM charges or utility reimbursement not paid when due
shall bear interest at eighteen percent (18%) per annum.
B. Should Landlord elect to re-enter, as herein provided, or should it
take possession pursuant to legal proceedings or pursuant to any notice provided
for by law, it may either terminate this Lease or it may, from time to time,
without terminating this Lease, make such alterations and repairs as may be
reasonably necessary in order to relet the Leased Premises, and relet the Leased
Premises, or any part thereof, for such term or terms (which may be for a term
extending beyond the Lease Term) and at such rental or rentals and upon such
other terms and conditions as Landlord, in its reasonable discretion, may deem
advisable. Upon each such reletting, all rentals received by Landlord from such
reletting shall be applied, first to the payment of any indebtedness other than
rent due hereunder from Tenant to Landlord; second to the payment of any costs
and expenses of such reletting, including brokerage fees and attorney fees and
costs of such alterations and repairs; third to the payment of rent due and
unpaid hereunder; and the residue, if any, shall be held by Landlord and applied
in payment of future rent as the same may become due and payable hereunder. If
such rental is received from such reletting during any month be less than that
to be paid during that month by Tenant hereunder, Tenant shall pay any such
deficiency to Landlord. Such deficiency shall be calculated and paid monthly.
Should Landlord at any time terminate this Lease for any breach, in addition to
any other remedies it may have, it may recover from Tenant all damages it may
incur by reason of such breach, including the cost of recovering the Leased
Premises, attorney fees, and including the worth at the time of such termination
of the excess, if any, of the amount of rent and charges equivalent to the rent
reserved in this Lease for the remainder of this Lease Term over the then
reasonable rental value of the Leased Premises for the remainder of the Lease
Term. All of which amount shall be immediately due and payable from Tenant to
Landlord. In determining the rent which would be payable by Tenant hereunder,
subsequent to default, the annual rent for each month of the unexpired term
shall be equal to the average monthly minimum and Additional Rent paid by Tenant
from the commencement of the Lease Term to the time of default, or during the
preceding twelve (12) full calendar months, whichever period is shorter,
adjusted, however, to include any provision herein for increases in Minimum
Rent.
C. If as a result of any default by Tenant, Landlord shall make any
collection efforts or a suit shall be brought for recovery of possession of the
Leased Premises or for the recovery of rent or any other amount due under the
provisions of this Lease, or because of the breach of any other covenant herein
contained on the part of Tenant to be kept or performed, and a breach shall be
established, Landlord shall be entitled to recover from Tenant all expenses
actually incurred therefor, including reasonable attorney fees.
D. Should Tenant breach any other provision of this Lease, then the
Landlord may give the Tenant ten (10) days written notice to correct the breach.
If the breach is not corrected, then the Lease may be terminated. Notice to the
Tenant shall be sent to:
XX Xxx 0000, 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000
E. The Tenant hereto shall, and they hereby do, waive trial by jury in
any action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the Leased Premises, and/or any claim for injury or damage. The
Tenant agrees that the venue for any lawsuit shall be in Platte County,
Missouri.
ARTICLE XVII
RIGHT OF LANDLORD TO SELL, ASSIGN, TRANSFER,
CONVEY OR MORTGAGE
SECTION 17.01. LANDLORD'S RIGHT TO TRANSFER LEASE.
The Landlord reserves the right during the Lease Term to subject and
subordinate this Lease, and Tenant covenants and agrees to execute and deliver
upon demand such further instruments or agreements subjecting and subordinating
this Lease to any sale, assignment, mortgage, deed of trust, transfer or
conveyance; and said Tenant hereby irrevocably appoints the Landlord the
attorney-in-fact of the Tenant to execute and deliver any such instrument for
and in the name of Tenant. In the event said Landlord sells, assigns, transfers
or conveys its interest in said premises or Lease, the Tenant herein entirely
and absolutely releases and discharges said Landlord from all claims,
obligations, demands, conditions, covenants, terms and provisions of this Lease.
ARTICLE XVIII
MISCELLANEOUS PROVISIONS
SECTION 18.01. NOTICES.
Whenever under this Lease a provision is made for a notice of any kind, it
shall be deemed sufficient if such notice to the Tenant is in writing, addressed
to the Tenant at the last known post office address of Tenant or at the Leased
Premises and deposited in the mail with postage prepaid, and if such notice to
the Landlord is in writing addressed to Xxx Xxxx, Inc., Xxx Xxxx, 0000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, or such other address as Landlord may
hereafter designate in writing and deposited in the mail with postage prepaid.
SECTION 18.02. HOLDING OVER.
In the event Tenant remains in possession of the Leased Premises after the
expiration of this Lease and without the execution of a new Lease, it shall be
deemed to be occupying said Leased Premises as a Tenant from month to month at a
rate and charge equal to 1.5 times the amount of the Minimum Rent, as adjusted,
plus any CAM charges and any other charges due under this Lease, and subject to
all of the other conditions, provisions and obligations of this Lease insofar as
the same are applicable to a month to month tenancy. Nothing is herein intended
by the parties to extend the term of this Lease.
SECTION 18.03. WAIVER.
The waiver by Landlord or Tenant of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition on any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent. No covenant, term or condition of this Lease shall be deemed to have been
waived by Landlord or Tenant unless such waiver shall be in writing signed by
the party to be charged.
SECTION 18.04. TENANT'S DUTIES ON TERMINATION.
Upon the expiration or other termination of this Lease, Tenant shall
quit and surrender to Landlord the Leased Premises, broom clean, in good order
and condition, ordinary wear and tear accepted; and Tenant shall remove all of
its furnishings, equipment and personal effects except any leasehold
improvements which have been attached to the floor, walls or ceilings of the
Leased Premises. Landlord, at Landlord's option, may retain any leasehold
improvements attached to the floor, walls or ceilings as Landlord's property or
may require Tenant to remove the same and restore the Leased Premises to the
condition that existed at the date that Tenant took possession of the Leased
Premises. Tenant's obligation to observe or perform this covenant shall survive
the expiration or other termination of the term of this Lease.
SECTION 18.05. BINDING EFFECT.
The covenants, terms and agreements herein contained shall run with the
premises hereby leased and bind the parties hereto, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns unless
otherwise provided herein. The word "Tenant" shall be deemed and chosen to mean
each and every person or party mentioned as a Tenant herein, be the same one or
more.
SECTION 18.06. AMENDMENTS.
The terms, conditions or covenants of this Lease may be altered, waived,
changed, varied or abandoned only by written instrument signed by the Landlord
and Tenant.
SECTION 18.07. PARTIAL INVALIDITY.
In the event that any part of this Lease be held by any Court having
jurisdiction to be void, illegal or unenforceable, the remainder of this Lease
shall not be affected and shall be enforceable according to its terms.
SECTION 18.08. ACCORD AND SATISFACTION.
No payment by Tenant or receipt by Landlord of a lesser amount than the
monthly rent herein stipulated shall be deemed to be other than on account of
the earliest reserved rent, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment as rent be deemed an accord and
satisfaction; and Landlord may accept such check or payment, without prejudice
to Landlord's right to recover the balance of such rent or pursue any other
remedy provided in this Lease.
SECTION 18.09. ENTIRE AGREEMENT.
This Lease and the exhibits, riders and amendments if any attached
hereto and forming a part hereof, set forth all of the covenants, promises,
agreements, conditions and understandings between Landlord and Tenant concerning
the Leased Premises and there are no covenants, promises, agreements, conditions
or understandings, either oral or written, between them other than as are herein
set forth.
SECTION 18.10. FORCE MAJEURE.
In the event that Landlord shall be delayed or hindered in or prevented
from doing or performing any act or thing required hereunder by reason of
strikes, lockouts, casualties, acts of God, labor disputes, inability to procure
materials, failure of power, governmental laws or regulations, riots,
insurrection, war or other cause beyond the reasonable control of such party,
then such party shall not be liable or responsible for any such delays, and the
doing or performing of such act or thing shall be extended for the period of the
delay.
SECTION 18.11. CAPTIONS.
The captions, section numbers and article numbers appearing in this Lease
are for convenience only, and do not limit, construe or describe the scope or
intent of such sections or articles of this Lease, nor in any way affect this
Lease.
SECTION 18.12. NO SOLICITATION.
Tenant and Tenant's employees and agents shall not solicit business in the
parking areas or other common areas, nor shall Tenant distribute any handbills
or other advertising matter in automobiles parked in the parking area or in the
common areas.
ARTICLE XIX
COMMON AREAS, CONTROL AND MAINTENANCE COSTS
SECTION 19.01. COMMON AREAS.
All common areas shall at all times be subject to the exclusive control
and management of Landlord. Landlord shall have the right, from time to time, to
establish (provided Landlord shall have provided Tenant a copy of said rules and
regulations), modify and enforce reasonable rules and regulations with respect
to all common areas. Tenant agrees to abide by and conform with such rules and
regulations; to cause its concessionaires and suppliers, officers, agents,
employees and independent contractors so to abide and conform; and to use its
best efforts to cause its customers, invitees and licensees to abide and
conform. Landlord will operate and maintain the Common Areas in such a manner as
Landlord, in its reasonable discretion, shall determine from time to time, but
all at times in a manner consistent with the terms of this Lease.
SECTION 19.02. USE OF COMMON AREAS.
All Common Areas not within the Leased Premises, which Tenant shall be
permitted to use and occupy, are used and occupied under a revocable license;
and if the amount of Common Areas be expanded, diminished or relocated, Landlord
shall not be subject to any liability, nor shall Tenant be entitled to any
compensation for the diminution or abatement of rent, except as otherwise
provided elsewhere herein, nor shall such expansion, diminution or relocation of
the Common Areas be deemed constructive or actual eviction.
IN WITNESS WHEREOF, the parties have hereunto subscribed their names on
the date and year provided.
Dated:______________ XXX XXXX, INC.
By: _______________________
Title:
-----------------------------------
LANDLORD
Dated:______________
By: _______________________
Title: ______________________
TENANT
By: _______________________
Title: ______________________
TENANT
EXHIBIT "A" TO LEASE DATED , 2006
Xxx Xxxx, Inc., LANDLORD AND IMI Global, Inc., TENANT
TRACT 1. All that part of Block 56 in the Eastern Extension of Platte City,
Platte County, Missouri, described as follows: Beginning 120 feet north of the
northeast corner of the intersection of Oak and State Streets in the City of
Platte City, running thence east 142 feet; thence north to the public road
leading from Platte City, Missouri to Liberty, Missouri; thence with said public
road, in a Northwesterly direction to its junction with said State Street;
thence South to the place of beginning.
TRACT 2. Beginning at the Southwest corner of the Southeast Quarter of Xxxxxxx
00, Xxxxxxxx 00, Xxxxx 00, Xxxxxx Xxxxxx, Xxxxxxxx; thence South 89(Degree) 50'
38" East along the South line of the Southeast Quarter of said Section 25, 150.0
feet; thence North and parallel to the West line of the Southeast Quarter of
said Section 25, 380.22 feet to the Northwest corner of a tract of land recorded
in Book 317 at Page 89 in the Recorder's Office of Platte County, Missouri, said
point being also the True Point of Beginning of the tract to be herein
described; thence continuing North 19.78 feet to the Southwest corner of a tract
of land recorded in Book 88 at Page 130 in the Recorder's Office of Platte
County, Missouri; thence South 89(Degree) 50' 38" East along the South line of
the aforementioned tract of land recorded in Book 88 at page 130, 14.0 feet to
the Southeast corner of the aforementioned tract of land recorded in Book 88 at
Page 130; thence North along the East line of the aforementioned tract of land
recorded in Book 88 at Page 130, 146.82 feet to a point in the Centerline of
Xxxxxxxx Xxxxxx (Xxxx X); thence South 48(Degree) 00' 00" East along the
Centerline of said Xxxxxxxx Street 310.50 feet to the most Northerly corner of a
tract of land recorded in Book 231 at Page 101 of the Recorder's Office of
Platte County, Missouri; thence South 16(Degree) 14' 30" West along the West
line of the aforementioned tract of land recorded in Book 231 at Page 101,
128.55 feet measured, 129.35 feet by deed to the most Easterly corner of a tract
of land recorded in Book 317 at Page 89 in the Recorder's Office of Platte
County, Missouri; thence North 39(Degree) 22' 00" West along the Northeasterly
line of the aforementioned tract of land recorded in Book 317 at Page 89, 72.44
feet measured, 73.28 feet by deed; thence North 58(Degree) 22' 00" West along
the Northerly line of the aforementioned tract of land recorded in Book 317 at
Page 89, 42.96 feet; thence North along the East line of the aforementioned
tract of land recorded in Book 317 at Page 89, 8.43 feet; thence North
81(Degree) 38' 00" West along the North line of the aforementioned tract of land
recorded in Book 317 at Page 89, 144.31 feet to the True Point of Beginning.
Together with an Easement for roadway for ingress and egress appurtenant to the
aforesaid premises over and upon the following described tract of land: A tract
of land in the Southeast Quarter of Xxxxxxx 00, Xxxxxxxx 00, Xxxxx 00, Xxxxxx
Xxxxxx, Xxxxxxxx, described as follows: beginning at the southwest corner of the
Southeast Quarter of said Section 25, thence east along the south line of the
southeast quarter of said section 25, 150 feet; thence North 0 degrees 03
minutes 30 seconds West along a line 150 feet from and parallel to the West line
of the Southeast quarter of said Section 25, 360.0 feet to the true point of
beginning of the tract to be herein described; thence North 0 degrees 03 minutes
30 seconds West 20.22 feet; thence south 81 degrees 41 minutes 30 seconds East
144.31 feet; thence South 0 degrees 03 minutes 30 seconds East 20.22 feet;
thence North 81 degrees 41 minutes 30 seconds West 144.31 feet to the true point
of beginning of the easement tract.
TRACT 3. All that part of Block 56 of the Eastern Extension of Platte City,
Missouri according to the recorded plat thereof and also all that part of a 14.0
foot strip lying East of and adjacent to said Block 56 in the Southeast Quarter
of Section 25, Township 53, Range 35, being bounded and described as follows:
Beginning at a point 120.0 feet North of the Southeast corner of said Block 56;
thence North 89(Degree) 50' 38" West 8.0 feet; thence South 48(Degree) 00' 00"
East 29.60 feet; thence North 0(Degree) 00' 00" East 19.66 feet to a point on
the Southerly right-of-way line of Xxxxxxxx Xxxxxx (Xxxx X); thence North
48(Degree) 00' 00" West along said right-of-way 0.13 feet; thence North
89(Degree) 50' 38" West 13.90 feet to the point of beginning. Subject to any and
all easements and restrictions of record.
