EXHIBIT 10.42
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (this "SUBLEASE") is made as of this 13th day of
October, 1995, by and between XXX REALTY CO., a Delaware corporation ("XXX"),
and UNITED INDUSTRIES CORPORATION, a Delaware corporation ("TENANT").
RECITALS
A. First Industrial Financing Partnership LP ("LANDLORD") and Xxx, as
tenant, entered into a Lease dated October 13, 1995 ("PRIME LEASE"). A true and
correct copy of the Prime Lease is attached hereto as EXHIBIT A.
B. Tenant as subtenant desires to sublease from Xxx as sublandlord the
premises described in the Prime Lease ("PREMISES") on the terms and conditions
set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and covenants below, the
parties agree as follows:
I. PREMISES. Xxx hereby demises and subleases the Premises to Tenant, and
Tenant hereby accepts and subleases the Premises from Xxx. Tenant shall take the
Premises in its current condition "as is, where is" and Xxx makes no warranty,
express or implied, with respect to the Premises or its suitability for
utilization as a warehouse, distribution center or otherwise.
II. TERM. The term of this Sublease shall be co-extensive with the original
term of the Prime Lease which commences on October 1, 1995 and expires on
December 31, 2005 and shall also include two (2) options to renew for five (5)
years each. In the case of the first renewal option, Tenant shall notify Xxx of
its intention to renew no sooner than twelve (12) months, but no later than nine
(9) months, before the expiration of the original term. In the case of the
second renewal option, Tenant shall notify Xxx of its intention to renew no
sooner than twelve (12) months, but no later than nine (9) months, before the
expiration of the first five-year renewal term. If the Prime Lease is terminated
for any reason then this Sublease shall terminate simultaneously with the Prime
Lease.
III. COMPLIANCE WITH PRIME LEASE. Tenant hereby acknowledges that Xxx is a
tenant of the Landlord under the Prime Lease. The Prime Lease is incorporated
herein by reference as fully as if the terms and provisions thereof were set
forth herein, except as otherwise set forth in this Sublease. Tenant assumes and
shall be bound by the same responsibilities and duties that Xxx has under the
1 of 6
XXX REALTY/UNITED INDUSTRIES SUBLEASE
2129 XXXXXX IND. DRIVE
Prime Lease, and shall perform the covenants and agreements of the lessee or
Tenant under the Prime Lease. Tenant shall not perform or neglect to perform any
act under the Sublease which would or might cause the Prime Lease to be
cancelled, forfeited or terminated, or which would or might cause Xxx to be in
default thereunder. Xxx shall have no duty to perform any obligations of the
Landlord under the Prime Lease.
IV. RENT.
(1) Tenant shall pay directly to Xxx all rentals described in the Prime
Lease, together with any and all other charges, including, without limitation,
real estate taxes and operating expenses which are due to the Landlord under the
Prime Lease, at the time and in the manner specified in the Prime Lease.
(2) At the time each monthly base rental is payable to the Landlord under
the Prime Lease, Tenant shall pay directly to Xxx, as additional rental and
without set-off, deduction or recoupment, One Dollar ($1.00) in addition to the
amount of the monthly base rental payable under the Prime Lease.
(3) Tenant shall have the right (but not the obligation) to cure any
default by Xxx under the Prime Lease. Tenant shall have the right to seek
reimbursement from Xxx for all reasonable out-of-pocket expenses incurred by it
in curing any default by Xxx under the Prime Lease.
V. INDEMNITY BY TENANT. Tenant shall indemnify Xxx against any claim, cost,
damage, or liability (including attorneys' fees and legal expenses incurred by
Xxx) (i) arising from any damage to the Premises or any injury to any persons on
the Premises occurring after the date hereof resulting from Tenant's failure to
assume any and all responsibilities and obligations of the lessee or tenant
under the Prime Lease, or (ii) incurred by or claimed against Xxx which is
occasioned by or results from the use or occupancy of the Premises by Tenant or
from any default by Tenant under this Sublease.
VI. QUIET ENJOYMENT.
(1) Xxx covenants that it is not in default of its obligations under the
Prime Lease and has the right to enter into this Sublease, pursuant to
Landlord's written consent to this Sublease given concurrently herewith as
required by the terms of the Prime Lease. If Tenant shall pay the rent and
perform all of the other promises and covenants of this Sublease to be performed
by Tenant, Tenant shall, during the term hereof, freely, peaceably, and quietly
occupy and enjoy the full possession of the Premises without molestation,
hindrance, or ejection by Xxx, or any party claiming through or
2 of 6
XXX REALTY/UNITED INDUSTRIES SUBLEASE
2129 XXXXXX IND. DRIVE
under it, all subject to the terms of this Sublease.
(2) Xxx shall not take any action under the terms of the Prime Lease which
would in any way preclude or diminish the full enjoyment of any and all
privileges of Tenant under this Sublease. Xxx shall not modify the Prime Lease
without Tenant's prior written consent, which consent shall not unreasonably be
withheld or delayed.
VII. ACCESS TO PREMISES. Xxx shall have reasonable access to the Premises upon
prior notice to Tenant.
VIII. DEFAULT OF TENANT.
(1) Each of the following shall be an "Event of Default" by Tenant
hereunder:
(a) Any default by Tenant of this Sublease which results in the
declaration of a default by the Landlord under the Prime Lease and which is not
cured before the expiration of any applicable grace or cure period under the
Prime Lease.
(b) A petition under the federal bankruptcy code, as amended from
time to time (the "Bankruptcy Code"), or any state bankruptcy or insolvency
laws, is filed by, on behalf of, or against Tenant and such petition remains
undismissed for a period of sixty (60) days after such filing, such event shall
constitute a default under this Sublease and Xxx shall be entitled to
immediately exercise its rights and remedies under this Sublease without regard
to the cure periods provided thereunder. Tenant further agrees, that in the
event trustee or Tenant, as debtor-in-possession, rejects this Sublease or is
deemed to have rejected this Sublease pursuant to the Bankruptcy Code, Xxx shall
be entitled to possession of the Premises immediately and without further
obligation to Tenant or Tenant's trustee, and this Sublease shall terminate, but
Rex's right to be compensated for damages in any such proceeding shall survive.
In addition to the occurrence of the filing of a petition under the Bankruptcy
Code or state bankruptcy or insolvency laws by, on behalf of, or against Tenant,
the occurrence of any of the following shall constitute a default under this
Sublease, and Xxx shall be entitled immediately to exercise its rights and
remedies under this Sublease without regard to the cure periods provided
hereunder: (i) general assignment for the benefit of creditors; (ii) the
appointment under applicable state law of a trustee or receiver to take
possession of substantially all of Tenant's assets or of Tenant's interest in
this Sublease; or (iii) the attachment, or other judicial seizure of
substantially all of Tenant's assets or of Tenant's interest in this Sublease.
(c) If Tenant is a corporation or a partnership, and if at any time
during the term of this Sublease the person or persons which, on the date of
this Sublease, own or owns a majority of such corporation's voting shares or the
general partner's interest in such partnership, as the case may be, cease or
ceases to own a majority of such shares or general partner's interest as the
case may be, except that this provision shall not be applicable to transfers by
gift or inheritance, or to any
3 of 6
XXX REALTY/UNITED INDUSTRIES SUBLEASE
2129 XXXXXX IND. DRIVE
corporation all the outstanding voting stock of which is listed on a national
securities exchange (as defined in the Securities Exchange Act of 1934, as
amended).
(d) Any other default by Tenant of this Sublease.
(2) Should an Event of Default occur under this Sublease, then Xxx xxx (a)
terminate this Sublease, expel and remove Tenant or any other person or persons
in occupancy from the Premises with or without appropriate legal or equitable
proceedings, if necessary, together with their goods and chattels, and repossess
the Premises; provided that notwithstanding the termination of this Sublease,
Xxx shall be entitled to damages provided by law, just as if Tenant repudiated
this Sublease, or (b) terminate Tenant's right to possession only, without
terminating this Sublease, and with or without process of law, expel and remove
Tenant, or any other person or persons in occupancy from the Premises, together
with their goods and chattels, and repossess the Premises without such entry and
possession terminating this Sublease or releasing Tenant in whole or in part
from Tenant's obligations to pay rent for the full term hereof. Upon and after
entry and possession without termination of this Sublease, Xxx shall attempt to
relet the Premises or any part thereof for the account of Tenant, to any person,
firm, or corporation, for such rent, for such term, (including a term beyond the
term hereof, but the part of any such term which is beyond the term hereof shall
not be chargeable to Tenant's account), and upon such terms and conditions as
Xxx shall reasonably determine, and Xxx shall apply all rents received upon such
a reletting as follows:
(i) first to the payment of such expenses as Xxx xxx incur in
recovering possession of the Premises (including attorneys' fees and legal
expenses), and in putting the same into good order and condition, and preparing,
altering, advertising and brokering the same for rental or reletting, and all
other expenses, commissions and charges paid, assumed, or incurred by Xxx in
reletting the Premises; and
(ii) then to the fulfillment of the obligations of Tenant hereunder.
At the option of Xxx, Tenant shall, in event of re-entry, be liable, in
addition to any sums then due, for (i) an amount equal to the amount by which
the rent reserved under this Sublease from the date of re-entry to the
expiration of the term exceeds the net amount of any rents collected for the
Premises for each month of the period which would otherwise have constituted the
balance of the term of this Sublease, which shall be paid in monthly
installments by Tenant on the rent days specified in this Sublease, and any suit
brought to collect said amounts for any month or months shall not prejudice in
any way the rights of Xxx to collect the deficiency for any subsequent month by
a similar action or proceeding, or (ii) in addition to any other proper claim to
which Xxx shall be entitled, but without duplication, the difference between the
rent reserved hereunder for the unexpired portion of the term of this Sublease
and the fair reasonable rental value of the Premises for the same period. If the
Premises or any part thereof are relet by Xxx for the unexpired term, or any
part thereof, the amount of rent reserved upon such reletting shall be deemed to
be fair and
4 of 6
XXX REALTY/UNITED INDUSTRIES SUBLEASE
2129 XXXXXX IND. DRIVE
reasonable rental value for the part of the whole of the Premises so relet
during the term of the reletting. With whichever option, if any, Xxx exercises,
Tenant shall also be liable for: (i) all costs and expenses incurred by Xxx
(including reasonable attorneys' fees and legal expenses) in recovering
possession or in collection of delinquent rent, whether or not litigation is
commenced; (ii) all costs of redecorating, repairing, renovating and remodeling
the Premises required to relet the Premises; and (iii) all advertising and
brokerage costs and expenses incurred in reletting or attempting to relet the
Premises. Xxx xxx xxx for sum(s) in advance or from time to time as the same
accrue(s). At any time after repossession of the Premises, Xxx xxx terminate
this Sublease.
IX. ASSIGNMENT; SUBLETTING; CHANGE OF OWNERSHIP INTERESTS. Tenant shall
not, without the prior written consent of Xxx, which consent shall not
unreasonably be withheld or delayed, assign or sublet its interest or its
obligations or rights in this Sublease. If this Sublease is assigned or sublet
after the granting of such consent, Tenant shall remain liable for the
performance of its obligations hereunder and Xxx is empowered to collect rent
from the sublessee or assignee, as the case may be, without in any manner
waiving or releasing Tenant from its obligations hereunder. For the purposes of
this paragraph, a change in or transfer of an ownership interest in Tenant
(whether by transfer of shares of stock or partnership or proprietor interest,
or by merger or reorganization) shall be deemed an assignment of the interests
of Tenant hereunder.
X. USES. The Leased Premises shall be used and occupied by Lessee during
the term hereof, subject to the conditions herein contained, for manufacturing,
distribution, warehousing operations and offices and for no other purpose.
XI. INTEREST OF SUCCESSORS. The promises and covenants of this Sublease
shall be binding on the successors and assigns of Xxx and on the successors and
assigns of Tenant.
XII. ENTIRE AGREEMENT. This Sublease, together with the attached
EXHIBIT A, reflects the entire agreement of the parties, and no representations,
inducements, or agreements, oral or otherwise, between the parties not contained
in this Sublease and the EXHIBIT A, shall be of any force or effect. This
Sublease may not be modified, changed, or terminated in whole or in part except
by an agreement in writing duly signed by both parties.
XIII. INSURANCE. Any public liability and property damage insurance
required of Tenant pursuant to its assumption of Rex's obligations under the
Prime Lease (and, in addition, public liability and property damage insurance
required by Xxx in its discretion with such minimum amounts of coverage as it
may reasonably require) shall name Xxx as an additional insured. Such insurance
policies shall include a provision whereby Xxx shall receive at least thirty
(30) days prior written notice of any amendment, cancellation or expiration.
XIV. NOTICES. Except where otherwise required by statute, all notices,
demands or other communications given shall be in writing, shall be effective
when sent, and shall be sent by certified
5 of 6
XXX REALTY/UNITED INDUSTRIES SUBLEASE
2129 XXXXXX IND. DRIVE
mail, postage prepaid, return receipt requested, or by hand delivery with
receipt therefor, or by overnight courier service with receipt therefor, to the
parties at the addresses below:
(a) If to Xxx:
Xxx Realty Co.
Attn: Vice President - Financial Administration
0000 Xxxx Xxxx.
Xx. Xxxxx XX 00000
(b) If to Tenant:
United Industries Corporation
Attn: Vice President & General Counsel
0000 Xxxx Xxxx.
Xx. Xxxxx XX 00000
XV. JOINT PARTICIPATION. All parties have participated in the drafting of this
entire Agreement, and expressly acknowledge such joint participation to avoid
application of any rule construing contractual language against the party which
drafted the language.
IN WITNESS WHEREOF, the undersigned have executed this Sublease as of the
day and year first above written by their respective duly-authorized officers.
XXX REALTY CO.
By: /s/ X. X. Xxxx, Xx
----------------------------------
Name: X. X. Xxxx, Xx
--------------------------------
Title: VICE PRES - FINANCE
-------------------------------
UNITED INDUSTRIES CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxx
----------------------------------
Name: Xxxxxxx X. XxXxxxxx
--------------------------------
Title: VP & Gen. Counsel
-------------------------------
6 of 6
XXX REALTY/UNITED INDUSTRIES SUBLEASE
2129 XXXXXX IND. DRIVE
EXHIBIT A
[PRIME LEASE]
FIRST INDUSTRIAL FINANCING PARTNERSHIP, L.P.
INDUSTRIAL BUILDING LEASE
(MULTI TENANT)
ARTICLE 1: BASIC TERMS
This Article 1 contains the Basic Terms of this Lease between Landlord and
Tenant, named below. Other Articles, Sections and Paragraphs of the Lease
referred to in this Article 1 explain and define the Basic Terms and are to be
read in conjunction with the Basic Terms.
1.1 Date of Lease: 10/13/95
1.2 Landlord: First Industrial Financing Partnership, L.P., a Delaware
limited partnership
1.3 Tenant: Xxx Realty Co.
1.4 Premises, Building and Property: See Exhibit "A"
1.5 Lease Term: 10 years 3 months ("Initial Term"), commencing October
1, 1995 ("Commencement Date") and ending December 31, 2005
("Expiration Date").
1.6 Permitted Uses: (See Article 4) manufacturing, distribution,
warehousing and administrative/sales offices
1.7 Tenant's Guarantor: (if none, so state) None
1.8 Brokers: (See Article 21; if none, so state)
(A) Tenant's Broker: None
(B) Landlord's Broker: Xxxxxx Xxxxxxxx, Realty Service Group
1.9 Security Deposit: (See Article 4) $30,705.21
1.10 Vehicle Parking Allocated Tenant: SEE EXHIBIT "A"
1.11 Rent Payable by Tenant: See Exhibit "B"
1.12 Tenant's Proportionate Share: 37.83 percent
1.13 Riders to Lease: The following riders are attached to and made a
part of this Lease. (If none, so state) None
ARTICLE 2: LEASE OF PREMISES; RENT
2.1 LEASE OF PREMISES FOR LEASE TERM. Landlord hereby leases to Tenant,
and Tenant hereby rents from Landlord, for the Initial Term and as extended for
such additional periods as specified herein (collectively, the "Term") and
subject to the conditions of this Lease, the Premises.
2.2 TYPES OF RENTAL PAYMENTS. Tenant shall pay rents of (a) net base
rent payable in monthly installments as set forth in EXHIBIT "B" attached
hereto, in advance, on the first day of each and every calendar month during the
term of this Lease (the "Base Rent") and (b) the Additional Rent (as hereinafter
defined) in accordance with Article 3 below, to [LANDLORD, C/O FIRST INDUSTRIAL
MANAGEMENT CORPORATION, X.X. XXX 00000,
XXXXXXX, XXXXXXXX 00000-0000] (or such other entity designated as Landlord's
management agent, hereinafter referred to as "Agent"), or pursuant to such other
directions as Landlord shall designate. Notwithstanding anything to the contrary
herein, Tenant shall pay the October 1995 Base Rent by 5:00 p.m. on
October 13, 1995.
2.3 COVENANTS CONCERNING RENTAL PAYMENTS. Tenant shall pay the Base
Rent and the Additional Rent promptly when due, without notice or demand, and
without any abatement, deduction or setoff, except as may be expressly provided
in this Lease. No payment by Tenant, or receipt or acceptance by Agent or
Landlord, of a lesser amount than the correct Base Rent and Additional Rent
shall be deemed to be other than a payment on account, nor shall any endorsement
or statement on any check or letter accompanying any payment be deemed an accord
or satisfaction, and Agent or Landlord may accept such payment without prejudice
to its right to recover the balance due or to pursue any other remedy available
to Landlord. If the Commencement Date occurs on a day other than the first day
of a calendar month, the Base Rent and Additional Rent due for the partial
calendar months occurring at the commencement and the expiration of the Term
shall be prorated on a per diem basis.
2.4 OPTION TO RENEW. The Term may be extended, at the option of Tenant,
for two (2) consecutive periods of five (5) years each, such periods being
herein sometimes referred to as, respectively, the "First Extended Term" and the
"Second Extended Term," as follows:
(a) Each such option to extend shall be exercised by Tenant's
delivery of written notice to Landlord (an "Extension Notice") on or
before, but not later than (i) the date that is 6 months prior to the
Expiration Date with respect to the First Extended Term, and (ii) the date
that is 6 months prior to the end of the First Extended Term with respect
to the Second Extended Term.
(b) The First Extended Term shall be on the same terms,
covenants and conditions of this Lease, except for the payment of Rent
during the First Extended Term. The Second Extended Term shall be on the
same terms, covenants and conditions of this Lease, excluding the
provisions of this Section 2.4, and except for the payment of Rent during
the Second Extended Term. Notwithstanding anything to the contrary herein,
Landlord shall not have any obligation under either or both of Section 5.1
and Article 26 during either the First Extended Term or the Second Extended
Term. Tenant shall not be permitted to extend this Lease beyond the Second
Extended Term, nor may Tenant elect the Second Extended Term if Tenant
fails to timely and properly elect the First Extended Term. In the event
that this Lease is terminated during the original Term, for any reason
whatsoever, Tenant shall have no further rights with respect to the First
Extended Term.
(c) The Base Rent during the First Extended Term and the Second
Extended Term shall be payable at the rates set forth in EXHIBIT "B"
attached hereto. In addition to the payment of Additional Rent (as
hereinafter defined) required elsewhere in this Lease, Additional Rent
during the First Extended Term and the Second Extended Term shall be
increased as follows:
(i) In the event that the Consumer Price Index (as
hereinafter defined) published for December of 2001 (the "Base
Year") shall be less than the Consumer Price Index published for
December of any calendar year in the First Extended Term or the
Second Extended Term, Tenant shall pay to Landlord or Landlord's
agent, as Additional Rent (as hereinafter defined) with respect to
each such calendar year, an amount (the "CPI Adjustment") equal to
the product obtained by multiplying the annual Base Rent (based on
the rent per rentable square foot) by ninety percent (90%) of the
percentage by which the Consumer Price Index for such calendar year
exceeds the Consumer Price Index for the Base Year. "Consumer Price
Index" shall mean the United States Department of Labor, Bureau of
Labor Statistics, Consumer Price Index-St. Louis Metropolitan Area,
All Urban Consumer All Items (1982 through 1984 = 100). The
Consumer Price Index for any year shall be that published for
December of that year.
2
(ii) The CPI Adjustment with respect to each calendar
year shall be paid and adjusted in the same manner as other
Additional Rent; that is, it shall be paid in monthly installments
in advance on the first day of each and every calendar month during
such calendar year in an amount reasonably estimated by Landlord
from time to time and communicated to Tenant by written notice. At
the same time as the adjustment for other Additional Rent, Landlord
shall furnish Tenant a statement showing (1) the Consumer Price
Index for the Base Year, (2) the Consumer Price Index for the
applicable calendar year, (3) the amount of the CPI Adjustment to
be paid to Landlord for such calendar year, (4) the total of the
estimated monthly installments paid to Landlord during such
calendar year and (5) the amount of any excess or deficiency with
respect to such calendar year. Delay in computation of the CPI
Adjustment shall not be deemed a default hereunder or a waiver of
Landlord's right to collect the CPI Adjustment.
(iii) If the manner in which the Consumer Price Index as
determined by the Department of Labor shall be substantially
revised, or if the 1982 through 1984 average shall no longer be
used as an index of 100, an adjustment shall be made in such
revised index which would have been obtained if the Consumer Price
Index had not been so revised or if said average was still in use.
If the Consumer Price Index shall become unavailable to the public
because publication is discontinued, or otherwise, Landlord will
substitute therefor a comparable index based upon changes in the
cost of living or purchasing power of the consumer dollar published
by any other governmental agency or, if no such index shall then be
available, a comparable index published by a major bank or other
financial institution or by a university or a recognized financial
publication.
(d) It shall be a condition of Tenant's right to exercise each
of Tenant's options to extend the Term of this Lease that, at the time that
Tenant delivers an Extension Notice and upon the commencement of the First
Extended Term or the Second Extended Term, as the case may be, Tenant is
not in default under (nor has any event occurred which, with the passage of
time or the giving of notice, or both, shall constitute a default under)
any terms, covenants or conditions of this Lease.
(e) In the event Tenant timely and properly exercises either of
Tenant's options under this Section 2.4, then within thirty (30) days of
Landlord's request, Tenant shall execute and deliver to Landlord a Lease
amendment in form and substance satisfactory to Landlord confirming the
applicable Base Rent during the First Extended Term or the Second Amended
Term, as the case may be, and setting forth the applicable commencement and
expiration dates of the applicable Extended Term within (30) days after
such request.
2.5 RIGHT OF FIRST REFUSAL. Throughout the Term and the Extended
Term(s), if applicable, Tenant shall have a continuing right of first refusal,
in accordance with the terms set forth below, to lease any and all of the
rentable space (the "Available Space") that becomes available in the Building
for lease to a third party (excluding space currently leased pursuant to renewal
options of other leases). The Available Space is depicted on EXHIBIT "A-1"
attached hereto and incorporated herein by this reference. In the event that
Landlord desires to lease any or all of the Available Space to a third party,
Landlord shall so notify Tenant, in writing (the "Available Space Notice"),
prior to Landlord entering into any lease for all or any part of the Available
Space. The Available Space Notice shall specify (i) that portion of the
Available Space that Landlord then desires to lease (the "Refusal Space"), and
(ii) the date on which the Refusal Space will be available for occupancy
("Refusal Space Occupancy Date"). During the Term, Landlord shall not extend the
term of the lease of any tenant which has leased any portion of the Available
Space (with respect to such Available Space), except pursuant to any existing
provision of such tenant's lease, existing as of 10/13/95 unless Tenant consents
thereto in writing or Landlord may lease such Available Space as provided in
Section 2.5(d).
3
Tenant shall thereupon have a right (a "Refusal Right") to include in the
Premises all, but not less than all, the Refusal Space described in the
then-applicable Available Space Notice, effective as of the Refusal Space
Occupancy Date and for a term that is coterminous with the Term, and the First
and Second Extended Term(s), if applicable and as the case may be, of this
Lease. Each Refusal Right is granted upon the following terms and conditions:
(a) Tenant shall give Landlord written notice of its election
to exercise or not to exercise a Refusal Right ("Refusal Right Response
Notice") within ten (10) business days after Landlord delivers to Tenant
the applicable Available Space Notice that activates such Refusal Right;
(b) Tenant is not in default of any terms, covenants or
conditions of this Lease (nor has any event occurred which, with the giving
of notice or passage of time, or both, shall constitute a default under
this Lease) either on the date Tenant delivers its Refusal Right Response
Notice or on the Refusal Space Occupancy Date;
(c) In the event Tenant timely and properly exercises any
Refusal Right, all of the terms and provisions of this Lease shall be
applicable to the Refusal Space thereby included in the Premises and
Additional Rent for such Refusal Space shall initially be based upon the
rate of Additional Rent in effect for the initial Premises as of the
applicable Refusal Space Occupancy Date (subject, however, to any
subsequent adjustments in the rate of Additional Rent, as imposed under
this Lease). In the event Tenant timely and properly exercises any Refusal
Right for any space in the Building other than the space (the "Save A Lot
Space") occupied, as of the date hereof, by Save A Lot Ltd. (as depicted on
EXHIBIT "A-2" attached hereto), the initial rate of Base Rent for such
Refusal Space shall be based upon the per rentable square foot rate of Base
Rent in effect for the initial Premises as of the applicable Refusal Space
Occupancy Date (subject, however, to any subsequent adjustments in the rate
of Base Rent, as imposed under this Lease). In the event Tenant timely and
properly exercises any Refusal Right relating to the Save A Lot Space, then
the initial rate of Base Rent for the Save A Lot Space shall be based on
the Market Rental rate applicable as of the Refusal Space Occupancy Date
for the Save A Lot Space. For purposes of this Section, the "Market Rental
Rate" shall mean the average net rental rate, per annum and per rentable
square foot (as determined by Landlord in its reasonable discretion), for
the 12 month period immediately preceding the Refusal Space Occupancy Date,
for comparable space of comparable size and for a similar term by reference
to other buildings comparable in age, construction, use and quality in St.
Louis, Missouri, but excluding those leases wherein the tenant has an
equity interest in the property.
(d) In the event that Tenant fails to timely and properly
exercise any Refusal Right, Landlord may, at any time thereafter, lease the
then-applicable Refusal Space to any third party tenant and Tenant shall
have no further interest, of any nature whatsoever, in that Refusal Space;
(e) As of each Refusal Space Occupancy Date, the
then-applicable Refusal Space shall become part of the Premises hereunder,
and the annual Base Rent and the monthly installments of Base Rent, shall
be appropriately adjusted to reflect the addition of such Refusal Space to
the Premises, which adjustment shall be applicable as of the Refusal Space
Occupancy Date (prorated for the initial and final months, if necessary).
As of that Refusal Space Occupancy Date, Tenant's Proportionate Share shall
also be appropriately adjusted by dividing the new total number of rentable
square feet in the Premises (inclusive of the Refusal Space), by the total
rentable square feet of the Building, and Additional Rent payments with
respect to the Refusal Space shall also commence on said Refusal Space
Occupancy Date (prorated for the initial and final months, if necessary).
If Landlord so elects, Landlord and Tenant shall execute an amendment to
this Lease (which shall be in form and substance satisfactory to Landlord)
confirming the modifications to the Premises, the Base Rent, the monthly
installment of Base Rent, and Tenant's Proportionate Share; and
4
(f) Tenant shall have no remedies for Landlord's failure to
deliver possession of the Refusal Space to Tenant on account of the
holding-over by any prior tenant of the Refusal Space in violation of the
terms of such tenant's lease. The Refusal Space Occupancy Date as to such
part of the Refusal Space that Landlord does not deliver to Tenant shall
not be deemed to occur until Landlord shall actually deliver possession of
such part of the Refusal Space to Tenant. Notwithstanding anything to the
contrary herein, Tenant, at its sole cost and expense, may elect to pursue
any legal remedies it may have against any such prior tenant to cause such
tenant to vacate the Refusal Space.
All Refusal Rights granted in this Lease shall automatically terminate upon
the earlier to occur of (i) the expiration or termination of this Lease for any
reason; (ii) the termination of Tenant's right to possession of the Premises for
any reason; or (iii) the assignment of the entire Lease by Tenant or the
sublease by Tenant of any portion of the Premises (other than to an affiliate of
Tenant).
ARTICLE 3: ADDITIONAL RENT
3.1 DEFINITIONAL TERMS RELATING TO ADDITIONAL RENT. For purposes of
this Article and other relevant provisions of the Lease:
(a) OPERATING EXPENSES. The term "Operating Expenses" shall
mean all costs and expenses paid or incurred with respect to the repair,
replacement, restoration, maintenance and operation of the Property and
Building, including, without limitation, the following: (i) all costs,
wages and benefits of St. Louis employees of Landlord or Agent engaged in
the operation, maintenance or rendition of other services to or for the
Property and/or the Building; (ii) TO THE EXTENT NOT SEPARATELY METERED,
BILLED, OR FURNISHED, ALL CHARGES FOR UTILITIES (INCLUDING, WITHOUT
LIMITATION, WATER, SEWER AND ELECTRICAL) AND SERVICES FURNISHED TO THE
BUILDING (INCLUDING, WITHOUT LIMITATION, THE COMMON AREAS THEREOF) AND TO
THE PROPERTY, TOGETHER WITH ANY TAXES ON SUCH UTILITIES; (iii) all premiums
for casualty, workers' compensation, dram shop, liability, boiler, flood
and all other types of insurance provided by Landlord and relating to the
Property and/or the Building; (iv) the cost of all supplies, tools,
materials and equipment utilized in the ownership and/or operation of the
Building and the Property, and sales and other taxes thereon; (v) amounts
charged by contractors for services, materials and supplies furnished in
connection with the operation, repair and/or maintenance of any part of the
Building and the Property, including, without limitation, the Common
Areas (as hereinafter defined); (vi) MANAGEMENT FEES TO AGENT OR OTHER
PERSONS OR MANAGEMENT ENTITIES ACTUALLY INVOLVED IN THE MANAGEMENT AND/OR
OPERATION OF THE PROPERTY (WHICH PERSONS OR MANAGEMENT ENTITIES MAY BE
AFFILIATES OF LANDLORD); (vii) any capital improvements made by, or on
behalf of, Landlord to the Building and/or the Property; (viii) legal,
accounting and other professional fees incurred in connection with the
operation, management and/or maintenance of the Property and/or the
Building; (ix) Taxes, as hereinafter defined; (x) all of the charges
properly allocable to the operation, maintenance or repair, replacement or
restoration of the Building and/or the Property, all in accordance with
generally accepted accounting principles; and (xi) Landlord's costs and
expenses relating to its obligations under Section 13.2. Notwithstanding
anything to the contrary, the Common Area Maintenance (CAM) charges are
hereby capped at $0.36/ft through December 31, 1996 and all increases in
the CAM charges to the Tenant shall not exceed 5% per year during any
calendar year.
(b) TAXES. The term "Taxes" as referred to in clause (ix) above
shall mean (i) all governmental taxes, assessments, fees, penalties and
charges of every kind or nature (other than Landlord's income taxes),
whether general, special, ordinary or extraordinary, due in connection with
the ownership, leasing, or operation of the Property, the Building, or of
the personal property and equipment located therein or used in connection
therewith; and (ii) any expenses incurred by Landlord in contesting such
taxes or assessments and/or the assessed value of the Building and/or the
Property. For purposes hereof, Taxes for any year shall be Taxes that are
due for payment or paid in that year rather than Taxes that are assessed,
become a lien, or accrue during such year.
5
(c) OPERATING YEAR. The term "Operating Year" shall mean the
calendar year commencing January 1st of each year (including the calendar
year within which the Commencement Date occurs) during the Term.
3.2 OBLIGATION OF ADDITIONAL RENT. Tenant shall pay as additional rent
("Additional Rent") its Proportionate Share of the Operating Expenses as set
forth in Section 3.3. The Additional Rent commences to accrue upon the
Commencement Date. The Additional Rent payable hereunder for the Operating Years
in which the Term begins and ends shall be prorated to correspond to that
portion of said Operating Years occurring within the Term. For the first
Operating Year and the Operating Year in which this Lease terminates, Tenant's
liability for Additional Rent shall be subject to a pro rata adjustment based
upon the number of days of such Operating Year during which the Term is in
effect. Additional Rent and any other sums due and payable under this Lease
shall be adjusted upon receipt of the actual bills therefor and the obligations
of this Article 3 shall survive the termination of the Lease.
3.3 PAYMENT OF ADDITIONAL RENT. Landlord shall have the right to
reasonably estimate the Additional Rent for each Operating Year. Upon Landlord's
or Agent's notice to Tenant of such estimated amount, Tenant shall pay, on the
first day of each month during that Operating Year, an amount (the "Estimated
Additional Rent") equal to the estimate of the Additional Rent divided by the
number of months in the applicable Operating Year or the fractional portion
thereof remaining at the time Landlord delivered its notice of estimated
Additional Rent due from Tenant. If the aggregate amount of Estimated Additional
Rent actually paid by Tenant during any Operating Year for such period is less
than Tenant's actual ultimate liability for Additional Rent determined pursuant
to Section 3.2, Tenant shall pay the deficiency within twenty (20) days of
demand. If the aggregate amount of Estimated Additional Rent actually paid by
Tenant during a given Operating Year exceeds Tenant's actual liability for such
Operating Year, the excess shall be credited against the Estimated Additional
Rent due from Tenant during the immediately subsequent Operating Year, except
that in the event that such excess is paid by Tenant during the final Lease
Year, then upon the expiration of the Term, Landlord or Agent shall promptly pay
Tenant the then-applicable excess after determination thereof. No interest shall
be payable to Tenant on account of such payments of Estimated Additional Rent
and such payments may be commingled.
3.4 STOPS. Notwithstanding anything to the contrary herein, Operating
Expenses shall not include any costs and expenses (collectively, the "Stopped
Expenses") paid by Landlord for (i) real estate taxes levied against the
Property, or (ii) premiums for insurance provided by Landlord relating to the
Property and/or the Building, except to the extent either category of Stopped
Expenses exceeds the corresponding amount of Stopped Expenses for such category
in 1995.
3.5 INITIAL OPERATING EXPENSE ESTIMATE. Landlord hereby notifies Tenant
that Landlord's initial estimate of Additional Rent for the first Operating Year
is $37,899.00; therefore, during that First Operating Year, $3,158.25 shall be
due monthly as initial Estimated Additional Rent.
ARTICLE 4: USE OF PREMISES AND COMMON AREAS; SECURITY DEPOSIT
4.1 USE OF PREMISES. It is agreed and understood that the Premises
shall be used for the purpose(s) set forth in Paragraph 1.6 above and for no
other purpose whatsoever. Tenant shall not, at any time, use or occupy, or
suffer or permit anyone to use or occupy, the Premises, or do or permit anything
to be done in the Premises, in any manner that may (a) violate any Certificate
of Occupancy for the Premises, the Property or for the Building; (b) cause, or
be liable to cause, injury to the Building, the Property or any equipment,
facilities or systems therein; (c) constitute a violation of the laws and
requirements of any public authority or the requirements of insurance bodies or
the rules and regulations of the Building or the Property; (d) impair or tend to
impair the character, reputation or appearance of the Building as a first-class
building; (e) impair or tend to impair the proper and economic maintenance,
operation, and repair of the Building or the Property and/or their equipment,
facilities or
6
systems; or (f) unreasonably annoy, inconvenience or disrupt the operations or
tenancies of other tenants or users of the Building or the Property, if any, or
conflict with other tenants' leases.
4.2 USE OF COMMON AREAS. As used herein, "Common Areas" shall mean all
areas within the Building or Property which are available for the common use of
tenants of the Building and which are not leased or held for the exclusive use
of Tenant or other tenants, including, but not limited to, parking areas,
driveways, sidewalks, loading areas, access roads, corridors, landscaping and
planted areas. Landlord, from time to time, may change the size, location,
nature and/or use of any of the Common Areas (but in no event may Landlord
decrease the number of trailer parking spaces available to Tenant below the
number otherwise required herein), and Tenant acknowledges that such activities
may result in inconvenience to Tenant. Tenant's designated primary trailer
parking is identified in EXHIBIT "A". Notwithstanding such inconvenience, such
activities and changes are permitted if they do not materially affect Tenant's
use of the Property. Tenant shall have the nonexclusive right (in common with
other tenants and all others to whom Landlord has granted or may grant such
rights) to use the Common Areas for the purposes intended, subject to such
reasonable rules and regulations as Landlord may establish from time to time. At
any time, Landlord may close or suspend access to any Common Areas to perform
any acts in the Common Areas as, in Landlord's judgment, are desirable to
improve or maintain the Premises, Building or Property. Except in case of an
emergency, Landlord shall notify Tenant of any such closure or suspension at
least ten (10) days in advance. Tenant shall not interfere with the rights of
Landlord, other tenants or any other person entitled to use the Common Areas.
4.3 SIGNAGE. Tenant shall not affix any sign of any size or character
to the Building or any portion of the Property, without prior written approval
of Landlord, which Landlord may withhold in its sole and absolute discretion.
Tenant shall remove all signs of Tenant upon the expiration or earlier
termination of this Lease and immediately repair any damage to the Property or
the Building caused by, or resulting from, such removal.
4.4 SECURITY DEPOSIT. Simultaneously with the execution and delivery of
this Lease, Tenant shall deposit with Agent the sum set forth in Paragraph 1.9
above, in cash (the "Security"), representing security for the performance by
Tenant of the covenants and obligations hereunder. The Security shall be held by
Agent, without interest, in favor of Tenant; provided, however, that no trust
relationship shall be deemed created thereby and the Security may be commingled
with other assets of Landlord. In the event Tenant defaults in the performance
of any of its covenants hereunder, Landlord or Agent may, without notice to
Tenant, apply the whole or any part of the Security, to the extent required for
the payment of any Base Rent, Additional Rent or any other sums that may be due
from Tenant hereunder, in addition to any other remedies available to Landlord.
In the event Landlord or Agent shall so apply the Security, Tenant shall, upon
demand, immediately deposit with Agent a sum equal to the amount so used.
Tenant's failure to do so shall constitute a default under this Lease. If Tenant
fully and faithfully complies with all the covenants hereunder, the Security (or
any balance thereof) shall be returned to Tenant within thirty (30) days after
the last to occur of (i) the date the Term has expired or is terminated, (ii)
delivery to Landlord of possession of the Premises and (iii) Landlord's or
Agent's inspection of the Premises and determination that all obligations of
Tenant under this Lease have been fully satisfied. Landlord may deliver the
Security to any purchaser of Landlord's interest in the Premises [or any
Successor Landlord (defined below), if applicable], and thereupon Landlord and
Agent shall be discharged from any further liability with respect to the same.
Each time the Base Rent is increased, Tenant shall deposit additional funds with
Landlord sufficient to increase the Security to an amount which bears the same
relationship to the increased rent as the initial Security bore to the initial
Base Rent. Notwithstanding anything to the contrary herein, if during that
portion of the Term prior to and including January 1, 1997, Tenant has never
been in breach of or default under this Lease, Landlord shall apply the Security
toward Tenant's obligation to pay Base Rent on that date, after which this
Section 4.4 shall be of no further force or effect. In the event Tenant's
obligation to pay Base Rent on January 1, 1997 exceeds the amount of the
Security, Tenant shall be obligated to pay the difference to Landlord on such
date as Base Rent.
7
ARICILE 5: CONDITION AND DELIVERY OF PREMISES
5.1 CONDITION OF PREMISES. Tenant agrees that Tenant is familiar with
the condition of the Premises, the Building and the Property and Tenant hereby
accepts the foregoing on an "AS-IS," "WHERE-IS" basis. Tenant acknowledges that
neither Landlord nor Agent nor any representative of Landlord has made any
representation as to the condition of the foregoing or the suitability of the
foregoing for Tenant's intended use. Tenant represents and warrants that Tenant
has made its own inspection of the foregoing and is not relying on any
representation of Landlord with respect thereto. Neither Landlord nor Agent
shall be obligated to make any repairs, replacements or improvements of any kind
or nature to the foregoing in connection with, or in consideration of, this
Lease, except with respect to any repairs and improvements expressly and
specifically described in EXHIBIT "C" attached hereto ("Work Items"). Landlord
agrees to enforce, or cause Agent to enforce, upon Tenant's request, all
manufacturer's or contractor's warranties, if any, given in connection with the
Work Items.
5.2 DELAY IN COMMENCEMENT. Landlord shall not be liable to Tenant if
Landlord does not deliver possession of the Premises to Tenant on the
Commencement Date. The obligations of Tenant under the Lease shall not thereby
be affected, except that the Commencement Date shall be delayed until Landlord
delivers possession of the Premises to Tenant, and the Lease Term shall be
extended by a period equal to the number of days of delay in delivery of
possession of the Premises to Tenant, plus the number of days necessary to end
the Lease Term on the last day of a month. If Landlord does not deliver
possession of the Premises to Tenant within sixty (60) days after the
Commencement Date, Tenant may elect to cancel this Lease by giving written
notice to Landlord within ten (10)days after the sixty (60) day period ends. If
Tenant does not give such notice, Tenant's right to cancel the Lease shall
conclusively and irrevocably expire and the Lease Term shall commence upon the
delivery of possession of the Premises to Tenant.
ARTICLE 6: SUBORDINATION; NOTICES TO SUPERIOR LESSORS AND MORTGAGEES; ATTORNMENT
6.1 SUBORDINATION OF LEASE. This Lease, and all rights of Tenant
hereunder, are subject and subordinate to all ground leases of the Property now
or hereafter existing and to all mortgages or trust deeds (all of which are
hereafter referred to collectively as "Mortgages"), which may now or hereafter
affect or encumber all or any portion of the Property and the Building. This
subordination shall apply to each and every advance made, or to be made, under
such Mortgages; to all renewals, modifications, replacements and extensions of
such Mortgages; and to "spreaders" and consolidations of such Mortgages. In
confirmation of such subordination, Tenant shall from time to time promptly
execute, acknowledge and deliver any instrument that Landlord may from time to
time reasonably require in order to evidence or confirm such subordination.
Subject to the provisions of Section 6.3 if Tenant fails to execute, acknowledge
or deliver any such instrument within twenty (20) days after request therefor,
Tenant hereby irrevocably constitutes and appoints Landlord as Tenant's
attorney-in-fact, which appointment is coupled with an interest, to execute and
deliver any such instruments for and on behalf of Tenant. Tenant acknowledges
that this Lease has been (and, in the future, may be) assigned by Landlord to a
Superior Mortgagee (defined below) as additional collateral security for the
loans secured by the Superior Mortgage (defined below) held by such Superior
Mortgagee. Any ground lease to which this Lease is subject and subordinate is
hereinafter referred to as a "Superior Lease," the lessor under a Superior Lease
is hereinafter referred to as a "Superior Lessor", and the lessee thereunder, a
"Superior Lessee"; and any Mortgage to which this Lease is subject and
subordinate is hereinafter referred to as a "Superior Mortgage," and the holder
of a Superior Mortgage is hereinafter referred to as a "Superior Mortgagee."
Notwithstanding the foregoing, at Landlord's election, this Lease may be made
senior to the lien of any Superior Mortgage, if and only if the Superior
Mortgagee thereunder so requests.
6.2 NOTICE IN THE EVENT OF DEFAULT. If any act or omission of Landlord
or Agent would give Tenant the right to cancel or terminate this Lease, or to
claim a partial or total eviction, Tenant shall not exercise such right (a)
until it has given, by registered or certified mail, return receipt requested,
written notice of such act or omission
8
to Landlord and to each Superior Mortgagee and Superior Lessor whose name and
address shall previously have been furnished to Tenant, and (b) until a thirty
(30)-day period for remedying such act or omission shall have elapsed following
the giving of such notice; provided, however, that said thirty (30)-day cure
period shall be automatically extended in the event that the act or omission
cannot, by its nature, be cured within thirty (30) days and one or more of
Landlord, the Superior Mortgagee or the Superior Lessor is diligently proceeding
to cure said default.
6.3 SUCCESSOR LANDLORD. If any Superior Lessor or Superior Mortgagee
shall succeed to the rights of Landlord hereunder, then, at the request of such
party (hereinafter referred to as "Successor Landlord"), Tenant shall attorn to
and recognize each Successor Landlord as Tenant's landlord under this Lease and
shall promptly execute and deliver any instrument such Successor Landlord may
reasonably request to further evidence such attornment. Tenant hereby
acknowledges that in the event of such succession, then from and after the date
on which the Successor Landlord acquires Landlord's rights and interest under
this Lease (the "Succession Date"), the rights and remedies available to Tenant
under this Lease with respect to any obligations of any Successor Landlord shall
be limited to the equity interest of the Successor Landlord in the Property; and
the Successor Landlord shall not (a) be liable for any act, omission or default
of Landlord or other prior lessor under this Lease; (b) be required to make or
complete any tenant improvements or capital improvements, or to repair, restore,
rebuild or replace the Premises or any part thereof in the event of damage,
casualty or condemnation; or (c) be required to pay any amounts to Tenant that
are due and payable, under the express terms of this Lease, prior to the
Succession Date. Additionally, from and after the Succession Date, Tenant's
obligation to pay Base Rent and Additional Rent (as provided in Articles 2 and 3
hereof) shall not be subject to any abatement, deduction, set-off or
counterclaim against the Successor Landlord that arises as a result of, or due
to, a default of Landlord or any other lessor that occurs prior to the
Succession Date. Moreover, no Successor Landlord shall be bound by any advance
payments of Base Rent and Additional Rent made prior to the calendar month in
which the Succession Date occurs, nor by any security deposit that is not
actually delivered to, and received by, the Successor Landlord. Landlord, shall
request of any Superior Mortgagee that such Superior Mortgagee execute the
subordination, non-disturbance and attornment agreement with Tenant, in the form
as attached in Exhibit "F".
ARTICLE 7: QUIET ENJOYMENT
So long as Tenant pays all of the Base Rent and Additional Rent and
performs all of its other obligations hereunder, Tenant shall not be disturbed
in its possession of the Premises by Landlord, Agent or any other person
lawfully claiming through or under Landlord, subject to the provisions of this
Lease. This covenant shall be construed as a covenant running with the Property
and is not a personal covenant of Landlord.
ARTICLE 8: ASSIGNMENT, SUBLETTING AND MORTGAGING
8.1 PROHIBITION. Tenant acknowledges that this Lease and the Base Rent
and Additional Rent due under this Lease have been agreed to by Landlord in
reliance upon Tenant's reputation and creditworthiness; therefore, Tenant shall
not, whether voluntarily, or by operation of law, or otherwise: (a) assign or
otherwise transfer this Lease; (b) sublet the Premises or any part thereof, or
allow the same to be used or occupied by anyone other than Tenant; or (c)
mortgage, pledge, encumber, or otherwise hypothecate this Lease or the Premises,
or any part thereof, in any manner whatsoever, without in each instance
obtaining the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. Any violation of the foregoing provisions
shall constitute a default under this Lease and, thereupon, Landlord shall have
the option to cancel the same and proceed, at Landlord's election, in accordance
with the provisions set forth in this Lease. Any consent by Landlord to a
particular assignment, sublease or mortgage shall not constitute consent or
approval of any subsequent assignment, sublease or mortgage, and Landlord's
written approval shall be required in all such instances. In the event that
Landlord consents to any assignment or sublease, Landlord shall not be deemed to
have agreed to release Tenant from its obligation hereunder and Tenant shall
remain liable hereunder. Any purported assignment, mortgage,
9
transfer, pledge or sublease made without the prior written consent of Landlord
shall be absolutely null and void and of no legal force or effect.
Notwithstanding anything to the contrary herein, Landlord hereby consents to
Tenant subleasing the Premises, as of the date hereof, to Tenant's affiliate
United Industries Corporation.
8.2 RIGHTS OF LANDLORD. If this Lease is assigned, or if the Premises
(or any part thereof) are sublet or used or occupied by anyone other than
Tenant, whether or not in violation of this Lease, Landlord or Agent may
(without prejudice to, or waiver of its rights), collect rent from the assignee,
subtenant or occupant. Landlord or Agent may apply the net amount collected to
the Base Rent and Additional Rent herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of the
provisions of this Article 8 or the acceptance of the assignee, subtenant or
occupant as a successor tenant, or a release of Tenant from the performance of
its obligations hereunder. Tenant covenants that, notwithstanding any assignment
or transfer, and notwithstanding the acceptance of Base Rent and/or Additional
Rent by Landlord or Agent from an assignee, transferee, or any other party, it
shall remain fully liable for the payment of the Base Rent and Additional Rent
and for the other obligations of this Lease to be performed or observed by
Tenant. With respect to the allocable portion of the Premises sublet, in the
event that the total rent and any other considerations (whether cash or
non-cash) received under any sublease by Tenant is greater than the total Base
Rent and Additional Rent required to be paid, from time to time, under this
Lease, Tenant shall pay to Agent one hundred percent (100%) of such excess as
received from any subtenant and such amount shall be deemed a component of
Additional Rent under this Lease. Notwithstanding anything to the contrary
herein, the provisions of this Section 8.2 shall not apply to the sublease
contemplated by the last sentence of Section 8.1.
8.3 PERMITTED TRANSFERS. The provisions of Section 8.1(a) shall apply
to a transfer of a majority of the voting stock of Tenant or to any other change
in voting control of Tenant (if Tenant is a corporation), in one (1) or more
transactions, or to a transfer of a majority of the general partnership
interests in Tenant or managerial control of Tenant (if Tenant is a
partnership), or to any comparable transaction involving any other form of
business entity, whether effectuated in one (1) or more transactions, as if such
transfer were an assignment of this Lease; but said provisions shall not apply
to a transfer to a corporation into or with which Tenant is merged or
consolidated, or to which substantially all of Tenant's assets are transferred,
or to any corporation that controls or is controlled by Tenant, or is under
common control with Tenant, provided in any of such events (a) the successor to
Tenant has a net worth (computed in accordance with generally accepted
accounting principles), at least equal to the greater of (i) the net worth of
Tenant immediately prior to such merger, consolidation or transfer or (ii) the
net worth of Tenant on the date of this Lease AND (b) proof satisfactory to
Landlord of such net worth shall have been delivered to Landlord at least ten
(10) days prior to the effective date of any such transaction. Any such
permitted transferee shall execute and deliver to Landlord any and all
documentation reasonably required by Landlord in order to evidence assignee's
assumption of all obligations of Tenant hereunder.
ARTICLE 9: COMPLIANCE WITH LAWS
If any license or permit is required for the conduct of Tenant's business
in the Premises, Tenant, at its expense, shall procure such license prior to the
first day of the Term, and shall maintain in good standing and renew such
license or permit. Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any law or requirement of any governmental or
administrative authority with respect to the Premises or the use or occupation
thereof. Tenant shall, at Tenant's expense, comply with all laws and
requirements of any governmental or administrative authorities that impose any
duty on Landlord, Agent or Tenant arising from Tenant's actions regarding its
business operations or use of the Premises and Tenant shall pay all expenses,
fines and damages that are imposed upon any or all of Landlord, Agent, any
Superior Lessee, Superior Lessor or Superior Mortgagee, by reason or arising out
of Tenant's failure to fully and promptly comply with and observe the provisions
of this Article.
10
ARTICLE 10: INSURANCE
10.1 TENANT ACTIVITIES. Tenant shall not violate, or permit the
violation of, any condition imposed by any insurance policy issued in respect of
the Property and/or the Building and shall not do, or permit anything to be
done, or keep or permit anything to be kept in the Premises, that would: (a)
subject any or all of Landlord, Agent, any Superior Lessor, any Superior Lessee
or any Superior Mortgagee to any liability or responsibility for personal injury
or death or property damage; (b) result in insurance companies of good standing
refusing to insure (or imposing special conditions on insuring) any or all of
the Property, the Building or the property therein, in amounts reasonably
satisfactory to Landlord; and (c) result in the cancellation of (or the
assertion of any defense by the insurer, in whole or in part, to claims under)
any policy of insurance with respect to any or all of the Property, the Building
or the property therein. Landlord acknowledges that Tenant sells consumer
insecticides and lawn and garden products.
10.2 WAIVER OF RIGHT OF RECOVERY. None of Landlord, Agent or Tenant
shall be liable to one another [or to any insurance company (by way of
subrogation or otherwise) insuring any such party] for any loss or damage to the
Building, the Premises, the Property, the structure of the Building, other
tangible property located on the Property or in the Building, or any resulting
loss of income, or losses under workers' compensation laws and benefits, despite
the fact that such loss or damage might have been occasioned by the negligence
or misconduct of such party, its agents or employees, provided that any such
loss or damage is covered by insurance benefitting the party suffering such loss
or damage. Each of Landlord, Agent and Tenant shall secure an appropriate clause
in, or an endorsement upon, each insurance policy obtained by it and covering or
applicable to the Property, the Building, the Premises and the personal
property, fixtures, and equipment located therein or thereon, pursuant to which
the insurance company consents to such waiver of right of recovery. The waiver
of right of recovery set forth above in this Section 10.2 shall extend to
Landlord, Agent, Tenant, and their respective agents and employees, and each
Superior, Lessor, Superior Mortgagee, and to other appropriate parties
designated by Landlord (collectively, "Superior Parties").
10.3 INSURANCE TO BE MAINTAINED BY TENANT. Tenant shall, at is sole cost
and expense, at all times during the Term (and any extensions thereof) obtain
and pay for and maintain in full force and effect the insurance policy or
policies described in EXHIBIT "D" attached hereto. Certified copies of all
insurance policies required pursuant to this Lease (or certificates thereof, in
form and substance acceptable to Landlord), shall be delivered to Landlord not
less than ten (10) days prior to the Commencement Date. If Tenant fails to
submit such policies or certificates to Landlord within the specified time, or
otherwise fails to obtain and maintain insurance coverages in accordance with
this Section 10.3, then Landlord, at Landlord's sole option, may, but shall not
be obligated to, procure such insurance on behalf of, and at the expense of,
Tenant. Tenant shall reimburse Landlord for such amounts upon demand, it being
understood that any such sums for which Tenant is required to reimburse Landlord
shall constitute Additional Rent under this Lease.
ARTICLE 11: ALTERATIONS
11.1 PROCEDURAL REQUIREMENTS. Tenant may, from time to time, at its
expense, make such alterations or improvements in and to the Premises
(hereinafter collectively referred to as "Alterations") excluding structural
changes, as Tenant may reasonably consider necessary for the conduct of its
business in the Premises; provided, however, that the written consent of
Landlord is first obtained for all such Alterations equal to or greater than
$10,000 in cost. Landlord's consent to Alterations shall not be unreasonably
withheld, provided that: (a) the Alterations are non-structural and the
structural integrity of the Building shall not be affected; (b) Tenant shall
have provided Landlord with detailed plans for such Alterations in advance of
requesting Landlord's consent; (c) the Alterations are to the interior of the
Premises and no part of the interior not used exclusively by Tenant (common area
or otherwise) or the exterior of the Building shall be affected; (d) the proper
functioning of the mechanical, electrical, sanitary and other service systems of
the Building shall not be adversely affected and the usage of such systems by
Tenant shall not be increased; (e) Tenant shall have appropriate insurance
coverage reasonably
11
satisfactory to Landlord regarding the performance and installation of the
Alterations; (f) the Alterations shall conform with all other requirements of
this Lease; (g) the Alterations have no effect on other Premises in the
Building; and (h) before proceeding with any Alterations, Tenant shall submit to
Agent, for Landlord's approval, plans and specifications and all permits for the
work to be done and Tenant shall not proceed with such work until it has
received said approval. Tenant shall obtain and deliver to Agent (if so
requested) either (i) a performance bond and a labor and materials payment bond
in form satisfactory to Landlord, each in an amount equal to one hundred fifteen
percent (115%) of the estimated cost of the Alterations, or (ii) such other
security as shall be reasonably satisfactory to Landlord.
11.2 PERFORMANCE OF ALTERATIONS. Tenant, at its expense, shall obtain
all necessary governmental permits and certificates for the commencement and
prosecution of Alterations and for the final approval thereof upon completion,
and shall cause the Alterations to be performed in compliance with all
applicable permits, laws and requirements of public authorities, or all entities
holding mortgages on the Building and with Landlord's rules and regulations or
any other restrictions that Landlord or Agent may impose on the Alterations.
Tenant shall cause the Alterations to be diligently performed in a good and
workmanlike manner, using new materials and equipment at least equal in quality
and class to the standards for the Building established by Landlord or Agent.
Alterations shall be performed by contractors first approved by Landlord, and
Tenant's agents, contractors, workmen, mechanics, suppliers and invitees shall
work in harmony, and not interfere with, Landlord and its agents and contractors
(if any) or with any other tenants or occupants of the Building. Tenant shall
provide Landlord with "as built" plans, copies of all construction contracts,
governmental permits and certificates and proof of payment for all labor and
materials, including, without limitation, copies of paid invoices and final lien
waivers.
11.3 LIEN PROHIBITION.
11.3.1 BY TENANT. Tenant shall pay when due all claims for labor
and material furnished to the Premises in connection with the Alterations.
Tenant shall give Landlord at least twenty (20) days prior written notice of the
commencement of any work at the Premises, and Landlord may elect to record and
post notices of non-responsibility at the Premises. Tenant shall not permit any
mechanics or materialmen's liens to attach to the Premises, the Building, the
Property, or Tenant's leasehold estate. Tenant, at its expense, shall procure
the satisfaction or discharge of record of all such liens and encumbrances
within fifteen (15) days after the filing thereof. In the event Tenant has not
so performed, Landlord may, at its option, pay and discharge such liens and
Tenant shall be responsible to reimburse Landlord for all costs and expenses
incurred in connection therewith, together with interest thereon at the rate set
forth in Section 21.3 below, which expenses shall include reasonable fees of
attorneys of Landlord's choosing, and any costs in posting bond to effect
discharge or release of the lien as an encumbrance against the Premises, the
Building or the Property.
11.3.2 BY LANDLORD. Landlord shall pay when due all claims for
labor and material furnished to the Premises in connection with alterations,
which it performs. Landlord shall give Tenant at least twenty (20) days prior
written notice of the commencement of any such work at the Premises, and Tenant
may elect to record and post notices of non-responsibility at the Premises.
Landlord shall not permit any mechanics or materialmen's liens resulting from
Landlord's alterations to Tenant's leasehold estate. Landlord, at its expense
and option, shall either procure the satisfaction or discharge of record of all
such liens and encumbrances within fifteen (15) days after the filing thereof or
post a reasonable bond therefor.
ARTICLE 12: LANDLORD'S AND TENANT'S PROPERTY
12.1 LANDLORD'S PROPERTY. All fixtures, machinery, equipment,
improvements and appurtenances to, or built into, the Premises at the
commencement of, or during the Term, whether or not placed there by or at the
expense of Tenant, shall be and remain a part of the Premises; shall be deemed
the property of Landlord (the "Landlord's Property"), without compensation or
credit to Tenant; and shall not be removed by Tenant unless Landlord request
their removal. Further, any personal property in the Premises on the
Commencement Date,
12
movable or otherwise, unless installed and paid for by Tenant, shall be and
shall remain the property of Landlord and shall not be removed by Tenant. In no
event shall Tenant remove any of the following materials or equipment without
Landlord's prior written consent: any power wiring or power panels, lighting or
lighting fixtures, wall or window coverings, carpets or other floor coverings,
heaters, air conditioners or any other heating or air conditioning equipment,
fencing or security gates, or other similar building operating equipment and
decorations.
12.2 TENANT'S PROPERTY. All movable non-structural partitions, business
and trade fixtures, machinery and equipment, communications equipment and office
equipment, whether or not attached to, or built into, the Premises, which are
installed in the Premises by, or for the account of, Tenant without expense to
Landlord and that can be removed without structural damage to the Building, and
all furniture, furnishings and other articles of movable personal property owned
by Tenant and located in the Premises (collectively, the "Tenant's Property")
shall be and shall remain the property of Tenant and may be removed by Tenant at
any time during the Term, provided Tenant repairs or pays the cost of repairing
any damage to the Premises or to the Building resulting from the installation
and/or removal thereof.
12.3 REMOVAL OF TENANT'S PROPERTY. At or before the Expiration Date, or
the date of any earlier termination, Tenant, at its expense, shall remove from
the Premises all of Tenant's Property (except such items thereof as Landlord
shall have expressly permitted, in writing, to remain, which property shall
become the property of Landlord), and Tenant shall repair any damage to the
Premises or the Building resulting from any installation and/or removal of
Tenant's Property. Any other items of Tenant's Property that shall remain in the
Premises after the Expiration Date, or following an earlier termination date,
may, at the option of Landlord, be deemed to have been abandoned, and in such
case, such items may be retained by Landlord as its property or be disposed of
by Landlord, in Landlord's sole and absolute discretion and without
accountability, at Tenant's Expense. Notwithstanding the foregoing, if Tenant is
in default under the terms of this Lease, it may remove its Property from the
Premises only upon the express written direction of Landlord.
ARTICLE 13: REPAIRS AND MAINTENANCE
13.1 TENANT REPAIRS AND MAINTENANCE. Tenant shall, at its expense,
throughout the Term, maintain and preserve, in first-class condition, the
Premises, the fixtures and appurtenances therein, including, without limitation,
any demising walls, doors, glass and docks. Subject to the requirements of
Section 13.2, Tenant shall also be responsible for all structural and
non-structural repairs and replacements, interior and exterior, ordinary and
extraordinary, in and to the Premises and the Building and the facilities and
systems thereof, if and to the extent that the need for such repairs or
replacements, arises directly or indirectly from (a) the performance or
existence of any Alterations, (b) the installation, use or operation of Tenant's
Property in the Premises, (c) the moving of Tenant's Property in or out of the
Premises and/or the Building, or (d) any act, omission, misuse, or neglect of
Tenant or any of its subtenants or its or their respective employees, agents,
contractors, invitees, or others entering into the Premises by act or omission
of Tenant or any subtenant. Tenant, at its expense, shall promptly replace or
repair all scratched, damaged, or broken doors and glass in and about the
Premises and floor coverings in the Premises and repair and maintain all
sanitary and electrical fixtures therein; provided, however, that all
replacement materials and methods of replacement shall be approved in writing by
Landlord prior to installation. Tenant shall promptly make, at Tenant's
expense, all repairs in or to the Premises other than those for which Landlord
has agreed to be responsible pursuant to Paragraph 13.2, and any repairs or
replacements required to be made by Tenant to the mechanical, electrical,
sanitary, heating, ventilating, air conditioning, or other systems of the
Building or Premises shall be performed by contractors approved by Landlord,
which approval shall not be unreasonably withheld. All such repairs or
replacements shall be subject to the supervision and control of Landlord or
Agent, and all repairs and replacements shall be made with materials of equal or
better quality than the items being repaired or replaced.
13.2 LANDLORD REPAIRS. Notwithstanding anything contained herein to the
contrary, Landlord (and not Tenant) shall be responsible for the repair,
replacement and restoration of the foundation, exterior load bearing
13
walls, roof structure and roof covering, tuckpointing of the Building, and the
Common Areas, including, without limitation, the parking lots and service roads
(including snow removal), any landscaping, lawns and lawn sprinklers, fire alarm
systems (and the monitoring thereof), sprinkler systems and the central HVAC
plant; provided, however, that in the event that any such repair, replacement or
restoration is necessitated by any or all of the matters set forth in Clauses
13.1(a), (b), (c) or (d), then Tenant shall be required to reimburse Landlord
for all costs and expenses that Landlord incurs in order to perform such repair,
replacement or restoration, and such reimbursement shall be paid, in full,
within ten (10) days after Landlord's delivery of demand therefor. Landlord
agrees to commence the repairs, replacements or restoration described in this
Paragraph 13.2 within a reasonable period of time after receiving from Tenant
written notice of the need for such repairs.
13.3 TENANT EQUIPMENT. Tenant shall not place a load upon any floor of
the Premises that exceeds either the load per square foot that such floor was
designed to carry or that which is allowed by law. Business machines and
mechanical equipment belonging to Tenant that cause noise or vibrations that may
be transmitted to the structure of the Building or to the Premises to such a
degree as to be objectionable or of concern to Landlord shall, at Tenant's
expense, be placed and maintained by Tenant in settings or cork, rubber or
spring-type vibration eliminators sufficient to eliminate such noise or
vibration. Tenant, at its sole costs and expense, shall be permitted to install,
operate and maintain a microwave transmitter/receiver system without any
additional consideration to be paid to Landlord. The placement of the equipment
must be approved by Landlord prior to its installation. Tenant shall be
responsible for the removal of said equipment prior to the expiration of this
Lease or any extensions of the Term.
ARTICLE 14: UTILITIES
14.1 PURCHASING UTILITIES. Tenant shall purchase all utility services
from the utility or municipality providing such service; shall provide for
scavenger, cleaning and extermination services; and shall pay for such services
when payments are due. Tenant shall be solely responsible for the repair and
maintenance of any meters necessary in connection with such services.
14.2 USE OF ELECTRICAL ENERGY BY TENANT. Tenant's use of electrical
energy in the Premiss shall not, at any time, exceed the capacity of (i) any of
the electrical conductors and equipment in or otherwise servicing the Premises;
or (ii) the Building's heating, ventilating and air-conditioning ("HVAC")
systems. In order to insure that such capacity is not exceeded and to avert
possible adverse effects upon the Building's electric service, Tenant shall not,
without Landlord's prior written consent in each instance, make any alteration
or addition to the electrical and HVAC systems of the Premises existing on the
Commencement Date.
ARTICLE 15: INVOLUNTARY CESSATION OF SERVICES
Landlord reserves the right, without any liability to Tenant and without
affecting Tenant's covenants and obligations hereunder, to stop service of the
heating, air conditioning, electric, sanitary, elevator (if any), or other
Building systems serving the Premises, or to stop any other services required by
Landlord under this Lease, whenever and for so long as may be necessary by
reason of (i) accidents, emergencies, strikes, or the making of repairs or
changes which Landlord or Agent in good xxxxx xxxxx necessary or (ii) any other
cause beyond Landlord's reasonable control. Further, it is also understood and
agreed that Landlord or Agent shall have no liability or responsibility for a
cessation of services to the Premises, in the Building or to the Property that
occurs as a result of causes beyond Landlord's or Agent's reasonable control. No
such interruption of service shall be deemed an eviction or disturbance of
Tenant's use and possession of the Premises or any part thereof, or render
Landlord or Agent liable to Tenant for damages, or relieve Tenant from
performance of Tenant's obligations under this Lease, including, but not limited
to, the obligation to pay Base Rent and Additional Rent.
14
ARTICLE 16: LANDLORD'S RIGHTS
16.1 LANDLORD'S RIGHTS OF ACCESS. Landlord, Agent and their respective
agents, employees and representatives shall have the right to enter and/or pass
through the Premises at any time or times (a) to examine and inspect the
Premises and to show them to actual and prospective Superior Parties or
prospective purchasers or mortgagees of the Building or providers of capital to
Landlord and its affiliates and all consultants and advisors relating therefor;
and (b) to make such repairs, alterations, additions and improvements in or to
the Premises and/or in or to the Building or its facilities and equipment as
Landlord is required or desires to make; provided, however, that Landlord shall
use (and cause Agent to use) reasonable efforts to avoid disturbing Tenant,
Tenant's employees and Tenant's business operations. Landlord and Agent shall be
allowed to take all materials into and upon the Premises that may be required in
connection therewith, without any liability to Tenant and without any reduction
or modification of Tenant's covenants and obligations hereunder. During the
period of six (6) months prior to the Expiration Date (or at any time, if Tenant
has vacated or abandoned the Premises), Landlord and its agents may exhibit the
Premises to prospective tenants. Landlord shall give Tenant reasonable prior
notice of its entry, except in the case of emergency.
16.2 LANDLORD'S RIGHT TO REPAIR AND MAINTAIN. Landlord and Agent reserve
the right, at any time, without incurring any liability to Tenant, and without
affecting or reducing any of Tenant's covenants and obligations hereunder, to
decorate and to make, at Landlord's expense, repairs, alterations, additions and
improvements (structural or otherwise), in or to the Premises, the Building or
any part thereof, or the Property (including, without limitation, those
described in Section 4.2) and during such operations to take into and through
the Premises or any part of the Building all material required, and to close or
temporarily suspend operation of entrances, doors, corridors, elevators or other
facilities. Landlord or Agent may do any such work during regular business
hours, or such other hours upon which Landlord and Tenant may agree. Nothing set
forth above implies obligations of improvement beyond the Work Items per
EXHIBIT "C".
16.3 OTHER LANDLORD RIGHTS. Landlord and Agent shall have the following
rights exercisable, without notice and without liability to Tenant, for damage
or injury to persons, property or business and without being deemed an eviction
or disturbance of Tenant's use or possession of the Premises or giving rise to
any claim for setoff or abatement of rent: (i) to designate and/or approve,
prior to installation, all types of signs; (ii) to sell or otherwise transfer
the Property or Building and assign and pass through all of Landlord's
obligations hereunder to the new owner; (iii) to have pass keys, access cards,
or both, to the Premises; and (iv) to decorate, remodel, repair, alter or
otherwise prepare the Premises for reoccupancy at any time after Tenant vacates
or abandons the Premises with no intention of reoccupying the Premises.
ARTICLE 17: NON-LIABILITY AND INDEMNIFICATION
17.1 NON-LIABILITY. None of Landlord, Agent, Landlord Affiliates, any
other managing agent, Superior Parties, or their respective affiliates, owners,
partners, directors, officers, agents and employees shall be liable to Tenant
for any loss, injury, or damage, to Tenant or to any other person, or to its or
their property, irrespective of the cause of such injury, damage or loss,
unless caused by, or resulting from, the negligence of Landlord, Agent or their
respective agents, servants or employees in the operation or maintenance of the
Premises, the Building, or the Property (subject, however, to the doctrine of
comparative negligence in the event of negligence on the part of Tenant or any
of its contractors). Further, none of Landlord, Agent, any other managing agent,
Superior Parties, or their respective partners, directors, officers, agents and
employees shall be liable (a) for any such damage caused by other tenants or
persons in, upon or about the Building or the Property, or caused by operations
in construction of any private, public or quasi-public work; or (b) with respect
to matters for which Landlord is liable, for consequential or indirect damages
purportedly arising out of any loss of use of the Premises or any equipment or
facilities therein by Tenant or any person claiming through or under Tenant.
15
17.2 TENANT INDEMNIFICATION. Tenant hereby indemnifies, defends, and
holds Landlord and all Landlord Affiliates harmless from and against any and all
claims, causes of action, liabilities, damages, costs, losses and expenses
(including, but not limited to reasonable legal, engineering and consulting fees
of engineers, attorneys and consultants selected by Landlord) arising from or in
connection with (a) the conduct or management of the Premises or any business
therein, or any work or Alterations done, or any condition created (other than
by Landlord) in or about the Premises during the Term or during the period of
time, if any, prior to the Commencement Date that Tenant may have been given
access to the Premises, including any and all mechanics and other liens and
encumbrances; (b) any act, omission or negligence of Tenant or any of its
subtenants or licensees or their partners, directors, officers, agents,
employees, invitees or contractors; (c) any accident, injury or damage
whatsoever (unless caused by Landlord's negligence) occurring in, at or upon the
Premises; (d) any breach or default by Tenant in the full and prompt payment and
performance of Tenant's obligations under this Lease; (e) any breach by Tenant
of any of its warranties and representations under this Lease; and (f) any
actions necessary to protect Landlord's interest under this Lease in a
bankruptcy proceeding or other proceeding under the Bankruptcy Code. In case any
action or proceeding is brought against Landlord or any Landlord Affiliate by
reason of any such claim, Tenant, upon notice from any or all of Landlord, Agent
or any Superior Party, shall resist and defend such action or proceeding by
counsel reasonably satisfactory to, or selected by, Landlord or such Superior
Lessor or Superior Mortgagee. Tenant's obligations under this Section 17.2 shall
survive the termination of this Lease for any reason.
17.3 FORCE MAJEURE. The obligations of Tenant hereunder shall not be
affected, impaired or excused, and Landlord shall have no liability whatsoever
to Tenant, with respect to any act, event or circumstance arising out of (a)
Landlord's failure to fulfill, or delay in fulfilling any of its obligations
under this Lease by reason of labor dispute, governmental preemption of property
in connection with a public emergency or shortages of fuel, supplies, or labor,
or any other cause, whether similar or dissimilar, beyond Landlord's reasonable
control; or (b) any failure or defect in the supply, quantity or character of
utilities furnished to the Premises, or by reason of any requirement, act or
omission of any public utility or others serving the Building or the Property,
beyond Landlord's reasonable control. Tenant shall not hold Landlord or Agent
liable for any latent defect in the Premises or the Building, nor shall Landlord
be liable for injury or damage to person or property caused by fire, or theft,
or resulting from the operation of heating or air conditioning or lighting
apparatus, or from falling plaster, or from steam, gas, electricity, water,
rain, snow, ice, or dampness, that may leak or flow from any part of the
Building, or from the pipes, appliances or plumbing work of the same. Tenant
agrees that under no circumstances shall Landlord or Agent be liable to Tenant
or any third party for any loss of, destruction of, damage to or shortage of any
property; including, but not limited to, Tenant's Property.
17.4 LIMITATION OF LIABILITY. Notwithstanding anything to the contrary
contained in this Lease, the liability of Landlord (and of any Successor
Landlord hereunder) to Tenant shall be limited to the interest of Landlord in
the Property, and Tenant agrees to look solely to Landlord's interest in the
Property for the recovery of any judgment or award against Landlord, it being
intended that Landlord shall not be personally liable for any judgment or
deficiency. Tenant hereby covenants that, prior to the filing of any suit for an
alleged default by Landlord hereunder, it shall give Landlord and all Superior
Mortgagees about whom Tenant has been notified, notice and reasonable time to
cure such alleged default by Landlord. In addition, Tenant acknowledges that
Agent is acting solely in its capacity as agent for Landlord and, shall not be
liable for any obligations, liabilities, losses or damages arising out of or in
connection with this Lease, all of which are expressly waived by Tenant.
ARTICLE 18: DAMAGE OR DESTRUCTION
18.1 NOTIFICATION. Tenant shall give prompt notice to Landlord and Agent
of (a) any occurrence in or about the Premises, the Building or the Property for
which Landlord or Agent might be liable, (b) any fire or other casualty to the
Premises, the Building or the Property, (c) any damage to, or defect in, the
Premises, the Building or the Property, for the repair of which Landlord or
Agent might be responsible, and (d) any damage to or defect in any part or
appurtenance of the Building's sanitary, electrical, HVAC, elevator or other
systems located in or passing through the Premises or any part thereof.
16
18.2 REPAIR PROVISIONS. Subject to the provisions of Section 18.4 below,
if the Building or the Premises are damaged by fire or other casualty, Landlord
shall repair or cause Agent to repair the damage and restore and rebuild the
Building and/or the Premises (except for Tenant's Property) with reasonable
dispatch after (a) notice to it of the damage or destruction and (b) the
collection of the insurance proceeds attributable to such damage, and Tenant
shall repair the damage to and restore and repair Tenant's Property, with
reasonable dispatch after such damage or destruction. Such work by Tenant shall
be deemed Alterations for the purposes of this Lease.
18.3 RENTAL ABATEMENT. If (a) the Building is damaged by fire or other
casualty thereby causing the Premises to be inaccessible or (b) the Premises are
partially damaged by fire or other casualty, the Base Rent and the Additional
Rent shall be abated.
18.4 TOTAL DESTRUCTION. If the Building or the Premises shall be totally
destroyed by fire or other casualty, or if the Building shall be so damaged by
fire or other casualty that (in the opinion of a reputable contractor or
architect designated by Landlord) (i) its repair or restoration requires more
than one hundred eighty (180) days or (ii) such repair or restoration requires
the expenditure of more than fifty percent (50%) of the full insurable value of
the Building immediately prior to the casualty or (iii) the damage is less than
the amount stated in (ii) above, but occurs during the last two (2) years of
Lease Term, Landlord and Tenant shall each have the option to terminate this
Lease within five (5) days after said contractor or architect has given written
notice of its opinion to Landlord and Tenant, but in all events prior to the
commencement of any restoration of the Premises or the Building by Landlord. In
such event, the termination shall be effective as of the 180th date after the
date on which the casualty occurs. If (A) any Superior Party or other party
entitled to the insurance proceeds fails to make such proceeds available to
Landlord in an amount sufficient for restoration of the Premises or the
Property, or (B) the issuer of any casualty insurance policies on the Property
fails to make available to Landlord sufficient proceeds for restoration of the
Premises or the Property, then Landlord may, at Landlord's sole option,
terminate this Lease, effective as of the one hundred eightieth (180th) day
after such casualty, by giving Tenant written notice to such effect within one
hundred eighty (180) days after the date of the casualty. The provisions of the
prior sentence notwithstanding, within one hundred twenty (120) days after
Landlord learns that either (A) or (B) will occur (whichever is later), Landlord
will notify Tenant thereof, which notice shall specify the amount of the
deficiency in proceeds available for restoration along with a detailed
explanation of all cost components used in establishing the amounts available
vs. amounts needed for restoration. Tenant shall have ten (10) business days
after receipt of Landlord's notice to determine whether to advance funds
sufficient to eliminate the deficiency. If Tenant decides to advance the funds,
it shall notify Landlord within the said ten (10) business days. Upon Landlord's
receipt of Tenant's notice, Landlord's option to terminate the lease because of
(A) or (B) shall be extinguished. The amount of funds advanced by Tenant under
this paragraph shall be a credit against the purchase price payable by Tenant
for the Property under Article 26 ("Option to Purchase"). For the purposes of
this Section 18.4 only, "full insurable value" shall mean replacement cost,
less the cost of footings, foundations and other structures below grade.
18.5 REPAIR OR RESTORATION. Subject to the provisions of Section 18.4
above, Tenant shall not be entitled to terminate this Lease and no damages,
compensation or claim shall be payable by Landlord for purported inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Premises or of the Building pursuant to this Article. Landlord or
Agent shall use its diligent, good faith efforts to make such repair or
restoration promptly and in such manner as not to unreasonably interfere with
Tenant's use and occupancy of the Premises, but Landlord or Agent shall not be
required to do such repair or restoration work except during normal business
hours of business days.
18.6 LIABILITY OF TENANT. Notwithstanding any of the foregoing
provisions of this Article, if by reason of any act or omission on the part of
Tenant or any of its subtenants or its or their partners, directors, officers,
servants, employees, agents, or contractors, Landlord, any Superior Party, or
other appropriate party shall be unable to collect all of the insurance proceeds
(including, without limitation, rent insurance proceeds) applicable to damage
17
or destruction of the Premises or the Building by fire or other casualty, then,
without prejudice to any other remedies that may be available against Tenant,
there shall be no abatement or reduction of the Base Rent or Additional Rent
notwithstanding lack of usability. Further, nothing contained in this Article 18
shall relieve Tenant from any liability that may exist as a result of any damage
or destruction by fire or other casualty.
ARTICLE 19: EMINENT DOMAIN
19.1 TOTAL CONDEMNATION. If, in Landlord's opinion, the whole of the
Building or the Premises, or if any part of the Building or the Property that
materially affects Tenant's use and occupancy of the Premises, shall be taken by
condemnation or in any other manner for any public or quasi-public use or
purpose, this Lease and the term and estate hereby granted shall terminate as of
the date of vesting of title on such taking (herein called "Date of the
Taking"), and the Base Rent and Additional Rent shall be prorated and adjusted
as of such date.
19.2 AWARD. Landlord shall be entitled to receive the entire award or
payment in connection with any taking; provided, however, Tenant shall have the
right to separately pursue, against the condemning authority, an award in
respect of the loss, if any, to leasehold improvements or other interest of
Tenant in the Premises paid for by Tenant, without any credit or allowance from
Landlord and further provided that such separate award does not diminish or
interfere with Landlord's pursuit of its own award.
19.3 COMPENSATION TO TENANT FOR TEMPORARY USE. If the temporary use or
occupancy of all or any part of the Premises shall be taken by condemnation or
in any other manner for any public or quasi-public use or purpose during the
Term, Tenant shall be entitled, except as hereinafter set forth, to receive that
portion of the award or payment for such taking which represents compensation
for the use and occupancy of the Premises, for the taking of Tenant's Property
and for moving expenses, and Landlord shall be entitled to receive that portion
that represents reimbursement for the cost of restoration of the Premises. This
Lease shall be and remain unaffected by such taking, and Tenant shall continue
to be responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking and shall continue to pay, in full,
the Base Rent and Additional Rent when due. If the period of temporary use or
occupancy shall extend beyond the Expiration Date, that part of the award that
represents compensation for the use and occupancy of the Premises (or a part
thereof) shall be prorated between Landlord and Tenant so that Tenant shall
receive so much thereof as represents the period up to and including such
Expiration Date and Landlord shall receive so much thereof as represents the
period after such Expiration Date. All monies paid as, or as part of, an award
for temporary use and occupancy for a period beyond the date to which the Base
Rent and Additional Rent have been paid shall be received, held and applied by
Landlord as a trust fund for payment of the Base Rent and Additional Rent
becoming due.
19.4 PARTIAL OR TEMPORARY TAKING. Subject to the rights of any Superior
Mortgagee or Superior Lessor, and other parties having rights to condemnation
proceeds, in the event of any taking of less than the whole of the Building
and/or the Property, which taking does not result in termination of this Lease,
or in the event of a taking for a temporary use or occupancy of all or any part
of the Premises, or other partial taking of the Premises, that does not result
in a termination of this Lease: (a) Landlord, at its expense, and provided that
a condemnation award or awards shall be sufficient for the purpose, shall
proceed with reasonable diligence to repair the remaining parts of the Building
and the Premises (other than those parts of the Premises that are Tenant's
Property) to substantially their former condition, to the extent that the same
is feasible (subject to those changes which Landlord reasonably deems desirable,
and to building and other governmental codes and regulations) and so as to
constitute a complete and tenantable Building and Premises, and (b) Tenant, at
its expense, and whether or not any award or awards shall be sufficient for the
purpose, shall proceed with reasonable diligence to repair Tenant's Property, to
substantially its former condition, to the extent feasible, subject to such
reasonable changes as Landlord and Tenant shall agree upon, in writing. Such
work by Tenant shall be deemed Alterations. Furthermore, in the event of a
partial taking of the Premises that does not result in a termination of this
Lease, the Base Rent and Additional Rent due hereunder shall be reduced in a
proportionate amount, based upon the proportion that the area that has been
taken bears to the total area of the Premises. Such reduction shall be effective
from the date on which the partial taking occurs until
18
the date, if any, on which the partial taking terminates and the Premises have
been restored in accordance with the terms of this Lease.
ARTICLE 20: SURRENDER AND HOLDOVER
On the last day of the Term, or upon any earlier termination of this lease,
or upon any re-entry by Landlord upon the Premises, Tenant shall quit and
surrender the Premises to Landlord "broom-clean" and in good order, condition
and repair, except for ordinary wear and tear and such damage or destruction as
Landlord is required to repair or restore under this Lease, and Tenant shall
remove all of Tenant's Property therefrom, except as otherwise expressly
provided in this Lease. If Tenant remains in possession after the Expiration
Date hereof or after any earlier termination date of this Lease or of Tenant's
right to possession: (a) Tenant shall be deemed a tenant-at-will; (b) Tenant
shall pay one hundred fifty percent (150%) of the aggregate of the Base Rent and
Additional Rent last prevailing hereunder, and also shall pay all direct damages
sustained by Landlord, by reason of such remaining in possession after the
expiration or termination of this Lease; (c) there shall be no renewal or
extension of this Lease by operation of law; and (d) the tenancy-at-will may be
terminated upon thirty (30) days' notice from Landlord; or, at the sole option
of Landlord expressed by written notice to Tenant, but not otherwise, such
holding over shall constitute a renewal of this Lease for a period of one (1)
year on the same terms and conditions as provided in this Lease. The provisions
of this Article 20 shall not constitute a waiver by Landlord of any re-entry
rights of Landlord provided hereunder or by law.
ARTICLE 21: EVENTS OF DEFAULT
21.1 BANKRUPTCY OF TENANT. In the event that Tenant shall make an
assignment for the benefit of creditors, or shall file a voluntary petition
under any state or federal bankruptcy or insolvency law, or an involuntary
petition alleging an act of bankruptcy or insolvency shall be filed against
Tenant under any state or federal bankruptcy or insolvency law, or whenever a
petition shall be filed by or against Tenant under the reorganization provisions
of the United States Bankruptcy Code or under the provisions of any law or like
import, or whenever a petition shall be filed by Tenant under the arrangement
provisions of the United States Bankruptcy Code or similar law, or whenever a
receiver of Tenant, or of, or for, the property of Tenant shall be appointed, or
Tenant admits it is insolvent or is not able to pay it debts as they mature,
then Landlord or Agent may give Tenant a notice of default, and may exercise its
remedies as provided in Article 22.
21.2 DEFAULT PROVISIONS. This Lease and the term and estate herby
granted are subject to the following limitations, each of which shall constitute
a breach of this Lease by Tenant: (a) if Tenant fails to pay Base Rent or
Additional Rent or any other payment when due hereunder; (b) if any event shall
occur, or any contingency shall arise, whereby this Lease or the estate hereby
granted or the unexpired balance of the term hereof would, by operation of law
or otherwise, devolve upon or pass to any person, firm or corporation other than
Tenant; (c) if Tenant shall vacate or abandon the Premises and shall fail to
properly maintain the Premises after such vacation or abandonment; (d) if Tenant
violates the requirements of the first sentence of Article 20 and remains in
possession of the Premises after the Expiration Date or any earlier termination
of this Lease; or (e) if Tenant shall, whether by action or inaction, be in
default of any of its other obligations under this Lease.
21.3 LANDLORD'S RIGHTS UPON DEFAULT OF TENANT. If Tenant defaults in the
performance of any of its obligations under this Lease, Landlord, without
thereby waiving such default, may (but shall not be obligated to) perform the
same for the account, and at the expense of, Tenant, without notice in a case of
emergency, and in any other case only if such default continues after the
expiration of thirty (30) days from the date Landlord or Agent gives Tenant
notice of the default (or sixty (60) days, under the circumstances described in
clause (e) of Section 21.2). Any expenses incurred by Landlord or Agent in
connection with any such performance, and all costs, expenses, and disbursements
of every kind and nature whatsoever, including reasonable attorneys' fees
(through all appellate proceedings) involved in collecting or endeavoring to
collect the Base Rent or Additional Rent or any part thereof or enforcing or
endeavoring to enforce any rights against Tenant or Tenant's obligations
19
hereunder, shall be due and payable upon Landlord's submission of an invoice
therefor. All sums advanced by Landlord or Agent on account of Tenant under this
Article, or pursuant to any other provision of this Lease, and all Base Rent and
Additional Rent, if delinquent or not paid by Tenant and received by Landlord
when due hereunder, shall bear interest at the rate of nine percent (9%) per
annum above the "prime" or "reference" or "base" rate of interest publicly
announced as such, from time to time, by The First National Bank of Chicago,
from the due date thereof until paid, and such interest shall be and constitute
Additional Rent and be due and payable upon Landlord's or Agent's submission of
an invoice therefor.
21.4 CURE. For defaults identified in Subsection 21.2(e), Landlord shall
not exercise its remedies identified in Subsections 22.1(a) and 22.1(b) unless
any such default continues and is not remedied within thirty (30) days after
Landlords has given to Tenant a notice specifying the same; provided, however,
that if the default cannot, by its nature, be cured within such thirty 30 day
period, but Tenant has commenced and is diligently pursuing a cure of such
default, then Landlord shall not exercise such remedies unless such default
remains uncured for more than sixty (60) days after notice from Landlord.
ARTICLE 22: REMEDIES
22.1 LANDLORD'S REMEDIES. In the event of any breach of this Lease by
Tenant, Landlord, at its option, and after the proper notice and cure period, if
any, as provided in Section 21.4 has expired, without further notice or demand
to Tenant, may, in addition to all other rights and remedies provided in this
Lease, or otherwise at law or in equity: (a) terminate this Lease and Tenant's
right of possession of the Premises, and recover all damages to which Landlord
is entitled under law, specifically including, without limitation, accelerated
Base Rent and Additional Rent attributable to the balance of the Term, and all
Landlord's expenses of reletting (including repairs, alterations, improvements,
additions, decorations, legal fees and brokerage commissions), or (b) terminate
Tenant's right of possession of the Premises without terminating this Lease;
provided, however, that Landlord shall use its reasonable efforts, whether
Landlord elects to proceed under Subsections (a) or (b) above, to relet the
Premises, or any part thereof for the account of Tenant, for such rent and term
and upon such terms and conditions as are acceptable to Landlord. If Landlord
shall elect to pursue it rights and remedies under Subsection (b), then Landlord
shall at any time have the further right and remedy to rescind such election and
pursue its rights and remedies under Subsection (a), including but not limited
to such time as Landlord has obtained a tenant to relet the Premises, which in
Landlord's reasonable judgment, is a suitable tenant. For purposes of such
reletting, Landlord is authorized to decorate, repair, alter and improve the
Premises to the extent deemed necessary by Landlord, in its sole and absolute
discretion. If Landlord fails to relet the Premises or if the Premises are relet
and a sufficient sum is not realized therefrom, after payment of all Landlord's
expenses of reletting (including repairs, alterations, improvements, additions,
decorations, legal fees and brokerage commissions), to satisfy the payment, when
due, of Base Rent and Additional Rent reserved under this Lease for any monthly
period, then Tenant shall pay to Landlord a sum equal to the accelerated amount
of Base Rent and Additional Rent due under this Lease attributable to the
balance of the Term, or if the Premises have been relet, Tenant shall pay any
such deficiency monthly. Tenant agrees that Landlord may file suit to recover
any sums due to Landlord hereunder from time to time and that such suit or
recovery of any amount due Landlord hereunder shall not be any defense to any
subsequent action brought for any amount not theretofore reduced to judgment in
favor of Landlord. In the event Landlord elects, pursuant to Subsection (b) of
this Section 22.1, to terminate Tenant's right of possession only, without
terminating this Lease, Landlord may, at Landlord's option, enter into the
premises, remove Tenant's Property, Tenant's signs and other evidences of
tenancy, and take and hold possession thereof, as provided in Article 20 hereof;
provided, however, that such entry and possession shall not terminate this Lease
or release Tenant, in whole or in part, from Tenant's obligation to pay the Base
Rent and Additional Rent reserved hereunder for the full Term, or from any other
obligation of Tenant under this Lease. Any and all property that may be removed
from the Premises by Landlord pursuant to the authority of the Lease or of law,
to which Tenant is or may be entitled, may be handled, removed or stored by
Landlord at the risk, cost and expense of Tenant, and in no event or
circumstance shall Landlord be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the
20
same shall be in Landlord's possession or under Landlord's control. Any such
property of Tenant not retaken from storage by Tenant within thirty (30) days
after the end of the Term, however terminated, shall be conclusively presumed to
have been conveyed by Tenant to Landlord under this Lease as in a xxxx of sale,
without further payment or credit by Landlord to Tenant. Tenant hereby grants to
Landlord a first lien upon the interest of Tenant under this Lease to secure the
payment of moneys due under this Lease, which lien may be enforced in equity;
and Landlord shall be entitled as a matter of right to have a receiver appointed
to take possession of the Premises and relet the same under order of court.
22.2 RIGHTS OF LANDLORD. Suit or suits for the recovery of such damages,
or any installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the Expiration Date, nor limit or preclude recovery by
Landlord against Tenant of any sums or damages to which, in addition to the
damages particularly provided above, Landlord may lawfully be entitled by reason
of any default hereunder on the part of Tenant. The various rights, remedies and
elections of Landlord reserved, expressed or contained herein are cumulative and
no one of them shall be deemed to be exclusive of the others or of such other
rights, remedies, options or elections as are now or may hereafter be conferred
upon Landlord by law.
22.3 EVENT OF BANKRUPTCY. In addition to, and in no way limiting the
other remedies set forth herein, Landlord and Tenant agree that if Tenant ever
becomes the subject of a voluntary or involuntary bankruptcy, reorganization,
composition, or other similar type proceeding under the federal bankruptcy laws,
as now enacted or hereinafter amended, then:
22.3.1 "Adequate assurance of future performance" by Tenant and/or
any assignee of Tenant pursuant to Bankruptcy Code Section 365 will include
(but not be limited to) payment of an additional/new security deposit in
the amount of three (3) times the then-current Base Rent payable hereunder.
22.3.2 Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code, shall be deemed, without
further act or deed, to have assumed all of the obligations of Tenant
arising under this Lease on and after the effective date of such
assignment. Any such assignee shall, upon demand by Landlord, execute and
deliver to Landlord an instrument confirming such assumption of liability.
22.3.3 Notwithstanding anything in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of Landlord under this Lease,
whether or not expressly denominated as "Rent," shall constitute "rent" for
the purposes of Section 502(b)(6) of the Bankruptcy Code.
22.3.4 If this Lease is assigned to any person or entity pursuant
to the provisions of the Bankruptcy Code, any and all monies or other
considerations payable or otherwise to be delivered to Landlord or Agent
(including Base Rent, Additional Rent and other amounts hereunder), shall
be and remain the exclusive property of Landlord and shall not constitute
property of Tenant or of the bankruptcy estate of Tenant. Any and all
monies or other considerations constituting Landlord's property under the
preceding sentence not paid or delivered to Landlord or Agent shall be held
in trust by Tenant or Tenant's bankruptcy estate for the benefit of
Landlord and shall be promptly paid to or turned over to Landlord.
ARTICLE 23: BROKER
Landlord covenants, warrants and represents that the broker set forth in
Paragraph 1.8(B) was the only broker to represent Landlord in the negotiation of
this Lease ("Landlord's Broker"). Landlord shall be solely responsible for
paying the commissions of Landlord's Broker. Each party agrees to and hereby
does defend, indemnify and hold the other harmless against and from any
21
brokerage commissions or finder's fees or claims therefor by a party (other than
Tenant's Broker and Landlord's Broker) claiming to have dealt with the
indemnifying party and all costs, expenses and liabilities in connection
therewith, including, without limitation, reasonable attorneys' fees and
expenses, for any breach of the foregoing. The foregoing indemnification shall
survive the termination of this Lease for any reason.
ARTICLE 24: ESTOPPEL CERTIFICATES
Tenant shall, from time to time and within ten (10) days after any request
by Landlord, execute and deliver to Landlord (and to any existing or prospective
mortgage lender, ground lessor, or purchaser designated by Landlord), a
statement: (i) certifying that this Lease is unmodified and in full force and
effect (or if there have been modifications, that the same is in full force and
effect as modified and stating the modifications); (ii) certifying the dates to
which the Base Rent and Additional Rent have been paid; (iii) stating whether
Landlord is in default in performance of any of its obligations under this
Lease, and, if so, specifying each such default; (iv) stating whether any event
has occurred which, with the giving of notice or passage of time, or both, would
constitute such a default, and, if so, specifying each such event; and
(v) stating whether any rights to Tenant (e.g., options) have been waived. Any
such statement delivered pursuant hereto shall be deemed a representation and
warranty to be relied upon by the party requesting the certificate and by others
with whom Landlord may be dealing, regardless of independent investigation.
Tenant also shall include in any such statements such other information
concerning this Lease as Landlord or Agent may reasonably request including, but
not limited to, the amount of Base Rent and Additional Rent under this Lease,
and whether Landlord has completed all (if any) improvements to the Premises
required under this Lease. If Tenant fails to execute, acknowledge or deliver
any such statement within ten (10) days after such request, Tenant hereby
irrevocably constitutes and appoints Landlord and/or Agent as Tenant's
attorney-in-fact (which appointment is coupled with an interest), to execute and
deliver any such statements for and on behalf of Tenant.
ARTICLE 25: HAZARDOUS SUBSTANCES
25.1 DEFINITIONS. For purposes of this Article 25, "hazardous substance"
means any matter regulated under the Resources Conservation Recovery Act
("RCRA"), 42 U.S.C. Section 6901 et seq., the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 52 U.S.C. Section 9601 et
seq., the [MISSOURI ENVIRONMENTAL PROTECTION ACT (MEPA)], or any substance or
matter giving rise to liability under any common law theory based on nuisance or
strict liability (the foregoing laws being referred to herein as "Environmental
Laws"). For purposes of this Article 25, "Landlord's Environmental Liability"
means: any and all losses, liabilities, obligations, penalties, claims, fines,
lost profits, demands, litigation, defenses, costs, judgments, suits,
proceedings, damages (including consequential, punitive and exemplary damages),
disbursements or expenses of any kind or nature whatsoever (including attorneys'
fees at trial and appellate levels and experts' fees and disbursements and
expenses incurred in investigating, defending against, settling or prosecuting
any suit, litigation, claim or proceeding) which may at any time be either
directly or indirectly imposed upon, incurred by or asserted or awarded against
Landlord or any of Landlord's parent and subsidiary corporations and their
affiliates, shareholders, directors, officers, employees, and agent in
connection with or arising from the following with respect to the Property:
(i) any hazardous substance used, exposed, emitted, released, discharged,
generated, manufactured, sold, transported, handled, stored, treated, reused,
presented, disposed of or recycled on, in or under all or any portion of the
Property, or any surrounding areas; (ii) any misrepresentation, inaccuracy or
breach of any warranty, covenant or agreement contained or referred to in this
Article 25; (iii) any violation, liability or claim of violation or liability
under any Environmental Laws; or (iv) the imposition of any lien for damages
caused by, or the recovery of any costs incurred for the cleanup of, any release
or threatened release of hazardous substance.
25.2 PROHIBITION. Tenant shall not conduct or authorize the generation,
transportation, storage, use, treatment or disposal on or in the Property, the
Building, or any portion of the Property or the Building, of any hazardous
substance without prior written authorization by Landlord, which authorization
may be given or withheld in Landlord's sole and absolute discretion, and
Tenant's failure to comply with the provisions of this Section 25.2
22
shall constitute a default under this Lease. Notwithstanding the preceding
sentence, Landlord hereby authorizes Tenant to use and store reasonable
quantities of the following in the Building, in accordance with all applicable
laws and regulations; paints; oils; material utilized in printing operations;
and materials utilized in the normal course of Tenant's repair and maintenance
of the Building. No such purported authorization shall be binding on Landlord
unless signed by Landlord and not solely by Agent.
25.3 PERMITTED ACTIVITIES. If Landlord expressly authorizes Tenant, in
writing, to generate, transport, store, treat or dispose of any hazardous
substance on the Property, in the Building, or on or in any portion of the
Property or the Building: (i) Tenant shall, at its own cost, comply with all
laws (federal, state or local) relating to hazardous substance, including, but
not limited to, RCRA, CERCLA and the MEPA; (ii) Tenant shall promptly provide
Agent copies of all communications, permits or agreements with any governmental
authority or agency (federal, state or local) or any private entity relating in
any way to the presence, release, threat of release, placement on or in the
Property, the Building, or any portion of the Property or the Building, or the
generation, transportation, storage, use, treatment, or disposal at the
Premises, of any hazardous substance; (iii) Landlord, Agent and their respective
agents and employees shall have the right to enter the Premises and/or conduct
appropriate tests for the purposes of ascertaining Tenant compliance with all
applicable laws, rules or permits relating in any way to the presence of
hazardous substances on the Property, the Building, or any portion thereof; and
(iv) Upon written request by Landlord or Agent, Tenant shall provide Landlord
with the results of appropriate tests of air, water or soil to demonstrate that
Tenant complies with all applicable laws, rules or permits relating in any way
to the presence of hazardous substances on the Property, the Building, or any
portion thereof.
25.4 REMEDIAL ACTION. If, by reason of the acts or omissions of Tenant
or its employees, agents or contractors, the presence, release, threat of
release, placement on or in the Property, the Building, or any portion thereof,
or the generation, transportation, storage, use, treatment, or disposal at the
Property, the Building, or any portion thereof of any hazardous substance:
(i) gives rise to liability (including, but not limited to, a response action,
remedial action, or removal action) under RCRA, CERCLA, the MEPA, or any common
law theory based on nuisance or strict liability, (ii) causes an adverse public
health effect, or (iii) pollutes, or threatens to pollute, the environment,
Tenant, at its sole cost and expense, shall promptly take any and all remedial
and removal action necessary to clean up the Property, the Building, or any
portion thereof, and mitigate exposure to liability arising from the hazardous
substance, regardless whether required by law.
25.5 INDEMNITY AND RELEASE. Except as to losses arising from Landlord's
own negligent acts or omissions, Tenant shall and does hereby protect,
indemnify, defend (at trial and appellate levels and with counsel, experts and
consultants acceptable to Landlord and at Tenant's sole cost) and hold Landlord
and its Affiliates free and harmless from and against any loss, cost or expense
incurred by Landlord and resulting wholly or in part from Tenant's breach of its
obligations under this Article 25 (collectively, "Tenant's Indemnification
Obligations"). Tenant's Indemnification Obligations shall survive in perpetuity
with respect to any Landlord's Environmental Liability. Tenant and it successors
and assigns hereby waive, release and agree not to make any claim or bring any
cost recovery action against Landlord under or with respect to any Environmental
Laws. Tenant's obligation to Landlord under this indemnity shall likewise be
without regard to fault on the part of Tenant or Landlord with respect to the
violation or condition which results in liability to Landlord or Trustee.
25.6 SURVIVAL. Tenant's obligations under this Article 25 shall survive
the termination or expiration of the Lease for any reason.
ARTICLE 26: OPTION TO PURCHASE
26.1 GRANT. Landlord hereby grants to Tenant an option (the "Option") to
purchase the Property and all improvements thereon, upon and subject to the
terms, conditions and limitations hereinafter set forth in this Article 26
(including, without limitation, Section 26.7 below).
23
26.2 EXERCISE. The Option shall be exercised, if at all, by Tenant (i)
giving written notice (the "Option Notice") thereof to Landlord at any time on
or after January 1, 2001 and before December 31, 2002; provided, however, that
at both (a) the time Tenant delivers the Option Notice, and (b) on the date of
the Closing (defined below), there has occurred no event of default under
Article 21 or any event which, with the giving of notice or the passage of time,
or both, would constitute an event of default under Article 21 and (ii)
simultaneously with Tenant's delivery of the Option Notice, depositing into a
joint order escrow (to which Tenant and Landlord shall each be a party) with
Chicago Title and Trust Company ("Escrowee") the sum of $900,000, in cash, as
nonrefundable and noncontingent (except as provided in Section 26.9) xxxxxxx
money (the "Xxxxxxx Money") for the Property. At Closing, the Escrowee shall
deliver the Xxxxxxx Money to Landlord. The delivery of such Option Notice and
Xxxxxxx Money deposit shall create a binding contract between Tenant and
Landlord upon and subject to the terms and conditions set forth in this Article
26 (the "Contract"). In the event Tenant fails to properly exercise the Option
in accordance with (i) and (ii) above, the Option shall automatically be forever
terminated without further action by either party. This Option is not assignable
by Tenant except to affiliated corporation and except in connection with an
assignment of all of Tenant's rights under the Lease in accordance with the
terms of such Lease. Upon request by Landlord, after December 31, 2002 or at any
other time after which Tenant has no option to purchase the Property, Tenant
shall deliver to Landlord a certification, in a form reasonably acceptable to
Landlord, confirming that Tenant did not exercise its rights under this Article
26.
26.3 PRICE. The price at which Landlord, as seller, and Tenant, as
buyer, shall convey the Property and improvements pursuant to the Contract shall
be $9,000,000 (the "Purchase Price") payable at the Closing, by federal wire
transfer of good funds, less a credit for the Xxxxxxx Money and subject to all
credits and prorations provided in Section 26.5 below.
26.4 TITLE. If Tenant exercises the Option in accordance with
Section 26.2(i) and (ii) above, Landlord, as seller, will convey to Tenant (or
its permitted assignee), as purchaser, by recordable special warranty deed, fee
simple title to the Property, subject only to the following:
(a) all general taxes and special assessments not yet due and
payable;
(b) deed restrictions, easements and rights of way of record;
(c) all private, public and utility easements;
(d) rights of possession under any other leases that may affect
the Property, as same may be amended from time to time;
subject to Tenant's rights hereunder;
(e) zoning, building and other regulations, restrictions, rules
and ordinances;
(f) acts or omissions of any or all of Tenant or anyone acting
by, through or under Tenant; and
(g) covenants, conditions and restrictions of record.
(The matters referred to in clauses (a) through (g) are referred to
collectively as the "Permitted Exceptions.")
Tenant shall obtain, at its sole expense, within fifteen (15) days after
exercise of the Option, a commitment for an ALTA owner's title insurance policy
in the amount of the Purchase Price covering title to the Property issued by
Chicago Title Insurance Company ("Title Insurer") (and copies of all recorded
documents described therein) and an ALTA survey of the Property. Copies of all
such items shall be promptly delivered to Landlord. In the event Tenant
disapproves of any matters, other than Permitted Exceptions, appearing on or
evidenced by such commitment
24
or survey, Tenant shall so advise Landlord, in writing, within such fifteen (15)
day period (the "Objection Notice"), whereupon Landlord shall have twenty (20)
days after Tenant's delivery of the Objection Notice to remedy or cause the
Title Insurer to insure over such defect(s), and if Landlord fails to do so,
Tenant, at its election, may either (A) elect to take title as it then is with
the right to deduct from the Purchase Price liens or encumbrances (x) caused
solely and directly by Landlord's actions and (y) of a definite or ascertainable
amount which may be removed by the payment of money at the Closing; or (B)
declare the Option Notice and Tenant's exercise of the Option null and void by
written notice to Landlord received within five (5) days after expiration of
such twenty (20) day period in which case (1) Escrowee shall immediately return
and pay over to Tenant the Xxxxxxx Money; and (2) Tenant shall have no further
Option to purchase all or any portion of the Property.
26.5 CLOSING. The time of closing of the Contract (the "Closing") shall
(unless mutually otherwise agreed) occur at the office of the Title Insurer on
the date thirty (30) days after the later of the exercise of the Option pursuant
to Section 26.2(A)(i) and (ii) or Landlord's receipt of both the survey and
title commitment. Rents, premiums under assignable insurance policies (if any)
and other similar items shall be adjusted ratably as of the date of Closing, and
such prorations shall be final. General taxes and assessments for the Property
shall be adjusted ratably as of the date of Closing on the basis of the most
currently available real estate tax xxxx, and shall be reprorated between the
parties upon receipt of the final tax bills therefor. Except as otherwise
expressly set forth herein (e.g., with respect to title insurance and a survey),
all expenses in connection with the Closing shall be allocated among and borne
by the parties in accordance with custom. This sale shall be closed through a
"New York-style" escrow with the Escrowee in accordance with the general
provisions of the usual form of Deed and Money Escrow Agreement then in use by
Escrowee with such special provisions inserted therein as may be required to
conform with the Contract. The costs of the Xxxxxxx Money and closing escrows
shall be divided equally between Landlord and Tenant. All prorations made
pursuant to this Section 26.5 shall take into account the tenancy of the Tenant
and the requirements imposed under this Lease with respect to Tenant's payment
of Base Rent and Additional Rent, including, but not limited to, its
proportionate share of Operating Expenses. Tenant shall acquire the Property on
a strict and absolute "as-is," "where-is" basis, without any representations or
warranties of any nature whatsoever from Landlord, nor shall Landlord have any
obligation whatsoever to perform any repairs of any nature at the Property as a
condition to Tenant's obligation to consummate the Closing after exercising the
Option.
26.6 DEFAULT. If Tenant defaults under the terms of this Article 26,
Landlord may unilaterally terminate the Contract by notice to Tenant, whereupon
Escrowee shall immediately deliver the Xxxxxxx Money to Landlord, which Xxxxxxx
Money shall be retained by Landlord as liquidated damages, and such default
shall also constitute an event of default by Tenant under Article 21. If
Landlord defaults under the terms of this Article 26, then provided Tenant is
not in default under this Article 26, Tenant may, as its sole remedy, either (i)
terminate the Contract, whereupon the Xxxxxxx Money shall be returned to Tenant
and neither party shall have any further liability or obligation to the other,
or (ii) file an action for specific performance of the Contract.
26.7 INTENTIONALLY OMITTED.
26.8 LIKE-KIND EXCHANGE. In the event of a sale of the Property under
the terms of the Option, the parties agree as follows: In connection with any
tax-deferred exchange pursuant to Section 1031 of the Internal Revenue Code of
1986, as amended, and the regulations promulgated thereunder, involving the
Property and other property owned or to be acquired by Landlord, Landlord may,
without the consent of Tenant, assign the Contract and its rights thereunder to
any qualified intermediary (an "Intermediary") participating with Landlord in
such exchange as contemplated by Treasury Regulation Section 1.1031(k)-1(g)(4)
and related regulations. In the event of any such assignment to an Intermediary:
(i) Landlord shall give written notice of such assignment and the identity of
the Intermediary to Tenant at least ten (10) days prior to the Closing: (ii)
except to the extent of any liabilities expressed assumed by the Intermediary in
writing in connection with such assignment, the Intermediary shall have no
personal liability to Tenant or any other person or entity under the Contract,
or under any other document or instrument at any time executed by Landlord or
the Intermediary in connection herewith or pursuant
25
hereto (each such document or instrument being referred to herein as a "Related
Document"), and neither Tenant or any other person or entity shall have any
recourse against the Intermediary or any of its assets on account of any breach
of default hereunder or under any Related Document; (iii) the Intermediary shall
have all of the rights and remedies of Landlord provided for under the Contract
or any Related Document; (iv) there shall be no diminution of Tenant's rights or
remedies, and no increase of Tenant's liabilities or obligations, under the
Contract or any Related Document on account of such assignment; and (v)
notwithstanding anything to the contrary contained herein, Landlord shall
continue to be liable for (x) all obligations imposed upon Landlord under the
Contract and any Related Document executed by Landlord and (y) all obligations
imposed upon the Intermediary in any Related Document required to be executed by
the Intermediary after the date of such assignment pursuant to the terms of the
Contract.
26.9 DUE DILIGENCE PERIOD. Tenant may terminate its election to purchase
the Property by delivering written notice of such termination to Landlord within
15 days after the delivery of the Option Notice to Landlord. In the event of
such termination: (i) provided Tenant is not otherwise in default hereunder,
Escrowee shall return the Xxxxxxx Money to Tenant; and (ii) the Option shall be
automatically and irrevocably terminated and Tenant shall have no further rights
and Landlord shall have no further obligations under this Article 26.
ARTICLE 27: RIGHT OF FIRST OFFER
27.1 RIGHT. During the Term, Tenant shall have a continuing "right of
first offer," in accordance with the terms set forth below, to purchase the
Property. Landlord may only sell the Property to a party other than Tenant as
set forth in this Article 27. Landlord may at any time deliver Tenant a copy of
a proposed purchase agreement pursuant to the terms of which Landlord is
prepared to sell the Property to Tenant (the "Proposed Purchase Agreement"). The
Proposed Purchase Agreement shall specify, without limitation, the following
terms (the "Key Terms"): (i) the purchase price (the "Proposed Purchase Price");
(ii) the amount of xxxxxxx money; and (iii) the availability (if any) of
purchase money financing to be provided by Landlord. Tenant shall thereupon have
a right (a "First Offer Right") to purchase the Property on the terms set forth
in the Proposed Purchase Agreement. Each First Offer Right is granted subject to
the following terms and conditions:
(a) Tenant shall give Landlord written notice of its election
to exercise a First Offer Right within 10 days after Landlord delivers to
Tenant the applicable Proposed Purchase Agreement by executing the Proposed
Purchase Agreement and returning it to Landlord together with the required
xxxxxxx money deposit;
(b) Tenant is not in default nor has any event occurred which
with the giving of notice, the passage of time, or both, would constitute a
default by Tenant, under this Lease either on the date Tenant exercises
such First Offer Right or on any closing date specified in the Proposed
Purchase Agreement;
(c) In the event that Tenant does not timely or properly
exercise any First Offer Right, Landlord may, at any time during the
one-year period following the delivery of the Proposed Purchase Agreement
to Tenant, sell the Property to any third party on the same or better Key
Terms as were set forth in the Proposed Purchase Agreement; provided,
however, that the purchase price in any sale to such a third party may be
as little as 80% of the Proposed Purchase Price. Tenant shall have a
continuing right of first offer if Landlord desires to sell the Property to
a third party on Key Terms other than as set forth in the preceding
sentence. If Landlord does not sell the Property to a third party within
the one-year period described above, on terms contemplated by the first
sentence of this subparagraph (c), then the Property shall once again be
subject to Tenant's right of first offer.
27.2 TERMINATION OF RIGHT. All rights of Tenant and obligations of
Landlord under this Article 27 shall automatically terminate upon the earlier to
occur of: (i) the expiration or termination of this Lease; (ii) the
26
termination of Tenant's right to possession of the Premises; (iii) the sale of
the Premises by Landlord; or (iv) the end of the initial Term.
ARTICLE 28: MISCELLANEOUS
28.1 MERGER. All prior understandings and agreements between the parties
are merged in this Lease, which alone fully and completely expresses the
agreement of the parties. No agreement shall be effective to modify this Lease,
in whole or in part, unless such agreement is in writing, and is signed by the
party against whom enforcement of said change or modification is sought.
28.2 NOTICES. Any notice required to be given by either party pursuant
to this Lease, shall be in writing and shall be deemed to have been properly
given, rendered or made only if personally delivered, if sent by Federal Express
or other comparable overnight delivery service, or if sent by registered or
certified mail, return receipt requested, postage prepaid, addressed to the
other party at the addresses set forth below (or to such other address as
Landlord or Tenant may designate to each other from time to time by written
notice), and shall be deemed to have been give, rendered or made on the day so
delivered or three (3) business days after having been mailed:
If to Landlord: First Industrial Financing Partnership, L.P.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
With a copy to: Barack, Xxxxxxxxxx, Xxxxxxxxxx & Xxxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx and
Xxxxxxx Xxxxxxxx-Xxxxx
and First Industrial Realty Trust, Inc.
0000 Xxxxxxxx Xxxxxxxxxx Xxxx.
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx
If to Tenant: Xxx Realty Co.
0000 Xxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx
Attn: Xxxxxxx XxXxxxxx
28.3 NON-WAIVER. The failure of either party to insist, in any one or
more instances, upon the strict performance of any one or more of the
obligations of this Lease, or to exercise any election herein contained, shall
not be construed as a waiver or relinquishment for the future of the performance
of such one or more obligations of this Lease or of the right to exercise such
election, but the Lease shall continue and remain in full force and effect with
respect to any subsequent breach, act or omission. The receipt and acceptance by
Landlord or Agent of Base Rent or Additional Rent with acknowledge of breach by
Tenant of any obligation of this Lease shall not be deemed a waiver of such
breach.
28.4 LEGAL COSTS. Any party in breach or default under this Lease (the
"Defaulting Party") shall reimburse the other party (the "Nondefaulting Party")
upon demand for any costs or expenses that the Nondefaulting Party incurs in
connection with the breach or default, regardless whether suit is commenced or
judgment entered.
27
Such costs shall include legal fees and costs incurred for the negotiation of a
settlement, enforcement of rights or otherwise. Furthermore, in the event of
litigation, the court in such action shall award to the party in whose favor a
judgment is entered, a reasonable sum as attorneys' fees and costs, which sum
shall be paid by the losing party. Tenant shall pay Landlord's reasonable
attorneys' fees incurred in connection with Tenant's request for Landlord's
consent under provisions of this Lease governing assignment and subletting, or
in connection with any other act which Tenant proposes to do and which requires
Landlord's consent.
28.5 PARTIES BOUND. Except as otherwise expressly provided for in this
Lease, this Lease shall be binding upon, and inure to the benefit of, the
successors and assignees of the parties hereto. Tenant hereby releases Landlord
named herein from any obligations of Landlord for any period subsequent to the
conveyance and transfer of Landlord's ownership interest in the Building. In the
event of such conveyance and transfer, Landlord's obligations shall thereafter
be binding upon each transferee (whether Successor Landlord or otherwise). No
obligation of Landlord shall arise under this Lease until the instrument is
signed by, and delivered to, both Landlord and Tenant.
28.6 RECORDATION OF LEASE. Tenant shall not record or file this Lease in
the public records of any country or state. Tenant may, however, at its sole
cost and expense, record a Memorandum of Lease in the form attached hereto as
EXHIBIT E.
28.7 SURVIVAL OF OBLIGATIONS. Upon the expiration or other termination
of this Lease, neither party shall have any further obligation or liability to
the other except as otherwise expressly provided in this Lease and except for
such obligations as, by their nature or under the circumstances, can only be, or
by the provisions of this Lease, may be performed after such expiration or other
termination. The provisions of Articles 3, 13, 16, 17, 20, 23 and 25 shall
survive any termination of this Lease.
28.8 GOVERNING LAW; CONSTRUCTION. This Lease shall be governed by and
construed in accordance with the laws of the state in which the Property is
located. If any provision of this Lease shall be invalid or unenforceable, the
remainder of this Lease shall not be affected but shall be enforced to the
extent permitted by law. The captions, headings and titles in this Lease are
solely for convenience of reference and shall not affect its interpretation.
This Lease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Lease to be drafted. Each
covenant, agreement, obligation, or other provision of this Lease to be
performed by Tenant, shall be construed as a separate and independent covenant
of Tenant, not dependent on any other provision of this Lease. All terms and
words used in this Lease, regardless of the number or gender in which they are
used, shall be deemed to include any other number and any other gender as the
context may require.
28.9 TIME. Time is of the essence of this Lease. If the time for
performance hereunder falls on a Saturday, Sunday or a day that is recognized as
a holiday in the state in which the Property is located, then such time shall be
deemed extended to the next day that is not a Saturday, Sunday or holiday in
said state.
28.10 AUTHORITY OF TENANT. If Tenant is a corporation, partnership,
association or any other entity, it shall deliver to Landlord, concurrently with
the delivery to Landlord of an executed Lease, certified resolutions of Tenant's
directors or other governing person or body (i) authorizing execution and
delivery of this Lease and the performance by Tenant of its obligations
hereunder and (ii) certifying the authority of the party executing the Lease as
having been duly authorized to do so.
28.11 JOINT AND SEVERAL LIABILITY. All parties signing this Lease as
Tenant shall be jointly and severally liable for all obligations of Tenant
hereunder.
28.12 COUNTERPART EXECUTION. This Lease may be executed in counterpart
and, when all counterpart documents are executed, the counterparts shall
constitute a single binding instrument.
28
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of
the day and year first above written.
LANDLORD: First Industrial Financing Partnership, L.P.,
a Delaware limited partnership
By: First Industrial Management
Corporation, a Maryland corporation, Duly
Authorized Agent and Authorized Signatory
By: /s/ Xxxxx X. Xxxx
--------------------------------------------
Its: Xxxxx X. Xxxx Senior Regional Director
----------------------------------------
TENANT: Xxx Realty Co., a Delaware corporation
By: /s/ [ILLEGIBLE]
--------------------------------------------
Its: Vice President and General Counsel
29
LEASE EXHIBIT A
Premises: Approximately 105,275 rentable square feet in the building commonly
known as MidCounty Trade Center and located at 0000 Xxxxxx
Xxxxxxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx (the "Building").
Property: See legal description attached hereto.
Parking: 75 spaces large enough for tractor-trailer units reserved
exclusively for Tenant's use as shown on attached plan.
30
LEASE EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
The "Property" as referenced in the attached Lease is located in the City of
Xxxxxx Park, St. Louis County, State of Missouri, and is more particularly
described as follows.
PARCEL NO. 1: A tract of land in U.S. Survey 1920, Township 46 North, Range
6 East and being part of Lot 3 in St. Louis County, Missouri, as designated
on plat of Commissioners Report filed in Cause #302 of the City (former
County) Circuit Court, styled Xxxxx Xxxxx against Xxxxxxx X. Xxxxxx, et al,
a copy of which is recorded in Book Q4 page 360 of the St. Louis City
(former County) Records and described as follows, to-wit: Beginning at the
intersection of the South line of said Lot 3 with the East line of the
Right of Way of the St. Louis Belt and Terminal Railroad Company; thence
along the East line of said Right of Way North 19 degrees 33 minutes East
169.95 feet; North 18 degrees 4 minutes East 202.19 feet, North 14 degrees
32 minutes East 203.14 feet and North 11 degrees 55 minutes 28 seconds East
79.43 feet to a point; thence leaving said Right of Way and running South
82 degrees 08 minutes East 1127.00 feet to a point in the West line of land
conveyed to the County of St. Louis by deed recorded in Book 3705 page 74
of the St. Louis County Records; thence South along an arc of a curve to
the left having a radius of 465.47 feet a distance of 129.36 feet to a
point; thence continuing along the west line of said property so conveyed
to St. Louis County aforesaid and the prolongation Southwardly thereof
South 8 degrees 48 minutes West 519.09 feet to the South line of said Lot
3; thence along the South line of said Xxx 0 Xxxxx 00 degrees 08 minutes
West 1198.03 feet to the place of beginning.
PARCEL NO. 2: Lots 9 to 13 both inclusive of Xxxxxx Industrial Park,
according to the plat thereof recorded in Plat Book 118 page 53 of the St.
Louis County Records.
PARCEL NO. 3: A tract of land in U.S. Survey 1920, Township 46 North, Range
6 East and being part of Lot 3 in St. Louis County, Missouri, as
designated on plat of Commissioners Report filed in Cause #302 of the City
(former County) Circuit Court styled Xxxxx Xxxxx against Xxxxxxx X. Xxxxxx,
et al, a copy of which is recorded in Book Q4 page 360 of the St. Louis
City (former County) Records and described as follows, to-wit: Beginning at
the Northeast corner of property secondly described in deed to General
Steel Industries, Inc., by deed recorded in Book 6316 page 1975 of the St.
Louis County Records being also a point on the Western line of the Right of
Way of the St. Louis Belt and Terminal railroad (now Terminal Railroad
Association of St. Louis); thence South 82 degrees 08 minutes 00 seconds
East, along a line which is the direct
LEASE EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY -- Page 2
prolongation Eastwardly of the North line of the aforesaid second parcel
described in Book 6316 page 1975, 102.12 feet to a point on the East line
of said Railroad Right-of-Way being also a point on the Western line of
property firstly described in said deed recorded in Book 6316 page 1975;
thence South 19 degrees 33 minutes 00 seconds West, along the Eastern line
of said railroad right of way being also the Western line of said Parcel 1
described in deed recorded in Book 6316 page 1975; 51.06 feet to the
Southwest corner of said last referred to parcel, being also a point on the
South line of said Lot 3; thence North 82 degrees 08 minutes 00 seconds
West along the South line of said Lot 3, 102.12 feet to the Southeast
corner of said Parcel 2 described in Book 6316 page 1975 being also a point
on the Western line of said railroad right of way; thence North 19 degrees
33 minutes 00 seconds East, along the Western line of said railroad right
of way being along the Eastern line of said Parcel 2 described in Book 6316
page 1975, 51.06 feet to the point of beginning.
commonly known as 8474 Delport Dr.
PARCEL NO. 4: Together with a 50' Grade Crossing easement granted in Grade
Crossing Agreement recorded at Book 6496, page 1250, of the St. Louis
County Records.
