EXHIBIT 10.9
LEASE
Made and Entered Into
Between
XXXXXXXX LEASING, L.L.C.
AS LANDLORD
and
XXXXXXXX GROUP LTD.
AS TENANT
Property Located in
St. Louis, Missouri
Dated as of January 1, 1997
LEASE
THIS LEASE is made and entered into this 1st day of January, 1997, by and
between
XXXXXXXX LEASING, LLC., an Illinois Limited Liability Company
and
XXXXXXXX GROUP LTD., an Illinois Corporation
hereinafter referred to as "Landlord" and "Tenant", respectively.
WITNESSETH:
1. PREMISES
1.1 Landlord hereby leases to Tenant, and Tenant leases from Landlord,
upon the terms and conditions hereinafter set forth, that certain land situated
in Xx. Xxxxx, Xxxxxx xx Xx. Xxxxx, Xxxxx of Missouri, more particularly
described in Exhibit "A" attached hereto and made a part hereof (the "Land");
Together with the existing building or buildings (the "Building") and
improvements and all other improvements now or hereafter constructed upon the
Land (the Land and said buildings and improvements being collectively referred
to as the "Premises");
Together with all other rights, easements and appurtenances pertaining to
the Premises (the "Easements").
2. TERM
2.1 The term of this Lease shall be for an initial period of three (3)
years, which term shall commence on January 1, 1997, and shall terminate at
12:01 AM, CST on December 31, 2000 (the "Original Term"). For the purposes
hereof, the term "lease year" shall mean a calendar year ending on December 31.
2.2 Upon the expiration of the Original Term, the Lease shall be
automatically extended for successive terms ("Successive Term") of one (1) year,
unless Tenant or Landlord upon sixty (60) days written notice to the other prior
to the end of each Successive Term cancels this Lease. The Successive Term will
be on the same terms and under the same conditions herein set forth, except for
rental provided in 4.2.
3. COMPLIANCE WITH LAWS
3.1 Tenant shall not use the Premises or permit anything to be done in or
about the Premises which will conflict with or violate any law, statute,
ordinance or governmental rule or regulation now in force or which may hereafter
be enacted or
promulgated. Tenant shall at its sole cost, comply with all laws, building
codes, ordinances and governmental rules, regulations and requirements now in
force or which may hereafter be enacted during the term of this Lease relating
to or affecting the condition, use or occupancy of the Lease Property. Tenant
specifically agrees that it will obtain and maintain all necessary federal,
state and local permits, approvals and licenses necessary to operate the
Premises for Tenant's intended use and that Landlord has made no representations
or warranties regarding the suitability of the Leased Premises for the intended
uses of Tenant.
4. RENT
4.1 Tenant shall pay to Landlord as rent for the Premises during the
first year of the Lease term the sum of THIRTY EIGHT THOUSAND AND FOUR AND
NO/100 DOLLARS ($38,004.00) per year, as allocated between Tenant's different
divisions and shown on Exhibit "B" attached hereto and made a part hereof,
payable in advance in equal monthly installments of $3,167.00 each on the first
(1st) day of each month during the first year of the Lease term with appropriate
proration for any fraction of a month during which this Lease is in effect.
4.2 Tenant shall pay to Landlord as rent for the Premises during the
second year of the Lease term the sum of THIRTY NINE THOUSAND ONE HUNDRED FORTY
FOUR AND 12/100 DOLLARS ($39,144.12) per year, as allocated between Tenant's
different divisions and shown on Exhibit "B" attached hereto and made a part
hereof, payable in advance in equal monthly installments of $3,262.01 each on
the first (1st) day of each month during the second year of the Lease term with
appropriate proration for any fraction of a month during which this Lease is in
effect.
4.3 Tenant shall pay to Landlord as rent for the Premises during the
third year of the Lease term the sum of FORTY THOUSAND THREE HUNDRED EIGHTEEN
AND 44/100 DOLLARS ($40,318.44) per year, as allocated between Tenant's
different divisions and shown on Exhibit "B" attached hereto and made a part
hereof, payable in advance in equal monthly installments of $3,359.87 each on
the first (1st) day of each month during the third year of the Lease term with
appropriate proration for any fraction of a month during which this Lease is in
effect.
4.4 Commencing with the first year of the Successive Term and each
Successive Term thereafter unless this Lease is cancelled pursuant to Article
2.2, the Rent shall be increased by three percent (3%) over the previous years
annual rent, payable in advance in equal monthly installments on the first (1st)
day of each month during each Successive Term.
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5. MAINTENANCE AND REPAIRS
5.1 Subject to Article 9 hereof, during the term of this Lease, Tenant
shall, at its sole cost and expense, keep and maintain the Premises in the same
general condition and state of repair as of the date hereof except for acts of
God, fire or other casualties, and shall promptly make all structural and
non-structural, and ordinary and extraordinary repairs and replacements of every
kind which may be required to be made upon or in connection with the Premises or
a part thereof in order so to keep and maintain the Premises.
6. ALTERATIONS, IMPROVEMENTS AND ADDITIONS TO PREMISES; CONDITION OF
PREMISES
6.1 Alterations to Premises. Tenant shall have the right at its expense
and upon prior written consent of Landlord, to make such alterations,
improvements, additions and repairs to the Premises as Tenant may desire and
deem appropriate provided that the same do not weaken the structure or reduce
the value of any buildings and that any additions or alterations are completed
in accordance with all applicable laws, ordinances, rules, regulations and
building codes. Prior to the commencement of construction of any alterations,
Tenant shall demonstrate to Landlord's reasonable approval, Tenants financial
ability to pay for the proposed alterations.
6.2 Ownership of Improvements. All improvements, immovable fixtures, and
additions to the Premises shall become and remain the property of Landlord,
subject to Tenant's leasehold interest hereunder. However, Landlord shall not
remove any such improvements fixtures or additions at any time during the term
of this Lease.
6.3 Condition of Premises. Tenant unconditionally accepts the condition
of the Premises "as is", and expressly acknowledges that Landlord has made no
representations or warranties as to the condition of the Premises or its
compliance with any applicable zoning, building, environmental, fire and safety
laws, ordinances rules and regulations.
7. SIGNS
Tenant shall have the right to erect temporary and permanent signs
advertising Tenant's business, which sign or signs may be erected on the
interior or exterior of the Premises subject to applicable law.
8. UTILITIES
Tenant shall pay before delinquency all charges for water, gas, heat, air
cooling, electricity, power, sewer, telephone and
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all other utility services (herein "Utilities") used by Tenant on the Premises
during the Lease term. Landlord hereby represents that all such utilities are
separately metered to the Premises.
9. DAMAGE TO OR DESTRUCTION OF LEASED PREMISES.
9.1 Landlord's Option to Rebuild or Terminate. In the event that all or a
substantial portion of the Premises is materially damaged or destroyed during
the term of this Lease, Landlord may, at its option (i) require Tenant to
promptly rebuild and restore the Premises at its expenses in accordance with
customary standards in St. Louis County, Missouri, and subject to the written
approval of Landlord and Landlord's architect, and Landlord shall assign and pay
over to a title company administering construction payments, and all insurance
proceeds or other amounts payable to Landlord or by any party on account of such
damage or destruction (not including any insurance proceeds or other amounts
received to compensate Landlord for the loss of its rental income), or (ii)
within thirty (30) days after such damages or destruction, terminate this Lease
effective as of the date of such damage or destruction and all rights and
obligations of Landlord and Tenant hereunder not accrued as of the date of such
damage or destruction, shall cease and terminate as of the date thereof, Tenant
shall assign and pay over to Landlord any and all insurance proceeds or other
any amounts received on account of such damage or destruction (not including any
insurance proceeds or other amounts received to compensate Tenant for the
interruption of its business or revenues lost to Tenant).
9.2 Abatement of Rent. If Landlord elects to cause Tenant to rebuild and
restore the Premises pursuant to Article 9.1 above, following its damage or
destruction, there shall be no abatement of Tenant's base rent obligations.
10. INSURANCE
10.1 Policies. Tenant shall, at its sole expense, procure and maintain in
full force and effect during the term of this Lease, the following insurance, or
its equivalent with respect to the Lease Property:
(a) A Multi-Peril Package policy of insurance for the protection of
Landlord, Landlord's partners, Landlord's lender, if any ("Lender")
and Tenant, said policy to include the following:
(i) Property insurance on the Premises equal to at least one
hundred percent (100%) of the full replacement cost thereof,
against the perils of fire, and those of the extended coverage
and standard "all risks" endorsements;
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(ii) Public liability insurance against the risks of bodily injury,
property damage and personal injury, liability, with a limit
of $5,000,000.00 for each occurrence and $5,000,000.00 in the
aggregate, said coverage to be on a standard Comprehensive
General Liability Form; and
(iii) Rental value insurance against the loss of rental income for a
period of twelve (12) months for not less than 100% of the
annual gross rental income and other payments to Landlord
provided for hereunder, with coverage against the same perils
as included in the property insurance coverage requirements of
subsection (i) above.
(b) Worker's Compensation Insurance and all other insurance, if any, of
whatsoever description and in such amounts as may be required by any
ordinance, law or governmental regulation to be carried or maintained
by Landlord or Tenant in connection with the ownership, operation,
maintenance or repair of the Premises.
10.2 Proceeds. Subject to the rights of Landlord set forth in Article 10.1
above, in the event of any damage or loss to the Premises, the proceeds of all
property insurance shall be payable to the parties protected thereby as their
respective interests may appear; provided, however, that Landlord and Tenant
hereby agree, as between themselves that such of the proceeds as may be payable
to or received by either of them shall be applied to the replacement or repair
of the loss or damage covered thereby, if so requested by Landlord.
10.3 Form of Policies. All required insurance policies shall be with
insurance companies having a rating in Best's Insurance Guide equal or superior
to a Class XIII. Tenant shall furnish Landlord with a duplicate copy of each
such policy of insurance or a certificate of the insurer evidencing the same,
and each such policy shall provide (1) that it shall not be subject to
cancellation, non-renewal or material change by the insurer except on thirty
(30) days prior written notice to each insured party and (2) waiver of
subrogation rights against Tenant and Landlord, to the extent obtainable.
Notwithstanding any other provisions of this Lease to the contrary, each party
hereto waives any right of recovery against the other for any loss, damage or
injury against which the waiving party is protected by insurance, but such
waiver shall not apply to any excess of such loss, damage or injury over the
amount covered by the insurance.
11. TAXES
During the term of this Lease, Tenant shall pay and discharge all real and
personal property taxes, taxes in lieu of real and
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personal property taxes, taxes on gross revenues received by Tenant, duties,
assessments, special assessments, excises and other charges which may be levied,
charged or assessed against the Premises or any part thereof or any use or
occupancy of the Premises; provided, however, that nothing contained herein
shall require Tenant to pay any federal, state or local income taxes assessed
against or payable by Landlord. Tenant shall provide Landlord with evidence of
timely payment of property tax bills not less than fifteen (15) days prior to
the date each payment is due and payable. Landlord may require Tenant to make
monthly payments to Landlord of 1/12th of the estimated annual tax payments due
hereunder.
12. EMINENT DOMAIN
12.1 Consequences of Condemnation. In the event that the Premises or any
part thereof is taken, damaged or diminished in value by reason of any public
improvement, rezoning or condemnation proceeding, or in any other manner by
exercise of the right of eminent domain, this Lease shall terminate in its
entirely, or as to the part of the Premises taken in the event of a partial
taking, as of the date physical possession is taken by the condemning authority
or the damage occurs. If only a part of the Premises is so taken or damaged, the
rental due under Article 2.1 above shall be equitably reduced. If any partial
taking of the Premises results in the taking of property equal in value to
twenty percent (20%) or more of total value of the Premises at the time of
taking or renders it impossible or impractical to continue to operate the
business of the Tenant on the Premises, then either party may terminate this
Lease upon thirty (30) days written notice to the other. In the event of any
sale of the Premises or any portion thereof, under threat of condemnation of
other eminent domain proceedings, the Premises or such portion shall for all
purposes, be deemed to have been "taken" as that term is used herein. Tenants
options to purchase shall not be affected hereby.
12.2 Condemnation Award. Subject to the rights, if any, of the Lender and
the rights of Tenant provided in Article 12.3 below, Landlord shall be entitled
to receive the entire amount of any condemnation award without deduction
therefrom for any interest of Tenant, and Tenant hereby assigns to Landlord its
entire interest in any and all such awards, together with any and all of its
rights in respect hereof.
12.3 Rights of Tenant. Notwithstanding the provisions of Article 12.2
above, Tenant shall be entitled to the entire award for any temporary
requisition of the use or occupancy of the Premises or any part thereof by an
governmental authority during the term of this Lease. Tenant shall also have the
right to claim and recover from the condemning authority, but not from Landlord
and not in reduction of any award to Landlord, compensation for the value of the
unexpired term of Tenant's leasehold estate.
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13. RIGHTS OF ACCESS
Provided that Tenant's business is not interfered with, Landlord and its
authorized agents and representatives shall be entitled to enter the Premises at
reasonable times, upon forty-eight (48) hours prior notice, for the purpose of
inspecting same and to show the Premises to prospective purchasers and lenders.
14. QUIET ENJOYMENT; SUSPENSION OF OPERATION
Landlord warrants that it now has and shall continue to have sufficient
title to the Premises to make this Lease for the term set forth herein, subject
only to the Permitted Exceptions (as defined herein) and that the execution and
delivery of this Lease does not, and the consummation of the transaction
contemplated hereby will not, result in the acceleration of any obligation under
any mortgage, deed of trust, lien, lease, license, agreement, instrument, order,
arbitration award, judgment or decree, or violate or conflict with any other
restriction of any kind or character which would hinder, delay or affect
Tenant's right to possession or to quiet enjoyment of the Premises. Landlord
covenants and agrees that Tenant shall have uninterrupted quiet and peaceful
possession of the Premises and shall enjoy all of the rights herein granted
without interference, subject to the terms of this Lease and the Permitted
Exceptions. As used in this Lease, the term "Permitted Exceptions" shall mean
any easements, encumbrances, rights or other title matters which do not
individually, or in the aggregate, materially adversely affect Tenant's use or
operation of the Premises as contemplated by this Lease.
15. TENANT'S INDEMNIFICATION AGAINST BREACHES OF LEASE
Tenant hereby agrees to defend, indemnify and hold harmless Landlord (and
its partners) from and against any and all loss, costs, claim, damage, liability
or expense (including, without limitation, reasonable attorneys fees, costs of
investigation and costs of suit) incurred by Landlord and its beneficiaries (or
such other parties) as a result of, with respect to or arising out of any of the
following (i) any and all debts, obligations and liabilities of Tenant of any
kind not specifically assumed by Landlord; (ii) any misrepresentation, breach of
warranty, default or nonfulfillment of any covenant or agreement made under this
Lease or in connection herewith by Tenant; and (iii) any and all actions, suits,
claims, appeals, costs and expenses (including reasonable attorneys' fees)
incident to any of the foregoing.
16. DEFAULT.
16.1 Events of Default. The occurrence of any of the following events
shall constitute an event of default on the part of Tenant:
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(a) Failure to pay any monetary obligation of Tenant due Landlord under
this Lease within five (5) days of its due dates;
(b) Failure to pay any monetary obligation of Tenant due a party other
than Landlord under this Lease within five (5) days following notice
from Landlord that the same is due;
(c) Failure (i) to perform any nonmonetary obligation of Tenant under
this Lease and (ii) to commence to remedy such default within fifteen
(15) days after written demand is made therefore and to remedy such
default within thirty (30) days after such written demand, or, if the
remedy thereof requires more than thirty (30) days, within a
reasonable time after demand provided that steps to remedy such
default are pursued with all due diligence and that in all events the
remedy of such default is completed within 60 days after the initial
written demand;
(d) The making of a general assignment by Tenant for the benefit of
creditors;
(e) The filing of any voluntary petition in bankruptcy by Tenant, or the
filing of an involuntary petition by Tenant's creditors if such
involuntary petition remains undischarged for a period of thirty (30)
days;
(f) The attachment or other judicial seizure of all or substantially all
of Tenant's assets or of Tenant's leasehold estate hereunder, such
attachment or other seizure remains undismissed or undischarged for a
period of thirty (30) days after the levy thereof.
(g) The attachment or other judicial seizure of all or substantially all
of Tenant's assets or of Tenant's leasehold estate hereunder, if such
attachment or other seizure remains undismissed or undischarged for a
period of thirty (30) days after the levy thereof.
16.2 Re-entry. In the event of any default hereunder, Tenant shall be
deemed to constitute a tenant at will and, upon the failure of Tenant to
surrender possession of the Premises to Landlord on demand, Landlord shall,
without prejudice to any other remedies that Landlord may have by reason of
Tenant's default or of such termination, be entitled to institute and maintain
an action for unlawful detainer or other similar proceeding for restitution of
the Premises in a court of appropriate jurisdiction in Missouri.
16.3 Termination Damages. In the event of any such termination, Landlord,
thereupon or at any time thereafter, at its
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election and with or without notice, may terminate this Lease or Tenant's rights
to possession of the Premises without terminating this Lease, or, without
prejudice to its rights to terminate this Lease or Tenant's rights to possession
of the Premises, take any other action available to Landlord, all without such
termination of this Lease or Tenant's rights to possession of the Premises in
any manner affecting Landlord's rights for recovery of past due or future rents
or other obligations of Tenant hereunder. Upon the termination of this Lease or
Tenant's right to possession hereunder, Landlord may re-enter the Premises with
or without process of law using such force as may be necessary and remove all
persons, fixtures, equipment, stock, merchandise and other chattels therefrom
and Landlord shall not be liable for damages or otherwise by reason of such
re-entry or termination of this Lease or of Tenant's possession of the Premises.
Upon termination of either the Lease or Tenant's right to possession, Landlord
shall be entitled to recover either (i) from time to time, as liquidated
damages, an amount equal to the Rent for the said balance of the term less the
amount of any rental obtained from any other tenant for the said balance of the
term of (ii) as liquidated damages, the difference between the Rent for the
balance of the term and the fair market rental value of the Premises for the
balance of the term. Upon and after entry into possession, without termination
of this Lease, Landlord shall use its best efforts to re-let the Premises or any
part thereof for the account of Tenant for such rent, for such time and upon
such terms as Landlord in Landlord's sole discretion shall determine. Tenant
shall pay upon demand, all of the Landlord's costs, charges and expenses,
including fees of counsel, agents and others retained by Landlord, incurred in
enforcing Tenant's obligations hereunder or incurred by Landlord in any
litigation, negotiation or transaction to interpret or construe this Lease or to
determine or establish the rights or obligations of Landlord or Tenant hereunder
or in which Tenant causes the Landlord, without the Landlord's fault, to become
involved and concerned.
16.4 Abandonment Remedies. In the event Tenant is in default under this
Lease and abandons the Lease Property, Landlord shall also have all of the
remedies in such circumstances of a landlord provided by Illinois law in
addition to rights hereunder.
17. ASSIGNMENT AND SUBLETTING
Tenant may not assign or transfer this Lease or sublet all or any part of
the premises without the consent of Landlord, which may be withheld in
Landlord's sole and absolute discretion.
18. END OF TERM
At the expiration of this Lease, Tenant shall surrender the Premises in the
same condition as it was upon delivery of possession thereof at the commencement
of the Lease term, subject to
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normal wear and tear, damage by the elements, alterations permitted or required
under Article 6, damage that pursuant to Articles 12 and 13 does not have to be
repaired and repairs that are the Landlord's responsibility to make. Tenant
shall deliver all keys to the Premises to Landlord. In addition, Tenant shall
have the right to remove from the Premises all of its signs, sign supports and
pylons, trade fixtures (including those constructed by Tenant), equipment and
other personal property.
19. HOLDING OVER
If Tenant remains in possession of the Premises after the expiration of the
Lease term or written extension or renewal of the Lease term, such continued
possession shall create a tenancy from month to month upon the same terms and
conditions contained herein so far as applicable, at a monthly rental equal to
the rent for the last lease year prior to the end of the term, prorated and
payable in arrears at the end of each month for the period of such occupancy.
Nothing in this Section 19 shall prohibit Landlord from pursuing and exercising
any and all rights or remedies it may have in connection with such holding over.
20. ATTORNEYS' FEES
In the event either party hereto brings or commences any legal proceeding
to enforce any of the terms of this Lease, the substantially prevailing party as
determined by the court in such proceeding shall then be entitled to receive
from the other party, a reasonable sum of attorneys' fees and costs incurred in
connection therewith.
21. NOTICES
21.1 Any notice or demand required or desired to be given in connection
with this Lease shall be in writing and sent or delivered to the recipient at
its notice address. Notice sent by registered or certified mail, postage
prepaid, return receipt requested, shall be deemed given and received three (3)
days after deposit thereof in the United States Mail, or on the delivery date
endorsed by the Postal Service on the return receipt, whichever date is earlier,
except that notice changing name or address to which future notice should be
sent will be made when delivered. Refusal to accept delivery at the notice
address shall not prevent notice from being made. The provisions of this Article
21.1 as to when notice is given shall not affect the requirements contained in
this Lease that certain notices be received.
21.2 If the Landlord be more than one person, notice by Tenant or payment
by Tenant to any one of them is notice or payment to all. If the Landlord be
more than one person, Tenant may act on notice from any Landlord, and in the
case of conflicting notices may recognize any one of them as valid and disregard
the others,
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but Tenant may treat any notice in any case as of no effect unless signed by all
Landlords. If Landlord be a partnership or corporation, Tenant may act on any
notice given by any officer or agent of such corporation or of any general
partner or agent of such partnership, but may treat any notice in such case as
of no effect unless signed by the President or Vice-President of the corporation
or a general partner in the partnership.
21.3 The notice addresses of the parties are as follows:
Landlord: Xxxxxxxx Leasing, L.L.C.
0000 Xxxx Xxxxx Xxxx
Xxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Tenant: Xxxxxxxx Group Ltd.
0000 Xxxx Xxxxx Xxxx
Xxxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
With copies
to: DI XXXXX XXXXXXXX & XXXXX
0000 Xxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx
Either party may change its notice address or the person or agent to whom
notice should be directed by giving notice of such change in the manner provided
by this Article 21.
22. REMEDIES CUMULATIVE
Each right and remedy which either party may have under this Lease or by
operation of law shall be distinct and separate from every other such right and
remedy; all such rights and remedies shall be cumulative, and unless
specifically stated herein to the contrary none of them shall be deemed
inconsistent with or exclusive of any other, whether or not exercised; and any
two or more or all of such rights and remedies may be exercised at the same time
or successively.
23. WAIVER
23.1 The waiver by either party of any default in the performance by the
other of any covenant contained herein shall not be construed to be a waiver of
any preceding or subsequent default of the same or any other covenant contained
herein.
23.2 If any action by either party shall require the consent or approval
of the other party, the grant of such consent or approval on any one occasion
shall not be deemed a consent to or
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approval of that action on any subsequent occasion or of any other action on the
same or any subsequent occasion.
24. INTERPRETATION; GOVERNING LAW
24.1 Any reference made in this Lease to an Article or Article shall be
construed as a reference to the entire Article (including all of its Articles
and other subdivisions), or to the entire Article (including all or its other
subdivisions), as the case may be, and shall also be construed as a reference to
any appendix provision which complements, supplements or modifies the provision
referred to.
24.2 Wherever the context so requires, the singular number shall include
the plural, the plural shall refer to the singular, the neuter gender shall
include the masculine and feminine genders, and the words "Landlord", "Tenant",
and "person" shall include corporations, partnerships, associations and
individuals. If the named Landlord or any successor to the named Landlord is a
group or combination (such as a group of tenants-in-common), rather than a
single person or a single corporation, the covenants and liabilities of Landlord
shall be joint and severable obligations of all the persons and legal entities
comprising such group or combination and may be enforced in a proceeding brought
against one or more of the members of the group or combination with the same
effect as if each member had been made a party thereto and duly served with
process. If any provisions of this Lease shall be held to be invalid by a court,
the remaining provisions of this Lease (and the application of such provision to
other persons or circumstances) shall remain in effect shall in no way be
impaired thereby.
24.3 This Lease is intended to be performed in the State of Illinois and
the laws of that state shall govern its interpretation and effect.
25. ENTIRE INSTRUMENT
The parties acknowledge and agree that at all times they have intended that
none of the preliminary negotiations would be binding on either party, and that
they would be bound to each other only by a single formal comprehensive document
containing this Article and all of the agreements of the parties, in final form,
which has been executed by Tenant and by Landlord. The parties acknowledge that
none of the prior oral and written agreements between them (and none of the
representations on which either of them has relied) relating to the subject
matter of this Lease shall have any force or effect whatever, except as and to
the extent that such agreements and representations have been incorporated in
this Lease. This Lease shall not be modified, altered or changed in any respect,
except by writing executed by Landlord and Tenant.
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26. SUCCESSORS AND ASSIGNS
This Lease shall be binding upon and inure to the benefit of the heirs,
personal representatives, successors and assigns of each party.
27. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
27.1 This Lease is and shall be prior to any deed of trust recorded after
the date of this Lease affecting all or any part of the Premises. If, however, a
lender requires that this Lease be subordinated to any deed of trust, this Lease
shall be subordinate thereto if Landlord shall obtain from the lender a written
non-disturbance agreement, in form reasonably satisfactory to Tenant and such
Lender.
27.2 The term "deed of trust" as used herein includes mortgages, deeds of
trust, other monetary liens or encumbrances, all modifications, extensions,
renewals and replacements thereof, given as collateral security for any
obligation affecting the Premises.
28. CERTIFICATE
Either party shall, without charge, at any time and from time to time
hereafter, within ten (10) days after written request of the other, certify by
written instrument duly executed and acknowledged to any (i) beneficiary under a
deed of trust encumbering the Premises, (ii) purchaser of the Premises, (iii)
assignee of Tenant's leasehold, (iv) subleasee of Tenant, or (v) any proposed
beneficiary, purchaser, assignee or sublessee:
(a) As to whether this Lease has been supplemented or amended, and if so,
identifying the documents that do so;
(b) As the validity and force and effect of this Lease, in accordance with
the tenor as then constituted;
(c) As to the existence of any default under this Lease, and if so,
specifying the same;
(d) As to the performance of any specific obligation under this Lease;
(e) As to the dates to which the annual rent and any other charges due
under this Lease have been paid;
(f) As to the existence of any offset, counter-claims or defenses on the
part of either party;
(g) As to the commencement and expiration dates of the term of this Lease
and the number and length of any Successive Term; and
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(h) As to any other specific matter as may reasonably be requested.
29. MEMORANDUM OF LEASE
This Lease shall not be recorded, except that if either party requests the
other party to do so, the parties shall execute a memorandum of lease in
recordable form and shall cause the same to be recorded.
30. EXCULPATION.
It is specifically understood and agreed by Landlord and Tenant that there
shall be absolutely no personal liability on the part of Landlord or any of its
partners, trustees, successors, assigns or sureties of Landlord or any mortgage
(collectively referred to as "Successor") with respect to any of the terms,
conditions and covenants of this Lease, and that Tenant shall look solely to the
interest of Landlord Successor in the Premises for the satisfaction of each and
every remedy of Tenant in the event of a breach by Landlord or Successor of any
of the terms, conditions or covenants of this Lease to be observed or performed
by Landlord or Successor, if any.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written.
"LANDLORD" "TENANT"
XXXXXXXX LEASING, L.L.C. XXXXXXXX GROUP LTD.
By: /s/ Xxxxxxxx X. Xxxxxxxx, Xx. By: /s/ Xxxxxxx X. Xxxxxx
------------------------------- ----------------------------
Its: Member Its: VICE PRESIDENT
--------------------------
14
EXHIBIT "A"
Legal Description of Premises
2101 Xxxxxxx: Part of Lot 4 of Lackland Park, according to the plat thereof
recorded in Plat Book 17 Page 8 of the St. Louis County records, fronting 100
feet on the West line of Xxxxxxx Avenue, by a depth Westwardly between parallel
lines of 240 feet; bounded North by the North line of said Lot 4.
2111 Xxxxxxx: The South 100 feet of the East 200 feet of Lot 3 of Lackland Park,
according to the plat thereof recorded in Plat Book 17 Page 8 of the St. Louis
County records.
2121 Xxxxxxx: Lot 3 of Lackland Park, as per plat thereof recorded in Plat Book
17 Page 8 of the St. Louis County records, excepting therefrom the South 100
feet of the East 200 feet, also excepting the West 410 feet thereof.
EXHIBIT "B"
Allocation of Tenant's Rent
Monthly Annual
----------- -----------
First Year of Lease Term
St. Louis
North St. Xxxxx Xxxxxx $ 2,500.00 $ 30,000.00
Central Regional Office 667.00 8,004.00
----------- -----------
$ 3,167.00 $ 38,004.00
Second Year of Lease Term
St. Louis
North St. Xxxxx Xxxxxx $ 2,575.00 $ 30,900.00
Central Regional Office 687.01 8,244.12
----------- -----------
$ 3,262.01 $ 39,144.12
Third Year of Lease Term
St. Louis
North St. Xxxxx Xxxxxx $ 2,652.25 $ 31,827.00
Central Regional Office 707.62 8,491.94
---------- -----------
$ 3,359.87 $ 40,318.44
St. Louis. MO
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the "First Amendment") is made and entered
into this 14th day of January, 1998, by and between Xxxxxxxx Leasing, L.L.C., an
Illinois limited liability company ("Landlord"), and The Xxxxxxxx Group, LTD.,
an Illinois corporation ("Tenant").
RECITALS
A. Landlord and Tenant entered into that certain lease agreement (the
"Lease") dated as of January 1, 1997, whereby Landlord leased to Tenant certain
land (the "Land") and improvements (the "Improvements" and together with the
Land, the "Premises") situated in St. Louis, Missouri.
B. Whereas, Landlord and Tenant desire to amend the Lease on the terms
and conditions set forth below.
NOW, THEREFORE, for One and No/100 Dollars ($1.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant agree as follows:
1. Section 3.1 of the Lease shall be deleted and replaced with the
following:
"Tenant shall not use the Premises or permit anything to be done in or
about the Premises which will conflict with or violate any law, statute,
ordinance or governmental rule or regulation now in force or which may hereafter
be enacted or promulgated. Tenant shall at its sole cost, comply with all laws,
building codes, ordinances and governmental rules, regulations and requirements
now in force or which may hereafter be enacted during the term of this Lease
relating to or affecting the condition, use or occupancy of the Premises except
that Landlord shall be responsible, at Landlord's sole cost and expense, to
remedy all building code violations existing on the date of this First Amendment
with respect to the foundations, the plumbing system, the electrical system, the
utility lines and connections to the Improvements, the sprinkler mains, if any,
the roof, and load bearing walls and floor slabs (collectively, the "Structural
Elements") to the extent Landlord or Tenant receives written notice from any
applicable governmental authority in accordance with Section 6.3 hereunder.
Except as specifically set forth herein, Landlord has made no representations or
warranties regarding the suitability of the Premises for the intended uses of
Tenant and Tenant specifically agrees that it will obtain and maintain all
necessary federal, state and local permits, approvals and licenses necessary to
operate the Premises."
2. The following shall be added as Section 4.5 of the Lease:
St. Louis. MO
"In the event this Lease terminates on a day other than the last day
of a month, rent shall be prorated on a per diem basis."
3. The following shall be added to Section 6.2 of the Lease:
"Notwithstanding the foregoing, any trade fixtures, business
equipment, inventory, trademarked items, signs, and other removable personal
property owned by Tenant ("Tenant's Property"), shall remain the property of the
Tenant. Landlord agrees that Tenant shall have the right, at any time or from
time to time, to remove any and all of Tenant's Property. Tenant, at its
expense, shall immediately repair any damage occasioned by the removal of
Tenant's Premises and upon expiration or earlier termination of this Lease,
shall leave the Premises in the same condition as it was upon execution of the
this First Amendment, free of debris, normal wear and tear and loss due to
casualty or condemnation excepted (subject to Tenant's obligation to assign and
pay over insurance proceeds as described herein). With respect to harvestable
items located on the Premises (the "Harvestable Property"), Tenant shall be
free, during the term and any renewal thereof, to harvest such Harvestable
Property at an unrestricted rate and without compensation to Landlord (the
"Harvest Right"), provided that, upon termination of the Lease, Tenant's Harvest
Right shall cease. In addition, during the term and any renewal hereof, neither
Landlord nor Tenant shall cause or allow the Harvestable Property to be
encumbered by any lien, restriction, security interest or other encumbrance.
Notwithstanding the foregoing, Tenant may grant Tenant's lender a lien on the
Harvestable Property provided that such lien shall be released upon termination
or expiration of the Lease."
4. Section 6.3 of the Lease shall be deleted and replaced in its entirety
with the following:
"Except as specifically set forth herein, Tenant accepts the condition
of the Premises "as is", and Tenant acknowledges that Landlord has made no
representations or warranties as to the condition of the Premises or its
compliance with applicable zoning, building, environmental, fire and safety
laws, ordinances, rules and regulations (collectively, the "Property Laws"),
except that Landlord represents and warrants to Tenant that as of the effective
date of this First Amendment the Structural Elements of the Improvements are in
compliance with all Property Laws promulgated by applicable governing
authorities. In the event that the foregoing statement is untrue, Landlord shall
perform the work necessary to cause such Structural Elements to comply with such
Property Laws at Landlord's expense (the "Code Compliance") to the extent
Landlord or Tenant receives written notice from any such governmental
authority.. Landlord shall promptly commence and diligently and continuously
perform such work until completion and use Landlord's reasonable efforts to
minimize interference with Tenant's business operations. Landlord shall also be
responsible for paying any and all fines or penalties assessed in connection
with the Code Compliance. Tenant shall be responsible for paying any and all
fines or penalties for noncompliance with Property Laws during the term and any
renewal of this Lease in all cases other than with respect to the Code
Compliance."
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St. Louis. MO
5. The following phrase shall be added to the end of the last sentence of
Section 9.1. "or Tenant's Property and the Harvestable Property."
6. The following sentence shall be added to the end of Section 9.1:
"Notwithstanding the foregoing, in the event that all or a substantial
portion of the Premises is materially damaged or destroyed during the term or
any renewal period, Tenant may terminate the Lease and assign and pay over to
Landlord the insurance proceeds as described above provided that (i) the
Premises can not be restored and/or repaired within one hundred eighty (180)
days of such casualty (in the reasonable opinion of the parties) to a condition
substantially similar to that which existed prior to the date of casualty and
such termination is made by written notice to Landlord within ten (10) days of
such determination, or (ii) the date of casualty occurs during the final six (6)
months of the term of this Lease or any renewal thereof and such termination is
made by written notice to Landlord within ten (10) days of such casualty.
Tenant's obligation to assign and pay over insurance proceeds to Landlord shall
survive such termination of this Lease."
7. The following phrase shall be added after the word "taxes" appearing
in the seventh (7th) line from the bottom of Section 11 of the Lease: "or excess
profits, inheritance, succession, transfer, franchise tax or capital gains tax."
8. The last sentence of Section 12.3 shall be deleted and replaced in its
entirety with the following:
"Tenant shall also have the right to claim and recover from the condemning
authority compensation for the value of the unexpired term of Tenant's leasehold
estate, for the interruption of Tenant's business and for loss of Tenant's
Property and the Harvestable Property; provided however, that no such award
shall reduce Landlord's award with respect to such taking."
9. The following sentence shall be added to the end of Section 16.3:
"Notwithstanding the foregoing, Landlord shall, under no
circumstances, have the right to accelerate rent in the event Landlord
terminates this Lease or otherwise denies Tenant possession of the Premises."
10. Section 17 shall be deleted and replaced in its entirety by the
following paragraph:
"Tenant may not assign or transfer the Lease or sublet any part of the
Premises without the consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed. It shall not be unreasonable for
Landlord to withhold consent if the proposed assignee or sublessee (i) has a net
worth materially less than Tenant at the time of this First Amendment, or (ii)
has a poor or undesirable reputation in its particular industry. It shall not be
unreasonable for
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St. Louis. MO
Landlord to delay its consent to such assignment or sublet until such time as
Landlord receives satisfactory evidence that the proposed assignee or sublessee
meet the aforementioned criteria. Notwithstanding the foregoing, Tenant may
assign its interest in the Lease or sublet any part of the Premises to an
Affiliate (hereafter defined) without the prior written consent of Landlord. An
"Affiliate" shall mean any entity wholly owned by Tenant or any entity which
owns a controlling interest in Tenant. In the event of any assignment or
sublease, Tenant shall remain primarily liable under this Lease."
11. As of the effective date of this First Amendment, Landlord represents
and warrants that to the best knowledge of Landlord, any handling,
transportation, storage, treatment or usage of hazardous or toxic substances by
Landlord that has occurred on the Premises has been in compliance in all
material respects with all applicable federal, state and local laws, regulations
and ordinances ("Environmental Laws"). Landlord further represents and warrants
that to the best of its knowledge, no leak, spill, discharge, emission or
disposal of hazardous or toxic substances has occurred due to the activities of
the Landlord on the Premises as of the date of this First Amendment in material
violation of the Environmental Laws. Landlord agrees to indemnify, defend and
hold Tenant and its officers, employees and agents harmless from any claims,
judgments, damages, fines, penalties, costs, liabilities (including sums paid in
settlement of claims) or loss, including attorneys' fees, consultants fees, and
expert fees, which arise during or after the term or any renewal term as a
result of the activities of Landlord during such time period except to the
extent such toxic or hazardous substances are present or exacerbated or
aggravated by acts or omissions of Tenant, its officers, employees or agents.
Without limiting the generality of the foregoing, this indemnification does
specifically cover costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work required by any
federal, state or local governmental agency or political subdivision under
Environmental Laws, except to the extent the toxic or hazardous substances are
present or exacerbated or aggravated by acts or omissions of Tenant, its
officers, agents or employees.
12. Tenant agrees to indemnify, defend and hold Landlord and its officers,
employees and agents harmless from any claims, judgments, damages, fines,
penalties, costs, liabilities (including sums paid in settlement of claims) or
loss, including attorneys' fees, consultants' fees and expert fees, which arise
during or after the term or any renewal thereof as a result of the release or
discharge of hazardous or toxic substances on, about, under or from the
Property. Without limiting the generality of the foregoing, this indemnification
specifically covers costs incurred in connection with any investigation of site
conditions or any clean up, remedial, removal or restoration work required by
any federal, state, or local governmental agency or political subdivision except
to the extent the condition caused the toxic or hazardous substances is
exacerbated or aggravated by acts or omissions of Landlord, its officers, agents
or employees.
13. In the event that either party hereto shall be delayed or hindered in
or prevented from the performance required hereunder (except for the payment of
any sums due hereunder by Tenant) by reason of strikes, lockouts, labor
troubles, failure of power, riots, insurrection, war, acts of God,
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St. Louis. MO
or other reasons beyond the reasonable control of such party (hereinafter,
"Permitted Delay" or "Permitted Delays"), such party shall be excused for the
period of time equivalent to the delay caused by such Permitted Delay.
Notwithstanding the foregoing, any extension of time for a Permitted Delay shall
be conditioned upon the party seeking an extension of time delivering written
notice of such Permitted Delay to the other party within ten (10) days of the
event causing the Permitted Delay, and the maximum period of time which either
party may delay any act or performance of work due to a Permitted Delay shall be
sixty (60) days.
14. Landlord hereby agrees that upon the written request of Tenant's
lender, Landlord will subordinate any contractual, statutory or other Landlord's
lien on Tenant's Property or the Harvestable Property to the lien of such lender
by an instrument reasonably satisfactory to both Tenant's lender and Landlord.
15. Landlord represents and warrants that the Premises can be used by
Tenant for office, agricultural and landscaping purposes; provided, however,
that in the event that the Premises cannot be used for such purposes, Tenant's
sole remedy shall be the termination of this Lease by serving Landlord with
thirty (30) days prior written notice. Landlord agrees to reasonably cooperate
and provide assistance to Tenant in connection with Tenant's obtaining
certificates of occupancy, building permits, sign permits and any variances;
provided, however, that Landlord shall not be required to incur any cost or
expense in connection therewith.
16. All terms defined herein are hereby incorporated into the Lease and
capitalized terms used herein and not otherwise defined shall have the meanings
prescribed to them in the Lease.
17. Except as specifically amended herein, the parties hereby acknowledge
that the terms and conditions of the Lease shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as of the day and year first above written.
"LANDLORD" "TENANT"
XXXXXXXX LEASING, L.L.C. THE XXXXXXXX GROUP LTD.
By: /s/ Xxxxxxxx X. Xxxxxxxx, Xx. By: /s/ Xxxxxxxx X. Xxxxxxxx, Xx.
------------------------------ -------------------------------
MANAGER, its Its: Chairman
------------------------------ ------------------------------
Manager Name: Xxxxxxxx X. Xxxxxxxx, Xx.
-----------------------------
By:
------------------------------
Its:
-----------------------------
Name:
----------------------------
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SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (this "Second Amendment") is made and
entered into this 1st day of August, 2000, by and between Xxxxxxxx Leasing, LLC,
an Illinois limited liability company ("Landlord"), and The Xxxxxxxx Group,
Ltd., a Delaware corporation ("Tenant").
RECITALS:
Landlord and Tenant entered into that certain lease agreement (the
"Original Lease") dated as of January 1, 1997, whereby Landlord leased to Tenant
certain land (the "Land") and improvements (the "Improvements and together with
the Land, the "Premises") situated in St. Louis, Missouri.
Landlord and Tenant amended the Original Lease pursuant to the First Lease
Amendment dated as of January 14, 1998. The Original Lease, as amended by the
First Lease Amendment dated as of January 14, 1998, shall be referred to as the
"Lease".
Whereas, Landlord and Tenant desire to amend the Lease on the terms and
conditions set forth below.
NOW, THEREFORE, for One and No/100 Dollars ($1.00) receipt and sufficiency
of which is hereby acknowledged, Landlord and Tenant agree as follows:
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1. Capitalized terms used herein and not otherwise defined shall have
those meanings given to them in the Lease.
2. The term of the Lease is extended for an additional term of 36 months,
commencing January 1, 2001 ("Renewal Commencement Date") and expiring on
December 31, 2003 (the "Expiration Date") (the "Renewal Term").
3. The Tenant shall pay the Landlord as rent for the Premises during the
first year of the Renewal Term the sum of FORTY TWO THOUSAND SEVEN HUNDRED AND
SEVENTY-FOUR AND NO/100 DOLLARS ($42,774.00) per annum, payable in accordance
with the terms of the Lease, in equal monthly installments of $3,565.00,
commencing on the Renewal Commencement Date.
4. The Tenant shall pay the Landlord as rent for the Premises during the
second year of the Renewal Term the sum of FORTY FOUR THOUSAND AND FIFTY-SEVEN
AND NO/100 DOLLARS ($44,057.00) per annum, payable in accordance with the terms
of the Lease, in equal monthly installments of $3,671.00, commencing on the
second anniversary of the Renewal Commencement Date.
5. The Tenant shall pay the Landlord as rent for the Premises during the
third year of the Renewal Term the sum of FORTY FIVE THOUSAND THREE HUNDRED AND
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SEVENTY-NINE AND NO/100 DOLLARS ($45,379.00) per annum, payable in accordance
with the terms of the Lease, in equal monthly installments of $3,782.00,
commencing on the third anniversary of the Renewal Commencement Date.
6. The provisions of this Second Amendment are hereby incorporated into
the Lease and unless otherwise expressly modified by this Second Amendment, all
other provisions of the Lease shall remain in full force and effect.
7. Upon expiration of the Renewal Term, the Lease shall be automatically
extended for successive terms ("Successive Term") of one (1) year, unless Tenant
or Landlord upon sixty (60) days prior written notice to the other prior to the
end of each Successive Term cancels this Lease. The Successive Term will be on
the same terms and conditions set forth in the Lease, except that the rental
shall be increased by three percent (3%) over the previous year's annual rent.
8. Sections 2.2 and 4.4 of the Lease are hereby deleted in their entirety
and replaced with paragraph 7 of this Second Amendment.
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AGREED AND ACCEPTED: AGREED AND ACCEPTED:
LANDLORD: TENANT:
XXXXXXXX LEASING, LLC THE XXXXXXXX GROUP, LTD.
By: /s/ Xxxxxxxx X. Xxxxxxxx, Xx. By: /s/ Xxxx X. Xxxxxx
----------------------------- ---------------------------
Name: Name:
Title: Member Title: Vice President
Date: 9/21/00 Date: 9/21/00
----------------------------- ---------------------------
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