Exhibit 6.24
LEASE
BROOKE CORPORATION
AND
XXXXXXXXXXXXX PROPERTIES, INC. XXI
24 CORPORATE XXXXX
00000 XXXXXXXXX, XXXXX 000
XXXXXXXX XXXX, XXXXXX 00000
INDEX
SECTION PAGE
1. TERM....................................................................................................1
2. LEASED PREMISES.........................................................................................2
3. SECURITY DEPOSIT........................................................................................2
4. LANDLORD'S LIEN.........................................................................................2
5. RENT....................................................................................................3
6. RENT ADJUSTMENT.........................................................................................4
7. PRORATION OF FIRST AND LAST MONTH'S RENT................................................................5
8. USE.....................................................................................................6
9. SERVICES................................................................................................6
10. REPAIRS, MAINTENANCE AND ALTERATIONS....................................................................8
11. LIENS...................................................................................................9
12. ASSIGNMENT AND SUBLETTING..............................................................................10
13. CONSTRUCTION OF IMPROVEMENTS...........................................................................12
14. ACCEPTANCE OF LEASED PREMISES..........................................................................12
15. COMPLIANCE WITH APPLICABLE LAWS AND INSURANCE REQUIREMENTS.............................................12
16. INDEMNITY..............................................................................................13
17. INSURANCE, LOSS, DAMAGE, REIMBURSEMENT.................................................................13
18. LANDLORD'S USE OF BUILDING.............................................................................15
19. DAMAGE OR DESTRUCTION..................................................................................16
20. CONDEMNATION...........................................................................................17
21. ABANDONMENT............................................................................................18
22. PARKING................................................................................................18
23. DEFAULT................................................................................................18
24. AGENCY: BROKERAGE COMMISSIONS..........................................................................20
25. WAIVER OF BENEFITS.....................................................................................20
26. MISCELLANEOUS TAXES....................................................................................20
27. SPRINKLERS.............................................................................................21
28. RIGHTS AND REMEDIES....................................................................................21
29. ATTORNEYS' FEES AND COSTS..............................................................................22
30. MEMORANDUM OF LEASE....................................................................................22
31. RIGHT TO CHANGE BUILDING NAME..........................................................................22
32. SUBORDINATION..........................................................................................22
33. ESTOPPEL CERTIFICATE...................................................................................22
34. ASSIGNMENT OF LEASE BY LANDLORD........................................................................23
35. LIMITED LIABILITY OF LANDLORD..........................................................................23
36. TRANSFER OF TENANT:....................................................................................24
37. PEACEABLE SURRENDER....................................................................................24
38. HOLDING OVER...........................................................................................25
39. QUIET ENJOYMENT........................................................................................25
40. NOTICE.................................................................................................26
41. TENANT.................................................................................................26
42. RULES AND REGULATIONS..................................................................................27
43. HEIRS, SUCCESSORS AND ASSIGNS..........................................................................27
44. MISCELLANEOUS PROVISIONS...............................................................................27
45. REPRESENTATIONS........................................................................................28
46. ADDENDUM AND EXHIBITS..................................................................................28
47. INTEGRATED AGREEMENT...................................................................................29
ADDENDUM SECTION:
48. TRANSFER OF TENANT.....................................................................................30
ii
LEASE
THIS LEASE ("Lease"), is made as of the 7th day of October 1998,
between XXXXXXXXXXXXX PROPERTIES, INC. XXI, as Landlord" and BROOKE CORPORATION,
a Kansas corporation, as "Tenant."
WITNESSETH:
For and in consideration of the rents, covenants and agreements
hereinafter set forth, Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord, the Leased Premises (hereinafter defined) upon the following
terms and conditions:
1. TERM.
A. The term of this Lease ("Term" or "Lease Term") shall be five
(5) years, zero (0) months, and sixteen (16) days commencing on the fifteenth
(15th) day of December, 1998 ("Commencement Date"), unless adjusted as
hereinafter provided, and ending on the last day of December, 2003, unless
sooner terminated as hereinafter provided.
B. If Landlord shall permit Tenant to enter into possession of
the Leased Premises prior to the Commencement Date, Tenant covenants and agrees
that its occupancy shall be deemed to be under all of the covenants and
agreements of this Lease and that it shall pay Landlord Rent, on a daily basis,
in the amount or amounts herein otherwise provided for, as though the date
Tenant did enter into possession was the designated Commencement Date. In the
event Tenant's entry into possession shall occur on a day other than the first
day of the month in which possession is permitted, all Rent provided for herein
shall be prorated for such month on a daily basis, at the rate payable during
the first month for which Rent is payable hereunder.
C. If Tenant enters into possession of the Leased Premises on a
date other than the Commencement Date, the expiration date of the Lease Term
shall not be adjusted unless otherwise hereafter agreed to in writing by
Landlord.
D. If by the Commencement Date specified in Section 1, paragraph
A hereof, the Leased Premises have not been substantially completed pursuant to
the plans and specifications set forth on Exhibit B, due to omission, delay or
default by Tenant or anyone acting under or for Tenant ("Tenant Delay") or due
to any cause other than Landlord's default, Landlord shall have no liability,
and the obligations of this Lease (including, without limitation, the obligation
to pay Rent) shall nonetheless commence as of the specific date set forth in
Section 1, paragraph A hereof.
E. If however, the Leased Premises are not substantially
completed due to default on the part of Landlord, then as Tenant's sole remedy
for the delay in Tenant's occupancy of the Leased Premises, the Commencement
Date shall be delayed and the Rent herein provided shall not commence until the
earlier of actual occupancy by Tenant or substantial completion of the work
which Landlord has agreed to perform.
2. LEASED PREMISES.
Landlord hereby rents, leases and lets to Tenant, and Tenant hereby rents,
leases and takes from Landlord, the following described premises, consisting of
an area of approximately 6,367 square feet of space ("Leased Premises") together
with the pro rata share of common floor area allocable thereto, which is
approximately 732 square feet, for a total of approximately 7,099 net rentable
square feet, which is designated as Suite 250 located on the second (2nd) floor
in that building designated as 24 Corporate Xxxxx ("Building"), one of the five
(5) buildings totaling approximately 139,215 total net rentable square feet, the
street address of which is 10895 Grandview, and which is located within the
Corporate Xxxxx Subdivision ("Corporate Xxxxx"), in Xxxxxxxx Xxxx, Xxxxxxx
Xxxxxx, Xxxxxx 00000. The location of the Leased Premises within the Building is
further shown on Exhibit A attached hereto and is that area crosshatched.
3. SECURITY DEPOSIT.
Upon execution of this Lease, Tenant shall deposit with Landlord, the sum of
Twenty-Two Thousand Four Hundred Eighty and 16/100 DOLLARS ($22,480.16)
("Security Deposit") as security for its prompt and proper performance of all
the terms, covenants and agreements contained in this Lease. Tenant understands,
acknowledges and agrees (i) that the Security Deposit is not a prepayment of
rent; (ii) that Landlord shall not be obligated to apply the Security Deposit to
any unpaid Rent or portion thereof, although it may do so at its option; (iii)
that the Security Deposit does not constitute a trust fund; (iv) that the
Security Deposit may be deposited in any account including an interest bearing
account maintained by Landlord, in any bank or depository selected by Landlord,
and commingled with Landlord's other funds; and (v) that Landlord shall have no
obligation to pay interest on the Security Deposit and Tenant shall have no
right to recover from Landlord and Landlord shall have no obligation to account
to Tenant for any interest, earnings or other increments which may accrue during
the time the Security Deposit is held by Landlord, except as otherwise
specifically provided in this Lease. The Security Deposit shall be held by
Landlord as security for the performance by Tenant of all the Tenant's covenants
and obligations under this Lease. Landlord may, from time to time, without
prejudice to any other remedy, use the Security Deposit to the extent necessary
to make good any arrearage of Rent or to satisfy any other covenant or
obligation of the Tenant hereunder. Following any such application of the
Security Deposit, Tenant shall pay to Landlord on demand the amount so applied
in order to restore the Security Deposit to its original amount. If Tenant is
not in default at the termination of this Lease and has paid in full all Rent
and prorations and assuming Landlord is not required to make repairs to the
Leased Premises caused by Tenant vacating or by extraordinary wear and tear, or
remove any then existing leasehold improvements, then the balance of the
Security Deposit remaining after any such application shall be returned by
Landlord to Tenant. If Landlord transfers its interest in the Leased Premises
during the term of this Lease, Landlord may assign the Security Deposit to the
transferee and thereafter shall have no further liability for the return of such
Security Deposit.
4. LANDLORD'S LIEN.
As security for the performance of the obligations of Tenant under this Lease,
Tenant hereby grants Landlord a security interest in all equipment, inventory,
fixtures, furniture, and all other property now owned or hereafter acquired by
Tenant which is located in the Leased Premises,
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and all additions thereto, and all proceeds and products thereof. Tenant shall
not remove any of such personal property from the Leased Premises until all of
Tenant's obligations under this Lease have been satisfied in full. Without
excluding any other manner of notice, any requirement of reasonable notice to
Tenant of Landlord's intention to dispose of any property pursuant to the
enforcement of such security interest will be met if such notice is given at
least ten (10) days before the time of such disposition. Any sale made pursuant
to the enforcement of such security interest shall be deemed to have been a
public sale conducted in a commercially reasonable manner if held at the Leased
Premises or at any warehouse in Xxxxxxx County, Kansas to where such property
has been relocated by Landlord after advertisement of the time, place, method of
sale and a general description of the property to be sold, in a daily newspaper
published in Xxxxxxx County, Kansas, or Kansas City, Missouri for five (5)
consecutive business days before the date of sale. The Tenant agrees to execute
upon demand and deliver to the Landlord within ten (10) days after written
request therefor by or on behalf of Landlord, such financing statements,
continuation statements and other instruments which might reasonably be required
to perfect, protect or continue the foregoing security interest.
5. RENT.
Tenant agrees to pay Landlord rent as follows:
A. BASE RENT. The monthly base rent ("Base Rent") shall be: Five
Thousand Six Hundred Twenty AND 04 /100 DOLLARS ($5,620.04), from December 15,
1998 to December 31, 1998; Eleven Thousand Two Hundred Forty AND 08/100 DOLLARS
($11,240.08) from January 1, 1999 to December 31, 2003. All Base Rent shall be
payable in advance. The Base Rent for the first calendar month or partial
calendar month of the Term shall be due upon the Commencement Date subject to
Section 7 hereof, and the remaining payments of Base Rent shall be due on the
first day of each calendar month thereafter during the Term. The Base Rent
includes annual Operating Costs (hereinafter defined) to the extent they do not
exceed $7.65 per net rentable square foot ("Operating Stop").
B. ADDITIONAL RENT. In addition to the Base Rent, Tenant shall pay
during the Lease Term as additional rent ("Additional Rent"), the following:
(i) Tenant's pro rata share of all Operating Costs
(hereinafter defined) reasonably attributable to the Leased Premises
during the Term, to the extent such Operating Costs attributable to the
Leased Premises exceed the Operating Stop included in the Base Rent;
and
(ii) All other sums or amounts herein otherwise provided for,
which are to be paid for by Tenant.
C. All Base Rent and Additional Rent (both Base Rent and Additional
Rent are herein included in the term "Rent") due hereunder shall be due and
payable on the first day of each month in U.S. dollars without notice or demand,
both of which are hereby expressly waived, and without offset or counterclaim,
except as herein specifically provided otherwise. Tenant's pro rata share of any
item under this Lease shall be that percentage which the net rentable square
feet of space in the Leased Premises bears to the total net rentable square feet
of
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space in the Building. All Rent shall be payable to Xxxxxxxxxxxxx Properties,
Inc. XXI, X.X. Xxx 00000 X.X.X., Xxx Xxxx, XX 00000-0000, or at such other
address as Landlord may from time to time direct in the manner required
hereunder for giving notice. If any Rent is not paid within ten (10) days after
the same is due, Tenant shall pay to Landlord a late payment fee to compensate
Landlord for its extra expenses, inclusive of legal fees, involved in handling
such delinquency. The late payment fee shall be the greater of five percent (5%)
of the amount delinquent, or $100.00, plus interest at the rate of eighteen
percent (18%) per annum, or the maximum rate which can be legally charged,
whichever is less, on the entire delinquent sum from its due date until paid,
which amounts shall be payable as Additional Rent.
6. RENT ADJUSTMENT.
A. OPERATING COSTS. Operating Costs ("Operating Costs") for the
Building shall be determined on an accrual basis for each calendar year by
taking into account on a consistent accounting basis all costs of management,
maintenance, and operation of the Building, including, but not limited to, the
costs of cleaning, utilities, water, air conditioning, heating, plumbing,
elevator service, insurance and general maintenance contracts, costs of
maintaining lawns, drives and parking areas, costs amortized over at least a
five-year period for capital improvements designed to conserve energy or
expected to reduce Operating Costs, sales, use and excise taxes on goods or
services acquired by Landlord connection with the maintenance or operation of
the Building, property taxes and special assessments against the Building, plus
this Building's allocate share of all costs of maintaining and insuring common
areas within Corporate Xxxxx, and all taxes and special assessments against such
common areas, plus all other costs which can properly be considered operating
expenses for the Building, but excluding costs of capital improvements (other
than those amortized over at least a five-year period for capital improvements
designed to conserve energy or expected to reduce Operating Costs), alterations
for Tenants, leasing commissions, advertising, depreciation, interest, income
taxes and administrative costs not specifically incurred in the management and
operation of the Building.
B. PROJECTED OPERATING COSTS. Whenever Landlord determines that
projected Operating Costs ("Projected Operating Costs") attributable to the
Leased Premises pursuant to the terms and provisions of this Lease during any
calendar year will exceed the Operating Stop, Tenant shall pay to Landlord as
Additional Rent on the first day of each month that portion of the Projected
Operating Costs for the current calendar year, retroactive to January 1 of such
calendar year, equal to one-twelfth (1/12) of the amount by which the Projected
Operating Costs for the Leased Premises during the current calendar year exceed
the Operating Stop. Any adjustment in Projected Operating Costs shall not cause
an adjustment in the monthly Base Rent or the Operating Stop for the Leased
Premises. Notice of any adjustment in Projected Operating Costs for the Leased
Premises shall be given Tenant on or before April 1st of the year for which such
adjustment is effective, or as soon thereafter as Landlord has determined the
amount of such adjustment, if any, and any increase in the monthly payment
toward the Projected Operating Costs in excess of the Operating Stop for the
Leased Premises prior to the giving of such notice, after deducting all
prepayments thereon made by Tenant, if any, shall be due in a lump sum as
Additional Rent within ten (10) days after receipt of Landlord's statement
therefor.
C. INTERIM ADJUSTMENT. If at any time during the Lease Term, Landlord
determines that the Projected Operating Costs attributable to the Leased
Premises during any calendar year
4
are anticipated to be in excess of the last Projected Operating Costs submitted
to Tenant, Landlord may provide Tenant with a revised summary of Projected
Operating Costs for such calendar year and advise Tenant of the sum by which
Projected Operating Costs exceed the last Projected Operating Costs submitted to
Tenant. In such event, Tenant shall pay to Landlord monthly during such calendar
year as Additional Rent, a sum equal to one-twelfth (1/12) of the sum by which
the Projected Operating Costs, as reflected in the revised summary, exceed the
last Projected Operating Costs submitted to Tenant. Tenant shall also pay to
Landlord as Additional Rent, one-twelfth (1/12) of such sum for each month or
fractional month of the calendar year which has elapsed as of the date of such
notice.
D. YEAR-END ADJUSTMENT. Upon completion of each calendar year, Landlord
shall determine the Operating Costs for such calendar year and shall advise
Tenant of such actual figures by April 1 of the following year, or as soon
thereafter as such figures are available. If the Operating Costs for the Leased
Premises for any calendar year exceed the total of the Operating Stop and all
additional payments of Projected Operating Costs for such calendar year, such
excess shall be due in a lump sum as Additional Rent within ten (10) days after
receipt of Landlord's statement therefor. If the Operating Costs for the Leased
Premises for any calendar year exceed the Operating Stop, but are less than the
total of the Operating Stop and all additional payments of Projected Operating
Costs for such calendar year, Landlord shall credit such excess against any
unpaid Rent then due hereunder, but if none, at Tenant's option, Landlord shall
either refund to Tenant the amount of any excess payment of Rent, or credit such
excess against the next maturing installment of Rent due hereunder. If the Term
of this Lease shall end during any calendar year in which Additional Rent is due
hereunder, Tenant's obligation to pay Additional Rent shall be applicable to
only those calendar months prior to the end of the Lease Term hereunder. The
provisions of this paragraph shall survive termination of the Lease.
7. PRORATION OF FIRST AND LAST MONTH' RENT.
A. Tenant shall not be obligated to pay Rent hereunder until delivery
of possession of the Leased Premises is tendered by Landlord unless otherwise
herein provided. Delivery of possession of the Leased Premises to Tenant shall
be deemed to have been made when the Leased Premises have been substantially
completed in compliance with and subject to the provisions of Section 13 hereof
and the Leased Premises are tendered to or made available to Tenant for the
installation of its fixtures and equipment. In the event delivery of possession
is made on a day other than the first day of a calendar month, all Rent provided
for herein shall be prorated for said month on a daily basis by taking the
annualized Rent, dividing it by 365 to establish the daily Rent, and then
multiplying the daily Rent times the actual days following the delivery of
possession included within such month.
B. If the Lease Term ends on any date other than the last day of a
month, whether by expiration of the stated Lease Term or otherwise, all Rent
provided for herein shall be prorated for such month on a daily basis by taking
the annualized Rent, dividing it by 365 to establish the daily Rent and then
multiplying the daily Rent times the actual days included within such month.
5
8. USE.
Tenant agrees that it shall use the Leased Premises solely for general
administrative office and for no other purpose. Tenant agrees that it will not
do or permit anything to be done in or about the Leased Premises or in the
Building or in Corporate Xxxxx which will in any way obstruct or interfere with
the rights of any other tenant or occupant of the Building or Corporate Xxxxx,
or injure or annoy them or disturb their quiet enjoyment, or interfere with any
services to be provided to any common areas or to any other tenant within the
Building or Corporate Xxxxx, or use or allow the Leased Premises to be used for
any improper, immoral, unlawful or objectionable purpose, or in any manner which
might injure or tend to injure, impair or tend to impair, the character,
reputation or appearance of the Building, Corporate Xxxxx, or any part thereof
or which may invalidate or increase the premium cost of any insurance carried on
the Building. Tenant shall not commit waste in, on or about the Leased Premises,
the Building or Corporate Xxxxx. Tenant shall not use the name "Corporate Xxxxx"
or the Building name in any manner other than as the address of the Leased
Premises.
9. SERVICES.
A. So long as Tenant is not in default under this Lease within the
limitations hereinafter set forth, Landlord shall furnish Tenant during the
Lease Term with the following services:
(i) Normal Business Hours: Landlord shall operate the Building
during normal business hours ("Normal Business Hours") which shall be
Monday through Friday, from 8:00 a.m. to 6:00 p.m., and on Saturday
from 8:00 a.m. to 1:00 p.m., exclusive of holidays.
(ii) Water: Landlord shall supply to the common areas of the
Building warm and cold water as reasonably necessary for normal
drinking, lavatory, toilet and cleaning purposes.
(iii) Elevator: Landlord shall supply appropriate elevator
services for the Building during Normal Business Hours and at all other
times shall provide what Landlord deems to be sufficient elevator
service, subject always to reasonable security requirements, to permit
Tenant reasonable access to the Leased Premises.
(iv) HVAC: Landlord shall supply to the common areas and to
the Leased Premises, on a year-round basis during Normal Business
Hours, heat, ventilation and air conditioning, on a reasonable basis,
through the heating, ventilating and air conditioning systems of the
Building, at such temperatures and in such amounts as are considered by
Landlord to be standard or as required by governmental authority.
Landlord further agrees to provide upon prior written request from
Tenant to Landlord, prior to 3:00 p.m. of the preceding business day,
heating or air conditioning services for the Leased Premises at times
other than as above specified, but Tenant shall pay as Additional Rent,
the entire cost of such additional services, based upon an hourly rate
determined by Landlord.
6
(v) Electricity: Landlord shall supply electrical power to
meet normal electrical power needs for normal office uses during Normal
Business Hours including power for standard lighting or other lighting
approved by Landlord, typewriters, dictating equipment, calculating
machines, personal computers and other machines of similar low
electrical consumption, but not including electricity required for any
item of electrical equipment which singularly consumes more than .25
kilowatts per hour at rated capacity or requires voltage other than 120
volts single phase. Landlord may cause the Leased Premises to be
separately metered or submetered, and from time to time, Landlord may
at its option, cause a qualified electrical engineer or consultant to
make an electrical usage analysis of the Leased Premises, all at
Tenant's cost, which costs shall be due and payable upon demand as
Additional Rent. If Tenant's electrical usage as determined either by
metering, submetering or an electrical usage survey exceeds the normal
electrical usage to be provided by Landlord hereunder, Tenant shall pay
monthly as Additional Rent the entire cost of providing such excess
electricity.
(vi) Maintenance: Landlord shall provide routine maintenance
and electric lighting service (including lamp replacement), for all
common areas and service areas of the Building and Corporate Xxxxx in
the manner and to the extent deemed by Landlord to be standard; and
lamp replacement for all standard fluorescent light fixtures in the
Leased Premises necessary to maintain the lighting provided by Landlord
as a part of the improvements. In addition, solely at Tenant's cost,
Landlord agrees to replace lamps in any nonstandard light fixtures
installed in the Leased Premises with Landlord's consent, using lamps
supplied by and at the cost of Tenant.
(vii) Security: Landlord shall provide security in the form of
limited access to the Building during other than Normal Business Hours,
in such form as Landlord deems appropriate. Landlord shall have no
liability to Tenant, Tenant's agents, servants, employees, customers,
invitees, licensees or any person entering the Leased Premises, the
Building or Corporate Xxxxx under the invitation of Tenant or any
assignee or subtenant of Tenant (all of whom, exclusive of Tenant only,
are hereinafter jointly and severally referred to as "Invitees") for
any losses resulting from theft or burglary, or for damages done by
persons on the Leased Premises and Landlord shall not be required to
insure against any such losses. Tenant shall fully cooperate with
Landlord's efforts to maintain security in the Building and within
Corporate Xxxxx and Tenant shall follow and shall cause its agents and
employees to follow all regulations promulgated from time to time by
Landlord with respect thereto.
(viii) Janitorial: Landlord shall furnish to the common areas
and to the Leased Premises, reasonable janitorial services and normal
trash removal five (5) times weekly, exclusive of Saturdays, Sundays
and holidays, compatible with other office buildings within Corporate
Xxxxx.
B. If at any time or from time to time Tenant requires, requests or
obtains any additional work or services of any type in excess of those required
to be supplied by Landlord, or if Tenant installs or causes Landlord to install
any floor covering, lighting or other improvements which require any special
care or treatment, Landlord may furnish such additional work or service to
Tenant upon reasonable notice, and Tenant shall pay to Landlord all additional
costs
7
associated therewith, including a reasonable administrative or overhead charge
by Landlord, as Additional Rent upon being billed therefore, and the costs of
such additional work or services billed directly to Tenant shall be excluded
from Operating Costs.
C. Landlord does not warrant that any of the services referred to
above, or any other services which Landlord may supply to the Building or the
Leased Premises, will be free from interruption. Landlord shall not be
responsible or liable for any damage, loss or inconvenience resulting from
failure to furnish any of the above services or any other services which
Landlord agrees to provide to the extent such failure is caused by acts of God,
strikes, lockouts, embargoes, material shortages, war, accidents or other
conditions reasonably beyond Landlord's control, or to the extent caused by
maintenance, inspections, repairs, alterations, changes or improvements in any
part of the Building, or in Corporate Xxxxx, or to the extent caused by the
failure of outside agencies to furnish such services. No failure to provide any
such service or services shall constitute an eviction nor entitle Tenant to any
reduction, offset, discontinuance or delay in the payment of any Rent or
Additional Rent.
D. Tenant shall pay for the installation, use and maintenance of all
its telephone and other communication services, subject to Landlord's right to
direct and approve the location and method of installation of all wires and
other equipment which are to be installed in the Building. Tenant shall have no
right to install any portion of any such installation, other than normal wiring,
outside of the Leased Premises.
10. REPAIRS, MAINTENANCE AND ALTERATIONS.
A. Landlord agrees to maintain the structure, roof, exterior walls,
exterior doors, exterior windows, public restrooms, elevators, all plumbing,
heating, air conditioning and similar equipment and the corridors of the
Building of which the Leased Premises is a part, and the grounds and parking
areas serving the Building, and the common areas within Corporate Xxxxx in good
repair, provided, however, that if any repairs to any part of the Building or
any such equipment installed in or used in connection with the Building or any
of the grounds or parking areas serving the Building or any common areas of
Corporate Xxxxx is necessitated by the negligent act or omission of Tenant or
its Invitees, Tenant shall immediately reimburse Landlord for the cost thereof
upon demand, as Additional Rent, and such reimbursed costs shall be excluded
from the Operating Costs.
B. Tenant shall make no alterations, improvements or changes to the
Leased Premises, the Building or Corporate Xxxxx or install any vending machines
on the Leased Premises without Landlord's prior written consent. Unless Landlord
shall otherwise agree in writing, all maintenance, alterations, replacements,
repairs, improvements or changes to which Landlord may consent shall be done
either by or under the direction of Landlord, but at the sole cost of Tenant and
only pursuant to such plans, specifications and agreements as are approved by
Landlord. By consenting to or approving any plans, specifications and agreements
for any alterations, improvements or changes which Tenant desires to make to the
Leased Premises, Landlord does not warrant and shall assume no responsibility or
liability for the completeness, design sufficiency, or compliance of such plans
with all applicable laws, rules and regulations of governmental agencies or
authorities.
8
C. Tenant shall be responsible for the Leased Premises and at Tenant's
cost, shall keep it in a safe, neat and attractive condition. Tenant shall pay
for all redecoration, remodeling, alteration and painting of the Leased Premises
desired by Tenant which are approved by Landlord. Tenant shall also pay for the
repair and maintenance during the Lease Term of all special equipment or
improvements installed in the Leased Premises, including, but not limited to,
supplemental air handling units, dishwashers, icemakers, disposals, showers,
sinks, commodes, parquet floors, glass walls or sidelights and other similar
equipment or improvements.
D. Tenant covenants and agrees to reimburse Landlord for all costs and
expenses incurred by Landlord to repair or replace any damage done to Corporate
Xxxxx, the Building, the Leased Premises, or any part of any of such property,
caused by Tenant or its Invitees, and such repairs shall restore the damaged
property to as good a condition as it was in prior to such damage, and shall be
effected in compliance with all applicable laws, ordinances, rules and
regulations, and Tenant shall pay the cost thereof to Landlord on demand as
Additional Rent. The Tenant shall not contract for any work or service which
might interfere with Landlord's employees, agents or contractors doing work or
performing services for the benefit of the Building or the Leased Premises. Any
and all alterations to the Leased Premises shall become the property of Landlord
upon termination of this Lease (except for movable equipment or furniture owned
by Tenant), provided, however, that Landlord may solely at its option, require
Tenant to remove at the end of the Lease Term, any and all leasehold
improvements designated by Landlord and all fixtures, equipment and other
property installed on or in the Leased Premises by Tenant and to thereafter
restore the Leased Premises to the condition required by Section 37 hereof. In
the event that Landlord so elects, and Tenant fails to remove any such leasehold
improvements, fixtures, equipment or property, Landlord may remove such at
Tenant's cost with no obligation on the part of Landlord to preserve or store
any such removed improvements, fixtures, equipment or property, and Tenant shall
pay Landlord on demand as Additional Rent all costs incurred by Landlord in
removing such and restoring the Leased Premises as hereinabove provided.
11. LIENS.
Tenant shall not under any circumstances permit any mechanics', materialmen's,
laborers' or other liens to be placed upon the Leased Premises, the Building, or
Corporate Xxxxx and nothing in this Lease shall be deemed or construed in any
way as constituting the consent or request of Landlord, express or implied, by
inference or otherwise, to any person for the performance of any labor or the
furnishing of any materials to the Leased Premises, the Building or Corporate
Xxxxx, or any part thereof, nor as giving Tenant any right, power, or authority
to contract for or permit the rendering of any services or the furnishing of any
materials that would give rise to any mechanics', materialmen's, laborers' or
other liens against the Leased Premises, the Building or Corporate Xxxxx. In
addition to any and all other rights or remedies then available to Landlord,
Landlord may, but shall not be obligated to, discharge any such lien, without
obligation to determine the propriety of the lien amount. In the event any such
lien is attached to the Leased Premises, the Building or Corporate Xxxxx, or in
the event anyone attempts to attach any such lien on any part of the Leased
Premises, the Building or Corporate Xxxxx, then forthwith upon notice from
Landlord, Tenant shall cause such lien to be released. Tenant hereby indemnifies
and agrees to hold Landlord harmless from all costs and expenses,
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including payment to Landlord of all costs and expenses, including but not
limited to legal fees incurred by Landlord and all costs incurred by Landlord to
discharge such lien and any amount paid by Landlord for any of the aforesaid
purposes shall be paid by Tenant to Landlord on demand as Additional Rent.
12. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not sell, assign, transfer or encumber this Lease, or
any interest herein, voluntarily or involuntarily, by operation of law or
otherwise, or sublet the Leased Premises or any part thereof, or allow any other
occupant to come in, with or under Tenant, or use or occupy any portion of the
Leased Premises, or permit this Lease or the leasehold estate created hereby to
become vested in or owned by any person, firm or corporation by operation of law
or otherwise, without in every instance, first obtaining the prior written
consent of Landlord. If Tenant is a corporation, the sale or transfer of fifty
percent (50%) or more of the stock of Tenant, (exclusive only of those units of
Tenant which are traded on any regulated securities exchange after such
transfers) shall constitute an assignment of this Lease for the purposes of this
paragraph. If Tenant is a partnership, any change in control of the general
partnership interest of Tenant shall constitute an assignment of this Lease for
the purposes of this paragraph. If Tenant is a limited liability company
("LLC"), any change in control of the LLC or any sale or transfer of fifty
percent (50%) or more of the units in the LLC (exclusive only of those units of
Tenant which are traded on any regulated securities exchange after such
transfers) shall constitute an assignment of this Lease for the purposes of this
paragraph. Any breach of the foregoing provisions shall constitute a breach
hereof, and Landlord may, at its option, at any time thereafter, declare Tenant
to be in Default hereunder.
B. If Tenant shall request Landlord's consent to an assignment of this
Lease or to a subletting of the whole or any part of the Leased Premises, Tenant
shall first pay to Landlord the sum of $250.00 or such larger sum as Landlord
projects will be its costs incurred in considering and evaluating such request,
and shall also submit to Landlord with such request, the name of the proposed
assignee or subtenant, such information concerning its business, financial
responsibility and standing as Landlord may reasonably require, and a complete
disclosure of all consideration to be paid for and the effective date of the
proposed assignment or subletting. Upon receipt of such request and all such
information by Landlord, it shall have the right, exercisable by notice in
writing to Tenant within fourteen (14) days thereafter, (i) if the request is
for an assignment or a subletting of all the Leased Premises, to cancel and
terminate this Lease; or (ii) if such request is to sublet a portion of the
Leased Premises only, to cancel and terminate this Lease with respect to such
portion. If Landlord exercises its rights hereunder, the effective date of such
cancellation shall be set forth in Landlord's notice to Tenant, but such date
shall not be earlier than the effective date of the proposed assignment or
subletting nor later than ninety (90) days thereafter. Further, Tenant shall
continue to pay to Landlord all Rent as herein otherwise provided, until the
effective date of such cancellation, on which date Tenant shall surrender to
Landlord, possession of the Leased Premises or the portion thereof subject to
such cancellation. If this Lease shall be canceled as to a portion of the Leased
Premises only, then Tenant's obligations to pay Rent as herein otherwise
provided, shall be abated proportionately from and after the effective date of
such cancellation, and Tenant shall pay to Landlord all costs incurred to
construct an appropriate demising wall separating the canceled portion of the
Leased Premises from the remainder of the Leased Premises.
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C. If Tenant requests Landlord's consent to an assignment or subletting
of this Lease, and if Landlord elects to consent thereto, an amount equal to the
total of (i) all costs and fees incurred by Landlord in implementing such
assignment or subletting including attorneys' fees, and (ii) any consideration
other than Rent paid Tenant by the assignee or subtenant for or in connection
with such assignment or subletting shall be payable forthwith by Tenant to
Landlord as Additional Rent. If Tenant requests and obtains Landlord's consent
to an assignment or subletting of all of the Leased Premises, the Rent
attributable to the Leased Premises so assigned or sublet during each month of
the term of such assignment or subletting, shall be the greater of the Rent
attributable thereto then payable under this Lease, or the Rent to be paid
Tenant by its subtenant or assignee for the Leased Premises. If Tenant requests
and obtains Landlord's consent to an assignment or subletting of less than all
of the Leased Premises, the Rent attributable to that portion of the Leased
Premises so assigned or sublet during each month of the term of such assignment
or subletting, shall be the greater of the Rent attributable thereto then
payable under this Lease (calculated on a pro rata basis based upon the net
rentable square feet so subleased or assigned as it relates to the total net
rentable square feet in the Leased Premises), or the Rent to be paid Tenant by
its subtenant or assignee for such subleased or assigned portion of the Leased
Premises.
D. If Tenant wishes to assign or sublet all or any portion of the
Leased Premises, and wishes to use a real estate broker to secure such assignee
or subtenant, Tenant agrees to use the real estate broker then representing
Landlord in Corporate Xxxxx as Tenant's exclusive agent for such purposes, and
to continue to use such broker so long as it is diligently seeking an assignee
or subtenant for such space. Tenant shall not directly or indirectly advertise
or permit anyone else to advertise the Leased Premises, or any portion of it, as
being available for sublease or assignment, unless otherwise agreed to in
writing by Landlord.
E. Any permitted assignment or subletting shall be only for the uses
herein permitted and otherwise upon and subject to all the terms, provisions,
covenants and conditions contained in this Lease and, notwithstanding Landlord's
consent thereto, Tenant and all guarantors hereunder, if any, shall continue to
be and remain liable hereunder.
F. Any person, firm or corporation which enters into possession of all
or any portion of the Leased Premises, either with or without Landlord's prior
written consent, by such act, shall be deemed to have assumed as a joint obligor
with Tenant and unconditionally guaranteed the timely performance of all of
Tenant's obligations under this Lease, including but not limited to the payment
of all Rent and other payments which become due and payable to Landlord
hereunder, whether then due or thereafter accruing, and all damages due
hereunder because of any default by Tenant hereunder or breach of this Lease.
Acceptance of Rent or any other payment by Landlord from anyone other than
Tenant who is in possession of all or any portion of the Leased Premises, or any
notice or demand made by Landlord to anyone other than Tenant who has entered
into possession of all or any portion of the Leased Premises in violation of the
terms of this Lease shall not be deemed to be a waiver, consent or approval by
Landlord of such breach or a consent to or approval of such person, firm or
entity entering into such possession.
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13. CONSTRUCTION OF IMPROVEMENTS.
Prior to the commencement of the Lease Term, Landlord agrees to cause the Leased
Premises to be improved in accordance with the plans, specifications, and
agreements approved by Landlord and Tenant and which are attached hereto as
"Exhibit B" and made a part of this Lease. Landlord shall not be obligated to
construct or install any improvements or facilities of any kind other than those
called for by Exhibit B. The total cost of constructing the improvements as
outlined in Exhibit B hereof shall be borne by Landlord. If Tenant requests any
changes to Exhibit B, Tenant shall be advised of projected costs of such change
and Tenant agrees to pay Landlord at least fifty percent (50%) of any projected
costs exceeding such amount prior to commencement of the construction of
improvements and within ten (10) business days after Tenant is advised in
writing of such sum, unless otherwise agreed to in writing by Landlord. The
balance of any costs shall be paid to Landlord as Additional Rent upon
substantial completion of the Leased Premises within ten (10) business days
after Tenant is advised in writing of the balance due. Landlord agrees to
commence and complete the construction of the improvements called for by Exhibit
B in a timely manner.
14. ACCEPTANCE OF LEASED PREMISES.
Tenant's taking possession of the Leased Premises shall be evidence that the
Leased Premises were in good order and satisfactory condition when the Tenant
took possession, provided however that within thirty (30) days after delivery of
possession, Tenant may prepare a punchlist which sets forth any incomplete item
required by Exhibit B, and Landlord agrees to thereafter in a timely manner
commence to complete all such items set forth on the punchlist as soon as
reasonably possible. Tenant has agreed to accept the Leased Premises in an "as
is" condition except as herein otherwise provided, and Landlord shall have no
obligation to alter, remodel, repair or improve the Leased Premises or the
Building and no representations respecting the condition of the Leased Premises
or the Building have been made by Landlord to Tenant, other than as may be
contained herein.
15. COMPLIANCE WITH APPLICABLE LAWS AND INSURANCE REQUIREMENTS.
A. During the Lease Term, Tenant shall not use or occupy, or permit any
portion of the Leased Premises, the Building or Corporate Xxxxx to be used or
occupied, (a) in violation of any law, ordinance, order, rule, regulation,
certificate of occupancy, or other governmental requirement, or (b) for any
disreputable business or purpose, or (c) in any manner or for any business or
purpose which creates risks of fire or other hazards, or which in any way
violates, suspends, voids, or increases the cost of any fire or liability or any
other insurance coverage of any kind carried by Landlord upon all or any part of
the Building, its contents or Corporate Xxxxx. Tenant, at Tenant's expense,
shall comply with all present and future laws, ordinances, orders, rules,
regulations, and other governmental requirements of all federal, state, county
and municipal authorities relating to the use, condition or occupancy of the
Leased Premises, including, but not limited to the Americans with Disabilities
Act and the Clean Air Act, and all rules, orders, regulations and requirements
of any board of fire underwriters or insurance service office or any other
similar body, having jurisdiction over the Building.
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B. Tenant shall not do or commit or permit to be done or committed, any
act or thing which might cause any policy or policies of insurance written in
connection with the Building or the property therein, or Corporate Xxxxx, to
become void or suspended or which might cause the insurance risk on the
Building, or the property therein, or Corporate Xxxxx, to be rendered more
hazardous or otherwise increase the rate of premium for any such insurance over
the rate in effect on the Commencement Date. Tenant shall pay to Landlord on
demand as Additional Rent the amount of any increase in premiums for the
Building and Corporate Xxxxx caused by any breach of this covenant.
16. INDEMNITY.
Landlord, its agents, servants and employees, shall not be liable to Tenant or
its Invitees, for any injury to person or damage to property caused by any act,
omission, or negligence of Tenant or its Invitees, or arising out of the use of
the Leased Premises, the Building or Corporate Xxxxx by Tenant or its Invitees
or arising out of the conduct of Tenant's business or out of a default by Tenant
in the performance of any of its obligations hereunder. Tenant hereby
indemnifies and agrees to save Landlord, its agents, servants and employees,
harmless from and against any and all claims, liabilities and expenses,
including reasonable attorneys' fees, arising from the conduct or operation of
Tenant's business or from the use or occupation of the Leased Premises by Tenant
or its Invitees or anyone on the Leased Premises with Tenant's permission, or
from any breach of this Lease.
17. INSURANCE, LOSS, DAMAGE, REIMBURSEMENT.
A. TENANT'S INSURANCE REQUIREMENTS. Tenant shall maintain at its own
cost and expense:
(i) Commercial general liability insurance on an occurrence
basis naming Tenant as insured and Landlord, Landlord's asset manager
and Landlord's property manager and mortgagees as additional insureds,
as their interests may appear, covering claims and liabilities for
injury or damage to persons or property or for the loss of life or
property occurring upon, in or about the Leased Premises or the
contiguous sidewalks, parking lots, driveways and private streets,
caused by or resulting from any act or omission of Tenant or its
Invitees, such insurance to afford minimum protection during the Lease
Term in such amounts as Landlord shall from time to time designate by
written notice to Tenant, but in no event less than $5,000,000 combined
single limit coverage per location for bodily injury, death, property
damages or a combination thereof;
(ii) Workmen's Compensation and Employer's Liability Insurance
in accordance with the laws of the State of Kansas;
(iii) Fire insurance in an amount adequate to cover the cost
of replacement of all equipment, installations, fixtures and contents
in the Leased Premises, including leasehold improvements paid for by
Tenant, in the event of loss or damage by fire and against loss or
damage by other risks now or hereafter embraced by so-called "All-Risk
Coverage", with protection against vandalism, malicious mischief and
sprinkler leakage; and
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(iv) When required by Landlord, such other insurance against
other insurable hazards and in such amounts as may from time to time be
commonly and customarily insured against and are generally available
for tenants in first class office buildings in the City of Overland
Park, Kansas.
All of the above insurance may be affected by one or more policies (which may
cover the Leased Premises and other locations), but shall be issued by insurers
of recognized responsibility reasonably acceptable to Landlord, with a minimum
Best's rating of A-V1, and each such policy shall contain a provision whereby
the insurer agrees not to cancel or terminate such coverage without at least
thirty (30) days prior written notice to Landlord, and that no act or omission
to act of any of the named insureds will invalidate such insurance as to the
other named insureds. All insurance maintained by Tenant shall be primary
coverage to the extent Tenant has agreed to indemnify, save harmless and/or
release Landlord, its agents, servants, employees, customers, invitees,
licensees and mortgagees, or any one or more of them, from liability for such
claim or liability pursuant to any other provision of this Lease, and as to such
claim or liability, any insurance maintained by Landlord shall be excess
coverage and non-contributory.
B. WAIVER OF LIABILITY FOR DAMAGES. Landlord, its agents, servants and
employees shall not be liable for any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity, water,
rain, snow, earthquakes or leaks from any part of the Building, or from the
pipes, appliances or plumbing works or from the roof, street or subsurface or
from any other place or by dampness or by any other cause of whatsoever nature,
unless caused by or due to the gross negligence or willful misconduct of
Landlord, and Tenant does hereby expressly waive any consequential damages,
compensation or claims for inconvenience or loss of business, rents or any
profits as a result of any such injury or damage. Tenant does hereby expressly
waive any claim against Landlord, its agents, servants and employees, which
Tenant may have for damages or loss of any kind or type, because Tenant fails
for any reason to carry any insurance coverage required hereunder, or because
Tenant has elected, with Landlord's prior written consent, to self insure any
such risk or exposure, or because such damage or loss is not fully paid because
of any deductible amount provided for under any insurance policy actually
carried by Tenant in compliance with the terms and provisions of this Lease.
C. WAIVER OF SUBROGATION. Landlord and Tenant each hereby waives on
behalf of itself and its property insurers (none of which shall ever be assigned
any such claim or be entitled thereto due to subrogation or otherwise) any and
all rights of recovery, claim, action, or cause of action, against the other,
and their respective agents, servants, officers, partners, shareholders, or
employees, and against every other tenant in the Building to the extent they
have executed a similar waiver as set forth in this Section, and the agents,
servants, officers, partners, shareholders and employees of each such other
tenant, for any loss or damage that may occur to the Leased Premises, or any
improvements thereto, or the Building or any improvements thereto, or any
personal property of such party therein, by reason of fire, the elements, or any
other cause or origin, which is insured against under any insurance policy
actually being maintained from time to time, even if not required hereunder, or
which would be insured against under the terms of any insurance policy required
to be carried or maintained hereunder, whether or not such insurance coverage is
actually being maintained by Tenant and regardless of the cause or origin,
including in every instance negligence of the other party hereto, its agents,
servants, officers, partners, shareholders or employees, or the negligence of
any other tenant in the Building who
14
shall have executed a similar waiver, or its agents, servants, officers,
partners, shareholders or employees. Landlord and Tenant each agree to cause
appropriate clauses to be included in all of their insurance policies necessary
to implement the foregoing provisions.
D. REIMBURSEMENT OBLIGATION OF TENANT. Tenant shall reimburse Landlord
and its agents, servants, employees, customers, invitees, licensees and
mortgagees, including, but not limited to Landlord's asset manager and
Landlord's property manager, for all expenses, damages and fines incurred or
suffered by each by reason of any breach, violation or nonperformance by Tenant
or its Invitees, of any covenant or provision of this Lease, or by reason of
damage to persons or property caused by moving property of or for Tenant in or
out of the Building, or by the installation or removal of furniture or other
property of or for Tenant, or by reason of or arising out of the carelessness,
negligence or improper conduct of Tenant or its Invitees, in the use or
occupancy of the Leased Premises or the Building or Corporate Xxxxx.
E. TENANT NOTICE OBLIGATIONS. Tenant shall give Landlord immediate
notice in case of fire or accidents in the Leased Premises or in the Building.
Tenant shall give Landlord prompt notice if any of the insurance coverage and
the clauses required to be included in each of Tenant's insurance policies
pursuant to the provisions of this Section cannot be obtained. Tenant shall give
Landlord immediate notice of any cancellation or change of the terms of any such
policy which would affect any such clause or naming.
F. EVIDENCE OF INSURANCE. On or before the Commencement Date, Tenant
shall furnish Landlord with a certificate or certificates evidencing the
aforesaid insurance coverage, or a copy of the actual insurance policy providing
such insurance coverage. Renewal policies or certificates therefor shall be
furnished to Landlord at least thirty (30) days prior to the expiration date of
each policy for which either a certificate or a copy of the policy was
theretofore furnished to Landlord.
18. LANDLORD'S USE OF BUILDING.
Landlord reserves the exclusive right to use the Building of which the Leased
Premises is a part, and every part thereof, except the interior of the Leased
Premises, for promotional purposes. Landlord reserves the right at all
reasonable times to enter and be upon the Leased Premises for the purpose of
examining same, to show the same to prospective purchasers and mortgagees, for
cleaning, and to evaluate the need for repairs, alterations, additions,
installations and removals as Landlord may deem proper or useful for serving the
Leased Premises or the Building, and to enter and be upon the Leased Premises,
through its agents, employees and contractors, at all reasonable times to
repair, maintain, alter, improve and remodel the Leased Premises or the
Building, or carry out any provision of this Lease, but Landlord shall to the
extent reasonably possible, exercise such rights in a manner which will not
unreasonably interrupt or interfere with Tenant's use and occupancy of the
Leased Premises. Tenant shall not be entitled to any compensation, damages,
abatement or reduction in Rent on account of any such repairs, maintenance,
alterations, improvements, remodeling or entry upon the Leased Premises as
herein permitted. For a period of one hundred eighty (180) days prior to the
expiration of this Lease, Landlord shall have the right to enter upon the Leased
Premises at all reasonable times and exhibit the same to prospective tenants.
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19. DAMAGE OR DESTRUCTION.
A. If the Leased Premises or the Building is substantially and
materially damaged by fire or other casualty, so that all or any portion of the
Leased Premises is untenantable, even if the Leased Premises are not actually
damaged, Landlord may, at its option, exercisable within ninety (90) days after
the date of such damage, elect by written notice to Tenant either to repair and
restore the same or to terminate this Lease.
B. If Landlord shall elect under Paragraph A above to repair or restore
the Leased Premises, or the Building, Landlord shall do so as promptly as
reasonably possible, and this Lease shall remain in full force and effect during
the making of such repairs, except that if such loss or damage was not caused in
whole or in part by the negligent act of Tenant or its Invitees, Rent shall
xxxxx as follows:
(i) If as a result of such damage or destruction the Leased
Premises is rendered totally untenantable, Rent shall xxxxx from the
date of such damage or destruction until the Leased Premises, or any
portion thereof accepted by Tenant, is ready for occupancy; or
(ii) If as a result of such damage or destruction the Leased
Premises is rendered partially untenantable, and from and after the
date Landlord restores a portion, but less than all of the Leased
Premises to tenantable condition, and Tenant with Landlord's written
consent elects to reoccupy such portion prior to the entire Leased
Premises being restored to tenantable condition, Rent shall be reduced
in the proportion that the untenantable square foot area of the Leased
Premises bears to the total square foot area of the Leased Premises,
and such reduction shall continue until the damaged or destroyed
portion of the Leased Premises is ready for occupancy.
The foregoing provisions to the contrary notwithstanding, Landlord's obligation
to repair, replace and restore the Leased Premises shall never exceed the scope
of the work required to be done by Landlord at its cost in originally
constructing the Leased Premises pursuant to Exhibit B, and Landlord shall not
be obligated or required to repair, replace or restore any damage or injury, or
make any repairs to or replacement or restoration of any tenant finish items or
additions or improvements made in or to the Leased Premises by Tenant, or by
Landlord for or on behalf of Tenant (hereinafter "Tenant Paid Improvements"),
which are in excess of the original tenant finish which Landlord was obligated
to provide at its cost pursuant to Section 13 hereof, except to the extent that
the loss or damage of such Tenant Paid Improvements is insured under one or more
insurance policies maintained or paid for by Tenant, and which are payable to
Landlord, but then only to the extent that Landlord does in fact receive such
insurance proceeds and can use such proceeds to repair or replace such damaged
or destroyed Tenant Paid Improvements.
C. If Landlord shall elect under Paragraph A above to terminate this
Lease, this Lease shall terminate as of the date of such damage or destruction.
D. Anything contained in this Section 19 to the contrary
notwithstanding, if the Building of which the Leased Premises is a part, is
substantially damaged or destroyed by fire or other casualty and Landlord elects
not to repair or rebuild the same, Landlord may, at its option,
16
elect to terminate this Lease, even though the Leased Premises may not be
damaged or destroyed by such fire or other casualty; and provided further, that
if the Leased Premises are substantially damaged or destroyed by fire or other
casualty at any time when the then remaining Lease Term is less than twelve (12)
months (exclusive of any unexercised renewal options), Landlord may, at its
option, exercised within thirty (30) days after the date of such damage or
destruction, elect to cancel this Lease rather than restore the Leased Premises
as herein provided, in which event Landlord may retain all insurance proceeds
payable to Landlord because of such loss or damage.
E. Any notice given hereunder shall be given in the manner provided by
Section 40 hereof.
20. CONDEMNATION.
A. If the whole of the Leased Premises shall be taken for any public or
quasi public use under any statute or by right of eminent domain, or by private
purchase in lieu thereof, this Lease shall automatically terminate as of the
date that possession shall be taken by or given to the condemning authority.
B. If only a portion of the Leased Premises or the Building of which it
is a part or the site upon which it is located shall be so taken, or if any or
all of the common areas comprising Corporate Xxxxx which directly, materially
and adversely affect the Building are so taken, Landlord, at its option, may
terminate this Lease as of the date that possession shall be taken by or given
to the condemning or acquiring authority, upon giving written notice of
termination to Tenant. If Landlord elects not to terminate this Lease, it shall
restore the Leased Premises to an architectural unit as nearly like its
condition prior to such taking as shall be practicable; but such work shall not
exceed the scope of the work required to be done by Landlord in originally
constructing the Leased Premises. Landlord shall notify Tenant of its election
either to terminate or to restore not later than ninety (90) days after the
effective date of any such taking. If this Lease is not terminated, in
connection with any condemnation or sale in lieu of condemnation as hereinbefore
provided, all of the terms of this Lease shall continue in effect, provided
however, that if any portion of the Leased Premises has been taken, then the
Rent, or a fair and just proportion thereof, according to the nature and extent
of the taking of the Leased Premises, shall be suspended or abated.
C. All compensation awarded or paid upon a total or partial taking of
the Leased Premises, the Building or any common areas of Corporate Xxxxx shall
belong to and be the property of Landlord without any participation by Tenant;
provided, however, that nothing contained herein shall be construed to preclude
Tenant from prosecuting any claim directly against the condemning authority in
such condemnation proceedings for loss of business, depreciation to, damage to,
cost of removal of, or for the value of, stock and trade fixtures, furniture and
other personal property belonging to Tenant, and for any relocation allowance or
award, so long as such claim, allowance or award shall not diminish or otherwise
adversely affect Landlord's award.
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21. ABANDONMENT.
If Tenant shall vacate or abandon the Leased Premises or if Tenant should refuse
or fail to take possession of the Leased Premises at the Commencement Date,
Tenant shall be deemed to be in Default hereunder, and Landlord shall have the
right to enter upon the Leased Premises and exhibit it to prospective tenants
without notice, and to exercise all of Landlord's rights provided hereunder in
event of a Default hereunder.
22. PARKING.
Tenant shall be entitled to use and to permit its Invitees to use Tenant's pro
rata share of all parking spaces provided by Landlord for the Building, in the
parking lots provided for the Building or as otherwise designated by Landlord,
subject always to all applicable rules and regulations. In order to keep all
required fire lanes open, to protect persons and property from injury or damage
due to fire or other casualty, to avoid unreasonably interfering with the rights
of Landlord and other tenants within Corporate Xxxxx, and such other tenant's
Invitees, to keep all driveways, aisles, entry ramps, roadways, sidewalks and
parking areas available for their intended uses, to provide suitable parking for
visitors and the disabled, and to not unreasonably interfere with anyone's
ingress and egress to any building within Corporate Xxxxx, Tenant agrees to
restrict the parking of its motor vehicles and the motor vehicles of all of its
Invitees to only those striped, designated parking areas provided for the
Building, so that all roadways, driveways, aisles, entry ramps, sidewalks and
pedestrian passageways shall remain open and unobstructed at all times for their
intended use, and that those parking spaces designated as reserved for visitors
and the disabled will be available to and used only by those for whom they are
intended. Tenant shall not park any vehicles in any parking lot overnight,
unless the owner of such car is then within the Building, without Landlord's
prior consent. Should a motor vehicle be parked by Tenant or by any of its
Invitees other than in such designated parking areas, or overnight without
Landlord's consent, or otherwise fail to be in compliance with all applicable
rules and regulations, Landlord may remove or cause the removal of such vehicle
from Corporate Xxxxx or to other locations within Corporate Xxxxx at the cost of
the owner thereof, and Landlord shall not be liable to Tenant or any of its
Invitees or any other person for any loss or damage which may result therefrom.
23. DEFAULT.
Any failure by Tenant to pay any installment of Base Rent within five (5) days
after its due date, or any failure by Tenant to pay any other Rent or any other
sum of money due hereunder within ten (10) days after notice to Tenant of the
sum due, shall constitute a monetary default ("Monetary Default") under this
Lease. If apparent Monetary Default exists at any time and if Tenant has not
previously been in actual Monetary Default under this Lease, Landlord will
attempt to advise Tenant, either by telephone or in writing, that such apparent
Monetary Default exists, before Landlord actually gives Tenant notice of Default
hereunder. However, Landlord's right to give actual notice of Default under this
Lease shall not be conditional in any manner upon Landlord first advising Tenant
of any such apparent Monetary Default. Any failure by Tenant to perform or
comply with any other covenant or agreement herein contained (all of which shall
be deemed to be material hereunder) which failure shall continue for a period of
thirty (30) days after written notice thereof is given Tenant shall constitute a
non-monetary
18
default ("Non-Monetary Default") under this Lease. In the event of any Monetary
Default or Non-Monetary Default hereunder (jointly and severally "Default"),
this Lease shall be in Default. At any time thereafter while such Default
continues to exist Landlord may, at its option:
A. Terminate this Lease; or
B. Effect or pay or perform that obligation as to which the Tenant is
in Default,; and the Tenant shall thereupon be indebted to the Landlord for all
amounts so paid or advanced and all costs and expenses incurred in connection
therewith, such indebtedness to be payable on demand as Additional Rent; or
C. Re-enter, take possession of the Leased Premises and remove all
persons and property therefrom (any property so removed may be stored in a
public warehouse or elsewhere at the cost of, at the sole risk of loss of and
for the account of Tenant), all without notice or legal process and without
being deemed guilty of trespass, or liable for any loss or damage occasioned
thereby. If Tenant shall, either before or after Default, voluntarily give up
possession of the Leased Premises to Landlord, or deliver the keys to said
Leased Premises to Landlord, or both, such actions shall be deemed to be in
compliance with Landlord's rights and the acceptance thereof by Landlord or its
agent shall not be deemed to be a termination of this Lease or constitute a
surrender of the Leased Premises, unless Landlord specifically so elects in
writing at such time. Should Landlord elect to re-enter into possession, or
should it take possession pursuant to legal proceedings or pursuant to any
notice provided by law, it may either terminate this Lease or, without
terminating this Lease, may relet said Leased Premises (or any part thereof)
separately or with any other portion or portions of the Building, for such term
or terms (including a term extending beyond the Term of this Lease), at such
rental or rentals and upon such other terms and conditions as Landlord in its
sole discretion may deem advisable. Upon each such reletting all rentals shall
be applied first to the payment of any costs and expenses of such reletting,
including brokerage fees, attorneys' fees and cost of any alterations and
repairs which Landlord, in its sole judgment, deemed necessary in connection
with such reletting (if leased in whole or in part with other space in the
Building, all such costs and expenses shall be allocated on a square foot
basis); second to the payment of any indebtedness other than Rent due hereunder
from Tenant to Landlord; third to the payment of Rent due and unpaid hereunder,
and; the residue, if any, shall be held by Landlord and applied in payment of
future Rent or damage as the same may become due and payable hereunder. If such
rentals received from such reletting during any month shall be less than the
Rent to be paid during said month by Tenant hereunder, Tenant shall pay any such
deficiency to Landlord monthly. No such re-entry or retaking of possession by
Landlord shall be construed as an election by Landlord to terminate this Lease
unless a written notice of such election is given to Tenant or unless the
termination thereof is decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without terminating this Lease, Landlord may
at any time thereafter elect to terminate this Lease for such previous breach.
Should this Lease be terminated at any time due to Tenant's Default, Tenant
shall forthwith surrender possession of the Leased Premises to Landlord without
further demand, and Landlord, in addition to any other remedies it may have, may
recover from Tenant all damages it may incur by reason of such breach, including
the costs of recovering the Leased Premises, reasonable attorneys' fees, and the
worth at the time of such termination of the amount of Rent and charges
19
equivalent to Rent reserved in this Lease for the remainder of the stated Term,
all of which amounts shall be immediately due and payable from Tenant to
Landlord as Additional Rent. In determining the Rent which would be payable by
Tenant hereunder subsequent to Default, the Rent for each year of the unexpired
Term shall be equal to the Base Rent provided for the balance of the Lease Term,
plus the average of the total annual Additional Rent and other charges due from
Tenant from the Commencement Date of the then current Term hereof to the time of
Default, or for the preceding three (3) full calendar years, whichever is the
shorter period.
After any such Default, Landlord shall not be obligated to notify Tenant of the
due date of Rent nor demand payment thereof on its due date, the same being
expressly waived by Tenant. The acceptance of any sums of money from Tenant
after the expiration of any ten (10) day or thirty (30) day notice as above
provided shall be taken to be a payment on account by Tenant and shall not
constitute a waiver by Landlord of any of its rights hereunder or at law, nor
shall it reinstate this Lease or cure a Default on the part of Tenant, unless
Landlord then so agrees in writing.
24. AGENCY; BROKERAGE COMMISSIONS.
Tenant represents and warrants that it has dealt with no broker, agent or other
person in connection with this transaction other than City Properties, Inc.
("Tenant's Broker"), which is acting in this transaction solely as agent for the
Tenant, and MC Real Estate Services, Inc. ("Listing Broker"), which is acting in
this transaction solely as agent for Landlord (even if there is no Tenant's
Broker involved in this transaction) and that no broker, agent or other person
brought about this transaction, other than the identified Tenant's Broker and
Listing Broker. Tenant hereby indemnifies and does hereby agree to hold Landlord
harmless from and against any claims by any other broker, agent or other person
claiming a commission or other form of compensation by virtue of having dealt
with Tenant with regard to this leasing transaction. The provisions of this
paragraph shall survive the termination of this Lease.
25. WAIVER OF BENEFITS.
A. Tenant waives the benefits of all existing and future rent control
legislation and statutes and any similar governmental rules and regulations,
whether in time of war or not, to the extent permitted by law.
B. Tenant agrees to waive any right to trial by jury in any legal
action, proceedings or counterclaim brought by Tenant against Landlord, or
Landlord against Tenant (except for personal injury or property damage), on any
matter whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant or Tenant's use of or occupancy of the
Leased Premises, or any statutory remedy. It is further agreed that Tenant will
riot interpose any counterclaim of whatsoever nature or description in any such
proceeding.
26. MISCELLANEOUS TAXES.
Tenant shall pay prior to delinquency all taxes assessed against or levied upon
its occupancy of the Leased Premises, or upon the fixtures, furnishings,
equipment and all other personal property of Tenant located in the Leased
Premises, if nonpayment thereof shall give rise to a lien on any part of the
Building, and when possible Tenant shall cause said fixtures, furnishings,
equipment and other personal property to be assessed and billed separately from
the property of Landlord.
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In the event any or all of Tenant's occupancy of the Leased Premises, shall be
assessed and taxed with the property of Landlord, Tenant shall pay to Landlord
as Additional Rent, Tenant's share of such taxes, as determined by Landlord,
within ten (10) days after delivery to Tenant by Landlord of a statement in
writing setting forth the amount of such taxes applicable to Tenant's fixtures,
furnishings, equipment or personal property.
27. SPRINKLERS.
If there now is or shall be installed in the Building a "sprinkler system," and
such a system or any of its appliances shall be damaged or injured or not in
proper working order by reason of any act or omission of the Tenant or its
Invitees, the Tenant shall immediately notify Landlord in writing, and, within a
reasonable period after Landlord's receipt of such notice, Landlord shall have
the sprinkler system restored at Tenant's expense, which costs Tenant shall
forthwith pay as Additional Rent upon receipt of a billing therefor; and if any
bureau, department or official of the state or city government, requires or
recommends that any changes, modifications, alterations, or additional sprinkler
heads or other equipment be made or supplied by reason of the Tenant's business,
or the location of partitions, trade fixtures, or other contents of the Leased
Premises, or for any other reason, or if any such changes, modifications,
alterations, additional sprinkler heads or other equipment, become necessary to
prevent the imposition of a penalty or charge against the full allowance in the
fire insurance rate for a sprinkler system, Landlord shall at the Tenant's
expense, promptly make and supply such changes, modifications, alterations,
additional sprinkler heads or other equipment, all of which Tenant shall
forthwith pay as Additional Rent upon receipt of a billing therefor.
28. RIGHTS AND REMEDIES.
The rights and remedies of Landlord hereunder and any others provided by law
shall be construed as cumulative and no one of them is exclusive of any other
right or remedy. Such rights and remedies shall further be continuing rights and
remedies, none of which shall be exhausted by being exercised on one or more
occasions. Landlord shall be entitled to an injunction in proper cases, from
time to time, if sought by Landlord to enforce any part or parts of this Lease
or to prevent or stop any violation or Default hereunder on the part of Tenant,
its agents, servants or employees. A waiver by Landlord of any Default, breach
or failure of Tenant to comply with this Lease shall not be construed as a
continuing waiver thereof or as a waiver by Landlord of its right to enforce the
terms of this Lease in the event of any subsequent default, breach or failure of
Tenant to comply with this Lease. Any failure or waiver of Landlord to terminate
this Lease upon the happening of any event giving Landlord the right or option
to terminate this Lease, shall not be construed as a waiver of the right of
Landlord to terminate this Lease thereafter, upon the happening of any event
giving Landlord the right or option to terminate this Lease. Whenever in this
Lease Landlord reserves or is given the right and power to give or withhold its
consent to any action on the part of Tenant, such right and power shall not be
exhausted by its exercise on one or more occasions, but shall be a continuing
right and power for the full Term of this Lease.
21
29. ATTORNEYS' FEES AND COSTS.
In case suit shall be brought for recovery of possession of the Leased Premises,
or because of the breach of any other covenant or agreement herein contained or
for an interpretation of any provision of this Lease, or for any other reason
involving this Lease, all expenses incurred therefor by the prevailing party,
including a reasonable attorney's fee, shall be paid by the other party.
30. MEMORANDUM OF LEASE.
Landlord may record this Lease, or a memorandum hereof, at any time, at
Landlord's option. Tenant shall execute and record a memorandum of this Lease at
any time Landlord so requests. Tenant shall not record a memorandum of this
Lease at any time, without Landlord's prior written request or consent to do so,
which request or consent can be withheld or granted at Landlord's absolute
discretion.
31. RIGHT TO CHANGE BUILDING NAME.
Landlord reserves the right to change the name of the Building of which the
Leased Premises is a part, upon not less than thirty (30) days notice to Tenant,
and Landlord shall not be liable to Tenant for any loss, cost or expense because
of such name change.
32. SUBORDINATION.
This Lease shall be subject and subordinate to all existing or future mortgages
or deeds of trust placed by Landlord on the Building of which the Leased
Premises is a part, or on Corporate Xxxxx; provided, however, that Landlord may,
at its option at any time, by written document duly recorded in the Office of
the Register of Deeds in and for Xxxxxxx County, Kansas, cause this Lease to
become superior to any mortgage or deed of trust on the Building, or Corporate
Xxxxx, or any portion thereof. Further, at Landlord's option, this Lease may be
assigned by Landlord to any mortgagee or cestui que trust as additional security
for any loan to Landlord, and Tenant shall acknowledge within ten (10) days
after written request, receipt of notice of each such assignment. Any such
assignment may be recorded. Tenant shall, upon notice of any such assignment,
comply with the terms thereof.
33. ESTOPPEL CERTIFICATE.
Within ten (10) days after Landlord's written request therefor, Tenant shall
without charge, execute a written instrument addressed to Landlord or to any
other person, firm or corporation specified by Landlord, certifying:
A. That Tenant has accepted the Leased Premises, is in occupancy, and
is paying Rent on a current basis with no offsets or claims, or if it is not
paying Rent on a current basis or does have offsets or claims, Tenant shall
specify the status of its Rent payments and the basis and amount claimed due as
offsets or claims;
22
B. That this Lease is unmodified and in full force and effect, or if
there has been any modification, that the same is in full force and effect as so
modified, and identifying any such modification;
C. Whether or not there are any offsets or defenses then existing in
favor of Tenant against the enforcement of any of the terms, covenants and
conditions of this Lease, and if so, specifying the same, and also stating that
Landlord has observed and performed all of the terms, covenants and conditions
to be observed and performed by Landlord hereunder, and if not, specifying to
what extent Landlord has not observed or performed all of the terms, covenants
and conditions to be observed and performed by Landlord hereunder;
D. The dates to which monthly Base Rent, Additional Rent and all other
charges equivalent to Rent hereunder have been paid; and
E. Any other items reasonably requested by Landlord.
Such request may be made by Landlord at any time and from time to time during
the Lease Term.
34. ASSIGNMENT OF LEASE BY LANDLORD.
Landlord and each party succeeding to Landlord's interest in the Building may
transfer, assign, convey or otherwise dispose of this Lease and in each such
event from and after the date of such transfer, assignment, conveyance or other
disposition of this Lease, Landlord and each successor shall be free from and
relieved of all covenants and obligations of the Landlord herein and from any
and all liability resulting from any act or omission or event occurring
thereafter. Each party succeeding to Landlord's interest in the Building shall
be deemed to have agreed to assume and carry out any and all of the covenants of
Landlord under this Lease accruing from and after the date such successor
acquires its interest herein, and continuing only for so long thereafter as it
shall hold such interest, all without further agreement between the parties
hereto or their successors in interest. Tenant shall acknowledge within ten (10)
days after written request, receipt of notice of any such transfer, assignment,
conveyance or other disposition of Landlord's interest herein or in the
Building.
35. LIMITED LIABILITY OF LANDLORD.
The liability of Landlord and each of its successors for any default by Landlord
(or its successors) under the terms of this Lease shall be limited to such
claims and causes of action which accrue during Landlord's and each of its
successor's respective ownership of the Building, and then shall be limited only
to the interest of Landlord from time to time in the Building, or if the Budding
has been sold after such liability accrued but before it is fully satisfied,
then the sale proceeds from the Building, and Tenant agrees to look solely to
Landlord's interest in the Building or the sale proceeds therefrom for recovery
of any judgment against the Landlord, it being intended that neither Landlord
nor its successors shall have any personal liability for any judgment or
deficiency hereunder.
Any claim which Tenant may have against Landlord hereunder as of the date
Landlord terminates its ownership of the Building, shall be deemed to have been
waived or terminated by
23
Tenant unless Landlord is given notice of such claim within six (6) months after
the date Landlord gives notice to Tenant that Landlord has terminated its
ownership of the Building, provided further however, that Tenant shall be deemed
to have waived or terminated any claim it may have against Landlord unless
Tenant files suit in a court of competent jurisdiction and timely obtains
service of process upon Landlord, all within twelve (12) months after the date
Landlord gives notice to Tenant that Landlord has terminated its ownership of
the Building.
36. TRANSFER OF TENANT: Subject always to provisions of Xxxxxxxx
Xxxxxxx 00,
Xxxxxxxx shall have the right to transfer the Tenant to other premises within
Corporate Xxxxx so long as the premises to which Tenant is transferred shall
contain net rentable square footage not less than the net rentable square
footage in the Leased Premises, and have tenant improvements similar to or
better than the existing tenant improvements in the vacated space, as determined
by Landlord. Tenant's occupancy of any premises to which Tenant may be
transferred shall be under all the covenants and agreements of this Lease and at
the same Rent as herein otherwise provided. Landlord may exercise its rights
hereunder at any time and from time to time during the Term of this Lease by
giving written notice of the exercise thereof to Tenant at least sixty (60) days
prior to that date upon which Tenant is to be transferred. If Landlord exercises
its rights hereunder, Tenant shall be reimbursed for reasonable costs and
expenses incurred by Tenant in connection with such transfer.
37. PEACEABLE SURRENDER.
A. Upon termination of this Lease, whether by expiration of the Lease
Term or otherwise, Tenant shall peaceably quit and surrender to Landlord the
Leased Premises, broom clean, in good condition and repair, ordinary wear and
tear and damage by fire or other insured casualty excepted, together with all
improvements constructed by Tenant thereon; provided, however, Landlord may
require Tenant to remove all such alterations, improvements or changes to the
Leased Premises and restore the Leased Premises to as good of condition as
existed prior to the commencement of the Lease Term, ordinary wear and tear and
loss by fire or other insured casualty excepted, provided however that if
Landlord does not so elect to cause Tenant to remove all or any portion of such
alterations or improvements or changes, all such designated alterations,
improvements and changes shall become the property of Landlord, and shall remain
upon and be surrendered with the Leased Premises. If upon termination of the
Lease Term, the Leased Premises are surrendered to Landlord with damage suffered
by fire or any other insured casualty, if Tenant has not previously assigned to
Landlord all of Tenant's rights in and to any insurance proceeds payable because
of such fire or other insured casualty damage to the Leased Premises, Tenant
shall forthwith assign and set over to Landlord, all of Tenant's right, title
and interest in and to all such insurance proceeds payable because of such fire
or other insured casualty, and Tenant shall cooperate with Landlord as requested
by Landlord, in pursuing any such claim on Landlord's behalf. If Tenant is not
then in Default hereunder, Tenant shall have the right and privilege, and at
Landlord's option, even if Tenant is in Default hereunder, the obligation at the
termination of this Lease to forthwith remove any movable office equipment
installed and maintained by Tenant in the Leased Premises and Tenant shall pay
to Landlord as Additional Rent, all costs which would be incurred by Landlord if
Landlord were to repair all such damage, if any, to the Leased Premises or the
Building resulting from the removal of such
24
property. Tenant's obligation hereunder shall survive the expiration or other
termination of the Lease Term.
B. Upon Tenant surrendering possession of the Leased Premises to
Landlord, if any property remains in or on the Leased Premises, at Landlord's
option, such property shall be deemed to be abandoned by Tenant and shall become
the property of Landlord, as though it had been conveyed by Tenant to Landlord
as of the end of the Lease Term by an appropriate xxxx of sale with full
warranties of title, free and clear of all liens and encumbrances, and Tenant
hereby authorizes Landlord to make such disposition of such property as Landlord
may desire without liability for compensation or damages to Tenant; and in the
event that such property is the property of someone other than Tenant or is
subject to any lien of any kind or type, Tenant hereby agrees to indemnify and
hold Landlord harmless from all suits, actions, liability, loss, damages and
expenses incurred in connection with or incident to any removal, exercise or
dominion over and/or disposition of such property by Landlord, including
reasonable attorney fees. In any such event, Tenant shall reimburse Landlord on
demand for all costs and expenses incurred by Landlord in removing such property
from the Lease Premises, all costs of restoring the Leased Premises to its
required condition and all costs, including reasonable attorney fees, if any,
incurred by Landlord because of any breech of the above warranties of title.
Tenants obligation hereunder shall survive the expiration or other termination
of the Lease Term.
38. HOLDING OVER.
In the event Tenant or any of its successors in interest hold over the Leased
Premises, or any part thereof, upon expiration or other termination of this
Lease or in the event Tenant continues to occupy the Leased Premises after the
termination of Tenant's right of possession pursuant to Section 23 hereof,
unless otherwise agreed in writing by Landlord, such holding over shall
constitute and be construed as a tenancy at will, and in such event Tenant shall
pay double Rent for all the time Tenant retains possession of the Leased
Premises, or any part thereof, after the termination of this Lease, whether by
expiration of the Lease Term or otherwise, and in addition Tenant shall pay all
consequential damages, including legal fees, suffered by Landlord because of
such holding over. Should Tenant hold over in any manner after expiration of
this Lease, such holding over by Tenant shall be subject to all terms, covenants
and conditions of this Lease which are not inconsistent with such holding over,
and no such holding over by Tenant shall ever be construed as an extension of
the Lease Term without Landlord's written consent.
39. QUIET ENJOYMENT.
Upon Tenant paying the Rent and observing and performing all the terms,
covenants and conditions on Tenant's part to be observed and performed
hereunder, Tenant may peaceably and quietly enjoy the Leased Premises without
hindrance or molestation by anyone claiming by, through or under the Landlord,
subject, nevertheless, to the terms and conditions of this Lease, and to any
ground leases, underlying leases, mortgages, laws, regulations, covenants,
restrictions and easements affecting title to the Building, the land upon which
the Building is situated or Corporate Xxxxx.
25
40. NOTICE.
Any notice permitted, provided for or required under this Lease must, unless
otherwise expressly provided in this Lease, be in writing, and shall be given or
served by depositing the same in the United States mail, postage prepaid,
registered or certified and addressed to the party to be notified, with return
receipt requested, or by delivering the same in person to an officer of such
party with written acknowledged receipt, or by overnight delivery, when
appropriate, addressed to the party to be notified at the address set forth
below or such other address, notice of which has been given to the other party.
Any such notice shall be effective as of the date it is so delivered, mailed or
sent by overnight delivery. If directed to Landlord, it shall be addressed to:
Xxxxxxxxxxxxx Properties, Inc. XXI
c/o Clarion Partners
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
with a copy directed to:
MC Real Estate Services, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attention: General Manager
If directed to Tenant, it shall be addressed to Tenant at the Leased Premises,
with a copy directed to:
--------------------
--------------------
Attention:
---------
41. TENANT.
The term "Tenant" as used in this Lease means and applies to whomever executes
this Lease as a Tenant regardless of number, gender or nature of the entity, and
shall also include each person, corporation, partnership or other entity, if
any, which has guaranteed Tenant's performance hereunder, and so far as
affirmative covenants hereunder, shall also include each person, corporation,
partnership or other entity, if any, which goes into possession of any portion
of the Leased Premises at any time during the Lease Term, with or without
Landlord's consent, but no person, corporation, partnership or other entity, if
any, which goes into possession of any part of the Leased Premises without
Landlord's consent and in violation of the provisions of Section 12 hereof shall
acquire any rights, legal or equitable, in the Leased Premises or under this
Lease. If more than one person, corporation, partnership or other entity has
executed this Lease, or any guarantee hereof, all such persons, corporations,
partnerships and other entities shall be jointly and severally liable hereunder.
Notice to Tenant in compliance with Section 40 hereof, shall be deemed to be
notice to each such person, corporation, partnership or other entity.
26
42. RULES AND REGULATIONS.
Tenant agrees to abide by all rules and regulations for tenants in the Building
and occupants of space within Corporate Xxxxx, as the same now exists and as
they are established and modified by Landlord from time to time. The current
rules and regulations are set forth in Exhibit C attached hereto and
incorporated herein by reference. Unless otherwise provided in such rules and
regulations, each term used therein shall have the meaning subscribed to such
term herein. Landlord reserves the right to establish, modify and enforce
additional reasonable and nondiscriminatory rules and regulations for the
Building, the parking areas and common areas serving the Building and Corporate
Xxxxx, and to modify existing rules and regulations from time to time, all for
the safety, maintenance, repair and cleanliness of the Building and the parking
areas and common areas serving the Building and Corporate Xxxxx, and for the
preservation of good order therein, and Tenant agrees to comply with and abide
by all such rules and regulations as they exist from time to time.
43. HEIRS, SUCCESSORS AND ASSIGNS.
Subject to the provisions of Sections 34 and 35 hereof, all covenants,
conditions and agreements herein contained shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns.
44. MISCELLANEOUS PROVISIONS.
A. SEVERABILITY. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and enforced to the fullest
extent permitted by law notwithstanding the invalidity of any other term or
provision hereof.
B. AUTHORITY. Each person executing this Lease for or on behalf of any
party, in so doing, individually represents and warrants to the other party
hereto, that such person has the actual and legal authority to bind such party
for whom such person purports to be executing this Lease.
C. GOVERNING LAW. This Lease and the rights and obligations of the
parties hereto shall be interpreted, construed, and enforced in accordance with
the laws of the State of Kansas.
D. FORCE MAJEURE. Whenever a period of time is herein prescribed for
the taking of any action by Landlord or Tenant, Landlord or Tenant as the case
may be, shall not be liable or responsible for, and there shall be excluded from
the computation of such period of time, any delays due to strikes, riots, acts
of God, shortages of labor or materials, war, governmental laws, regulations or
restrictions, or any other cause whatsoever beyond the control of Landlord or
Tenant, as the case may be. The provisions of this Section shall not operate to
excuse Tenant from the prompt payment of Rent or the prompt payment of any other
sum required by the terms of this Lease.
27
E. TIME OF PERFORMANCE. Except as expressly otherwise herein provided,
with respect to all required acts of Tenant, time is of the essence of this
Lease.
F. LANDLORD'S AGENTS. Each reference herein to "Landlord's agents"
shall always include, but not be limited to Landlord's asset manager and
Landlord's property manager.
G. EFFECT OF DELIVERY OF THIS LEASE. Landlord has delivered a copy of
this Lease to Tenant for Tenant's review only, and the delivery hereof does not
constitute an offer to Tenant or an option. This Lease shall not be binding and
effective until a copy executed by Tenant is delivered to, accepted and executed
by Landlord.
H. INDEX AND HEADING; COPIES. The Index and Section headings of this
Lease are for convenience only and shall not limit or define the meaning or
content of this Lease or any Section hereof. This Lease is being executed in
several copies, each of which shall be deemed an original.
45. REPRESENTATIONS.
The Tenant hereby represents and warrants that (i) Tenant is not a "Plan," as
that term is used to mean either (a) an employee benefit plan as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), which is subject to Title 1 of ERISA or (b) a plan which is subject
to Section 4975 of the Internal Revenue Code of 1986, as amended, and (ii)
Tenant is not an entity whose assets constitute "plan assets" of a Plan or Plans
under Department of Labor Regulation Section 2510-3.101. Any breach by Tenant of
this representation shall constitute a Default by Tenant under the terms of this
Lease and, in addition to all of Landlord's remedies under this Lease upon the
occurrence of a Default, Tenant hereby indemnifies and holds Landlord harmless
from any and all damages, claims and liabilities (including attorneys' fees and
court costs) that Landlord may suffer or incur in connection with Tenants breach
of this representation.
46. ADDENDUM AND EXHIBITS.
A. An addendum ("Addendum") consisting of 1 page, containing Sections
numbered 48 through 48, is attached hereto and made a part hereof as though
fully set forth herein. Should there be any conflict between the foregoing terms
and provisions of this Lease, and the terms and provisions set forth in the
Addendum, the terms and provisions set forth in the Addendum shall control.
B. The following exhibits ("Exhibits') are attached hereto and
incorporated herein by reference and made a part of this Lease for all purposes:
--------------------
--------------------
--------------------
--------------------
--------------------
--------------------
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47. INTEGRATED AGREEMENT.
This Lease, including the Addendum and all attached Exhibits, contains and
constitutes the entire agreement between Landlord and Tenant relating to the
subject matter hereof and supersedes all prior agreements and understandings
between the parties to this Lease relating to the subject matter of this Lease.
There are no agreements, understandings, restrictions, warranties,
representations or inducements between the parties to this Lease relating to the
subject matter hereof, other than those set forth in this Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
LANDLORD: TENANT:
XXXXXXXXXXXXX PROPERTIES, INC. XXI BROOKE CORPORATION, a Kansas corporation
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx Xxxx
-------------------------------- -----------------------------------
Name: Name: Xxxxxxx Xxxx
------------------------------ ---------------------------------
Title: Title: President
------------------------------ --------------------------------
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ADDENDUM
THIS ADDENDUM is made a part of the Lease between XXXXXXXXXXXXX
PROPERTIES, INC. XXI and BROOKE CORPORATION, which Lease is dated 10/7/98.
48. TRANSFER OF TENANT.
Landlord shall have the right to transfer the Tenant pursuant to the provisions
of Section 36 hereof to other premises within Building 24 or any other building
within Corporate Xxxxx which is owned by Landlord, so long as the premises to
which Tenant is transferred shall contain net rentable square footage not less
than the net rentable square footage in the Leased Premises, and have tenant
improvements similar to or better than the existing tenant improvements in the
vacated space, as reasonably determined by Landlord and Tenant. Tenant's
occupancy of any premises to which Tenant may be transferred shall be under all
the covenants and agreements of this Lease and at the same Rent as herein
otherwise provided. Landlord may exercise its rights hereunder by giving written
notice of the exercise thereof to Tenant at least ninety (90) days prior to that
date upon which Tenant is to be transferred. If Landlord exercises its rights
hereunder, and Tenant elects to relocate within Corporate Xxxxx, Tenant shall be
reimbursed for reasonable costs and expenses incurred by Tenant in connection
with such transfer. In lieu of agreeing to such relocation, Tenant shall have
the right to elect by notice to Landlord within thirty (30) days after the date
of Landlord's notice of proposed relocation, to terminate the Lease as of the
last day of the ninety (90) day notice period, or earlier by mutual agreement,
as though such date was originally designated as the last day of the Lease Term.
In such event, Landlord shall have no obligation to reimburse Tenant for any
costs associated with such relocation.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum the
day and year first above written.
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx Xxxx
-------------------------------- -----------------------------------
Name: Name:
------------------------------ ---------------------------------
Title: Vice President Title: President
------------------------------ --------------------------------
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MAP
EXHIBIT C
RULES AND REGULATIONS
CORPORATE XXXXX OFFICE PARK
1. Tenant and its Invitees shall not loiter in the entrance or
corridors, nor in any way obstruct any sidewalks, entry passages, lobbies,
halls, stairways or elevators, and shall use the same only for their intended
purposes as passageways and means of passage to and from their respective
offices.
2. Tenant shall not xxxx, drive nails, screw or drill into, paint or in
any way deface the walls, ceilings, partitions, floors, wood, stone or iron work
in the common area of the Building.
3. All signs (including door lettering), shall be of such color, size
and style, and affixed only in such place or places, as may be designated by
Landlord in its sole discretion, all in accordance with the Corporate Xxxxx
Signage Policy as it may exist from time to time. No posters, decorations, or
notices of any kind or description shall be inscribed, painted, or affixed on or
to any part of the outside of the Leased Premises or inside of the Leased
Premises, if visible from the outside of the Leased Premises, or the Building of
which the Leased Premises is a part, or anywhere in Corporate Xxxxx by Tenant or
its Invitees.
4. Tenant shall not regulate, adjust or interfere with any heating or
air conditioning apparatus. All regulating and adjusting of such apparatus shall
be done by Landlord.
5. The toilets and urinals shall not be used for any purposes other
than those for which they were constructed, and no substance of any kind shall
be thrown therein. Waste and excessive or unusual use of water shall not be
allowed.
6. Tenant shall not use or permit the use of any apparatus, machinery
or device in or about the Leased Premises that will make any objectionable noise
or vibration, and Tenant shall not connect or permit the connection of any
apparatus, machinery or device with electric wires to water pipes or air
conditioning ducts without the prior written consent of Landlord.
7. All wiring of every kind and type shall be introduced and connected
only as directed by Landlord, and no boring or cutting for any wires shall be
allowed except with the prior consent of Landlord. All telephones, telephone
call boxes, telephone cables and other related equipment shall be installed and
located in such manner as is approved by Landlord.
8. Before performance of any contractual service, Tenant shall refer to
Landlord for Landlord's approval and supervision, all contractors, contractor's
representatives and installation technicians rendering any service on or to the
Leased Premises for Tenant. This provision shall apply to all work performed on
or about the Leased Premises or the Building, including, but not limited to
installation of telephones, telephone equipment, fiber optic or other cable,
electrical devices and attachments and installations of any nature affecting
floors, walls, woodwork, trim, windows, ceilings and equipment or any other
physical portion of the Leased Premises.
9. Landlord's approval of the weight, size and location of all safes or
other heavy equipment to be brought into the Building or the Leased Premises
must be obtained prior to the same being brought into the Building. All
furniture, equipment and other property shall be moved into, within and out of
the Building or the Leased Premises only during such time or times, using such
elevators and at such entrances as may be designated by Landlord. Further, all
such moving must be done by professional bonded movers pursuant to guidelines
provided by Landlord, provided however that Landlord shall not be responsible
for any loss or damage to any such property from any cause, but all damage
caused to such Building in the moving or maintaining of any such property shall
be repaired at the expense of Tenant.
10. The maximum weight per square foot in any portion of the Leased
Premises shall not exceed the live load limit for which such portion of the
Leased Premises is designed.
11. No additional lock or locks shall be placed on any door in the
Building of which the Leased Premises is a part without Landlord's prior written
consent. A reasonable number of keys and entry cards shall be furnished by
Landlord to Tenant at the beginning of the Lease Term, but Tenant shall pay to
Landlord as Additional Rent, the costs of all additional keys and entry cards
requested or required by Tenant, all of which must be obtained from Landlord;
provided, however, that all such keys and entry cards shall at all times remain
the property of Landlord and shall be surrendered to Landlord upon termination
of this Lease. Upon Tenant's request, Landlord will change all or any part of
the locks in the Leased Premises and provide Tenant with all requested keys to
such new locks but Tenant shall pay to Landlord as Additional Rent, all costs of
providing and installing such locks and keys.
12. Tenant shall not engage the services of any person or persons other
than employees of Landlord for the purpose of cleaning the Leased Premises
without first obtaining the written consent of Landlord.
13. Neither Tenant nor Tenant's Invitees shall throw substances of any
kind out of windows or doors, or in passageways, elevators or public areas of
the Building or public areas within Corporate Xxxxx.
14. No window covering shall be placed between the glass and the
Building standard window treatment.
15. At any time the Building of which the Leased Premises is a part is
in the charge of a watchman, any person entering or leaving such Building may be
questioned as to his business in the Building, may be required to provide proper
identification to such watchman, and to sign an entry register, and any person
not satisfying the watchman of his right to be in such Building may be removed
therefrom, and Landlord shall have no liability to Tenant or Tenant's Invitees
if such watchman denies such person access to the Leased Premises.
16. Tenant shall not perform nor shall Tenant permit any of its
Invitees to perform any act or carry on any practice which may injure Landlord,
the Leased Premises, the Building, or Corporate Xxxxx, or may adversely affect
the general quality of the Building or Corporate Xxxxx, or cause any offensive
odors or noises, or constitute a menace to any other tenants in the Building or
in any other building within Corporate Xxxxx. Tenant shall not bring or keep any
C-2
flammable, combustible or explosive fluid, chemical or substance in or upon the
Leased Premises or the Building, that will in any way increase the rate of fire
or other insurance on the Building, or Corporate Xxxxx or otherwise increase the
possibility of fire or other casualty. Tenant shall not use or introduce any
unsafe or hazardous materials in or upon the Leased Premises or the Building and
shall not discharge any acids, vapors or other damaging materials into the waste
lines, vents or flues of the Building.
17. Tenant shall at all times maintain that portion of the Leased
Premises which is visible from outside the Leased Premises in a neat and
uncluttered condition and shall not place any items, other than plants and
decorative items on any window sill.
18. All vehicles must be parked within the striped, designated, parking
areas. Parking spaces marked "visitor," or "disabled" parking shall be used only
by persons meeting such designation. Parking is not permitted in driveways,
aisles or entry ramps, all of which must be kept clear at all times as fire
lanes and for access for other persons using the parking areas within Corporate
Xxxxx.
19. No pets shall be permitted inside any building in Corporate Xxxxx,
exclusive of guide dogs accompanying disabled persons.
20. Sidewalks and pedestrian plazas are provided for ingress to and
egress from parking areas and buildings and between buildings and Tenant and
Tenant's Invitees are required to use them at all times for ingress and egress
and shall not damage the grass or any plant or any landscaped areas or beds.
C-3
