EXHIBIT 10.2
NET LEASE
THIS IS A LEGALLY BINDING CONTRACT, IF NOT UNDERSTOOD, CONSULT AN ATTORNEY
THIS LEASE IS MADE AND ENTERED INTO BETWEEN Xxx Xxxxxxxx d/b/a Shady
Properties ("Lessor") and Pharmacy Buying Association, Inc. ("Lessee") on this
day of , which is the Effective Date of this Agreement.
WITNESSETH:
In consideration of the obligation of Lessee to pay rent and in consideration of
the other terms, covenants and conditions hereof, Lessor hereby demises and
leases to Lessee, the Premises to have and to hold for the lease term specified
herein, all upon the terms and conditions set forth in this Lease.
BASIC PROVISION
1. The following basic provisions shall be construed in conjunction with, and
limited by, reference thereto in other provisions of this Lease:
a. "Lessor": Xxx Xxxxxxxx, d/b/a Shady Properties
Address of Lessor: 0000 X.X. Xxxxxx Xxxx, Xxxxxx Xxxx, XX 00000
b. "Lessee": Pharmacy Buying Association, Inc.
c. "Premises": approximately 24,088 rentable square feet known as Suite 1825,
portion of the building located at 0000-0000 X.X. Xxxxxx Xxxx, Xxxxxxxxx,
XX 00000 in Platte County, being more particularly outlined on the plan
attached as Exhibit "A". Ceiling height will be approximately 12' clear to
bottom of ceiling floor joist.
d. "Lessee's Percentage": Total rentable area in the above building is
approximately 48,104 square feet, and Lessee's proportionate share is 50.08
percent (known as Lessee's Percentage).
e. "Lease Term": A period of 3 years commencing on September 1, 2001, (the
"Commencement Date") and ending on August 31, 2004 (the "Expiration Date"),
unless sooner terminated in accordance with the provisions of this
agreement.
f. "Base Rent": $ 578,112.00. This amount is the rent for the space over the
period of the Lease. There is no correlation between the approximate size
of the space and any price per square foot. This amount shall be payable in
monthly installments WITHOUT DEDUCTIONS OR OFFSETS IN ADVANCE, during the
Lease Term according to the following schedule:
Months 1 through 36: $192,704.00 per year $16,058.67 per month
$ per year $ per month
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$ per year $ per month
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Rent shall be paid to Lessor or the Agent of the Lessor at 0000 X.X. Xxxxxx
Xxxx, Xxxxxx Xxxx, Xxxxxxxx, 00000, or such other place as Lessor shall
designate.
g. "Pre-Paid Rental": $16,058.67 representing payment of the first monthly
installment of rent for the month of September, 2001.
h. "Security Deposit": $16,050.00 (due and payable to the Lessor thirty (30)
days prior to Lessee occupying space).
i. "Riders": All riders attached to this Lease as Exhibits "A" to "D" and
initialed by Lessor and Lessee are made a part hereof and are incorporated
herein by reference.
"Additional Utility Charges": The Lessee will be billed for additional
utility charges due to the nature of the business or hours of operation if
different from the building norm.
DELINQUENT RENT
2. Base rent is due on the first day of each and every month during the term
of this Lease. If the rent is not paid within five (5) calendar days of the
due date, the Lessor and Lessee both agree that the Lessor shall incur
additional cost which shall be charged as additional rent. The parties
agree that after the five (5) day grace period has run, the Lessee shall be
obligated to pay the Lessor as additional rent, 5% of the outstanding base
rent currently due. AN ADDITIONAL FIVE PERCENT (5%) OF THE TOTAL AMOUNT DUE
IS DUE AND PAYABLE IF THE FULL AMOUNT DUE HAS NOT BEEN PAID BY THE
FIFTEENTH (15TH) OF THE SAME MONTH. The parties agree that after thirty
(30) days, the Lessee agrees that the default provisions of the agreement
shall be fully enforced due to Lessee's breach of Lease. Failure to pay
this additional rent or late charges shall constitute a default of this
Lease by Lessee.
POSSESSION
3. Lessor shall use due diligence to deliver possession of the Premises to
Lessee as nearly as possible at the beginning of the term of this Lease. In
the event Lessor cannot deliver possession to Lessee at the Commencement
Date, or if Lessor's work is not completed by the Commencement Date, this
Lease shall not be void or voidable, nor shall Lessor be liable to Lessee
for any loss or damage resulting from such failure, but, except as provided
in Section 4, Lessee shall not be liable for any rent except for the
prepaid rental until such time as Lessor can and does deliver possession.
The Expiration Date shall be extended for a period equal to the delay in
delivery of possession, plus the number of days necessary to end the term
on the last day of a month. Lessor and Lessee shall execute an amendment to
this Lease setting forth revised Commencement and Expiration Dates. If
permission is given to Lessee to enter into possession of the Premises
prior to the Commencement Date, Lessee agrees at date of occupancy to be
responsible for payment of Base Rent in advance at the rate of 1/30th of
the Base Monthly Rent for each day of occupancy prior to the Commencement
Date.
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SUBSTANTIAL COMPLETION
4. Lessor shall deliver possession of the Premises when the Premises have been
substantially completed in compliance with the Plans and Specifications
attached as Exhibit(s) "B." This section applies only if Lessor is
performing tenant finish for Lessee as a part of this or a separate
agreement. As part of which, Lessee agrees to pay Lessor for such
improvements.
Substantial completion shall mean completion of the Lessee finish
substantially in accordance with the plans and specifications and with
applicable rules, regulations and requirements of governmental authorities.
Substantial completion shall occur upon the giving of notice by Lessor.
Substantial completion shall have occurred without the completion of minor
"punch list" type items, which are minor items of work or adjustments of
equipment and fixtures that can be completed after occupancy. Prior to
occupancy, Lessee shall give written notice to the Lessor of any items
which, upon visual inspection, are readily apparent or cosmetic and are not
satisfactorily completed (the "punch list" items). Within thirty (30) days
of receipt of the "punch list" items, Lessor shall complete or correct all
"punch list" items, or shall address in writing any "punch list" item which
the Lessor, in Lessor's sole opinion, deems to be inconsistent with the
standard building industry practices. If Lessee does not notify Lessor of
any "punch list" items before the date Lessee takes occupancy, it will be
conclusively presumed the readily apparent or cosmetic items included in
the Lessee finish work have been satisfactorily completed and fully
accepted by Lessee.
In the event Lessee's plans specify any improvements that are not contained
in Exhibit(s) "B" which precludes Lessor from completing the Premises for
Lessee's occupancy by the Commencement Date, or in the event any work to be
performed by Lessee or Lessee's contractors delays Lessee's occupancy by
the Commencement Date hereof, Lessee shall remain liable for the payment of
rent from the Commencement Date. If Lessor fails to achieve substantial
completion by November 1, 2001 either party may cancel this Lease with no
recourse to either party, other than Lessee can continue to occupy 0000
X.X. Xxxxxx Xxxx #C, D and E under current Lease arrangements until new
space is available.
ACCEPTANCE OF PREMISES
5. It is agreed that by occupying said Premises as Lessee, the Lessee formally
accepts the same and acknowledges that the Lessor has complied with all
requirements imposed upon it under the terms of this Lease. It is
understood and agreed by the Lessee that no minor change from the plans
that have been agreed upon between both parties hereto that might be
necessary during the preparation of this space for Lessee or during
construction, will affect or change this Lease or invalidate same.
5.1 Condition On Commencement: By accepting occupancy Lessee shall be deemed to
have agreed that the Premises are in a clean and sanitary condition and
good state of repair, and in a condition suitable for the use authorized
under this Lease.
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QUIET ENJOYMENT
6. Lessor hereby covenants that Lessee, upon paying rent as provided, and
performing all covenants and agreements contained in this Lease to be
performed by Lessee, shall and may peacefully and quietly have, hold and
enjoy the Premises. Nothing in this section shall prevent Lessor from
performing alterations or repairs on other portions of the building, nor
shall performance of such alterations or repairs be construed as a breach
of this covenant by Lessor. Lessor will coordinate with Lessee all work
involving Lessee's space AS NOT TO DISTURB LESSEE'S DAY TO DAY OPERATION.
ASSIGNMENT-SUBLETTING
7. Tenant shall not assign this Lease, or sublet all or any part of the said
Premises, or otherwise part with this Lease on the Premises hereby leased
to any person or persons whomsoever, or use or permit the same to be used
for any purpose other than above mentioned, without the written consent of
Lessor. This prohibition against assignments shall extend to but not be
limited to those by operation of law. Consent by Lessor to one assignment
of this Lease or to one subletting of said Premises or any part thereof
shall not operate to exhaust Lessor's rights under this Section, and the
granting of any consent shall not be taken, considered or construed as a
waiver in such connection. In the event Lessor agrees to any assignment or
subletting of the space, Lessee shall remain primarily liable for the
remaining term of the Lease. If Lessor's consent is requested to any
assignment or subletting, Lessor may require that Lessee pay to it a
reasonable sum for processing such request. Further, Lessor shall be
entitled to, and Lessee shall promptly remit to Lessor, any profit which
may inure to Lessee's benefit as a result of any subletting of the Premises
or any part thereof, or any assignment of this Lease. The acceptance of any
rental payments by Lessor from any alleged assignee shall not constitute
approval of the assignment of this Lease by the Lessor.
Consent Requirements, Assignment and Subletting, Ownership Transfer: Lessee
agrees to reimburse Lessor for attorneys' fees of not less than Five
Hundred Dollars ($500.00) incurred by Lessor in connection with the
processing and documentation of any assignment, subletting, change of
ownership or other transfer under this section for which Lessor's consent
is required or sought; it being agreed that Lessor shall not be required to
take any action thereon until Lessee has paid such amount. Lessor shall not
be required to take any action on a request for sublease or assignment if
Lessee is then in default under the Lease.
Lessor's Right To Collect Rent From Any Occupant: If (a) the Premises are
sublet or occupied by anybody other than Lessee and Lessee is in default
hereunder, or (b) this Lease is assigned by Lessee, then Lessor may collect
rent from the assignee, subtenant or occupant, and apply the net amount
collected to the rent herein reserved; but no such collection shall be
deemed a waiver of the covenant herein against assignment and subletting,
or the acceptance of such assignee, subtenant or occupant as Lessee, or a
release of Lessee from further performance of the covenants herein
contained.
If Lessor agrees to allow Lessee to sublet or assign the Leased Premises,
all options to renew and future rental rates connected to the original
Lease become null and void and are nontransferable at Lessor's sole option.
Lessor also has at its sole option the right to
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change the form of the original Lease by modifying, deleting, adding
sections or by changing to a new Lease. The above changes can be done at
the time of assignment/subletting or at the end of the original Lease term.
HOLDING OVER
8. If Lessee retains possession of the Premises after the expiration or
termination of the Lease Term or any extension thereof by lapse of time or
otherwise, Lessee shall pay Lessor rent at a rate equal to two hundred
percent (200%) of the rate payable for the month immediately preceding the
expiration or termination of the Lease Term, including any Additional Rent,
computed on a per-month basis for each month or part thereof without
reduction for any such partial month that Lessee remains in possession. In
addition thereto, Lessee shall pay Lessor all damages, consequential as
well as direct, and for all attorneys' fees and expenses incurred by Lessor
in enforcing its rights hereunder, sustained by reason of Lessee's
retention of possession. Such retention of possession shall constitute a
month-to-month lease. The provisions of this section shall not exclude
Lessor's right of re-entry or any other right hereunder. If Lessor has not
elected to renew this Lease, nothing herein contained shall preclude Lessor
from terminating such retention of possession by service of thirty (30)
days' notice as provided by law. The acceptance by Lessor of any payment of
rent subsequent to the commencement of such retention of possession by
Lessee shall not be deemed to constitute a waiver by Lessor of any of the
provisions of this section.
USE
9. Lessee shall only use and occupy the Premises for office/warehouse and for
no other purpose without the Lessor's prior written consent. Lessee agrees
to maintain the Premises in a clean, orderly, healthful condition and to
comply with all laws, ordinances, rules and regulations of all governmental
agencies having jurisdiction, at the sole cost and expense of Lessee, and
Lessee shall comply with all requirements of law, by statute, ordinance or
otherwise, affecting the Leased Premises and all appurtenances thereto.
Lessee will not use the Premises for any unlawful, disruptible, or
extra-hazardous purpose; or any public or private nuisance; or disturb the
quiet enjoyment of any other Lessee; or permit any operation which might
emit offensive odors into other portions; or use any apparatus which might
make undue noise or set off vibrations; or permit anything which would
increase the fire insurance rate or other insurance rates on the building
or contents. Lessee will not permit the Premises to be used for any purpose
which, in Lessor's opinion, impairs the reputation or character of the
building. Lessee shall not install nor permit the installation of any signs
in or upon the Premises which are visible from the exterior hereof without
the written consent of Lessor. Lessee shall not obstruct or use the
sidewalks, entries, passage, vestibules or halls of the building for any
purpose other than ingress or egress to and from the Premises, or throw, or
sweep, or put anything out of the windows or doors, or in the passages or
corridors of the building. No freight, furniture or bulky matter of any
description shall be received in the building except during such hours as
the Lessor may prescribe.
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NET LEASE
10. This is a Net Lease, Lessee is totally responsible for the building or his
share if this is a multiple tenant building, of taxes, insurance, CAM
charges, utility charges, contract charges interior maintenance of the
building (exterior maintenance also if Lessee leases entire building),
property management and maintenance charges. Lessee agrees to pay all bills
within thirty (30) days of the date the bills are presented to Lessee by
Lessor for payment. The above charges shall be classified as additional
rent.
UTILITIES
11. LESSEE EXPENSES: Lessee shall pay, prior to delinquency, for all water,
gas, electricity, telephone, sewage and other utilities, materials or
service which may be furnished to or used in or about the Premises during
the term of this Lease by Lessee.
REAL ESTATE TAXES AND ASSESSMENTS AND PERSONAL PROPERTY
12. NET LEASE: Lessor shall pay all real estate taxes and special assessments
levied against the Premises throughout the term of this Lease. Lessee shall
pay Lessor, Lessee's share of all taxes or special assessments within
thirty (30) days of billing by Lessor. If Lessee fails to pay Lessor their
taxes before the deadline set by the governing authority, then Lessee is
also responsible to pay the penalty amount shown on the statement in
addition to other charges stated in the Lease. In the event the Premises
are not separately assessed Lessee's share shall be an equitable proportion
of the real property taxes for all of the land and improvements included
within the tax parcel assessed, such proportion to be determined by Lessor
from the respective valuations assigned in the Assessor's worksheets or
such other information as is reasonably available to lessor. Lessor's
determination, thereof shall be conclusive. Taxes for the last year of the
term hereof shall be pro rated between Lessor and Lessee as of the
expiration of the term. For purposes of this Article, "taxes" shall also
include any tax (other than income tax) assessed upon or measured by rents
received by Lessor under or in connection with this Lease.
13. PERSONAL PROPERTY: Lessee shall pay, prior to delinquency all taxes
assessed against and levied upon any trade fixtures, furnishings, equipment
and all other personal property of Lessee contained in the Premises and
shall pay all taxes attributable to any leasehold improvements which may be
made to the Premises by Lessee. When possible, Lessee shall cause said
trade fixtures, furnishings, equipment, personal property and leasehold
improvements to be separately assessed. If however, any or all of same
shall be assessed and taxed with Lessor's real property, Lessee shall pay
to Lessor such taxes as are attributable to Lessee's trade fixtures,
furnishings, equipment, personal property and leasehold improvements within
thirty (30) days after receipt of an invoice from Lessor advising Lessee of
the amount of taxes applicable to Lessee's property.
INSURANCE
14. General Liability: Lessor shall not be liable to Lessee for any loss or
damage to any person or property, including the person and property of
Lessee, its employees, agents, servants, invitees or guests, occasioned by
theft, the acts of any other Lessee or the acts of any employee or agent of
any other Lessee, leaks, casualty, rain, water, condensation, fire, acts of
God, public enemy, injunction, riot, strike, insurrection, picketing, mob
action,
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bombing, explosion, war, court order, latent defects, requisition or order
of government authority, the construction, repair, maintenance or
alteration of any part, improvement of the building as a whole, or any
other cause not due to Lessor's willful act or gross negligence. Lessee
shall indemnify Lessor and save it harmless from all suits, actions,
damages, liability and expense in connection with loss of life, bodily or
personal injury or property damage arising from, or out of, any occurrence
in, upon, at, or from the Premises or any part thereof, or occasioned
wholly or in part by any action or omission of Lessee, its employees,
agents, servants, invitees or guests. If Lessor shall be made a party to
any action commenced against Lessee, the Lessee shall protect and hold
Lessor harmless and shall pay all costs, expenses and attorneys' fees
incurred by Lessor. Lessor shall, throughout the term of this Lease,
maintain fire and extended coverage insurance on the Premises in an amount
equal to the full insurable value thereof, subject to any allowances for
coinsurance rating provisions utilized by Lessor. Lessor shall also carry
owner's public liability and property damage insurance coverage on the
Premises with limits not less than $1,000,000.00 combined single limits.
Subject to the provisions hereof, all such insurance shall be for the sole
benefit of the Lessor and under its sole control.
Lessee, at Lessee's cost and expense, shall maintain comprehensive general
liability insurance with contractual and cross liability coverage
protecting and indemnifying Lessor and Lessee against any and all claims of
liability for injury or damage to person or property or for the loss of
life or of property occurring upon, in, or about the Premises, and the
public portions of the building caused by, or resulting from, any act or
omission (in whole or in part) of Lessee, its employees, agents, servants,
invitees or guests; such insurance to afford minimum protection during the
term of this Lease, of not less than one million dollars for personal
injury to any one person, including death, and one million dollars with
respect to property damage. All such insurance shall be effected under
valid and enforceable policies; shall be issued by insurers of recognized
responsibility and authorized to do business in the state; shall name the
Lessor as an additional insured and shall contain a provision whereby the
insurer agrees not to cancel without thirty (30) days prior to the
expiration date of each policy for which a certificate was therefore
furnished. All merchandise and property in or about the Premises shall be
at Lessee's risk, and Lessee does hereby now and forever release Lessor
from any claims for damages thereto or any of same however caused. Lessee's
coverage shall include glass replacement.
Notwithstanding the fact that any liability of Lessee to Lessor may be
covered by Lessee's insurance, Lessee's liability shall in no way be
limited by the amount of its insurance recovery.
PLATE GLASS INSURANCE
14.1 Lessee shall keep and maintain in force during the term hereof, plate glass
insurance upon windows and doors in the demised Premises, delivering
certificates of such insurance to Lessor.
DRAM SHOP INSURANCE
14.2 In the event that at any time during the term of this Lease or any
extension or renewal thereof, beer, wines or other alcoholic liquors or
beverages are sold or given away upon
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or from the Leased Premises (it being understood and agreed, however, that
the foregoing provision shall not authorize the use of the Premises for
such purposes without the express consent of the Lessor being set forth
otherwise in this Lease). Lessee shall, at its sole expense, obtain,
maintain and keep in force adequate Dram Shop insurance protecting both
Lessee and Lessor in connection therewith with policy limits covering the
full amount of potential liability provided for from time to time under the
laws of this State. Said policies shall be in such companies as are
authorized to write such coverage in this state, shall be acceptable to
Lessor and/or its lender (which shall be named as an additional insured if
requested in writing) and copies shall be maintained on file with Lessor,
and shall contain non-cancelable clauses unless Lessor is given at least
thirty (30) days' notice of such proposed cancellation. In the event Lessee
shall fail to procure such insurance where applicable, Lessor may procure
the same and in the event Lessor shall be unable to procure the same (all
at Lessee's expense) then sales of the foregoing products shall be
suspended until such coverage is again in force.
15. FIRE & CASUALTY INSURANCE: Lessor shall maintain in effect throughout the
term of this Lease, a policy or policies of insurance providing protection
against any peril included within fire and extended coverage insurance,
together with insurance against vandalism and malicious mischief, such
insurance to be to an extent of at least ninety (90) percent of the full
insurable replacement value of the improvements on the Premises. Lessee is
additionally responsible to carry insurance to cover glass breakage, trade
fixtures and Lessee's equipment.
16. INSURANCE COSTS: Lessee shall pay as additional rent Lessee's proportionate
share of insurance cost based on a ratio which the total gross leaseable
area in the Leased Premises bears to the total gross leaseable area leased
to all tenants in the building, unless the increase in the fire insurance
premiums is the result of a violation of Section 17 entitled, "Increase in
Fire Insurance Premium" by Lessee, in which case, the provisions of Section
17 shall also apply.
17. INCREASE IN FIRE INSURANCE PREMIUMS: Lessee agrees not to keep, use, sell
or offer for sale in or upon the Leased Premises any article or good which
may be prohibited by the standard form of fire insurance policy. Lessee
agrees to pay upon demand any increase in premium for fire and extended
coverage insurance that may be charged during the term of this Lease on the
amount of such insurance which may be carried by Lessor on said Premises or
the building of which the same are a part, resulting from the use of said
Premises by Lessee, whether or not Lessor has consented to such use.
18. POTENTIAL CLAIMS: Lessee needs to notify Lessor of any damages to property,
accidents, fires or potential law suits, so Lessor can notify his
appropriate insurance carriers.
BUILDING ADDITIONS, REMODELING AND REPAIRS
19. The Lessor hereby reserves the right at any time to build additional
stories on this building or to build adjoining the building, and reserves
the right to close any skylights, windows, or doors and may run necessary
pipes, conduits and ducts through the herein
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leased premises and to carry on any work, repairs, alterations or
improvements in, on or about the building or in the vicinity hereof and
Lessee hereby waived any claim for damage or inconvenience caused by any of
the above. If the Lessee shall vacate said Premises and surrender his key
to same to Lessor during the last month of the term, the Lessor shall have
the right to enter into said Premises for the purpose of decorating the
same or making alterations or changes therein. Such action shall in no way
relieve the Lessee of its obligation to pay said last month's rental.
Lessor shall not be responsible for any property remaining on the Premises.
If, during the last month of the term the Lessee shall vacate these
Premises and surrender his key thereto to the Lessor, Lessor shall
thereafter have the right to use said Premises as it sees fit and such use
shall not change the Lessee's obligation to pay the rent for the last
month. Lessor will coordinate these activities when possible with Lessee
with Lessee so as not to interrupt Lessee's DAY TO DAY operation.
ALTERATIONS
20. Lessee shall not alter or change the Premises without prior written consent
of Lessor, and, unless otherwise provided in writing, all work shall be
done by or under the direction of Lessor at Lessee's sole expense by a
contractor employed by Lessee and approved by Lessor. Any alteration shall
be of a quality equal to or exceeding the building standard. Lessor
reserves the right to require any contractor to provide lien waivers or
payment or performance bonds and liability insurance and such other
instruments as may be necessary to protect Lessor against any loss, as
shall be determined by Lessor in its sole discretion. Any alteration,
physical additions or improvements, except movable furniture and trade
fixtures, shall at once become property of Lessor and shall be surrendered
to Lessor upon termination of this Lease. Lessor, at Lessor's option, may
require Lessee to restore the Premises to its original condition at the
termination of this Lease. Any damage caused to the Premises by such
removal to be repaired by and at the expense of Lessee, normal wear and
tear excluded. Notwithstanding anything herein to the contrary, any
increase in ad valorem taxes or insurance premiums resulting from such
improvements shall be the sole responsibility of Lessee. Upon termination
or expiration of this Lease, Lessee will surrender the Premises to Lessor,
ordinary wear and tear excepted. Any damage to the Premises or building,
not covered by the proceeds from Lessor's fire and extended coverage
insurance resulting from acts or NEGLIGENCE of Lessee, ITS employees,
agents, servants, invitees or guests, shall be repaired or replaced at
Lessee's sole expense. Lessor will withhold from security deposit, cost of
repair of any damage to Premises over and above normal wear and tear.
ENTRY
21. Lessor, its officers, agents and representatives shall have the right to
enter into and upon the Premises, by coordinating with Lessee, to inspect
same or clean or make repairs or alterations or additions as Lessor may
deem necessary, or for any purpose whatsoever relating to the safety,
protection or preservation of the building, and Lessor may and shall at all
times, have master keys or pass keys to the Premises. Lessee shall not
change any locks or install locks in the doors of the Premises, or install
other devices or systems which would restrict access to the Premises,
without Lessor's prior written consent. If
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Lessee shall not be present to open and permit entry into the Premises at
any time, Lessor may enter the same by master key or pass key or may
forcibly enter the same, without rendering Lessor liable therefore,
provided that during such entry Lessor shall take care of Lessee's
property. Lessor shall have the right at any time for the purposes of
inspection, maintenance, adjustment and balancing the controls of the HVAC
systems, repair, environmental audits or abatement to erect, use, maintain,
repair, replace or relocate pipes, ducts, wiring conduits and similar
devices in and through the Premises and to enter upon the Premises for the
purpose of the performance of any such work whether same are used in the
supply of services to the Lessee or the other occupants of the building.
Nothing contained above shall be deemed to impose upon the Lessor any
obligation, responsibility or liability whatsoever for the care,
supervision or repair of the building or the Premises or any part thereof,
and Lessee shall be entitled to no abatement of rent or reduction of rent
by reason thereof. Lessor shall further have the right to enter the
Premises at reasonable hours to exhibit same to prospective purchasers,
lenders or Lessees and to inspect the Premises to see that Lessee is
complying with all of its obligations hereunder, or to make repairs or
modifications to any adjoining space or to the building. Lessor will
coordinate these activities with Lessee.
SHOW PREMISES
22. Lessor and/or his agent, may, at any time within one hundred eighty (180)
days before the expiration of this Lease, enter the Leased Premises at
reasonable hours BY COORDINATING TIME WITH LESSEE AS NOT TO DISRUPT
LESSEE'S DAY TO DAY OPERATION for the purpose of offering and showing the
Premises for lease or sale and may place and keep in the window signs
advertising the Premises for lease or sale.
PROPERTY MANAGEMENT, MAINTENANCE AND USE OF COMMON AREAS.
23. Maintenance: Lessee shall pay as additional rent for its proportionate
share of property management charges, CAM (Common Area Maintenance) charges
and preventive maintenance charges. These charges shall include but not be
limited to: utility costs and fees for water, electricity, gas, cleaning,
trash, painting, repairs, service contracts, labor, building management,
and maintenance of lighting, sidewalks, walkways, curbs, landscaping,
parking lots, striping and other common areas, keeping the same properly
cleaned, drained and free from ice and snow and seasonal preventive
maintenance of HVA/C equipment.
Lessor shall perform the above repairs and maintenance and Lessor shall
furnish Lessee a statement showing all items of cost and the basis for
computation of Lessee's proportionate share at the end of each month, or
three months or one year, at Lessor's option and Lessee shall pay the same
to Lessor within fourteen (14) calendar days thereafter. Common area costs
and expenses shall not include capital expenses by Lessor. LESSOR SHALL
NOTIFY THE LESSEE AT THE BEGINNING OF EACH CALENDAR YEAR THE BILLING
FORMULA USED FOR PROPERTY MANAGEMENT FEES OTHERWISE PREVIOUS YEAR'S BILLING
FORMULA WILL APPLY. LESSOR HAS NO CONTROL OF TAXES, INSURANCE, CAM OR OTHER
ITEMS THAT ARE PASS-THROUGHS. LESSEE IS RESPONSIBLE TO PAY ALL INCREASES,
AS DO OTHER TENANTS.
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24. CONTROL OF COMMON AREAS: All parking areas, driveways, entrances and exits
thereto, pedestrian sidewalks and ramps, landscaped areas, exterior
stairways and all other common areas and facilities provided by Lessor for
the common use of tenants of said building(s) and their officers, agents,
employees and customers, shall at all times be subject to the exclusive
control and management of Lessor, and Lessor shall have the right from time
to time to establish, modify and enforce reasonable rules and regulations
with respect to the use of all such common areas and regulations with
respect to the use of all such common areas and facilities. Lessor shall
have the right to operate and maintain the same in such manner as Lessor,
in its sole discretion, shall determine from time to time, including
without limitation, the right to employ all personnel and to make all rules
and regulations pertaining to and necessary for the proper operation and
maintenance of said common areas and facilities.
25. COMPLIANCE WITH LAWS: Lessor and Lessee, as to the portion of the Premises
required to be maintained by them, each shall do all acts required to
comply with all applicable laws, ordinances, regulations and rules on any
public authority or organization to the maintenance of the Premises.
26. SURRENDER OF PREMISES: At termination of this or any renewal term, the
Lessee does agree to deliver the Premises in the same condition as received
by it on the Commencement Date, (subject to the removals hereinafter
required) as the Leased Premises were on the date the Lessee opened the
Leased Premises for business to the public, reasonable wear and tear
excepted, and shall surrender all keys for the Leased Premises to Lessor at
the place then fixed for the payment of rent, and shall inform Lessor of
all combination of locks, safes and vaults, if any, in the Leased Premises.
Lessee, during the last thirty (30) days of such term, shall remove all its
trade fixtures, and, to the extent required by Lessor by written notice,
any other installations, alterations or improvements provided herein,
before surrendering the Leased Premises as aforesaid and shall repair any
damage to the Leased Premises caused thereby. Lessee's obligation to
observe or perform this covenant shall survive the expiration or other
termination of the Lease term. Any items remaining in the Premises on the
termination date of this Lease shall be deemed abandoned for all purposes
and shall become the property of Lessor, and the latter may dispose of the
same without liability of any type or nature. Lessee shall remove back to
its source, all cabling for phones, computers, data lines, electrical lines
and all other wiring which were not a part of the original Leased Premises.
Ceilings and walls will be professionally repaired to original condition.
ORDINARY WEAR AND TEAR
26.1 During any time of the Lease or at the end of the Lease, the definition for
"ordinary wear and tear" shall be defined as follows:
The space shall be clean; the walls shall be free of holes, tears, scrapes,
gouges, stains or marks, nothing that a single coat of paint (if the walls
were previously painted) could not cover. Ceiling tiles and grid will all
be in place with no damage. Door/hardware will operate freely, with no
scratches, dents, holes or damage. Floor coverings will be clean with no
holes, snags, stains, wrinkles or damage. All ceiling lights will be
working with
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no missing or burned out tubes, bulbs or broken lens, all electrical
devices will be working and in place with no cracked or missing covers or
damaged devices. At the end of the Lease, the space will be cleaned,
carpets shampooed with everything in a good state of repair (except paint)
ready for the Lessor to relet.
27. BUILDING EXTERIOR: Lessee shall insure that the property is not damaged by
trucks or trailers, placement or movement of trash containers or the
dollies on semitrailer trucks, and Lessee shall be responsible for the
repair of same during the term of the Lease and upon termination thereof.
Lessee understands and agrees that no personal property shall be stored in
the parking area or anyplace outside of the building without the prior
written consent of Lessor. Lessee understands that Lessee is responsible
for its own trash and that trash will not be stored on the outside of the
Leased Premises. Lessee shall not use any part of the exterior of the
Premises for outside storage without the specific written permission of
Lessor, and any outside storage so permitted shall be maintained only in
accordance with the provisions of such permission. No trash, crates,
pallets, or refuse shall be permitted anywhere on the outside of the
buildings. Lessee also understands that no automobiles or trucks, trailers,
etc. will be left in the parking lot overnight, unless authorized in
writing by Lessor, other than trash container may be stored outside.
27.1 FLOOR LOADING: Lessee shall not overload the floors of the Premises. In no
event shall items be positioned so as to exert a floor load in excess of
1,000 pounds on any square foot on single floor buildings and no more than
75 pounds per square foot on multi-floor buildings, if in doubt, contact
Lessor for guidance. Lessor shall have the election either to repair any
damage caused by overloading the floors or to require Lessee to repair such
damage immediately after written demand to that effect is made to Lessee.
If Lessee elects not to repair the damage or if Lessee fails to do so
immediately after demand by Lessor, the cost of all such repairs shall be
paid to Lessor by Lessee upon demand.
28. LESSOR'S DUTIES: Lessor shall maintain in a good state of repair, the
exterior of the roof and walls, and all structural portions of the roof,
walls, and foundations of the Premises exclusive of doors, door frames,
door checks, hardware, windows, window frames and grills located in the
exterior walls which are the Lessee's sole responsibility. Lessee shall be
responsible for any of the foregoing repairs resulting from Lessee's
negligence or abuse. Lessee shall reimburse Lessor for the reasonable cost
of repairing any damage to the exterior walls, canopies and/or awnings,
roof, gutters or downspouts, sidewalks, doors and parking lot to the extent
damaged by the misuse or negligent activity of Lessee, its employees,
agents, contractors, guests or invitees.
29. LESSEE'S DUTIES: Except as otherwise provided in this Lease, Lessee at its
sole cost and expense shall maintain in a clean and sanitary condition free
from filth, pests (i.e., insects, mice, rats, termites, etc.) and a good
state of repair, all portions of its Premises, including but in no way
limited to all plumbing, sewage, heating and air conditioning, wiring,
glazing, windows, doors, floors, ceilings, interior walls and the interior
surface of exterior walls and all fixtures and equipment. Lessee shall
maintain adequate heat during the heating season to prevent freezing of
plumbing and fire sprinkler systems if
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applicable. Lessee is responsible for keeping the exterior of the Premises
free from trash, rubbish and any items belonging to Lessee. All Lessee
items shall be stored inside Premises.
29.1 LESSEE EQUIPMENT/FIXTURES: Lessee is solely responsible for all damages and
to maintain in the highest state of repair all of his equipment/trade
fixtures and is responsible for all direct and ripple-effect damages caused
by his failure or as a result of his employees, invitees, guests,
contractors or suppliers.
30. PREVENTATIVE MAINTENANCE PROGRAM: HVA/C EQUIPMENT: Lessor shall contract
with an HVAC service company to conduct preventative maintenance
inspections on the HVAC equipment serving the Leased Premises. Should any
inspection reveal any needed replacements, repairs, cleaning and/or
replacing of filters, Lessor's HVAC service company shall perform same and
Lessor will xxxx Lessee the cost thereof as additional rent. Within ninety
(90) days prior to expiration of this Lease, Lessor shall at Lessor's sole
cost and expense, contract with Lessor's HVAC service company to inspect
the HVAC equipment and provide a written estimate of any needed repairs
and/or replacements to the HVAC equipment. Based upon Lessor's service
company's written estimate, Lessor shall contract for all needed repairs
and/or replacements and xxxx Lessee for the cost thereof as additional
rent. If any HVAC equipment serving the Leased Premises requires
replacement, having outlived its useful life during the term of this Lease
including any extensions or renewals, such equipment shall be replaced at
Lessor's expense; provided however, inspection of equipment reveals no
evidence of Lessee abuse or neglect.
31. FAILURE TO PERFORM: In the event Lessee fails to maintain the Premises
pursuant to this paragraph, Lessor shall give Lessee notice to do such acts
as are reasonably required to so maintain the Premises. In the event Lessee
fails to promptly commence such work and diligently prosecute it to
completion, then Lessor shall have the right to do such acts and expend
such funds at the expense of Lessee as are reasonably required to perform
such work.
RULES AND REGULATIONS OF BUILDING
32. Lessee, its employees, agents, servants, invitees and guests will comply
fully with all regulations of the Rules and Regulations of the building as
of and hereafter established by Lessor. Lessor shall at all times have the
right to change such Rules and Regulations or to amend them in such
reasonable manner (provided they do not have an adverse effect on Lessee's
operation) as may be deemed advisable for safety, care, cleanliness and
exterior and interior appearance of the Premises and building, and for the
preservation of good order and control therein and throughout. All of the
Rules and Regulations, changes and amendments thereto will be forwarded to
Lessee, and after Lessee's notice of same, Lessee shall carry out and
observe all of such Rules, Regulations, changes and amendments. Lessee
shall save and hold Lessor harmless from expense or damage resulting from
failure to do so.
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EMPLOYEE PARKING AREA
32.1 Lessee and its employees shall park their motor vehicles in such areas as
Lessor shall from time to time designate as employee parking area. Lessee
agrees that all loading and unloading of goods shall be made as such places
as are designated by Lessor and that said loading and unloading operations
shall be conducted so as not to obstruct or hinder the operation of the
businesses of the other tenants, nor will Lessee unreasonably block or
obstruct any street, sidewalk or right-of-way adjacent to or comprising
part of the building or complex. Upon request of the Lessor, Lessee will
furnish to Lessor the license numbers of any automobiles belonging to
Lessee or its employees in order to verify if any of such vehicles shall be
parked in areas other than those designated for employee parking.
RIGHTS RESERVED AND RETAINED BY THE LESSOR
33. Lessor retains and reserves unto itself all rights not expressly granted to
Lessee in this Lease. In addition, Lessor or Lessor's Agent reserves the
following rights exercised without liability to Lessee for (i) damage or
injury to property, person or business; (ii) causing an actual or
constructive eviction from the Premises; or (iii) disturbing Lessee's use
or possession of the Premises:
(a) To name the building and project and to change the name or street
address of the building project;
(b) To install and maintain all signs on the exterior and interior of the
building project.
(c) To grant utility easements or other easements in, or re-plat,
subdivide or make other changes in the legal status of the land
underlying the building or the project as Lessor shall deem
appropriate in its sole discretion, provided such changes do not
substantially interfere with Lessee's use of the Premises for the
permitted purpose.
GENERAL PROVISIONS
34. OBLIGATION OF LESSEE: Lessee agrees to conduct its business in a manner
that will not be objectionable to other tenants in the building of which
the Premises are a part, including noise, vibration, odor, or fumes. In the
event Lessor receives complaints from other tenants in the building and
determines, in its sole reasonable judgment, that Lessee is conducting its
operations in a manner so as to be objectionable to other tenants, Lessee
agrees, upon notice from Lessor thereof, to promptly WITHIN THIRTY (30)
DAYS OF SUCH NOTICE FROM LESSOR modify the conduct of its operations to
eliminate such objectionable operations. In such event that said conduct is
not modified, Lessee shall be deemed in default of its obligations under
this Lease.
CASUALTY
35. If the building or the Premises are made partially or substantially
untenantable by fire or other casualty, Lessor may elect either to (a)
terminate this Lease as of the date of such fire or other casualty by
delivery of notice of termination to Lessee within thirty (30) days after
said date, or (b) without termination of this Lease, proceed with due
diligence to
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repair, restore or rehabilitate the building or the Premises, other than
leasehold improvements installed by Lessee or paid for by Lessee within
ninety (90) days. In the event such fire or other casualty is due to an act
of negligence by Lessee, its employees, agents, servants, invitees or
guests, such repair, restoration or rehabilitation of the building or the
Premises or both shall be paid for by Lessee to the extent that Lessor's
receipt of proceeds from its fire and extended coverage insurance policies
are insufficient to complete such repair, restoration or rehabilitation. If
Lessor elects not to repair, and the building or the Premises, or both,
have been damaged by casualty due to the act or neglect of Lessee, his
employees, agents, servants, invitees or guests, the Lessee shall pay to
the Lessor upon demand the difference between the proceeds received by
Lessor from its fire and extended coverage, insurance, if any, and the fair
market value of the building or the Premises, or both. If all or any part
of the Premises are rendered substantially untenantable, by fire or other
casualty not due to an act of negligence of Lessee, its employees, agents,
servants, invitees or guests, and this Lease is not terminated, rent shall
xxxxx for all or the part of the Premises which are untenantable on a per
diem basis from and after the date of the fire or other casualty, and until
the Premises are repaired and restored. Lessee's rent abatement, in the
event of partial untenantability of the Premises, shall be calculated based
upon the portion of the total rent which the amount of square foot area in
the Premises that cannot be occupied to the total square foot area of all
the Premises. Lessor will insure building a 80% coinsured replacement
value.
DAMAGE DURING LAST YEAR OF TERM
36. Notwithstanding anything to the contrary herein contained, if the Premises
be damaged or destroyed during the last year of the term of this Lease to
an extent greater than twenty-five (25) percent of the then replacement
value of the improvements on the Premises, Lessor may elect not to restore,
such election on the part of Lessor to be given by notice to Lessee within
thirty (30) days after the date of damage or destruction. In the event
Lessor so elects to terminate, then this Lease shall be terminated as of
the date of giving of such notice or the date Lessee completes its vacation
from the Premises, whichever be the later. All proceeds of insurance
carried in connection with such damage to the Premises shall be payable to
the Lessor except Lessee's personal insurance on trade fixtures and
personal property shall go to Lessee.
CONDEMNATION
37. Should the Premises or the building be taken or condemned in whole or in
part under the power of eminent domain, or sold or disposed of under threat
of condemnation, then Lessor shall receive the entire award for such taking
or shall receive the entire payment made in lieu of condemnation, and
Lessee shall have no claim thereto; provided, however, Lessor shall not be
entitled to any award made directly to Lessee for loss of Lessee's
business, depreciation to and cost of removal of stock and office
furniture, etc. In the event of total condemnation or conveyance in lieu
thereof, the Lease term shall terminate on the date the condemning
authority takes possession of the building, and in the event of a partial
taking or conveyance in lieu thereof the Lessor or Lessee may, at its
option, terminate the Lease Term as of the date of the taking of possession
or the partial taking by the condemning authority.
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RELOCATION
Omit Section 38.
SUBORDINATION AND ATTORNMENT
39. Lessee hereby subordinates all of Lessee's rights, title and interest under
this Lease to the lien of any existing and all future mortgages and deeds
of trust on the building. Lessee agrees to execute and deliver promptly
such agreement and other documents as Lessor may request to confirm and
acknowledge the foregoing subordination agreement. In the event the lien of
any such mortgage or deed of trust is foreclosed or title to the building
is conveyed in lieu of foreclosure, Lessee hereby agrees to attorn to the
purchaser or of the building at any foreclosure sale and the grantee of any
such deed and to confirm this Lease and recognize such purchaser or grantee
as the Lessor hereunder. So long as Lessee is not in default, the Lease
shall remain in full force and effect for the full term hereof. This Lease
shall be subject to assignment by Lessor.
ESTOPPEL CERTIFICATE
40. Lessee shall, without charge, within ten (10) days after written request by
Lessor, deliver to Lessor in writing an executed statement certifying that
this Lease is unmodified and in full force and effect, or in the case of
lease modifications, that the Lease as modified is in full force and
effect, the dates to which rent or other charges have been paid, the
amount, if any, of prepaid rent and deposits paid by Lessee to Lessor, the
nature and kind of concessions, rental or otherwise, if any, which Lessee
has received or is entitled to receive, and to Lessee's knowledge that
Lessor is not in default under any provision of this Lease or, if in
default, a detailed description hereof.
TRANSFER OF LESSOR'S INTEREST IN PREMISES
41. In the event of any sale or exchange of the Premises by Lessor and
assignment by Lessor of this Lease, the Lessor shall be entirely freed and
relieved of its covenants and obligations contained in, or derived from the
Lease arising out of any act, occurrence or omission relating to the
Premises or this Lease occurring after the consummation of such sale or
exchange and assignment provided however, that the new owner shall assume
and agree to perform all the covenants and obligations of Lessor contained
herein. In the event of such sale or exchange, this Lease shall
nevertheless remain unimpaired and in full force and effect and Lessee
hereunder agrees to attorn to the then owner of the Leased Premises.
DEFAULT AND REMEDIES
42. In the event: (a) Lessee fails to comply with any term, provision,
condition, or covenant of this Lease including the payment of all monies
due; (b) Lessee deserts or vacates the Premises for thirty (30) consecutive
days or more without notice to Lessor and without making the current rental
payment; (c) any petition is filed by or against Lessee under any Section
or Chapter of the Federal Bankruptcy Act, as amended, or under any similar
law or statute of the United States or any state thereof; (d) Lessee
becomes insolvent or makes a transfer in fraud of creditors; (e) Lessee
makes an assignment for benefit of creditors; or (f) a receiver is
appointed for Lessee or any of the assets of Lessee; then in any of such
events, Lessee shall be in default, and Lessor shall have the option to do
any one or more
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of the following: (1) upon ten (10) days prior written notice AND
THIRTY-DAY CURE period, excepting the payment of rent or additional rent
for which no demand or notice shall be necessary, in addition to, and not
in limitation of, any other remedy permitted by law; to enter upon the
Premises or any part thereof, either with or without process of law, and to
expel, remove and put out Lessee or any other persons who might be thereon,
together with all personal property and/or (2) Lessor may terminate this
Lease, or it may from time to time, without terminating this Lease, relet
said Premises or any part thereof for such term or terms and at such rent
and upon such other terms and conditions as Lessor in its sole discretion
may deem advisable, with the right to repair, renovate, remodel,
redecorate, alter and change said Premises. Rents received by Lessor from
such reletting shall be applied first to the payment of any indebtedness
from Lessee to Lessor other than rent and additional rent due hereunder,
second to the payment of any cost and expenses of such reletting,
including, but not limited to, attorney's fees, advertising fees and real
estate brokerage fees, and to the payment of any repairs, renovations,
remodeling, redecorations, alterations and changes in the Premises; third
to the payment of rent and additional rent and interest to be paid by
Lessee under this Lease, Lessee shall pay any such deficiency to Lessor,
and such deficiency shall be calculated and collected by Lessor monthly. No
such re-entry or taking possession of said Premises shall be construed as
an election on Lessor's part to terminate this Lease unless a written
notice be given to Lessee.
If Lessee vacates or abandons the Premises, any property that Lessee leaves
on the Premises shall be deemed to have been abandoned and may either be
retained by Lessor as the property of Lessor or may be disposed of at
public or private sale in accordance with applicable law as Lessor shall
determine it its sole discretion. The proceeds of any public or private
sale of Lessee's property, or the then current fair market value of any
property retained by Lessor, shall be applied by Lessor against (i) the
expenses of Lessor for removal, storage or sale of the property; (ii) the
arrears of rent or future rents payable under this Lease; and (iii) any
other damages to which Lessor may be entitled hereunder.
Notwithstanding any such reletting without termination, Lessor may at any
time thereafter elect to terminate this Lease for such previous breach and
default. Should Lessor at any time terminate this Lease by reason of any
default, in addition to any other remedy it may have, it may recover from
Lessee the amount at the time of such termination of the excess of the
amount of rent and additional rent reserved in this Lease for the balance
of the term hereof over the then reasonable rental value of the Premises
for the same period. Lessor shall have the right and remedy to seek redress
in the courts at any time to correct or remedy any default of Lessee by
injunction or otherwise, without such resulting or being deemed a
termination of this Lease, and Lessee, whether this Lease has been or is
terminated or not, shall have the absolute right by court action or
otherwise to collect any and all amounts of unpaid rent or unpaid
additional rent or any other sums due from Lessee to Lessor under this
Lease which were or are unpaid at the date of termination. In case it
should be necessary for Lessor to bring any action under this Lease, to
consult or place said Lease or any amount payable by Lessee thereunder with
an attorney concerning or for the enforcement of any of Lessor's rights
hereunder, then Lessee agrees in each and any such case to reimburse herein
given to Lessor by law. A waiver by Lessor of any
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default by Lessee in the performance of any of the covenants, terms or
conditions hereof shall not be considered or treated as a waiver of any
subsequent or other default as to the same or any other matter. If Lessee
shall default in the performance of any covenant, agreement, provision or
condition herein contained, Lessor, without thereby waiving such default,
may perform the same for the account and at the expense of Lessee, without
notice in the case of emergency. Bills for any expense incurred by Lessor
in connection with any such performance by Lessor for the account of
Lessee, as well as bills for any property, material, labor or services
provided, furnished or rendered, or caused to be provided, furnished or
rendered, by Lessor to Lessee, may be sent by Lessor to Lessee monthly, or
immediately, at Lessor's option, and shall be due and payable by Lessee
upon notice of the amount or amounts, and the amount or amounts thereof
shall be deemed to be Additional Rent under this Lease. Lessee shall
promptly give to Lessor notice as herein provided of any defects in the
Premises, including the failure of Lessor to do anything required to be
done by law or by the terms of this Lease or the doing or permitting to be
done anything prohibited by law or by the terms of this Lease. Unless
Lessee has given said notice and Lessor has failed to commence the cure of
said defect within ten (10) days after receipt of said notice, Lessee shall
have no right to terminate the said Lease or to declare a forfeiture, and
in no event shall rent xxxxx except as in this Lease specifically provided.
Lessor shall not be obligated to notify Lessee of the due date of rent nor
demand payment thereof on its due date, the same being expressly waived by
Lessee. The acceptance of any sums of money from the Lessee that is less
than the actual amount owed is considered a partial payment and does not
relieve Lessee from the full amount that is owed Lessor.
FEE
43. If at any time during the course of the Lease, Lessee shall fail to honor
the terms of the Lease or, fail to pay rent, CAM charges, late fees or
anything else that causes Lessor to obtain assistance from an attorney,
then Lessee agrees to pay as additional rent all fees, costs, charges of
enforcement and collection, including attorney fees and Lessor's time at
$65.00 per hour and Lessor's staff at a rate of $35.00 per hour, if needed.
Any monies owed Lessor after thirty (30) days shall accrue interest at the
rate of eighteen percent (18) annually from the date of invoice.
SECURITY DEPOSIT
44. Lessee at the time of execution of this Lease has deposited with Lessor a
Security Deposit to be held by the terms and covenants to be kept and
performed by Lessee. Said deposit may be co-mingled with other funds and
any interest earned shall be the property of the Lessor. Unless and until
Lessee is in default with respect to any provision hereof, the Security
Deposit shall be the property of Lessee. In the event Lessee is in default
and after any necessary notice thereof, Lessor shall apply the whole or any
part of such Security Deposit toward the payment of any such amount, which
Lessor may expect or may be required to expend by reason of default or any
damage, expenses or liability caused by default (including, but not limited
to, the payment of any rent in default). Lessee shall pay to Lessor on
demand the amount necessary in order to restore the Security Deposit to its
original amount. Failure of Lessee to restore the Security Deposit
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within ten (10) days from demand by Lessor shall constitute an act of
default under this Lease. If the terms, provisions, covenants and
conditions of this Lease are complied with, the Security Deposit shall be
promptly returned to Lessee within thirty (30) days of the end of the term
and upon the surrender of the Premises. In the event of any transfer of the
building, Lessor may pay over the Security Deposit to the transferee to be
held under the terms of this Lease. Under no circumstances shall the
Security Deposit be interpreted in any way or manner as being applied to
any rental payment due by Lessee hereunder.
SECURITY
45.
BANKRUPTCY
46. Neither this Lease, nor any interest therein for any estate hereby created,
shall pass to any trustee or receiver in bankruptcy, or to any other
receiver or assignee for the benefit of creditors or otherwise by operation
of law during the term of this Lease or any renewal or extension thereof.
SIGNS AND PICTURES--RIGHTS OF LESSOR
47. Lessor reserves the right to the use of the exterior walls and the roof of
the Premises and of the building of which the Premises are a part.
When Lessee's space qualifies for exterior signage and has access to sign
band and or monument sign, Lessee is required to install signage after
Lessor's approval, at Lessee's expense within thirty (30) days of
occupancy.
The Lessee shall not erect or install any exterior or interior signs, or
advertising media or window or door lettering or placards without the
previous written consent of the Lessor. The Lessee agrees not to use any
advertising media that shall be deemed objectionable to the Lessor or other
Lessees, such as loud speakers, phonographs, or radio, shades or awnings or
any interior or exterior decorations, or do any interior or exterior
painting, without the consent of the Lessor. Lessee agrees to maintain such
sign or advertising matter as approved by Lessor in good condition and
repair. All signs shall comply with applicable ordinances or other
governmental restrictions, and the determination of such requirements and
the prompt compliance therewith shall be the responsibility of the Lessee.
Any signs or advertising media to be placed by Lessee with Lessor approval
shall be removed by the Lessee upon demand by the Lessor following the
expiration or termination of this Lease, and any damage caused by such
removal shall be repaired at the expense of Lessee.
JOINT LESSEES
48. In the event that there be more than one person named as Lessee herein,
each Lessee binds himself jointly and severally with all others for the
payment of the rent and for the performance of all of the covenants,
agreements, stipulations and conditions herein contained, in accordance
with the terms hereof.
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SUCCESSORS AND ASSIGNS
49. It is agreed that all the covenants, agreements and conditions herein
contained shall extend to, and be binding upon, the respective successors,
heirs, executors, administrators, assigns, receivers or other personal
representatives of the parties to this Lease.
WAIVER
50. The rights and remedies of the Lessor under this Lease, as well as those
provided or accorded by law, shall be cumulative, and none shall be
exclusive of any other rights or remedies hereunder or allowed by law. A
waiver by Lessor of any breach or breaches, default or defaults, of Lessee
hereunder shall not be deemed or construed to be a continuing waiver of
such breach or default nor as a waiver of or permission, expressed or
implied, for any subsequent breach or default, and it is agreed that the
acceptance by Lessor of any installment of rent subsequently to the date
the same should have been paid hereunder shall in no manner alter or affect
the covenant and obligation of Lessee to pay subsequent installments of
rent promptly upon the due date thereof. No receipt of money by Lessor
after the termination in any way of this Lease shall reinstate, container
or extend the term above demised.
WAIVER BY LESSEE
51. Lessee waives all rights to make repairs to the expense of Lessor as
provided for in any statute or law in effect at the time of execution of
this Lease or any Amendment thereof or any other statute or law which may
be hereafter enacted during the term of this Lease.
DAMAGES TO PROPERTY
52. The Lessor shall not be responsible to the Lessee for any loss of property
from said leased premises, or any damage done to furniture or effects
belonging to said Lessee EXCEPT WILLFUL NEGLIGENCE OF LESSOR. And it is
further agreed that the Lessor shall have the right to close the building
hereby leased whenever it may be necessary to comply with any law or
regulation issued by any lawfully constituted authority, and in case of
public disturbance and for any other reason or reasons which, in the
discretion of the Lessor, may seem right and proper, and Lessee hereby
waives any claim against Lessor for damage or inconvenience caused by any
such closing. Lessee is advised to carry insurance for Lessee's benefit.
LIENS - LESSEE'S OBLIGATION
53. Lessee shall keep the Premises and any building of which the Premises are a
part, free and clear of any liens arising out of work performed or caused
to be performed by Lessee and shall indemnify, hold harmless and defend
Lessor from any liens and encumbrances arising out of any work performed or
materials furnished by or at the direction of Lessee. In the event any lien
is filed, Lessee shall do all acts necessary to discharge any lien within
thirty (30) days of filing, or if Lessee desires to contest any lien, then
Lessee shall deposit with Lessor such security as Lessor shall demand to
insure the payment of the lien claim. In the event Lessee shall fail to pay
any lien claim when due or shall fail to deposit the security with Lessor,
then Lessor shall have the right to expend all sums necessary to discharge
the lien claim, and Lessee shall pay promptly after demand all sums
expended by Lessor in discharging any lien, including attorneys fees and
all costs.
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LESSOR'S Initials LESSEE'S Initials
TIME AND JOINT AND SEVERAL LIABILITY
54. Time is of the essence of this Lease and each and every provision hereof,
except as to the conditions relating to the delivery of possession of the
Premises to Lessee. All the terms, covenants and conditions contained in
this Lease to be performed by either party, if such party shall consist of
more than one person or organization, shall be deemed to be joint and
several, and all rights and remedies of the parties shall be cumulative and
non-exclusive of any other remedy.
NOTICES
55. Any and all notices required or permitted to be given hereunder shall be
served either personally or by United States Mail, postage prepaid (and if
permitted by law, by Registered, Certified or Express Mail) at the
following addresses:
To Lessor: At the address as set forth on page 1, or at such other address
as Lessor shall designate by written notice.
To Lessee: At the Premises or at such other address as Lessee shall
designate by written notice to Lessor.
Each such notice shall be deemed given as of three (3) days after the date
it is so deposited in the United States Mail or date of hand delivery.
SUPPLEMENTAL PROVISIONS
56. Lessor and Lessee further agree as follows:
a. No payment by Lessee or receipt by Lessor of a lesser amount than the
rent provided for in this Lease shall be deemed to be other than on
account of the earliest due rent. Nor shall any endorsement or
statement on any check or payment without prejudice to Lessor's right
to recover the balance of the rent or pursue any other remedy provided
for in this Lease. In connection with the foregoing, Lessor shall have
the absolute right in its sole discretion to apply any payment
received from Lessee to any amount or other payment of Lessee then not
current and due or delinquent. The receipt and acceptance by Lessor of
delinquent rent shall not constitute a waiver of any other default,
but, shall constitute only a waiver of timely payment for the
particular payment involved. Any waiver by Lessor of any default must
be in writing and shall not be a waiver of any other default
concerning the same or any other provision of the Lease.
b. If any provision contained in an addendum to this Lease is
inconsistent with any other provision herein, the provision contained
in the addendum shall control, unless otherwise provided in the
addendum.
x. Xxxxxx may from time to time seek from one or more financial
institutions some part of all of, OR ALL the funds to finance the
improvements on the property of which Premises are a part. Neither
Lessor nor Lessee shall unreasonably withhold its consent to changes
or amendments to the Lease requested by the financing
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LESSOR'S Initials LESSEE'S Initials
institution of Lessor's interest, so long as these changes do not
alter the basic business terms of this Lease or otherwise materially
diminish any rights or any obligations of the party from whom consent
to such change or amendment is requested. The parties agree to
promptly sign all changes or amendments reasonably requested.
d. This Lease shall be construed and enforced in accordance with the laws
of the state in which the Premises are located.
e. Notwithstanding anything contained in the Lease to the contrary,
Lessee shall have no claim or hereby waives the right to any claim
against Lessor for money damages by reason of any refusal, withholding
or delaying by the Lessor of any consent, approval or statement of
satisfaction, and in such event, Lessee's only remedies shall be an
action for specific performance, injunction or declaratory judgment to
enforce any right to such consent, etc. LESSEE MAY SEEK REMEDIES
WITHIN THE SCOPE OF MISSOURI LAW FOR FAILURE OF LESSOR ADHERING TO
THIS LEASE AFTER THIRTY (30) DAY NOTICE TO LESSOR AND LESSOR HAS NOT
REMEDIED SUCH FAILURE.
f. If Lessee is a corporation, each individual signing this Lease on
behalf of the Lessee represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of the
corporation and this Lease is binding on Lessee in accordance with its
term. Lessee shall, at Lessor's request, deliver a certified copy of a
Resolution of its Board of Directors authorizing such execution.
g. Financial Statement: The persons signing this Lease on behalf of
Lessee hereby personally represents and warrants to Lessor any
financial statements delivered to Lessor prior to the execution of
this Lease properly reflect the true and correct value of all the
assets and liabilities of Lessee. Lessee acknowledges upon entering
into this Lease, Lessor is relying upon the accuracy and completeness
of such statements.
h. Lessee will not allow contamination of Lessor's property at any time.
Lessee agrees to abide by all agencies of the federal, state, city,
and county governments having jurisdiction over this property. Lessee
agrees to abide by Addendum C--Environmental Rider as part of the
Lease agreement.
i. If Lessee starts fully occupying the space before the starting date of
the Lease, Lessee agrees to pay their share of insurance, taxes and
CAM charges even though they may be receiving free rent on the space.
SURVIVAL OF TENANT'S OBLIGATION
57. All obligations of Lessee which, by their nature, involve performance in
any particular after the end of the term, or which cannot be ascertained to
have been fully performed until after the end of the term, shall survive
the expiration or sooner termination of the term hereof.
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HEADINGS
58. The titles and headings in the Lease are used only to facilitate reference,
and in no way to define or limit the scope or intent of any of the
provisions of this Lease.
ENTIRE AGREEMENT-AMENDMENTS
59. This Lease constitutes the entire agreement between the parties with
respect to the Premises and this Lease covers, merges and includes all
agreements, oral or written, between the parties hereto whether made prior
to or contemporaneous with the execution of this Lease. This Lease cannot
be modified or changed by any verbal statement, promise or agreement and no
modification, change nor amendment shall be binding on the parties unless
it shall have been agreed to in writing. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural, as the identity of the person or persons may require.
SEVERABILITY
60. In the event any provisions of this Lease be officially found to be
contrary to law, or void as against public policy or otherwise, such
provisions shall be either modified to conform to the law or considered
severable with the remaining provisions hereof continuing in full force and
effect.
GUARANTOR
61. If this Lease is signed by a guarantor, then the guarantor agrees that they
hereby unconditionally and absolutely guarantee to Lessor the full, prompt
and complete payment by Lessee of the rent and all other sums of money
payable by Lessee under the Lease and the full, prompt and complete
performance by Lessee of all and singular the terms, covenants, conditions
and provisions in the Lease required to be performed by Lessee.
62. Notice to all concerned: Xxx Xxxxxxxx is a licensed Missouri real estate
broker, license number ###-##-####, performing services for his own
property.
THE PARTIES HERETO AFFIX THEIR SIGNATURES EFFECTIVE AS OF MAY 18, 2001:
____________________________________
PLEASE READ THIS LEASE CAREFULLY. SHADY PROPERTIES, ITS AGENTS OR EMPLOYEES, ARE
NOT AUTHORIZED TO GIVE LEGAL, TAX OR ACCOUNTING ADVICE. IF YOU DESIRE SUCH
ADVICE, CONSULT YOUR ATTORNEY AND/OR ACCOUNTANT BEFORE SIGNING.
LESSOR LESSEE:
Xxx Xxxxxxxx
-------------------------------------------
d/b/a Shady Properties
-------------------------------------------
By: By:
------------------------------- ---------------------------------------
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LESSOR'S Initials LESSEE'S Initials
Address: Address:
0000 X.X. Xxxxxx Xxxx 0000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000 Xxxxxx Xxxx, XX 00000
Phone No.: (000) 000-0000 Phone No.: (000) 000-0000
GUARANTORS:
___________________________
Signature Signature
___________________________
Print Name Print Name
___________________________
Address Address
___________________________
___________________________
Phone No.:_________________ Phone No.:____________________
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___________________________
Signature Signature
___________________________
Print Name Print Name
___________________________
Address Address
___________________________
___________________________
Phone No.:_________________ Phone No.:____________________
Corporate Seal:
Given under my hand and seal this day of , .
--------- ---------------- --------
----------------------------------------
Notary Public
My commission expires:
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