EXHIBIT 10.18
LEASE AGREEMENT
This Lease ("Lease") is made this 10th day of October, 2001, between
Forsyth Centre Associates, L.L.C., a Missouri limited liability company
("Landlord") and D&K Healthcare Resources, Inc., a Delaware corporation
("Tenant").
RECITALS
A. Landlord is the owner of certain real property located at 0000
Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxx, the legal description of which is
contained in Exhibit "A" hereto (the "Land"). Landlord has constructed a 14
story office building upon the Land consisting of approximately 245,000 square
feet of gross floor area (the "Building"). The atrium lobby of the Building will
adjoin the existing lobby of the building located at 0000 Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx (the "Adjoining Building").
B. Landlord has the right to use certain parking spaces within a
multi-level parking garage (the "Parking Garage") connected to the Building and
situated on certain real property which abuts the Land, the legal description of
which is contained in Exhibit "B" hereto.
C. Landlord wishes to lease a portion of the Building to Tenant, and
Tenant wishes to lease the same from Landlord, upon the terms set forth herein.
AGREEMENT
In consideration of the foregoing, the mutual covenants herein
contained and other good and valuable consideration (the receipt, adequacy and
sufficiency of which are hereby acknowledged by the parties by their execution
hereof), the parties agree as follows:
ARTICLE I
DEMISE
1.1 Leased Premises. Subject to the terms and conditions hereof,
Landlord hereby demises and leases to Tenant, and Tenant hereby leases and rents
from Landlord, the entire tenth floor of the Building consisting of
approximately 16,400 rentable square feet, a portion of the ninth floor of the
Building consisting of approximately 10,922 rentable square feet as outlined on
Exhibit 1.1 hereto, and a portion of the third floor of the Building consisting
of approximately 3,000 rentable square feet as outlined on Exhibit 1.1A hereto
on which floor Tenant's computer equipment will be located (the "Leased
Premises") (the actual rentable square feet shall be determined according to
ANSI/ BOMA Z65.1-1996 and set forth in an addendum hereto to be executed by both
parties), together with the right to use in common with the other tenants in the
Building, and their invitees, the hallways, corridors, lobbies, lavatories (on
multi-tenant floors), elevators, stairways, entrances, exits, sidewalks,
driveways, parking facilities and all other common areas and facilities
appurtenant to the Building (collectively the "Appurtenances").
1.2 Square Footage. The rentable square footage of the Building is
217,564 square feet. The rentable square footage of the Leased Premises shall be
determined upon completion of construction
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according to ANSI/BOMA Z65.1-1996 and set forth in an Addendum hereto to be
executed by both parties.
1.3 Parking Spaces. Landlord agrees to provide to Tenant, at Tenant's
option which Tenant may amend from time to time, during the term of the Lease
(a) up to three (3) parking spaces per every 1,000 rentable square feet, five
(5) of which will be located on the main level of the Parking Garage on a
reserved basis and the balance of which will be located in the Parking Garage on
an unallocated basis (the "Parking Spaces"). Further, Landlord agrees to provide
to Tenant, during the term of the Lease, additional reserved parking spaces (the
location of which shall be determined by Landlord) for the purpose of
locating/storing Tenant's generator. Notwithstanding anything to the contrary
contained herein, at no time will Tenant be obliged to acquire a license for the
use of a minimum number of parking spaces. Landlord has the exclusive right to
determine which parking spaces in the Parking Garage will be Parking Spaces.
Should Tenant require parking spaces in addition to the Parking Spaces, Landlord
will use commercially reasonable efforts to provide such additional parking
spaces to Tenant in the Parking Garage at the rate set forth in this Agreement.
ARTICLE II
TERM
2.1 Initial Term. The term of this Lease is for a period of 120 months
commencing on August 1, 2002 (the "Commencement Date"). The term of this Lease
ends (the "Expiration Date") at midnight on the last day of the tenth Lease Year
(as hereinafter defined) (the "Lease Term"). Notwithstanding the foregoing, if
Tenant is delayed in the completion of the Leasehold Improvements due to
interference caused by Landlord, the Commencement Date shall be postponed one
day for each day of such delay.
2.2 Early Entry. During the 60 days prior to the Commencement Date,
Tenant, along with its contractors, may enter the Leased Premises, with no
obligation to pay rent, for the purpose of installing Tenant's furniture and
business and trade fixtures and equipment. Such installation is to be performed
in accordance with the applicable provisions of Section 4.2. Such prior
occupancy by Tenant is to be arranged so as not to result in any delay in the
overall construction effort of, or additional cost to, Landlord and so as not to
create a jurisdictional dispute with any of the building trades employed by
Landlord. Tenant will not be charged for the use of elevators, hoists or
Building services during such installation work in the Leased Premises or
Tenant's actual move into the Building, unless such use results in an additional
charge to Landlord, in which case Tenant is to reimburse Landlord upon demand
the amount of the additional charge. Prior to any such early entry, Tenant must
give Landlord reasonable prior written notice, and, as a condition to such entry
by Tenant for such purposes, Tenant is to deliver to Landlord evidence that the
insurance required to be carried by Tenant pursuant to the provisions of Section
7.2 is in effect. If Tenant's prior occupancy under this Section results in a
delay in the overall construction effort of, or additional cost to, Landlord,
Landlord is to give Tenant written notice thereof, and Tenant is to, on demand,
reimburse Landlord for all such costs or damages incurred by Landlord.
Notwithstanding anything herein to the contrary, if the Leased Premises
are available for occupancy prior to August 1, 2002, Tenant may move in and
occupy the premises prior to August 1, 2002 with no obligation to pay rent and
such prior occupancy will not affect the Commencement Date.
2.3 Lease Year. For purposes hereof, "Lease Year" means a 12 month
period the first month of which commences on (a) the Commencement Date if the
Commencement Date is the first day of a month or (b) the first day of the month
immediately following the Commencement Date if the Commencement Date is not the
first day of a month. At any time after the Commencement Date, at the request of
either party, both parties shall execute a supplemental agreement to this Lease
stating the Commencement Date and the Expiration Date.
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2.4 Option to Renew. Tenant is hereby granted the option to extend the
Lease Term for two additional terms of five years each. Such extended terms will
be on the same terms and conditions as are set forth in this Lease, except that
the Base Rent (as hereinafter defined) payable by Tenant during such extended
terms shall be equal to 95% of the prevailing fair rental which non-renewing,
non-equity tenants are then receiving in connection with the lease of comparable
space and length at Class A office space in Clayton, Missouri and constructed in
or after calendar year 2000. Fair rental shall mean and take into account in
addition the age of the building, location and floor level, definition of
rentable square footage, leasehold improvement allowances, rental concessions
and/or abatements, moving expenses, term of lease under consideration and extent
of services provided, base year operating expenses and any other relevant term
or condition in making such evaluation.
At least nine (9) months (but no greater than 12 months) prior to the
end of the Lease Term, or, if applicable, the first extended term, Tenant shall
notify Landlord, in writing, of its desire to renew; within thirty (30) days of
receipt of such notice by Landlord, Landlord shall notify Tenant, in writing, of
Landlord's estimation of the prevailing fair rental for the Leased Premises. If,
within the next thirty (30) days, Landlord and Tenant cannot agree as to the
prevailing fair rental, then they each shall immediately select an MAI appraiser
with at least ten (10) years experience in the appraisal of office space in the
St. Louis metropolitan area. Upon selection, such appraisers shall work together
in good faith to agree upon the prevailing fair rental of the Leased Premises.
If said appraisers cannot agree within twenty (20) days after their appointment,
then, within ten (10) days after the expiration of such twenty (20) day period,
such appraisers shall select a third MAI appraiser with at least ten (10) years
of experience in the appraisal of office space in the St. Louis metropolitan
area. Once the third appraiser has been selected, then such third appraiser
shall within ten (10) days after appointment make its determination of the
prevailing fair rental amount and such determination shall be binding upon both
Landlord and Tenant as the rental rate for such extended term. The parties shall
each bear the costs of their own appraiser and shall share equally in the costs
of the third appraiser.
ARTICLE III
RENT
3.1 Base Rent. During the Original Lease Term, Tenant is to pay
Landlord in advance on the first day of each calendar month as base rent for the
Leased Premises the monthly sums for each Lease Year (the "Base Rent") as set
forth in Exhibit 3.1 hereto. The base rental rate for any period of less than
one month prior to the first Lease Year is the monthly Base Rent for the first
Lease Year, calculated as set forth in the next sentence, and is included in the
term "Base Rent". Base Rent and Additional Rent (as hereinafter defined) for any
period of less than one calendar month is to be apportioned based on the number
of days in that month (with annual rent based on a 365 day year) and is payable
on the first day of that period.
3.2 Payment of Rent. All Base Rent, Additional Rent and other payments
to be made to Landlord hereunder are payable, in legal tender, at the office of
Landlord at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, attention:
P.A. Xxxxxxx II, or such other place as Landlord may direct Tenant, in writing,
from time to time. Such payments are to be made without any prior demand
therefor and without any deduction or setoff whatsoever (unless specifically
authorized herein).
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3.3 Additional Rent.
(a) Defined. Tenant is to pay Landlord, as "Additional Rent",
any amount designated as "Additional Rent" hereunder and Tenant's Proportional
Share (as hereinafter defined) of Operating Expenses (as hereinafter defined).
(b) Payment of Additional Rent. Unless otherwise specifically
set forth herein, Tenant is to pay Landlord Additional Rent on the first day of
each calendar month.
(c) Parking Rental. For the first Lease Year, Tenant is to pay
Landlord in advance on the first day of each month as Additional Rent for each
reserved Parking Space the monthly sum of $120 and for each
unreserved/unallocated Parking Space the monthly sum of $85. After the first
Lease Year and for each Lease Year thereafter, Landlord may increase the parking
rental rate to the prevailing fair rental rate if the prevailing fair rental for
comparable parking spaces in Clayton, Missouri, increases, but in no event shall
such increase exceed $10 per Lease Year.
(d) Tenant's Proportional Share of Operating Expenses.
(i) For purposes of this Lease, "Base Year" shall
mean the calendar year 2002.
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(ii) For purposes of this Lease, "Operating Expenses"
means the total, reasonable (commensurate with the maintenance and operation of
a first class office building) costs and expenses incurred by Landlord or paid
on behalf of Landlord (grossed up to reflect 95% occupancy) and which are
properly chargeable to the operation and maintenance of the Land and Building,
including the cost and expense of the following: (A) real estate taxes and
assessments for public improvements levied or imposed on the Land and Building
and which are payable for a tax fiscal period falling within the Lease Term; (B)
snow removal, gardening, replanting and replacing flowers and shrubbery
(Operating Expenses do not include the cost of original installations, i.e.,
landscaping and planting, but do include maintenance); (C) public liability,
property damage and fire insurance for the Building and Land; (D) repair,
maintenance, and redecorating of common areas in the Building; (E) electricity,
water, gas and other utilities (including, without limitation, all capital
expenditures intended to reduce the cost of any utilities); (F) maintenance and
repair of fixtures and replacement of bulbs; (G) maintenance and repair of
elevators and service contracts thereon; (H) sanitary control and extermination;
(I) removal of rubbish, garbage and other refuse; (J) maintenance and repair of
security systems and policing; (K) sewer charges; (L) maintenance and repair of
machinery and equipment used in the operation and maintenance of the common
areas other than the garage areas (including the costs of inspection); (M)
maintenance and repair of paving, curbs and walkways and drainage facilities;
(N) music program services and loud speaker systems; (O) operation and
maintenance of the heating, ventilating and air-conditioning systems; (P)
cleaning and janitorial services; (Q) maintenance and repair of decorations and
lavatories; (R) maintenance and repair of all doors and glass in the common
areas of the Building and roof and exterior walls and glass; (S) maintenance and
repair of the fire sprinkler systems; (T) cost of Landlord personnel directly
involved in implementing all the aforementioned (including fringe benefits,
employment taxes, and xxxxxxx'x compensation insurance); (U) the cost of any
capital improvements not included or accounted for in the above listings made
after the initial construction of the Building which actually reduce other
operating expenses to the extent of such savings during the term of this Lease;
and (V) a management fee at market rate not to exceed 5% of Base Rent.
Notwithstanding anything contained herein to the contrary, Operating Expenses do
not include any of the following costs and expenses: (1) costs of capital
investment or capital improvements, including depreciation or amortization
(except as otherwise expressly provided above); (2) the cost or expense of any
work or service performed or supplied at Landlord's cost or expense for any
other tenant of the Building, to the extent Landlord is not obligated under this
Lease to similarly furnish such work or service to Tenant; (3) the cost or
expense of maintaining or operating any facility or furnishing any work or
service in any instance where such facility or work or service is made available
or furnished to Tenant hereunder at an additional charge, including overtime
HVAC and excess electric use; (4) any franchise or federal or state income taxes
based on the Land or Building or their value, (5) any item charged to Tenant
elsewhere within this Lease or to other tenants in the Building, (6) charges for
which Landlord has established a reserve but such charges have not been incurred
or paid, (7) leasing commissions, advertising and space planning expenses, (8)
salaries and other compensation paid to officers or executives of Landlord or
managing company senior to the building manager, (9) costs of enforcing
provisions of other leases in the Building, (10) interest and principal payments
on mortgage debt, or (11) repairs incurred by reason of casualty or condemnation
to the extent Landlord is compensated through insurance or otherwise.
(iii) From and after the Commencement Date and
throughout the balance of the Lease Term, Tenant is to reimburse (pursuant to
the terms hereof) Landlord Tenant's Proportional Share of the amount, if any, by
which Operating Expenses exceed the Base Year. Tenant's "Proportional Share" is
equal to the ratio of the rentable square footage of the Leased Premises to the
total rentable square footage of the Building (minus any square footage that
Landlord does not provide services to), adjusted from time to time, as required,
to reflect increases or decreases or adjustments in the rentable square footage
in the Leased Premises or the Building.
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(iv) On or within ninety days after the commencement
of calendar year 2003 and each subsequent year, Landlord is to give Tenant a
detailed statement of estimated excess Operating Expenses payable hereunder for
the current year (which estimate is payable in equal monthly installments in
advance) and of actual excess Operating Expenses for the preceding year, if any.
If such statement is delivered after the first month of any such year, the
monthly installments of estimated excess Operating Expenses which have
accumulated for such year are to be paid within 20 days after such statement has
been given to Tenant.
(v) Upon receipt of Landlord's statement, Tenant does
hereby covenant and agree promptly to pay Tenant's Proportional Share of the
excess Operating Expenses as and when the same becomes due and payable, without
further demand therefor, and without any setoff or deduction whatsoever except
as herein expressly provided.
(vi) If the statement furnished by Landlord in a year
subsequent to the first day of such year shows that the estimate for the
preceding year exceeded the actual excess Operating Expenses for such year,
Landlord will at Tenant's election (which election must be made within 20 days
of receipt of such statement) forthwith pay the amount of the excess directly to
Tenant within 30 days of delivering such statement or permit Tenant to credit
the amount of the excess against the subsequent payments of rent hereunder. If
Tenant fails to make its election within such 20 day period, Tenant is deemed to
have elected to credit the amount of the excess against the subsequent payment
of rents hereunder. If, however, such statement shows that the actual excess
Operating Expenses for the preceding Operational Year exceeded the estimate for
such year, Tenant must within 30 days after Tenant receives such statement pay
the amount of such excess to Landlord.
(vii) Landlord will maintain or cause to be
maintained complete and accurate records and accounts in such manner and detail
as to provided a proper basis for analysis of the statements to be furnished by
Landlord. For a period of 90 days after receipt of the statement furnished
Tenant by Landlord hereunder, Tenant or its authorized representative has the
right for the purpose of verifying the information in such statement to inspect,
upon reasonable written notice, the books of Landlord during the business hours
of Landlord at Landlord's office in the Building or, at Landlord's option, at
such other location in the St. Louis metropolitan area that Landlord may
specify. Unless Tenant asserts specific error within 90 days after delivery of
such statement, the statement is deemed to be correct for all purposes hereunder
except for items of manifest error. If Landlord and Tenant do not agree as to
the amount or propriety of any item contained in such statement, the dispute is
to be referred to the local St. Louis office of an internationally recognized
accounting firm for final decision. The accounting firm is to be approved by
both Landlord and Tenant. Such accounting firm's decision is to be made within
60 days after the accounting firm is so chosen, and such decision is binding
upon both parties. If Landlord and Tenant are unable to agree on an accounting
firm within ten days after the dispute arises, each party is to choose its own
accounting firm and the two accounting firms so chosen are to choose a third
accounting firm with offices in the St. Louis metropolitan area. The third
accounting firm so chosen is to make a final decision within 30 days after being
so chosen, and such decision is binding upon both parties. Pending the receipt
of such decision and subject to adjustment and payment, refund or credit, as
appropriate, following resolution, Additional Rents, including advance,
estimated payments of such Additional Rent, are to be calculated and paid based
on Landlord's statement. The cost of the service of such accounting firms is to
be paid equally by Tenant and Landlord.
(iiii) The obligation of Tenant and Landlord with
respect to the payment or refund of Additional Rent hereunder survives the
termination of this Lease. Any payment, refund, or credit pursuant to this
Section is to be made without prejudice to any right of Tenant to dispute, or of
Landlord to correct, any items as billed pursuant to the provisions hereof.
Operating Expenses for any
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partial year within the Lease Term are to be properly apportioned based on the
number of days of occupancy by Tenant in such partial year.
(ix) No decrease in Landlord's Operating Expenses
reduces Tenant's rent below the annual Base Rent.
3.4 Past Due Rent. If Tenant fails to pay (a) Base Rent or Additional
Rent by the tenth day of the calendar month for which it is due, or (b) any
other amount or charge payable hereunder when due, interest at the per annum
rate of 12% will be charged on each unpaid amount, retroactive to the first day
of the calendar month in the case of clause (a) and from the date such amount is
due and payable in the case of clause (b).
ARTICLE IV
USE OF LEASED PREMISES
4.1 Use of Leased Premises. Tenant is to use the Leased Premises solely
for general office use and purposes incidental thereto. The Parking Spaces are
to be used solely for the parking of automobiles and other vehicles belonging to
Tenant's employees, customers and visitors and purposes incidental thereto.
Subject to the terms and conditions of this Lease, Tenant may have full and
complete access to the Leased Premises and common areas of the Building at all
times. The Parking Garage will be open to the public from the hours of 7 a.m. to
7 p.m. five days per week. Tenant will be provided one access card for each of
its parking spaces utilized by Tenant's employees, which access cards will
provide Tenant with full and complete access to the Parking Garage 24 hours per
day, seven days per week. Tenant agrees to pay Landlord $20 for the replacement
of any lost access card.
4.2 Restrictions on Use. Tenant may not use or occupy any part of the
Leased Premises for any unlawful business, use or purpose and may not commit or
allow to be committed or to exist on the Leased Premises any nuisance or other
act which violates any Applicable Law (as hereinafter defined) or which may
disturb the quiet enjoyment of any other tenant of the Building or which may
reasonably be expected to disturb or inconvenience occupants of property in
proximity to the Leased Premises. Movement in and out of the Building of
furniture or equipment, or dispatch or receipt by Tenant of any merchandise or
materials, may be done only during the hours reasonably designated by Landlord
and by means of elevators and exits reasonably designated by Landlord.
4.3 Right of Entry. Notwithstanding Tenant's use of the Leased
Premises, Landlord or its representatives may enter the Leased Premises at any
reasonable time, upon 48 hours advance written notice to Tenant (except in the
case of an emergency in which case no notice is required), for the purpose of:
(a) inspecting the Leased Premises; (b) performing Landlord's obligations under
the Lease; (c) performing any work which Landlord elects to undertake for the
safety, preservation, benefit or welfare of the Leased Premises or other tenants
of the Building; (d) exhibiting the Building or Leased Premises for sale, lease
or financing (but in the case of leasing, only during the last 180 days of the
Tenant's occupancy of the space to be exhibited); or (e) performing any work
which Landlord elects to undertake made necessary by reason of Tenant's default
hereunder. Landlord's right of entry pursuant to this Section may not
unreasonably interrupt the conducting of Tenant's business at the Leased
Premises. Subject to Section 14.2, Landlord will promptly reimburse Tenant for
any damage to Tenant's property caused by Landlord in exercising its right of
entry under this Section, except with respect to Section 4.3(e) and except for
any damage resulting from Tenant's negligence or wilful misconduct. Landlord's
right of entry under this Section does not constitute an eviction of Tenant, in
whole or in part, and no Base Rent or other amounts payable hereunder will be
reduced or abated, in whole or in part, as a result of Landlord exercising its
right of entry hereunder. This "right of entry" is not intended, nor may it be
construed, to be limited to its technical legal meaning.
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ARTICLE V
SERVICES TO BE PROVIDED BY LANDLORD
5.1 Services Provided.
(a) Landlord will provide and maintain throughout the Lease
Term: (i) heating, ventilation and air-conditioning from 7 a.m. to 6 p.m. on
business days and from 8 a.m. to 1 p.m. on Saturdays (excluding New Year's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving and Christmas Day,
collectively "Legal Holidays") to maintain the Leased Premises at reasonable
temperatures for normal occupancy and use; (ii) hot and cold water and sewer
services, as applicable, for lavatory and drinking purposes; (iii) electric
current consumed by the elevator and the heating, ventilating and
air-conditioning, lighting and power systems of the Building's common areas; and
(iv) janitorial services, including window washing (inside and out) and refuse
removal for reasonable neatness and cleanliness. Landlord's base Building HVAC
systems serving the Leased Premises shall provide sufficient capacity to
maintain an inside base temperature within the Leased Premises of not more than
75 degrees Fahrenheit dry bulb when the outside temperature is not more than 95
degrees Fahrenheit dry bulb, 78 degrees Fahrenheit wet bulb and an inside
temperature of not less than 72 degrees Fahrenheit dry bulb when the outside
temperature is not less than 0 degrees Fahrenheit (dry bulb).
(b) Landlord will, upon request of Tenant via computer card
usage, supply heating or air-conditioning during other than the hours provided
in Section 5.1(a)(i), and Tenant will reimburse Landlord at Landlord's average
cost per kilowatt-hours of electricity consumed, without markup, it being the
intent of the parties that Landlord will not profit from such additional HVAC
usage by Tenant.
(c) Tenant is to use the service provided by Landlord pursuant
to this Section in accordance with the criteria set forth in the rules and
regulations of the utility company or the governmental agency supplying the
same. Tenant may not at any time overburden or exceed the capacity of the mains,
feeders, conduits or other facilities by which such services are supplied to,
distributed in or serve the Building.
(d) Unless otherwise specified, the services to be provided by
Landlord pursuant to this Section are to be available to Tenant seven days a
week, 24 hours a day and without additional charge. Landlord will also engage a
security guard to patrol the common areas of the Building seven days a week, 24
hours a day.
5.2 Interruption of Service. No interruption, change or malfunction of
any of the services or facilities to be furnished by Landlord hereunder, nor any
interruptions, restrictions or allocation of utility services either by the
utility or as a result of governmental action constitutes a deliberate eviction
or constructive eviction or disturbance of Tenant's use and possession of the
Leased Premises or a breach by Landlord of any of its obligations hereunder or
renders Landlord liable for damages except to the extent such interruption is
caused by Landlord's deliberate act or omission. In any such event, Landlord is
to use reasonable diligence to restore such service or facility except where
such event is required by governmental authority.
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ARTICLE VI
REPAIRS AND MAINTENANCE
6.1 Tenant's Obligations. Tenant will not damage the Leased Premises,
will maintain and keep in good repair Tenant's improvements made pursuant to
Article VIII, as well as Tenant's other property located in or on the Leased
Premises, and will maintain the Leased Premises in a clean condition (subject to
Landlord providing the cleaning services to be rendered by Landlord as set forth
herein).
6.2 Landlord's Obligations. Landlord will, except as otherwise
expressly provided herein as to Tenant's obligations, maintain and keep in good
repair (including replacement when necessary), the Building, the Leased Premises
and the Appurtenances, including the main lobbies and lobbies on multi-tenant
floors, elevators, electrical lines, plumbing fixtures not part of Tenant's
Leasehold Improvements, heating, ventilating and air-conditioning equipment not
part of Tenant's Leasehold Improvements, landscaping, restrooms, outside walls,
windows, the roof, gutters and downspouts, sanitary sewers, the Parking Garage
and lights, the sidewalks, the common area and all other structural parts of the
Building. Landlord will keep the driveways, serviceways and walkways reasonably
free of snow, ice and debris, and keep all other equipment used to provide the
services furnished by Landlord under this Section in good repair. At Tenant's
sole cost, Landlord will make repairs necessitated by reason of the negligence
or omission or wilful misconduct of Tenant, Tenant's agents, employees or
invitees, or by reason of the failure of Tenant to perform or observe any
condition or agreement contained in this Lease, or caused by alterations,
additions or improvements made by Tenant, Tenant's agents, employees or
invitees. Landlord is not in any way liable to Tenant for failure to make
repairs herein required of Landlord unless Tenant has previously notified
Landlord, in writing, of the need for such repairs and Landlord fails to make
such repairs within a reasonable period of time following receipt of Tenant's
written notice.
6.3 Rights Upon Failure to Repair or Maintain.
(a) Of Landlord. If Tenant, following ten days written notice
from Landlord, refuses or neglects to make any repairs to the Leased Premises,
or part thereof, for which it is responsible pursuant to this Lease, Landlord
has the right (but is not obligated), upon giving Tenant reasonable written
notice of its election to do so, to make such repairs or perform such
maintenance on behalf of and for the account of Tenant. In so doing, Landlord
may make any payment of money or perform any other reasonable act. All sums so
paid by Landlord and all incidental costs and expenses incurred in connection
with the performance of any such act by Landlord, is Additional Rent and is
payable to Landlord immediately upon demand. Landlord may exercise the foregoing
rights without waiving any other of its rights against Tenant or without
releasing Tenant from any of its obligations under this Lease.
(b) Of Tenant. If Landlord defaults in the performance of its
obligations under Section 6.2, which default interrupts Tenant's business being
conducted at the Leased Premises, and Landlord does not cure such default within
a reasonable time after written notice thereof from Tenant, Tenant may (without
being obligated to), without waiving any claim for damages for such breach, cure
such default for the account of Landlord. Nothing herein shall preclude Tenant
from making repairs in an emergency. Any amount paid or any contractual
liability incurred by Tenant in so doing is to be paid by Landlord to Tenant
within ten days after demand therefor. Notwithstanding the foregoing, Tenant may
not make repairs to the Parking Garage or to that portion of the Building which
does not constitute Leased Premises, but may only make repairs to the Leased
Premises, subject to the other provisions of this Section 6.3(b). Nothing herein
shall preclude Tenant from making reasonable repairs in an emergency.
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ARTICLE VII
INSURANCE
7.1 Cost of Insurance to Landlord. If the cost of insurance to Landlord
is increased by reason of the occupancy and use of the Leased Premises by
Tenant, or by reason of alterations, additions or improvements to the Leased
Premises made by or for Tenant and not required to be furnished by Landlord
under this Lease, such increase is to be paid by Tenant to Landlord as
Additional Rent on demand and presentation to Tenant by Landlord of proof of
such increase. No such increase may be deemed to have resulted from the
Leasehold Improvements (as hereinafter defined) or Tenant's use and occupancy of
the Leased Premises in a manner customary to the purpose set forth in Section
4.1.
7.2 Tenant's Insurance. From and after the Commencement Date, Tenant is
to carry and maintain, at its sole cost and expense, the following types of
insurance, in the amount specified and in the form hereinafter provided.
(a) Tenant is to maintain bodily injury insurance with limits
of not less than $500,000 per person and $1,000,000 per occurrence, insuring
against any and all liability of the insured with respect to the Leased Premises
or arising out of the maintenance, use or occupancy thereof, and property damage
liability insurance with a limit of not less than $500,000 per accident or
occurrence.
(b) Tenant is to maintain fire and extended coverage
insurance, together with insurance against sprinkler leakage, vandalism and
malicious mischief, covering Tenant's trade fixtures, furniture, equipment and
other items of personal property located on or at the Leased Premises.
(c) All such insurance maintained by Tenant pursuant to this
Section must specifically name Landlord as an additional insured, and the
interests of the Mortgagee (as hereinafter defined) are to be insured under a
standard mortgagee clause. All such insurance must also insure the performance
by Tenant of Tenant's indemnity under Article XIV and contain an endorsement
stating that such policy may not be canceled or modified by the insurer or
Tenant without Landlord having been given at least 30 days prior written notice
by the insurer.
(d) On the Commencement Date, Tenant is to provide Landlord
with a certificate of insurance evidencing the coverage required under this
Section. Tenant must also provide Landlord with a certificate of insurance
evidencing a new policy with at least the same coverage no less than 30 days
prior to the expiration of the old policy.
7.3 Landlord's Insurance From and after the Commencement Date, Landlord
is to carry and maintain the following types of insurance, in the amount
specified and in the form hereinafter provided.
(a) Landlord is to maintain all-risk casualty insurance,
written at replacement cost value and with a replacement cost endorsement, on
the Building, the Appurtenances and the Leasehold Improvements.
(b) Landlord is to maintain comprehensive general liability
insurance covering claims for bodily injury or death, property damage or
personal injury arising from the use of the Building or the Appurtenances,
however caused, with per occurrence limits of not less than $1,000,000 for
bodily injury and $500,000 for property damage.
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(c) If requested by Tenant, Landlord is to furnish Tenant with
a certificate of insurance for each required coverage, and renewal thereof,
showing that the required insurance is in force.
7.4 Mutual Release of Insured Risks. Notwithstanding anything herein to
the contrary, Landlord and Tenant and all parties claiming under them hereby
mutually release and forever discharge the other from all claims and liabilities
from or caused by any hazard or incident covered by insurance on the Building or
Leased Premises or covered by insurance in connection with property on or at the
Building or Leased Premises, regardless of the cause of the damage or loss. This
release applies only to the extent that such loss or damage is covered by
insurance and only so long as applicable insurance policies contain a clause to
the effect that this release does not affect the right of the insured to recover
under such policies.
ARTICLE VIII
TENANT'S IMPROVEMENTS
8.1 Leasehold Improvements.
(a) No alteration, addition, improvement, or refinishing of or
to the Leased Premises may be made by Tenant without the prior written consent
of Landlord and without Landlord's approval of Tenant's plans and specifications
therefor, which consent and approval may not be unreasonably withheld or
delayed. Any permanent improvement made by Tenant becomes the property of
Landlord upon the installation of such permanent improvement. Any other
alteration, addition or improvement made by Tenant and any building fixture
installed by Tenant which constitutes a fixture (including wall-to-wall
carpeting, light and plumbing fixtures, wall paneling and air-conditioning
equipment) becomes the property of Landlord upon the expiration or sooner
termination of this Lease. At the termination of this Lease, Tenant is to
surrender the Leased Premises as provided in Article XIII. Tenant is to pay or
cause to be paid all costs for work done by it or caused to be done by it on the
Leased Premises. Tenant agrees to indemnify and hold Landlord free and harmless
against liability, loss, damage, costs, reasonable attorneys' fees and all other
expenses on account of claims or liens of laborers or materialmen or others for
work performed or materials or supplies furnished for Tenant or persons claiming
under Tenant. This indemnity survives the expiration or earlier termination of
this Lease. Notwithstanding the foregoing, Tenant may make minor improvements to
the Leased Premises without the prior written consent of Landlord so long as
such minor improvements do not (i) affect the structural, mechanical,
electrical, security, sprinkler, energy management, or life safety systems of
the Building or Leased Premises, (ii) require the issuance of a building permit,
or (iii) exceed $5,000.00.
(b) Without limiting Landlord's right to otherwise reasonably
reject any proposed alteration, addition or improvement, Landlord will not be
deemed unreasonable for rejecting any alteration or addition which (i) affects
any structural or exterior element of the Building, any area or element outside
of the Leased Premises or any facility serving any area of the Building outside
of the Leased Premises, or (ii) will require unusual expense to readapt the
Leased Premises to normal use after the Expiration Date or increase the cost of
insurance on the Building unless Tenant first gives assurance acceptable to
Landlord for payment of such increased cost or that such readaptation will be
made prior to the Expiration Date without expense to Landlord.
(c) All of Tenant's alterations are to be performed by
Landlord's general contractor or by contractors or workmen first approved by
Landlord, which approval will not be unreasonably withheld or delayed. Except
for work to be performed by Landlord's general contractor, Tenant, before its
work is started, must: (i) secure all licenses and permits necessary therefore;
(ii) deliver to Landlord
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a statement of the names of all its contractors and subcontractors and the
estimated cost of all labor and material to be furnished by them; and (iii)
cause each contractor to: (A) carry workmen's compensation insurance in
statutory amounts covering all the contractor's and subcontractor's employees
and comprehensive public liability insurance and property damage insurance with
such limits as Landlord may reasonably require, and (B) deliver to Landlord
certificates of all such insurance. Tenant agrees to pay promptly when due the
entire cost of any work done on the Leased Premises by Tenant, its agents,
employees or independent contractors. If Landlord so requests and the cost of
such work exceeds $5,000, Tenant must promptly obtain from Tenant's contractors
performing any such work a performance and payment bond on the latest AIA form
covering such contractor's obligees and in which Landlord is named as a dual
obligee. Tenant must provide Landlord drawings of any alterations made by
Tenant, which drawings are to depict the location of all such alterations,
including wall and door locations, electrical services and mechanical systems.
All improvements by Tenant hereunder must be consistent with Applicable Law and
the general demeanor of the Building. All such work must be done in a good and
workmanlike manner and be diligently prosecuted, and may not interfere with any
trade union or the like performing work on the Building, the Adjoining Building
or Parking Garage on behalf of Landlord, or Landlord's relationship (including a
strike or work stoppage) with such trade union or the like.
8.2 Trade Fixtures and Personal Property. All articles of personal
property, all furniture, and all business and trade fixtures, machinery and
equipment owned by Tenant or installed by Tenant at its expense in the Leased
Premises ("Tenant's Property") are and remain the property of Tenant. Subject to
the applicable provisions of this Lease, Tenant's Property may be removed at any
time during or at the end of the Lease Term, provided that Tenant repairs any
damage to the Leased Premises or Building caused by such removal. If Tenant
fails, for whatever reason, to remove all of Tenant's Property from the Leased
Premises upon termination of the Lease Term, Landlord may, at its option, upon
five (5) days written notice to Tenant and without liability to Tenant for loss
of such Tenant's Property: (a) remove such Tenant's Property in any reasonable
manner that Landlord chooses and store the same; or (b) sell such Tenant's
Property, or any portion thereof, at private sale and without legal process for
such price as Landlord may obtain. Tenant agrees to pay Landlord, upon demand,
any and all expenses reasonably incurred by Landlord in connection with such
storage or sale, as the case may be. The proceeds of any sale are to be applied
by Landlord in the following order: (i) to the expenses and costs of such sale;
(ii) to amounts due Landlord from Tenant under the Lease; and (iii) the excess,
if any, to Tenant.
8.3 Mechanics Liens. Tenant may not suffer any mechanic's or
materialman's lien to be filed against the Leased Premises, the Building or the
Land by reason of work, labor, services or materials performed or furnished to
Tenant or anyone holding any part of the Leased Premises under Tenant. If any
such lien is at any time so filed, Tenant must, within 30 days of the filing
thereof, cause such lien to be released of record. If Tenant fails to have such
lien released of record within such 30 day period, Landlord may (but is not
obligated to) remove such lien without investigating the validity thereof and
irrespective of the fact that Tenant may contest the propriety or amount
thereof. Tenant, upon demand, is to pay Landlord as Additional Rent the amount
so paid out by Landlord in connection with the discharge of such lien, including
reasonable attorneys' fees and expenses. Nothing contained herein is a consent
on the part of Landlord to subject Landlord's estate in the Leased Premises to
any lien or liability under Applicable Law.
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ARTICLE IX
CASUALTY AND EMINENT DOMAIN
9.1 Casualty. If any portion of the Leased Premises is damaged or
destroyed by fire or other casualty, or if the Building is materially damaged or
destroyed by fire or other casualty, Landlord is to repair or restore the Leased
Premises (but excluding Tenant's Property) or the Building, as the case may be,
with reasonable diligence to the condition the Leased Premises or the Building
was in immediately preceding the occurrence of such damage or destruction. From
the date of such damage or destruction and continuing throughout the period of
such restoration or repair, the Base Rent, Additional Rent, and other charges,
if any, payable hereunder equitably xxxxx to the extent the Leased Premises or
Tenant's use and occupancy thereof are materially affected thereby. However, if
such damage is so extensive that such repair or restoration cannot be completed
by Landlord within a period of 150 days following the date of such damage, or
more than 50% of the net rentable square footage of the Leased Premises is
damaged, Landlord or Tenant has the right to terminate this Lease by giving
notice thereof to the other within 30 days following the occurrence of such
casualty. In such case, (a) Landlord has no obligation to repair or restore the
Leased Premises or Building, (b) this Lease automatically terminates as of the
date of such notice, (c) the Base Rent, Additional Rent, and other charges, if
any, are to be adjusted as of the date of the occurrence of such casualty, and
(d) neither party has any liability by reason of such termination or further
obligation to the other hereunder except the obligations under Article XIV and
such other obligations which survive the termination of this Lease. Except for
the abatement of rent and other charges as set forth above, Tenant is not
entitled to, and hereby waives all claims against Landlord for, any compensation
or damage for loss of use of the whole or any part of the Leased Premises or
Appurtenances, or for any inconvenience or annoyance occasioned by any such
damage, destruction, repair or restoration except for any claim based upon the
negligence or wilful misconduct of Landlord or its agents or employees. The
provisions of any Applicable Law under which a lease is automatically terminated
or a tenant is given the right to terminate a lease upon the occurrence of any
such damage or destruction, are hereby expressly waived by Tenant to the maximum
extent permitted under Applicable Law.
9.2 Eminent Domain.
(a) If 50% or more of the Building, or such amount of the
Leased Premises that leaves the remaining Leased Premises unsuitable for
Tenant's continued occupancy for the uses and purposes for which leased, is
taken by any public or quasi-public authority under the power of condemnation,
eminent domain or expropriation, or in the event of a conveyance subsequent to
the commencement of an action under such power, both Landlord and Tenant have
the right to terminate this Lease by giving notice thereof to the other, such
termination to be effective on the last day of the month following the month in
which the notice is given.
(b) If this Lease is terminated as a result of either party
exercising its option under Section 9.2(a), Base Rent, Additional Rent and other
charges, if any, payable hereunder are to be adjusted as of the date of taking,
and any such rents or charges paid for any period after the date of taking are
to be promptly repaid to Tenant, whereupon neither party has any further
obligation to the other hereunder except the obligations under Article XIV and
the other obligations which survive the termination of this Lease. If this
Lease, notwithstanding any such taking or conveyance, continues in effect as to
any part of the Leased Premises: (i) the Base Rent, Additional Rent and other
charges, if any, payable hereunder, are to be apportioned and adjusted as of the
date of taking on the basis of the area (in usable square feet) of the part
taken or conveyed in lieu thereof and the part that continues to be leased
hereunder, and any such rent and charges paid for the part so taken or conveyed
for any period after the date of taking is to be promptly repaid to Tenant and
for the part not so taken continues
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to be payable, as herein provided, subject to equitable abatement to the extent
Tenant's use of such part is materially affected pending completion by Landlord
of the alterations required herein; and (ii) Tenant's Proportional Share of
Operating Expenses and other items are to be recalculated.
(c) If this Lease, notwithstanding any such taking or
conveyance, continues in effect, Landlord will, at its expense, make all
necessary alterations as soon as reasonably practicable so as to constitute the
remaining Building and Leased Premises a complete architectural and tenantable
unit, except for Tenant's Property.
(d) All awards and compensation for any such taking or
conveyance, whether for the whole or a part of the Building, including the
Leased Premises, are the property of Landlord. Tenant hereby assigns to Landlord
all of Tenant's right, title and interest in and to any and all such awards and
compensation, excluding, however, any separately segregated award or
compensation for the value of the unexpired portion of the Lease Term which
award or compensation shall be the property of Tenant. Nothing herein shall
preclude Tenant from having the right to claim and recover from a condemning
authority compensation for any loss to which Tenant may be entitled for Tenant's
moving expenses or other relocation costs and for reimbursement of unamortized
Tenant improvements or alterations.
ARTICLE X
TENANT'S DEFAULTS
The occurrence of any one or more of the following events, acts or
occurrences constitutes an event of default ("Event of Default") hereunder:
10.1 Rent. Tenant defaults in the payment of Base Rent or Additional
Rent due hereunder for more than ten days after written notice of failure to
pay;
10.2 Other Monetary Obligations. Tenant defaults in the payment of any
monetary obligation due hereunder other than Base Rent or Additional Rent for
more than ten days after written notice of failure to pay;
10.3 Other Covenants. Tenant defaults in the performance of any other
covenant, agreement, condition, rule or regulation herein contained or provided
for, or hereafter validly established, for more than 30 days after Landlord
gives Tenant notice of such default, or, if such default is not capable of being
cured within such 30 day period, Tenant has not commenced such performance in
good faith within such ten day period and is not diligently and continuously
proceeded therewith to completion;
10.4 Insolvency. (a) Tenant admits in writing its inability to pay its
debts generally; (b) Tenant makes a general assignment for the benefit of
creditors; (c) any proceeding is instituted by or against Tenant (i) seeking to
adjudicate it a bankrupt or insolvent, (ii) seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of it
or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or (iii) seeking the entry of an order for relief or the
appointment of a receiver, trustee or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against Tenant, either such proceeding remains undismissed or
unstayed for a period of 30 days or any of the actions sought in such proceeding
occurs; or (d) Tenant takes any action to authorize any of the actions set forth
in this Section 10.4.
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ARTICLE XI
LANDLORD'S REMEDIES
Upon the happening of an Event of Default, in addition to all other
remedies that Landlord may have hereunder or under Applicable Law, Landlord has
the following rights and remedies.
11.1 Right of Re-Entry. Landlord has the right to peaceably re-enter
and take possession of the Leased Premises and dispose of and remove therefrom
Tenant, or other occupants thereof, and their effects, and alter the locks and
other security devices at the Leased Premises. Landlord may do the above without
service of notice or resort to legal process and without being deemed guilty of
trespass or becoming liable for any loss or damage which may be occasioned
thereby. Notwithstanding such retaking of possession by Landlord, Tenant's
liability for Base Rent, Additional Rent and other monetary payments provided
for herein are not extinguished except as otherwise set forth in this Article.
11.2 Right to Terminate. Landlord may exercise its right to re-enter
under Section 11.1, or take possession pursuant to legal proceeding or pursuant
to any notice provided for by Applicable Law, and terminate this Lease. If
Landlord terminates this Lease, Tenant is to immediately pay to landlord a sum
equal to any and all Base Rent, Additional Rent and other monetary payments that
are then due and which will become due under this Lease for the balance of the
Lease Term, subject to Landlord's obligation to mitigate its damages. If
Landlord elects to terminate this Lease, the amount to be collected by Landlord
is the present value of any and all Base Rent, Additional Rent and other
monetary payments that are then due and which will become due under the Lease
for the balance of the Lease Term, such present value to be calculated by
Landlord using the then prevailing interest rate for U.S. Treasury Notes which
have a maturity date equal to or most equal to the remaining term of the Lease.
In addition, Landlord may recover all other damages it incurs as a result of
such default from Tenant.
11.3 Right to Re-Let. Landlord may exercise its right to re-enter under
Section 11.1 or take possession pursuant to legal proceedings or pursuant to any
notice provided for by Applicable Law and, without terminating this Lease, make
such reasonable alterations and repairs as may be necessary to relet the Leased
Premises, and relet all or any part of the Leased Premises as the agent of and
for the account of Tenant upon such terms and conditions as Landlord may deem
advisable. Upon any such relettings, the rents received therefrom are to be
applied to (a) the expenses of reletting and collection of rents, including the
costs of the renovation and alteration of the Leased Premises, or portion
thereof, (b) reasonable attorneys' fees and real estate commissions and other
repossession costs paid, and (c) thereafter to make such payment of all sums due
or to become due Landlord under this Lease. If a sufficient sum is not then
realized from such reletting to pay such amounts set forth in the immediately
preceding sentence, Tenant is to pay Landlord any such deficiency, on demand,
and Landlord may bring an action against Tenant therefor as each and every such
deficiency arises. Notwithstanding any reletting pursuant to this Section,
Landlord may at any time thereafter elect to terminate this Lease for such Event
of Default.
11.4 Re-Entry Not An Election To Terminate. No re-entry or taking
possession of the Leased Premises by Landlord is an election on Landlord's part
to terminate this Lease unless a written notice of such intention is given to
Tenant or unless the termination is decreed by a court of competent
jurisdiction.
11.5 Determination of Additional Rent. In determining Additional Rent
which would be payable by Tenant hereunder subsequent to an Event of Default,
the average annual Additional Rent paid by Tenant from the Commencement Date to
the time of default or during the preceding three full calendar years, whichever
period is shorter, is to be utilized.
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11.6 Waivers. Except as otherwise provided herein, to the maximum
extent permitted by Applicable Law, Tenant waives demand for rent, demand for
possession, notice of forfeiture, notice of termination and any and all demands
or notices required by Applicable Law. Tenant hereby expressly waives any right
to assert a defense based on merger and agrees that neither the commencement of
any action or proceeding, nor the settlement thereof, nor the entry of judgment
thereon bars Landlord from bringing any subsequent actions or proceedings from
time to time.
ARTICLE XII
SELF HELP
12.1 By Landlord. If Tenant, following ten days written notice from
Landlord, refuses or neglects to perform any act for which it is responsible
under this Lease, Landlord has the right (but is not obligated), upon giving
Tenant reasonable written notice of its election to do so, to perform and act on
behalf of and for the account of Tenant. In so doing, Landlord may make any
payment of money or perform any other act. All sums so paid by Landlord and all
incidental costs and expenses incurred in connection with the performance of any
such act by Landlord, is Additional Rent and is payable to Landlord immediately
upon demand. Landlord may exercise the foregoing rights without waiving any of
its other rights against Tenant or without releasing Tenant from any of its
obligations under this Lease.
12.2 By Tenant. If Landlord defaults in the performance of any of its
obligations under this Lease, which default interrupts Tenant's business being
conducted at the Leased Premises, and Landlord does not cure such default within
a reasonable time after written notice thereof from Tenant, Tenant may (without
being obligated to), without waiving any claim for damages for such breach, cure
such default for the account of Landlord, subject to the last sentence of
Section 6.3(b). Any amount paid or any contractual liability incurred by Tenant
in so doing is to be paid by Landlord to Tenant within ten days after demand
therefor.
ARTICLE XIII
SURRENDER OF PREMISES; HOLDING OVER
13.1 Surrender of Premises. At the expiration of the Lease Term or
earlier termination of this Lease, Tenant must quit and surrender the Leased
Premises, together with all keys and combinations to locks, to Landlord,
broom-clean and free of disrepair that is the obligation of Tenant hereunder to
make, normal wear and tear and minor damage excepted. Prior to the expiration of
the Lease Term, or upon the earlier termination of this Lease, Tenant must
remove all of Tenant's Property from the Leased Premises and Building and repair
all damage caused by such removal. Tenant may not remove from the Leased
Premises any property that is or becomes Landlord's pursuant to this Lease. If
the Leased Premises are not surrendered pursuant to this Section, Tenant agrees
to indemnify Landlord against all loss or liability resulting from the delay by
Tenant, including any claims made by any succeeding occupant founded on such
delay. Tenant's obligations under this Section survive the expiration or sooner
termination of this Lease.
13.2 Holding Over. If Tenant remains in possession of the Leased
Premises after the expiration of this Lease without having exercised an option
to renew or without having a new lease reduced to writing and duly executed,
even if Tenant has paid and Landlord has accepted rent in respect of such
holding, Landlord may, at its sole election, deem Tenant to be occupying the
Leased Premises as a month-to-month tenant, subject to all the provisions of
this Lease insofar as they are applicable to a month-to-month tenancy. There is
no renewal of this Lease by operation of Applicable Law. During the period of
any such holding over, all provisions of this Lease that are applicable to a
month-to-month tenancy remain in effect except that the monthly rental is equal
to 150% of the monthly Base Rent and
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Additional Rent payable for the last calendar month of the Lease Term
(collectively "Post-Term Rent Rate"). This Section shall not be deemed a consent
by Landlord for Tenant to hold over.
ARTICLE XIV
INDEMNITY
14.1 Indemnity. Tenant hereby agrees to defend, pay, indemnify and save
free and harmless Landlord from and against any and all claims, demands, fines,
suits, actions, proceedings, orders, decrees and judgments of any kind or nature
by or in favor of anyone whomsoever and from and against any and all reasonable
out-of-pocket costs and expenses, including reasonable attorneys' fees,
resulting from or in connection with loss of life, bodily or personal injury or
property damage arising, directly or indirectly, out of, from, or on account of
any occurrence in, upon, at or from the Leased Premises which arises from
Tenant's occupancy thereof except to the extents due to the negligence or wilful
misconduct of Landlord or Landlord's officers, employees, agents, contractors or
invitees, and, if due to Tenant's or Tenant's officers', employees', agents',
contractors' or invitees' negligence or wilful misconduct, the Appurtenances.
Except as otherwise set forth in Section 4.3, Landlord agrees to defend, pay,
indemnify and save free and harmless Tenant from and against any and all claims,
demands, fines, suits, actions, proceedings, orders, decrees and judgments of
any kind or nature by or in favor of anyone whomsoever and from and against any
and all reasonable attorney's fees, resulting from or in connection with loss of
life, bodily or personal injury or property damage arising, directly or
indirectly, out of, from or on account of any occurrence in, upon, at, or from
the Building and Appurtenances except to the extent due to the negligence or
wilful misconduct of Tenant or Tenant's officers, employees, agents, contractors
or invitees.
14.2 Exceptions to Indemnity. Notwithstanding Section 14.1, Landlord is
not responsible or liable at any time to Tenant for any loss of life, bodily or
personal injury, damage to property or business, or business interruption caused
by persons other than Landlord and Landlord's employees, agents and invitees.
Landlord is not responsible or liable at any time for loss of life, or injury or
damage to any person or to any property or business of Tenant, or those claiming
by, through or under Tenant, (a) caused by or resulting from the bursting,
breaking, leaking, running, seeping, overflowing or backing up of water, steam,
gas, sewage, snow or ice in any part of the Leased Premises unless due to the
negligence of Landlord, or (b) caused by or resulting from acts of God or the
elements.
14.3 Survival. The obligations of the parties under this Article
survive the expiration or earlier termination of this Lease.
ARTICLE XV
ASSIGNMENT AND SUBLETTING
15.1 To Third Parties. Tenant may not assign, sublet or permit the use
by others of the Leased Premises, or any part thereof, without in each instance
the prior written consent of Landlord, which consent may not be unreasonably
withheld or conditioned.
15.2 To Affiliates. Notwithstanding Section 15.1, Tenant may, upon
prior written notice to Landlord, assign or sublet all or any part of its
interest in the Leased Premises to an Affiliate of Tenant.
15.3 Effect of Assignment or Sublease/Profit Split. No assignment or
sublease by Tenant of its interest in the Leased Premises, whether to a third
person or an Affiliate, whether with or without the consent of Landlord, and
whether or not Landlord has accepted the assignee or sub-tenant, releases Tenant
from the further performance by Tenant of any of Tenant's obligations under this
Lease unless Landlord specifically agrees otherwise, nor relieves Tenant from
obtaining Landlord's consent in
17
accordance with this Article for any further assignment or subletting. If Tenant
assigns or sublets the Leased Premises, any amount payable by such sub-tenant
over and above the amount due and payable under this Lease (the "Profit") shall
be split equally between Landlord and Tenant hereunder.
15.4 Sale by Landlord. In the event of any sale or exchange of the
Leased Premises or Building by Landlord or the assignment by Landlord of this
Lease (all of which may be done without Tenant's consent), Landlord is entirely
freed and relieved of all liability under any and all of its covenants and
obligations contained in or derived from this Lease arising out of any act,
occurrence or omission relating to the Leased Premises occurring after the
consummation of such sale, exchange or assignment. Regardless of such sale,
exchange or assignment, this Lease remains in full force and effect and the
purchaser or assignee assumes all of the responsibilities and obligations of
Landlord under this Lease.
ARTICLE XVI
ATTORNMENT; SUBORDINATION; ESTOPPEL
CERTIFICATE; AND QUIET ENJOYMENT
16.1 Attornment. Tenant must, in the event of a sale, transfer or
assignment by Landlord of the Building or Leased Premises or any portion thereof
or of this Lease, or in the event any proceedings are brought for the
foreclosure of any Mortgage (as hereinafter defined) or in the event of an
exercise of the power of sale under any Mortgage, attorn to and recognize such
transferee, purchaser or Mortgagee (as hereinafter defined) as Landlord under
this Lease, and promptly execute and deliver any instrument that such successor
Landlord may reasonably request to evidence such attornment provided Tenant's
occupancy is not disturbed and such purchaser, transferee or assignee (other
than for security purposes) assumes Landlord's obligations under this Lease.
Upon such attornment, this Lease or such parts thereof to which the successor
Landlord succeeded, shall continue in full force and effect as a direct lease
between the successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease and as are relevant to such interest.
Notwithstanding the above, as to the Mortgagee or a purchaser at a foreclosure
or other sale under the Mortgage, such successor Landlord is not (a) liable for
any previous act or omission of Landlord, (b) subject to any offset which
theretofore may have accrued to Tenant against Landlord, (c) bound by any
previous modification of this Lease or by any previous prepayment of more than
one month's rent, unless such modification or prepayment was made prior to the
making of such Mortgage or was expressly approved in writing by the Mortgagee
through which the successor Landlord succeeded to the rights of Landlord under
this Lease, or (d) liable for any security deposits not actually received in
cash by such successor Landlord.
16.2 Subordination.
A. This Lease is and shall be expressly subject and subordinate at all
times to the lien of any Mortgage, and all amendments, restatements, renewals,
modifications, consolidations, assignments and extensions thereof, without the
necessity of any further instrument or act on the part of Tenant. This
subordination shall be self-operative and no further certificate or instrument
of subordination need be required by any Mortgagee. In confirmation of such
subordination, however, upon the written request of the holder (the "Mortgagee")
of any mortgage now or hereafter encumbering the Land or Building, including the
Leased Premises and Appurtenances or any part thereof, Tenant shall, within 15
days of Tenant's receipt thereof, execute any reasonable certificate or
instrument that Landlord or Mortgagee may request confirming subordination of
Tenant's rights under this Lease to the lien of such mortgage ("Mortgage").
Notwithstanding the foregoing, if at any time the Mortgagee elects to have this
Lease or Tenant's rights hereunder superior to its Mortgage, then such Mortgagee
may subordinate its Mortgage to this Lease without Tenant's consent by notice in
writing to Tenant, and thereupon this Lease shall be
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deemed prior to such Mortgage without regard to their respective dates of
execution, delivery or recording, and in that event such Mortgagee shall have
the same rights with respect to this Lease as though the Lease had been executed
prior to the execution, delivery or recording, and in that event such Mortgagee
shall have the same rights with respect to this Lease as though the Lease had
been executed prior to the execution, delivery and recording of such Mortgage
and had been assigned to such Mortgagee (subject to the provisions of Section
16.1 hereof).
B. Tenant agrees that neither any foreclosure of any such Mortgage nor
the institution of any such action or proceeding against Landlord, or any
foreclosure proceeding brought by any such Mortgagee to recover possession of
the Building, Land or Leased Premises, shall by operation of law or otherwise,
except at the express election of the Mortgagee, result in the cancellation or
termination of this Lease or the obligations of Tenant hereunder and upon the
request of any such Mortgagee, Tenant covenants and agrees to execute an
instrument in writing satisfactory to such Mortgagee or to the purchaser at
foreclosure whereby Tenant attorns to such successor in interest.
16.3 SNDA Certificate. Tenant agrees to execute contemporaneously
herewith the subordination, non-disturbance and attornment agreement attached
hereto as Exhibit 16.3, and, from time to time, within fifteen days after
Tenant's receipt of written request by Landlord, to execute, acknowledge and
deliver to Landlord a statement in writing prepared by Landlord certifying that
this Lease is unmodified and in full force and effect (to the extent accurate)
and that Tenant has no defenses, offsets or counterclaims against its
obligations to pay the Base Rent and Additional Rent and to perform its other
covenants under this Lease and that there are no uncured defaults of Landlord or
Tenant under this Lease (or, if there have been any modifications that the same
is in full force and effect as modified and stating the modifications and, if
there are any defenses, offsets, counterclaims or defaults, setting them forth
in reasonable detail), and the dates to which the Base Rent, Additional Rent and
other charges have been paid. Any such statement delivered pursuant to this
Section may be relied upon by a prospective purchaser or Mortgagee of the Leased
Premises or any prospective assignee of any Mortgagee of the Leased Premises.
Tenant agrees to provide the above information substantially in the form of the
SNDA Certificate, and including any additional information as may reasonably be
requested by Landlord or any such prospective Mortgagee or purchaser.
16.4 Right of Mortgagee to Notice of Default and Cure. No act or
failure to act on the part of Landlord which would entitle Tenant under the
terms of this Lease, or under Applicable Law, to take any action, cure any
default or withhold any sums due under this Lease, or to be relieved of Tenant's
obligations hereunder or to terminate this Lease, results in a release or
termination of such obligations or a termination of this Lease, unless (a)
Tenant has first given written notice of Landlord's act or failure to act to the
Mortgagee of record with respect to the Building or Land, if any, specifying the
act or failure to act on the part of Landlord which could or would give basis to
Tenant's rights; and (b) such Mortgagee, after receipt of such notice, fails or
refuses to correct or cure the condition complained of within a reasonable time
thereafter (including any delays resulting from force majeure or other
circumstances beyond the control of such Mortgagee). Nothing contained in this
Section imposes any obligation on any such Mortgagee to correct or cure any
condition.
16.5 Quiet Enjoyment. Upon payment by Tenant of the monetary
obligations herein provided, and upon the observance and performance of all the
covenants, terms and conditions on Tenant's part to be observed and performed,
Tenant may peaceably and quietly hold and enjoy the Leased Premises for the term
hereby demised without hindrance or interruption by Landlord or any other person
lawfully or equitably claiming by, through or under Landlord, subject,
nevertheless, to the terms and conditions of this Lease and to existing deeds of
trust, easements, restrictions, if any, of record and the rights of other
tenants of the Building.
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ARTICLE XVII
CONSTRUCTION
17.1 Construction of Leasehold Improvements.
(a) For purposes of this Lease, "Leasehold Improvements" means
all materials and work to be added to the core and shell of the Building, the
Parking Garage and Appurtenances to finish the Leased Premises for Tenant in
addition to the materials and work necessary to deliver the Leased Premises in
White Box Condition (as defined in Exhibit 17.1 attached hereto). As part of its
Leasehold Improvements, Tenant may install a generator in the Parking Garage,
subject to the approval of the City of Xxxxxxx and/or County of St. Louis, the
location of which shall be determined by Landlord. Such generator shall be
enclosed and such enclosure shall be compatible with the design of the Parking
Garage. Also as part of its Leasehold Improvements, Tenant may, as a backup
source of electricity, connect its systems to the electrical substation
servicing the Adjoining Building.
(b) Landlord will grant Tenant an allowance of $30 per
rentable square foot of the Leased Premises to construct the Leasehold
Improvements. Tenant is responsible for all costs for the Leasehold Improvements
to the extent such costs for the Leasehold Improvements exceed $30 per rentable
square foot ("Tenant Plan Excess Costs"). If cost of the Leasehold Improvements
is less than $30 per rentable square foot, the difference shall be a credit
towards Tenant's Base Rent first due or other payments due Landlord hereunder.
Except as otherwise may be approved by Landlord, all Leasehold Improvements,
including work to be performed at Tenant's expense, shall be performed by
contractors employed by Landlord. Construction of Leasehold Improvements shall
be performed in accordance with the terms of this Lease and a Work Agreement to
be prepared and executed by the parties prior to commencement of construction of
Leasehold Improvements. Such Work Agreement shall identify the approved plans
and specifications for Tenant's Leasehold Improvements, the contractor and
subcontractors to perform the work, the agreed upon method for
payment/reimbursement of the allowance and such other terms and provisions
reasonably requested by Landlord.
In addition to the allowance for Leasehold Improvements,
Landlord will reimburse Tenant for 50% of the costs incurred by it to construct
an internal stairwell between the tenth and ninth floors of the Leased Premises.
ARTICLE XVIII
REPRESENTATIONS AND WARRANTIES
18.1 Landlord. Landlord makes the following representations and
warranties to Tenant:
(a) The common areas of the Building will be constructed in
compliance with all requirements of the Americans with Disabilities Act of 1990
(the "ADA") as the same relates to the Building.
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(b) On the Commencement Date, the Leased Premises will be in
material compliance with all laws, ordinances, rules, regulations, orders and
other governmental requirements relating to the use, condition and occupancy
(except that a certificate of occupancy is required to be issued with respect to
Tenant's occupancy of the Leased premises) of the Leased Premises, and all
rules, ordinances, orders and regulations of the board of fire underwriters or
insurance service office, or any similar body having jurisdiction over the
Leased Premises and the Building.
18.2 Tenant. Tenant will keep the Leased Premises free from any
architectural barrier (installed by Tenant with or without the approval of
Landlord) as are necessary and readily achievable to comply with the ADA.
ARTICLE XIX
MISCELLANEOUS
19.1 Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of a lesser amount than the Basic Rent, Additional Rent or other
amounts to be paid hereunder is to be other than on account of the earliest of
such items then due, nor may any endorsement or statement on any check or any
letter accompanying any check or payment be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such amount due or pursue any other remedy in
this Lease provided.
19.2 Rules. Landlord, from time to time, has the right to make,
establish and promulgate reasonable and nondiscriminatory rules and regulations
for the Building, and all of the occupants and tenants thereof, and Tenant must
observe, keep and comply with and cause its employees and invitees to observe,
keep and comply with such rules and regulations. No such rule or regulation may
be inconsistent with this Lease or proscribe Tenant's use and occupancy of the
Leased Premises or use of the Appurtenances in a customary manner for a first
class office building.
19.3 Landlord's Liability. Anything in this Lease to the contrary
notwithstanding, Tenant agrees that, but for claims covered by Landlord's
insurance, Tenant must look solely to the estate of Landlord in the Land and
Building for the collection of any judgment (or other judicial process)
requiring the payment of money by Landlord in the event of any default or breach
by Landlord with respect to any of the terms and provisions of this Lease to be
observed or performed by Landlord, subject, however, to the prior rights of the
holder of any Mortgage. No other assets of Landlord are subject to levy,
execution or other judicial process for the satisfaction of Tenant's claim, and
Landlord is not liable for any such default or breach except to the extent of
Landlord's estate in the Land and Building.
19.4 Definitions. For purposes of this Lease, the following capitalized
terms have the following meanings:
(a) "Affiliate" means (i) any person which, directly or
indirectly, is in control of, is controlled by or is under common control with
the party for whom an affiliate is being determined, or (ii) any person who is a
director or officer of any person described in (i) above, or who is the
beneficial owner of at least 5% of the voting stock of such person, or (iii) any
partner (general or limited) of the party for whom an affiliate is being
determined. For purposes hereof, control of a Person means the power, direct or
indirect, to (A) vote 50% or more of the securities having ordinary voting power
for the election of directors of such person or (B) direct or cause the
direction of the management and policies of such person, whether by contract or
otherwise and either alone or in conjunction with others.
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(b) "Applicable Law" with respect to any matter or person
means any law, rule, regulation, order, decree or other requirement having the
force of law relating to such matter or person and, where applicable, any
interpretation thereof by any authority having jurisdiction with respect thereto
or charged with the administration thereof.
19.5 Signs, Awnings, Etc.
(a) Tenant may not erect, install, paint, affix or maintain
any signs, notices or other advertising or display devices, illuminated or
otherwise, on any part of the inside or outside of the Building or Parking
Garage, without the prior approval thereof in writing by Landlord. Tenant may
not install any draperies, shades, venetian blinds, mini-blinds or the like
visible from the exterior of the Building unless the color, materials, shape,
style and size have been approved by Landlord. Tenant must promptly, on written
notice from Landlord, remove any of the above erected or maintained in violation
of this Section. If Tenant fails to remove such item promptly upon receipt of
notice from Landlord to such effect, Landlord may peaceably enter upon the
Leased Premises and cause such item to be removed. The cost of such removal and
restoration is to be paid by Tenant as Additional Rent for the month next
following such removal.
(b) Tenant may not decorate, paint or in any other manner
alter, and may not install or affix any device, fixture or attachment upon or
to, the exterior of the Building or Parking Garage, including the roof or canopy
thereof, without the prior written consent thereto of Landlord. If Tenant does
any of the foregoing acts in contravention of this Section, Landlord has the
right to remove any such decoration, paint, alteration, device, fixture or
attachment and restore the Building or Parking Garage to the condition thereof
prior to such act and the cost of such removal and restoration is to be paid by
Tenant as Additional Rent payable for the month next following such removal and
restoration.
19.6 Amendment and Modification. No amendment, modification,
supplement, termination, consent or waiver of any provision of this Lease, nor
consent to any departure therefrom, will in any event be effective unless the
same is in writing and is signed by the party against whom enforcement of the
same is sought. Any waiver of any provision of this Lease and any consent to any
departure from the terms of any provision of this Lease is to be effective only
in the specific instance and for the specific purpose for which given.
19.7 Approvals and Consents. If any provision hereof requires the
approval or consent of any party to any act or omission, such approval or
consent is not to be unreasonably withheld or delayed except as set forth
herein.
19.8 Brokers. Landlord shall be responsible for any commission payable
to its listing broker, Desco Commercial. Landlord shall pay to Xxxxxxxx Xxxx
Company a fee equal to 2.25% of the Base Rent of the initial Lease Term, payable
1/2 upon execution by all parties of this Agreement and the balance upon the
Commencement Date. Should any additional claim for a commission be established
or any other claim be established by a broker, agent or finder other than Desco
Commercial or Xxxxxxxx Xxxx Company, the parties hereto expressly agree to hold
one another harmless with respect thereto to the extent that one or the other is
shown to be responsible for the creation of such claim.
19.9 Captions. Captions contained in this Lease and the table of
contents preceding this Lease have been inserted herein only as a matter of
convenience and in no way define, limit, extend or describe the scope of this
Lease or the intent of any provision hereof.
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19.10 Construction. Unless the context of this Lease clearly requires
otherwise: (a) references to the plural include the singular and vice versa; (b)
references to any person include such person's successors and assigns but, if
applicable, only if such successors and assigns are permitted by this Lease; (c)
references to one gender include all genders; (d) "including" is not limiting;
(e) "or" has the inclusive meaning represented by the phrase "and/or"; (f) the
words "hereof", "herein", "hereby", "hereunder" and similar terms in this Lease
refer to this Lease as a whole and not to any particular provision of this
Lease; (g) article, section, subsection, Exhibit and Schedule references are to
this Lease unless otherwise specified; (h) reference to any agreement (including
this Lease), document or instrument means such agreement, document or instrument
as amended or modified and in effect from time to time in accordance with the
terms thereof and, if applicable, the terms hereof; and (i) references to any
Applicable Law means such Applicable Law as amended, modified, codified or
reenacted, in whole or in part, and in effect from time to time, unless the
effect thereof is to reduce, limit or otherwise prejudicially affect any
obligation or any right, power or remedy hereunder, in which case such
amendment, modification, codification or reenactment will not, to the maximum
extent permitted by Applicable Law, form part of this Lease and is to be
disregarded for purposes of the construction and interpretation hereof.
19.11 Counterpart Facsimile Execution. For purposes of executing this
Lease, a document signed and transmitted by facsimile machine or telecopier is
to be treated as an original document. The signature of any party thereon, for
purposes hereof, is to be considered as an original signature, and the document
transmitted is to be considered to have the same binding effect as an original
signature on an original document. At the request of any party, any facsimile or
telecopy document is to be re-executed in original form by the parties who
executed the facsimile or telecopy document. No party may raise the use of a
facsimile machine or telecopier or the fact that any signature was transmitted
through the use of a facsimile or telecopier machine as a defense to the
enforcement of this Lease or any amendment or other document executed in
compliance with this Section.
19.12 Counterparts. This Lease may be executed by the parties on any
number of separate counterparts, and all such counterparts so executed
constitute one agreement binding on all the parties notwithstanding that all the
parties are not signatories to the same counterpart.
19.13 Confidentiality. Without the prior written consent of the other
party, and except as required by law, neither party nor any of its agents,
representatives, affiliates, employees or consultants shall disclose to any
person any of the terms, conditions or other provisions of this Lease and both
parties shall keep such information in strict confidence.
19.14 Roof Access. Subject to the provisions of Article VIII herein and
further subject to the approval of the City of Xxxxxxx and/or the County of St.
Louis, Tenant may, at its expense (but without any payment of rent) install a
rooftop mounted satellite dish/antenna on its pro-rata share (after first
deducting for the Building's mechanicals) of the Building's roof.
19.15 Entire Agreement. This Lease and the Work Agreement constitutes
the entire agreement among the parties pertaining to the subject matter hereof
and supersedes all prior agreements, letters of intent, understandings,
negotiations and discussions of the parties, whether oral or written.
19.16 Exhibits. All of the Exhibits attached to this Lease are deemed
incorporated herein by reference.
19.17 Failure or Delay. No failure on the part of any party to
exercise, and no delay in exercising, any right, power or privilege hereunder
operates as a waiver thereof; nor does any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof,
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or the exercise of any other right, power or privilege. No notice to or demand
on any party in any case entitles such party to any other or further notice or
demand in similar or other circumstances.
19.18 Further Assurances. The parties will execute and deliver such
further instruments and do such further acts and things as may be required to
carry out the intent and purpose of this Lease.
19.19 Governing Law. This Lease and the rights and obligations of the
parties hereunder are to be governed by and construed and interpreted in
accordance with the laws of the State of Missouri applicable to contracts made
and to be performed wholly within Missouri, without regard to choice or conflict
of laws rules.
19.20 Legal Fees. Except as otherwise provided herein, all legal and
other costs and expenses incurred in connection with this Lease and the
transactions contemplated hereby are to be paid by the party incurring such
costs and expenses. In the event any party brings suit to construe or enforce
the terms hereof, or raises this Lease as a defense in a suit brought by another
party, the prevailing party is entitled to recover its attorneys' fees and
expenses.
19.21 Notices. All notices, consents, requests, demands and other
communications hereunder are to be in writing, and are deemed to have been duly
given or made: (a) when delivered in person, (b) three days after deposited in
the United States mail, first class postage prepaid, (c) in the case of
telegraph or overnight courier services, one business day after delivery to the
telegraph company or overnight courier service with payment provided for, or (d)
in the case of telex or telecopy or fax, when sent, verification received, in
each case addressed as follows:
(i) if to Landlord:
Forsyth Centre Associates, L.L.C.
c/o MDR Properties
Xxxxx 000
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax #: (000) 000-0000
(ii) if to Tenant (prior to occupancy of Leased Premises):
D&K Healthcare Resources, Inc.
c/o Vice President and General Counsel
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
if to Tenant (subsequent to occupancy of Leased Premises):
D&K Healthcare Resources, Inc.
c/o Vice President and General Counsel
0000 Xxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
or to such other address as any party may designate by notice to the other party
in accordance with the terms of this Section.
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19.22 Remedies Cumulative. Each and every right granted hereunder and
the remedies provided for under this Lease are cumulative and are not exclusive
of any remedies or rights that may be available to any party at law, in equity,
or otherwise.
19.23 Severability. Any provision of this Lease which is prohibited,
unenforceable or not authorized in any jurisdiction is, as to such jurisdiction,
ineffective to the extent of any such prohibition, unenforceability or
nonauthorization without invalidating the remaining provisions hereof, or
affecting the validity, enforceability or legality of such provision in any
other jurisdiction, unless the ineffectiveness of such provision would result in
such a material change as to cause completion of the transactions contemplated
hereby to be unreasonable.
19.24 Successors and Assigns. All provisions of this Lease are binding
upon, inure to the benefit of, and are enforceable by or against, the parties
and their respective heirs, executors, administrators or other legal
representatives and permitted successors and assigns.
19.25 Third-party Beneficiary. This Lease is solely for the benefit of
the parties and their respective successors and permitted assigns, and no other
person has any right, benefit, priority or interest under, or because of the
existence of, this Lease.
19.26 Signatory Warranty. Each person executing this Lease warrants
that he is authorized to do so on behalf of the party for whom he signs this
Lease.
19.27 Acceptance. Each party hereto acknowledges that it has read this
Lease and that its signature hereto signifies acceptance of each and every term
hereof.
FORSYTH CENTRE ASSOCIATES, L.L.C.
By /s/ Xxxx X. Xxxx
----------------
D&K HEALTHCARE RESOURCES, INC.
By /s/ X. Xxxx Xxxxxxxxx, III
--------------------------
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