EXHIBIT 10(j)
Lease Agreement dated as of March 19, 1992, by and between NET 2,
L.P. and Everest & Xxxxxxxx, Inc.
LEASE
THIS LEASE, made and entered into this 19th day of March, 1992, by
and between NET 2, L.P., a Delaware limited partnership (hereinafter called
"Landlord"), and EVEREST & XXXXXXXX, INC., a California corporation,
(hereinafter called "Tenant").
WITNESSETH, THAT:
Landlord, for and in consideration of the rents, covenants, and
agreements hereinafter mentioned and agree to e paid, kept, and performed by
Tenant, its successors and assigns, has leased and by these presents does lease
to Tenant the property situated in the County of St. Louis, State of Missouri,
described in Exhibit A, attached hereto and incorporated herein by reference,
together with the buildings and improvements constructed thereon, which property
is known and numbered as 0000 Xxxxx Xxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxx 00000, and
consists of an approximately 147,000 square foot single level industrial
building situated on approximately 9.8 acres of lan t e "Demised Premises").
I
PURPOSE
To HAVE AND TO HOLD the Demised Premises, to be used and occupied
for light manufacturing and assembling of a health care product, and other
related uses and functions, which uses
may involve punching, welding, powder coating, and any and all other lawful
uses.
Tenant will comply in all material respects with all applicable
laws, ordinances, governmental regulations and lawful requirements of the local
Board of Health, police and fire departments, and governmental authorities
pertaining to the manner in which it uses the Demised Premises.
II
TERM
The term of this Lease shall commence on the forty sixth (46th) day
following the Environmental Marking Date (as defined on Article XXIX hereof) and
shall end ten (10) years and three (3) months from such date. In the event that
the existing tenant does not vacate the Demised Premises prior to April 15,
1992, Tenant shall have the right at any time after such date and prior to the
date Tenant has been notified that said tenant actually vacates, to terminate
this Lease by delivering written notice of termination to Landlord which notice
must be delivered to Landlord after April 15, 1992 and prior to the date on
which Tenant has been notified of the vacation of the Demised Premises by the
existing tenant, time being of the essence.
III
RENTAL
Tenant shall pay to Landlord a yearly fixed rental as follows,
payable in advance in equal monthly installments, on the first day of each month
during said term, said rental to be
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payable at the office of Landlord at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place as Landlord may from time to time, in writing,
designate:
(a) During the first three (3) months of the term, or until such
later time as the Landlord shall have fulfilled its obligations to Tenant
under Article IV hereof (other than Landlord's obligation to reimburse
Tenant for finish work performed and paid for by Tenant), there shall be
no rent or other sums payable under this Lease. Notwithstanding the
foregoing, however, the date on which rent and other sums first accrue and
Tenant is obligated to begin the payment of rent and other sums shall be
postponed by that number of days which Landlord has failed to meet the
time deadlines for the completion of those items identified as Landlord's
responsibilities under Article IV below. Such date is herein referred to
as the "Rent Accrual Date."
(b) During the month in which the Rent Accrual Date occurs and
through and including the next sixty (60) months of the term, a yearly
fixed rental equal to Two Hundred Seventy-nine Thousand Three Hundred
Dollars ($279,300.00) payable, as aforesaid, in equal monthly installments
of Twenty-three Thousand Two Hundred Seventy-five Dollars ($23,275.00)
each.
(c) During the sixty-first (61st) month following the Rent Accrual
Date and through and including the balance of the initial term of the
Lease, a yearly fixed rental equal to Three Hundred Twenty-three Thousand
Four Hundred Dollars
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($323,400.00) payable, as aforesaid, in equal monthly installments of
Twenty-six Thousand Nine Hundred Fifty Dollars ($26,950.00) each.
In the event this Lease commences on any date other than the first
of the month, rental for the first and last months of the term hereof shall be
prorated.
IV
TENANT-FINISH
During the first three (3) months (or as specified below) of the
term of this Lease, Landlord shall, at Landlord's cost and expense, complete the
following, free of all liens for labor and materials and in compliance with all
governmental and building code requirements:
(a) Removal of the corrugator and starch system, both inside and
outside the improvements.
(b) Removal of catwalk.
(c) Remove boiler in boiler room. (The parties to this Lease hereby
acknowledge that the boiler is encumbered and/or owned by MDPC Equipment
Leasing Corporation and such boiler therefore does not constitute real or
personal property under this Lease. In the course of removing the boiler,
it will be necessary for Landlord to remove a cinder block wall. Landlord
shall coordinate the reconstruction of this cinder block wall in a manner
so as to reasonably accommodate the installation of Tenant's equipment
within the cinder block structure. Provided that Landlord has removed the
boiler, the time necessary for Landlord to
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coordinate the reconstruction of such structure with Tenant shall not
extend the period during which no rent or other sums are payable under the
Lease described in Article III(A) hereof if Landlord shall have fulfilled
its remaining obligations to Tenant under this Article IV.)
(d) Installation of lighting (Halogen or Mercury Vapor) in low bay
manufacturing area of 100 foot candle with a minimum clearance of sixteen
(16) feet below each fixture.
(e) Installation of overhead gas heaters (OHGH) in high bay area and
along eastern wall.
(f) Removal of all existing equipment from the Demised Premises
other than the equipment specified in items (a) and (c) above within the
first fourteen (14) days of the term of this Lease.
(g) Repair and leveling of concrete floor where needed within the
first fourteen (14) days of the term of this Lease.
(h) Repair roof in southwest corner of building.
(i) Repair damaged exterior wall panels.
(j) Removal of underground storage tanks during the first three (3)
months of the term of this Lease, and remediation of the site in
accordance with applicable law within a reasonable period of time
following the removal of the tanks, provided such remediation is commenced
within the first three (3) months of the term of this Lease and proceeds
with due diligence.
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(k) Reconstruction and/or repair of those scheduled items identified
on a punch list to be prepared and agreed to by Landlord and Tenant during
Tenant's inspection of the Demised Premises (such punch list, if any, to
be attached to this Lease as Exhibit B.
Landlord shall be responsible to repair and restore any portion of the Demised
Premises damaged in performing the finish work described in clauses (a) through
(k) above.
During the first fifteen (15) months of the term of this Lease,
Tenant shall, at Tenant's cost and expense, complete the following, to the
extent Tenant deems appropriate, free of all liens for labor and materials and
in compliance with all governmental and building code requirements and subject
to the provisions of Article VIII hereof:
(a) Removal of existing plant restroom facilities and reinstallation
of restroom facilities to handle a plant personnel capacity of three
hundred fifty (350) employees.
(b) Expansion or restriping of the parking areas to handle plant
personnel of three hundred fifty (350) employees.
(c) Construction of seven thousand to ten thousand square feet of
permanent offices with restrooms for plant office personnel.
(d) Installation of other plant amenities to handle a work force of
three hundred fifty (350) employees, i.e., cafeteria, breakroom, vending
area, entrances & exits, etc.
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(e) Permanent removal of rail spur and rail spur well from inside of
the improvements and reconstruction and leveling of the area.
Upon completion of the foregoing work by Tenant at Tenant's sole
cost and expense, free of all liens for labor and materials and in compliance
with all governmental and building code requirements, and upon Landlord being
furnished by Tenant with evidence reasonably satisfactory to Landlord of the
amount and cost of said work and of payment in full of said costs by Tenant,
Landlord shall reimburse Tenant for the amount of said costs not in excess of
One Hundred Thousand Dollars ($100,000.00).
V
SUBLETTING AND ASSIGNING
The Tenant may not, without the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed, assign this Lease
or sublease all or part of the Demised Premises. Upon an assignment of this
Lease or subletting to which Landlord shall consent:
(a) Tenant shall remain primarily liable on this Lease for the term
thereof, and shall in no wise be released from the payment of rent or any
terms or conditions hereof.
(b) Tenant shall furnish Landlord with a copy of any sublease or
assignment which it may make immediately after the execution of such
instrument.
Anything to the contrary notwithstanding, Tenant shall have the
right to assign this Lease to or enter into a sublease
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with, one or more parent, subsidiary or affiliated corporations or with any
other person or entity related to or affiliated with Tenant without any prior
approval of Landlord; provided, however, that Tenant shall promptly furnish to
Landlord a copy of any such assignment or sublease; and provided further, that
no such assignment or sublease shall operate to relieve Tenant of any of its
obligations hereunder.
VI
ADDITIONAL PAYMENTS
As additional rent under this Lease, Tenant shall pay for all gas,
electricity, water, and heat used in and upon the Demised Premises and all sewer
charges made with respect to the Demised Premises.
VII
INDEMNIFICATION OF LANDLORD
Tenant agrees that Tenant will protect, defend, indemnify and save
Landlord harmless against or from any penalty, damage, or charge imposed for any
violation of any laws or ordinances by Tenant, its agents, employees, or anyone
acting at the direction or authorization of Tenant. Tenant further agrees that
Tenant will protect, defend, indemnify, and save Landlord harmless from and
against any and all loss, damage, claims, suits, demands, and causes of action
of any nature whatsoever, (with the exception of (a) those involving conditions
or events existing prior to the date of this Lease or (b) those involving the
acts or omissions of Landlord, its agents, employees
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invitees, independent contractors or any other person or entity acting at the
direction or authorization of Landlord), judgments and any reasonable out of
pocket expense incidental to the defense thereof, including interest costs
imposed by the court or statute, attorney fees and actual and punitive damages
for personal injury, loss of life, or damage to property sustained or alleged to
have been sustained in or on the Demised Premises or upon the immediately
adjoining sidewalks, streets, or alleyways arising from acts or actionable
omissions of Tenant, its agents, employees, invitees, independent contractors,
or any other person or entity acting at the direction or authorization of
Tenant.
VIII
REPAIRS AND ALTERATIONS
Landlord shall, at Landlord's cost and expense, maintain the
structural components of the building located on the Demised Premises.
Structural components shall include, by illustration and not limitation,
footings, foundations, columns, beams and bar joists. Landlord shall make sure
that the HVAC, electrical and plumbing components are delivered to Tenant in
operable condition. Tenant agrees that it will, at its sole cost and expense
maintain the improvements (except the structural components of the building),
including the parking areas on the Demised Premises and sidewalks located on or
abutting the Demised Premises, in the same condition as on the commencement of
this Lease, ordinary wear and tear excepted. Tenant shall promptly make or cause
to be made all necessary repairs, replacements and alterations, interior and
exterior, including those to the roof,
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and all necessary decorating or redecorating, repairing or replacing (as
necessary) all plumbing, electrical, heating, ventilating and air conditioning
fixtures and equipment and all other fixtures, appliances and equipment of every
kind and description when necessary to so maintain the improvements pursuant to
the preceding sentence and to take such other action as is necessary in order to
comply with applicable laws and ordinances and the requirements of insurance
carriers. Tenant shall keep the parking area and all sidewalks located on or
immediately abutting the Demised Premises free from ice and snow.
Anything herein to the contrary notwithstanding, Tenant shall have
no responsibility to make Major Modifications (i.e. expenditures during the term
of this Lease in excess of Fifty Thousand Dollars ($50,000.00)) to the Demised
Premised if such Major Modifications are required by new legislation or
governmental regulations becoming effective after the date of this Lease. In the
event that any Major Modifications to the Demised Premises are required by new
legislation or governmental regulations becoming effective after the date of
this Lease, and in the further event that Landlord declines to make such Major
Modifications to the Demised Premises at Landlord's sole cost and expense,
Tenant may, at Tenant's sole option, terminate this Lease by written notice to
Landlord within the thirty (30) day period occurring after Landlord declines to
agree to make said Major Modifications at Landlord's sole cost and expense. Such
termination shall be effective six (6) months after the delivery of such notice
of termination to Landlord. After the expiration
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of such six (6) month period, if Tenant retains possession of the Demised
Premises, Tenant shall become a tenant from month to month at the Holdover Rate,
as such term is defined in Article XXX of this Lease unless the parties
otherwise agree in writing.
Tenant may, at any time or times during the term hereof, and at its
own cost and expense, make any alterations, replacements, changes and/or
additions to improvements upon the Demised Premises provided:
(a) That the same shall be performed in a first-class workmanlike
manner and shall not weaken or impair the structural strength or lessen
the value or usefulness of the existing improvements on the Demised
Premises.
(b) That before the commencement of any such work, plans and
specifications of the work shall be filed with and approved by Landlord
and by all municipal or other governmental departments or authorities
having jurisdiction thereof, and all work shall be done subject and in
accordance with the requirements of law and local regulations applicable
thereto. Copies of such plans and specifications shall be delivered to the
Landlord for written approval prior to the commencement of such
construction, and if such plans and specifications are materially changed
during the course of construction, copies of such changes shall be
furnished to the Landlord for written approval so that at the completion
of the work the Landlord shall have a full set of the plans and
specifications showing such alterations. Landlord's
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approval of such plans and specifications shall not be unreasonably
withheld or delayed.
(c) That Tenant shall pay the increased premiums, if any, charged by
the insurance companies carrying insurance policies on said improvements
to cover the additional risk during the course of such work.
(d) Any building, addition or improvement that hereafter may be
affixed, erected, or installed by Tenant upon the premises, or any part
thereof, shall upon expiration hereof become the sole and absolute
property of Landlord, except trade and removable fixtures, equipment, and
furnishings installed by Tenant or any sublessees or assignees that may be
removed so long as any damage to the Demised Premises is repaired upon any
such removal. Tenant, however, shall not be required to pay any additional
rental for use of any such additions or improvements.
Tenant shall defend, indemnify and save and hold harmless Landlord
from all mechanics' and materialmen's liens arising from any work performed or
authorized by Tenant. The foregoing indemnification shall apply to all work in
or on the Demised Premises performed or authorized by Tenant, including the
tenant finish to be performed by Tenant and described in Article IV hereof, but
shall not apply to any work for which Landlord is responsible under the
provisions of this Lease. In the event any such mechanics' or materialmen's lien
is filed and not released within thirty (30) days from the date of filing,
Tenant may contest such lien, but shall, in the event it does contest such
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lien, deposit with the Landlord or the first mortgagee of the Demised Premises,
as Escrow Agent, security reasonably satisfactory to Landlord.
IX
CARE OF PREMISES
Tenant shall take good care of the Demised Premises, not commit
waste thereon, and shall surrender the Demised Premises at the termination of
this Lease, or any extended term hereof, in as good condition as received,
ordinary wear and tear and damage by casualty excepted. Tenant shall keep the
Demised Premises in good order and repair and free from any nuisance or filth,
and shall keep all boxes, paper, trash, and rubbish in sanitary containers at
all times, and shall not use or permit the use of the same or any part thereof
for any purpose forbidden by law or ordinance now in force or hereafter enacted,
in respect to the use and occupancy of the Demised Premises. Landlord, or its
legal representatives, may at all reasonable business hours, and upon reasonable
advance notice to Tenant, enter upon the.Demised Premises for the purpose of
examining the condition thereof and shall notify Tenant if there are repairs
which are reasonably necessary for the protection and maintenance of the Demised
Premises. If Tenant shall fail to commence any repairs which are reasonably
necessary for the protection or maintenance of the Demised Premises within
ninety (90) days after becoming aware of the need for such repairs (unless
emergency conditions require immediate commencement after notice), Landlord may
make such
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repairs, and any reasonable expenditures for such work shall be considered
additional rent and shall be payable by Tenant.
In the event that Landlord is not otherwise aware of repairs which
are reasonably necessary to the maintenance of the structural components of the
building, Tenant shall notify Landlord of the structural component in need of
repair. If Landlord shall fail to commence such reasonably necessary repairs
within ninety (90) days after such notice (unless emergency conditions require
immediate commencement after notice), Tenant shall notify any mortgagees of
record of the Demised Premises of the structural component in need of repair. If
such mortgagee(s) (if any) shall fail to commence such reasonably necessary
repairs within thirty (30) days after such notice (unless emergency conditions
require immediate commencement after notice), or if there is no such mortgagee,
Tenant may make such repairs, in compliance with all governmental and building
code requirements, and any reasonable expenditures for such work may be applied
by Tenant as an offset against rents or other sums owed by Tenant to Landlord.
X
DESTRUCTION OF IMPROVEMENTS
Should the Demised Premises be destroyed by fire, the elements, or
otherwise in whole or in part, Tenant shall repair and restore said damage with
all reasonable speed and promptness, and insurance proceeds shall be applied
toward said repair and restoration. The Tenant's obligation to repair and
restore said damage shall not exceed the aggregate amount of insurance
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proceeds distributed to Tenant and resulting from said damage. Tenant shall have
the right to cancel this Lease in the event that proceeds of insurance actually
distributed to Tenant for rebuilding are insufficient to restore the Demised
Premises to a condition which is substantially the same as that prior to the
casualty, unless said insufficiency is the result of Tenant's failure to
maintain insurance required hereunder or the failure of Tenant to comply with
the terms of said insurance. In the event that the repairs or restoration cannot
be completed within one year or delay is caused in such repair or restoration
because of fire, flood, strikes, unavailability of equipment, or other acts
beyond the control of Tenant or its contractors or subcontractors, then the time
to make such repairs or restorations shall be extended, provided, however, that
with such extension the total time for such repairs or restorations shall not
exceed two years. Rental payments hereunder shall not xxxxx during the period
when the Demised Premises are untenantable, except to the extent Landlord shall
receive payments under the rent insurance provided for herein.
XI
DEFAULTS BY TENANT
In the event of the failure on the part of the Tenant to pay any
installments of rent as above set out, or to pay real estate taxes as herein
requested, as and when same become due and payable, or to provide liability
insurance or fire and extended coverage insurance, as herein required, or
failure of Tenant promptly, faithfully and materially to keep and perform each
and
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every covenant, agreement, and stipulation herein contained on the part of the
Tenant to be kept and performed, this Lease or Tenant's right to possession,
shall be terminated, at the option of the Landlord.
Any termination of Tenant's right to possession as herein provided,
shall not relieve Tenant from its obligations to make the monthly payments of
rent.herein reserved, at the times and in the manner provided. In such event,
Landlord may relet the Demised Premises, as agent for and in the name of Tenant,
at any rental and any term or terms readily obtainable, applying the proceeds
thereof, first, to the payment of such reasonable expenses as Landlord may incur
in reletting, including alterations, commissions and fees payable to third
parties, additions, etc., second, to the payment of said rent as the same may
from time to time become due, and third, towards the fulfillment of the other
covenants and agreements of the Tenant herein contained, and the remainder, if
any, shall be held by Landlord and applied to the payment of future rent or
future sums payable under the Lease as the same may become due and payable
hereunder. Should Landlord recover or take possession of the Demised Premises
and be unable to relet the same so as to realize a sum equal to the rent hereby
reserved, Tenant shall pay to Landlord any and all loss or differences for the
residue of the term, the same to be calculated and paid monthly as such sum
shall become due and payable under the Lease. Or in the event of any termination
of this Lease, Landlord shall be entitled to recover the then present value of
the difference between the
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rental agreed to be paid herein and the then fair rental value of the premises,
together with other damages provided for by law, said present value to be
determined by reference to the rate of interest publicly announced by The
Boatmen's National Bank of St. Louis from time to time as its Corporate Base
Rate. Landlord is hereby given the right to show the Demised Premises to persons
who may wish to lease or buy during the last six months of the term or extended
term hereof unless a renewal option has been duly exercised by Tenant. Nothing
mentioned in this paragraph shall be construed to waive Landlord's right to
cancel this Lease in the event of any breach on the part of Tenant, all of which
rights of cancellation are herein specifically reserved by Landlord.
The parties to this Lease agree that the Landlord shall have an
affirmative duty to mitigate any damages claimed.pursuant to the provisions of
this Lease, which duty shall be fulfilled in the manner provided by the laws of
the State of Missouri.
Prior to the termination, Landlord shall give to Tenant a notice in
writing thirty (30) days, or such longer period as provided in this Lease, prior
thereto in the manner provided by Article XIII hereof, during which time Tenant
may cure such default by satisfying the stated grounds of termination. In the
event, however, that the notice given by the Landlord is because of a failure of
Tenant to pay rent, real estate taxes, insurance premiums, or other additional
rent under this Lease, then in such event the notice in writing to be given to
Tenant by Landlord shall be ten (10) days instead of thirty (30) days.
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In the event said default or defaults (except for defaults which can
be cured by the payment of money or except for bankruptcy or insolvency of
Tenant) are of such a nature that said default or defaults cannot be cured
within thirty (30) days, Tenant shall have a reasonable time to cure such
default or defaults, provided that Tenant commences within thirty (30) days to
cure said default or defaults and continues with due and reasonable diligence to
completion whatever may be necessary to cure said default or defaults.
XII
WAIVER
No waiver of any breach, by acceptance of rent or otherwise, shall
waive any subsequent cause of breach or breach of any condition of this Lease,
nor shall any consent by Landlord to any assignment or subletting of the Demised
Premises, or any part thereof, be held to waive or release any assignee or
sublessee from any of the conditions or covenants herein contained, but every
such assignee and sublessee shall be expressly subject thereto.
XIII
NOTICE
Any notice required to be given by Landlord to Tenant for any breach
of covenant of this Lease, or otherwise, shall be served upon Tenant, by United
States certified or registered mail postage prepaid or by Federal Express or
similar messenger service addressed to Tenant at 0000 Xxxxxxxxx Xxxxxx Xxxxx,
Xx.
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Xxxxx, Xxxxxxxx 00000, or at such other address as Tenant may furnish to
Landlord in writing from time to time. All notices required to be given by
Tenant to Landlord shall be mailed by United States registered or certified mail
postage prepaid or by Federal Express or similar messenger service addressed to
Landlord at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
address as Landlord may furnish to Tenant in writing from time to time.
XIV
DEFINITIONS
Whenever the words "Landlord" and "Tenant" are used herein, they
shall be construed to include their successors, assigns, or legal
representatives; the words "Landlord" -and "Tenant" shall include singular and
plural, individual or corporation, subject always to the restrictions herein
contained as to subletting or assignment of this Lease.
XV
CONDEMNATION
(a) In the event the whole of the Demised Premises shall be
condemned for public use, this Lease shall terminate on the date title vests in
the condemnor.
(b) In the event that a portion of the Demised Premises shall be
condemned for public use, and (i) no part of the buildings on the Demised
Premises shall be included in the portion condemned, and (ii) an amount less
than or equal to 5% of the parking areas on the Demised Premises shall be
included in
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the portion condemned, then in such case this Lease shall remain in full force
and effect.
(c) In the event that a portion of the Demised Premises shall be
condemned for public use, and (i) any part of the buildings on the Demised
Premises shall be included in the portion condemned, or (ii) more than 5% of the
parking area on the Demised Premises shall be included in the portion condemned;
then in any such event the Tenant shall have the option of either terminating
this Lease by giving the Landlord thirty (30) days written notice of such
termination within fifteen (15) days after title to the part of the Demised
Premises condemned vests in the condemnor, or (ii) exercising an option to
purchase the Demised Premises by giving Landlord thirty (30) days written notice
of such election within (15) days after title to the part of the Demised
Premises condemned vests in the condemnor. Tenant's option to purchase the
Demised Premises in the event that a portion of the Demised Premises shall be
condemned for public use shall be exercisable for a cash purchase price of: (i)
during the first three years of the term of the Lease, Three Million Seven
Hundred Thousand Dollars ($3,700,000.00) less (u) any claims Tenant has against
Landlord pursuant to the terms of this Lease and (v) amounts awarded pursuant to
the condemnation of the Demised Premises or portion thereof; or (ii) during the
remaining term or extended term of the Lease, the sum of (w) Three Million Seven
Hundred Thousand Dollars plus (x) Three Million Seven Hundred Thousand Dollars
($3,700,000.00) multiplied by 90% of the percentage increase, if any, in the
Cost of Living in the United
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States as reflected in the Consumer Price Index occurring after the third
anniversary of the commencement of the term of this Lease and prior to the date
of the taking minus (y) any claims Tenant has against Landlord pursuant to the
terms of this Lease and (z) amounts awarded to Landlord pursuant to the
condemnation of the Demised Premises or portion thereof. The Consumer Price
Index shall be measured as described in Article XVIII(B) hereof. The notice
delivered to Landlord by Tenant with regard to the exercise of such option must
contain a stipulated closing date no earlier than thirty (30 days from said
notice nor later than ninety (90) days from said notice, time being of the
essence. other than as expressly modified in this Article XV, the terms and
conditions of the exercise of such option to purchase shall be in accordance
with the provisions of Article XXI hereof.
(d) If a portion of the Demised Premises shall be condemned for
public use, and this Lease shall not terminate, the Landlord shall, at
Landlord's cost and expense, restore the remaining portion of the parking lot
and building as nearly as possible to the condition in which the parking lot and
building were prior to such condemnation.
(e) In the event all or part of the Demised Premises shall be
condemned for public use, Tenant shall first be entitled to receive the
unamortized portion of its leasehold improvements, which leasehold improvements
shall be amortized on a straight line basis over twenty (20) years, and Landlord
shall next be entitled to receive the sum of (a) Three Million Seven Hundred
Thousand Dollars plus (b) Three Million Seven Hundred Thousand
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Dollars ($3,700,000.00) multiplied by 90% of the percentage of increase, if any,
in the Cost of Living in the United States as reflected in the Consumer Price
Index occurring after the third anniversary of the commencement of the term of
this Lease and the date of the taking. The Consumer Price Index shall be
measured as described in Article XVIII(B) hereof. After Tenant has received the
unamortized value of its leasehold improvements and Landlord has received in
full its aforesaid sums, Tenant shall receive the value, if any, of its
leasehold estate. If a portion of the Demised Premises shall be so taken and
Tenant shall not exercise its option to terminate this Lease or if such taking
shall not give rise to such an option to terminate, as aforesaid, then this
Lease shall terminate on the taking date only as to that portion of the Demised
Premises so taken, and shall remain in force and effect with respect to that
portion of the Demised Premises not so taken and the rent and other charges
payable by Tenant to Landlord hereunder shall be abated and reduced in
proportion to the value of the Demised Premises before and after the
condemnation. Tenant shall also be permitted to make a separate claim for its
trade fixtures, inventory, moving expenses, and business interruption, if such a
claim is permitted by law.
XVI
INSURANCE
Tenant at its cost during the term hereof shall keep the aforesaid
building insured against loss by fire and all standard extended coverage,
including, without limitation,
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earthquake in companies reasonably acceptable to Landlord in an amount
reasonably acceptable to the parties hereto, but in no event less than the
purchase price under the Tenant's option to purchase the Demised Premises
described in Article XV hereof, with rent loss insurance coverage for one year's
fixed rental and additional rental, said policies to be in the name of Landlord
and with a loss payable clause in favor of any first fee mortgagee, with loss
thereunder payable to Landlord, Tenant and the first fee mortgagee as their
respective interests may appear. The original policy of insurance shall be
delivered to Landlord or the first fee mortgagee.
Tenant shall provide liability insurance coverage protection with
Landlord and Tenant named therein as insured parties with limits of at least
$2,000,000.00 combined single limit for bodily injury and property damage and
$5,000,000.00 per occurrence for personal injury.
All of the insurance to be furnished and provided in this paragraph
shall contain riders or endorsements if available providing that such policies
may not be canceled or terminated without first giving thirty (30) days notice
to Landlord and its first mortgagee if the first mortgagee is covered by such
insurance.
XVII
TAXES
After the Rental Accrual Date, Tenant shall pay all real property
taxes and assessments (general and special), and subdivision trustee fees levied
during the term hereof by the
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state, county, and municipality upon the leased land, building, and other
improvements constituting the Demised Premises, and Tenant shall pay all such
taxes, assessments and subdivision trustee fees before same become delinquent
and to the proper authorities. Tenant shall have the right to contest the amount
of any such taxes, assessments or subdivision trustee fees (and Landlord shall
use all reasonable efforts to cooperate with Tenant in such contest, provided,
however, that such cooperation will be at no cost to Landlord) upon (i) Tenant's
deposit of such amounts in an escrow account for the benefit of the Landlord,
(ii) Tenant's payment of such amounts to the proper authorities under protest,
or (iii) furnishing a bank letter of credit or other form of security reasonably
satisfactory to Landlord.
If this Lease shall begin on a date other than January 1 or
terminate on a day other than the last day of a calendar year, the amount of
real property taxes, assessments and subdivision trustee fees to be paid by and
Tenant and applicable to the calendar year in which such commencement or
termination shall occur shall be prorated on the basis which the number of days
from the commencement of such calendar year to and including such termination
date bears to three hundred sixty five (365).
XVIII
OPTIONS OF TENANT TO RENEW LEASE
Provided that this Lease is in full force and effect and the Tenant
is not in default under this Lease, the Tenant shall have four (4) successive
options to extend this Lease. Each such renewal option shall be for a renewal
term of five (5)
-24-
years, and shall be subject to all terms and conditions of this Lease and at the
rental as hereinafter specified. In order to exercise each such renewal option,
the Tenant must give the Landlord written notice of the Tenant's election to
extend the term of this Lease, said notice to be given at least six (6) months
prior to the expiration of the existing term or existing renewal term, as the
case may be. In the event that for any reason this Lease is terminated during
the original term or any renewal term, all remaining renewal options shall
thereby lapse. The annual yearly rental (i.e., all rental payable hereunder
other than additional rental payable pursuant to the provisions of this Lease)
for the renewal periods shall be the sum of (a) and (b) below:
(a) The annual yearly rental then payable hereunder for the existing
term or existing renewal term, as the case may be, and
(b) The amount determined in (a) above multiplied by ninety percent
(90%) of the percentage of increase, if any, in the Cost of Living in the
United States as reflected in the Consumer Price Index of the United
States Department of Labor's Bureau of Labor Statistics for Urban
Consumers (U.S. City Average Base 1982-1984 = 100) (i) in the case of the
first renewal option, from the first month of the sixth year of the Lease
to the last month of the tenth year of the Lease, and (ii) in the case of
the second, third and fourth renewal options, from the first month of the
renewal term then expiring to the last month of the term then expiring.
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If said Consumer Price Index shall no longer be published, then another
index generally recognized as authoritative shall be substituted by
agreement, and if the parties shall not agree, such substituted index
shall be selected by the Chief Judge of the United States District Court
for the Eastern District of Missouri upon,application of either party. In
any event, the base used by any new index or any new base year employed in
the Consumer Price Index shall be reconciled to the base year employed in
the Consumer Price Index (1982-1984).
In no event shall the annual yearly rental for any renewal period be
less than the annual yearly rental payable under this Lease for the last year of
the initial term of this Lease, nor, for the purposes of the calculation
described in (b) above, shall such increase, if any, in said Consumer Price
Index be more than twenty percent (20%). Also, there shall be additional rent
payable by reason of the provisions of this Lease.
XIX
ENVIRONMENTAL PROVISIONS
Compliance with Laws. Subject to the provisions of Article VIII
hereof, Tenant represents and warrants that during the term of this Lease, it
will comply with all federal, state, and local environmental, safety and health
laws, statutes, ordinances, regulations, rules, guidances, and orders (the
"Environmental Laws") and will maintain all necessary permits, approvals, and
licenses and has made all necessary registrations
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and notifications in connection with the operation of the leased property.
Notwithstanding anything to the contrary herein, Tenant shall have no obligation
to correct, or to insure the compliance with said Environmental Laws of,
conditions existing on the Demised Premises as of the date of this Lease which
have become violations of said Environmental Laws during the term of this Lease
without any action or culpable omission by Tenant, its agents, employees,
contractors, invitees or any other person or entity acting at the direction or
authorization of Tenant.
Restriction on Certain Uses. Tenant shall not cause or permit the
Demised Premises to be used for any business or activity involving the
generation, storage, use, treatment, transportation, disposal or distribution of
any pollutant, contaminant, hazardous substance or material, hazardous chemical,
toxic substance, hazardous waste, infectious or medical waste (including but not
limited to those types of medical wastes identified in 42 U.S.C. 6992a(a)(1)
through (11)), solid waste, radioactive material, hazardous chemical, toxic
chemical, extremely hazardous substance, petroleum, including crude oil or any
fraction thereof, or asbestos-containing material (the "Hazardous Materials")
without the prior written consent of the Landlord. Landlord hereby consents to
Tenant's use of the Demised Premises for the purposes and processes currently
conducted by Tenant in accordance with applicable Environmental Law at Tenant's
facility presently located in Camarillo, California, which purposes and
processes are more fully set forth on Exhibit C to this Lease.
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Notification. Tenant shall give Landlord immediate notice of any
release of Hazardous Materials on, under or from the Demised Premises which is
in violation of, or is required to be reported under any Environmental Law, and
shall give Landlord written notice within a reasonable time, but no later than
ten (10) days after Tenant learns or first has reason to believe that any
report, notice, action, claim, or complaint has been made or threatened by any
person, entity, or agency concerning the presence, use, release, or disposal of
any Hazardous Materials on, under or from the Demised Premises.
Inspection of Demised Premises. Landlord may from time to time, upon
reasonable prior notice to Tenant, conduct or engage an independent contractor
to conduct an "Environmental Audit" of the Demised Premises. The Environmental
Audit may include: (a) a physical inspection of the Demised Premises; (b)
sampling and analysis of soil, groundwater, surface waters, or any Hazardous
Materials; and (c) a review of Tenant's compliance with all Environmental Laws
including all documents related thereto. All costs and expenses incurred by
Landlord in connection with the Environmental Audit shall be paid by Landlord,
except where such Environmental Audit reveals that the Demised Premises or any
surrounding property has become contaminated due to operations or activities
attributable to Tenant, then all of the costs and expense of such audit shall be
paid by Tenant. Landlord shall provide Tenant with the opportunity to verify the
presence of any contamination discovered by Landlord's Environmental Audit prior
to the time
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(i) Tenant is required to reimburse Landlord as provided above and (ii) that any
disclosure of such contamination is made to third parties (other than such
disclosures as may be required by law).
Remediation. Upon identification of environmental contamination or
the unpermitted release of Hazardous Materials on, under or from the Demised
Premises which was caused by the Tenant, its agents, employees, contractors,
subcontractors, or invitees, and not attributable to an event or condition
existing prior to the commencement of this Lease, Tenant will undertake, at its
own expense, any and all repair or remediation necessary to comply with all
Environmental Laws and to satisfy all appropriate governmental agencies. Should
Tenant fail to implement such repair or remediation, then Landlord shall have
the right, but not the obligation, to undertake such repair or remediation, and
to recover all associated costs and expenses properly attributable to Tenant,
and not to other potentially responsible parties, from Tenant.
Return of Property in uncontaminated State. Upon the expiration or
earlier termination of the Lease, Tenant shall (with respect to matters (i)
which are attributable to acts or omissions of Tenant, its agents, employees,
invitees, independent contractors, or any other person or entity acting at the
direction or authorization of Tenant, and (ii) which occurred after the
commencement of the term of this Lease, and (iii) which are not attributable to
events or conditions existing or occurring prior to the execution of this
Lease): (a) cause all
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Hazardous Materials owned, stored, or existing on the Demised Premises to be
removed and disposed of in accordance with all applicable Environmental Laws;
and b) remove any underground storage tanks or other containers installed or
used by Tenant to store any Hazardous Materials on the Demised Premises, and
repair any damage to the Demised Premises caused by such a removal.
Indemnification. Tenant agrees to indemnify, defend, and hold
harmless Landlord and its agents, from and against any claims, demands,
penalties, fines, liabilities, settlements, losses, damages, interest,
penalties, costs, response costs or expenses (including, but not limited to,
fees for attorneys, consultants, and other experts) of whatever kind or nature
(the "Losses"), arising out of or in any way related to a breach of any or all
of the foregoing covenants. This indemnification shall not apply where the
Losses are caused by the negligence or acts or omissions of Landlord, its
agents, employees, contractors, or invitees or where the Losses are attributable
to events or conditions existing prior to the commencement of the term of this
Lease. This provision shall be in addition to any other obligations and
liabilities Tenant may have to Landlord at law or equity and shall survive the
termination of this Lease. The foregoing indemnification shall apply regardless
of the basis of liability or legal principle involved including, but not limited
to claims based upon strict liability. Anything to the contrary herein
notwithstanding, Tenant shall have no liability under this Lease for Losses
arising from the condition of the
-30-
Demised Premises as of or prior to the date of the commencement of the Lease.
Preexisting Conditions. To the best knowledge and belief of Landlord
and in reliance on a Phase I environmental assessment of the Demised Premises as
presently being updated, a copy of which will be provided to Tenant promptly
upon receipt, Landlord is not and has not ever been in violation of any
Environmental Laws affecting the Demised Premises. Landlord agrees to indemnify,
defend and hold harmless Tenant and its agents, employees, invitees, and
independent contractors from and against any Losses incurred by Tenant relative
to the condition of the Demised Premises which are caused by events or
conditions existing prior to the date of this Lease. This provision shall be in
addition to any other obligations and liabilities Landlord may have to Tenant at
law or equity and shall survive the termination of this Lease. The foregoing
indemnification shall apply regardless of the basis of liability or legal
principle involved including, but not limited to claims based upon strict
liability.
XX
INSOLVENCY
Tenant agrees that if at any time a petition under the federal
Bankruptcy Code, as may be amended from time to time (hereinafter referred to as
the "Bankruptcy Code"), or any state bankruptcy or insolvency laws, be filed by
or on behalf of Tenant or against Tenant and remain undismissed for a period of
sixty (60) days after service thereof, such event shall constitute a
-31-
default under this Lease and Landlord shall be entitled to immediately exercise
such rights and remedies it may elect under this Lease (without regard to the
cure periods provided thereunder) or applicable law. Tenant further agrees, that
in the event Tenant's trustee or Tenant, as debtor-in-possession, rejects or
otherwise terminates this Lease pursuant to the Bankruptcy Code, Landlord shall
be entitled to possession of the Demised Premises immediately without further
obligation to Tenant or Tenant's trustee, and this Lease shall terminate, but
Landlord's right to be compensated for damages (including, without limitation,
liquidated damages pursuant to the terms of this Lease) in any such proceeding
shall survive.
In addition to the occurrence of the filing of a petition under the
Bankruptcy Code or state bankruptcy or insolvency laws by or on behalf of Tenant
or against Tenant, the occurrence of any of the following shall constitute a
default under this Lease and Landlord shall be entitled to exercise such rights
and remedies it may elect under this Lease (after expiration of applicable cure
periods, if any, provided thereunder) or other applicable law: (a) a general
assignment for the benefit of creditors; (b) the appointment under applicable
state law of a trustee or receiver to take possession of substantially all of
Tenant's assets or of Tenant's interest in this Lease; (c) the attachment, or
other judicial seizure of substantially all of Tenant's assets or of Tenant's
interest in this Lease; or (d) insolvency of the Tenant. Anything to the
contrary herein notwithstanding, Tenant shall not be deemed to be
-32-
in default under the foregoing provision with respect to any actions against or
involving Tenant of an involuntary nature until the expiration of sixty (60)
days after the commencement of such action and Tenant's failure to cause the
same to be dismissed within such period.
As used in this Article IX, the term "Tenant" shall include the
Tenant named herein, as well as any assignee or subtenant, and any surety or
other guarantor of this Lease.
Tenant hereby acknowledges and agrees that if Tenant obtains an
order from a Court authorizing the assumption of this Lease pursuant to Section
365 of the Bankruptcy Code, such assumption shall be of the Lease in its
entirety and Tenant's rights to assign the Lease shall be governed solely by
this Lease. Accordingly, Tenant hereby irrevocably waives any right to assign
the Lease, subsequent to assumption of the Lease, pursuant to Section 365(f) of
the Bankruptcy Code as it presently exists (as may be amended from time to time)
or any similar provision under federal or state law.
XXI
TENANT'S OPTION TO PURCHASE
Tenant shall have the right, at Tenant's option, to elect to
purchase the Demised Premises, during the thirty (30) day period following the
third anniversary date of this Lease, for a cash purchase price of Three Million
Seven Hundred Thousand Dollars ($3,700,000.00) less (i) any claims Tenant has
against Landlord pursuant to the terms of this Lease and (ii) any awards
received by Landlord resulting from the condemnation of part of
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the Demised Premises. In order to exercise said option, Tenant must give to
Landlord written notice of said exercise within said thirty (30) day period and
said notice must contain a stipulated closing date no earlier than thirty (30)
days from said notice nor later than ninety (90) days from said notice, time
being of the essence. Payment of the purchase price shall be by Bank Cashier's
Check drawn on a St. Louis, Missouri area bank or by Federal Reserve wire
transfer. Adjustments for rent, additional rent, and taxes shall be made in
accordance with closing practices of the Real Estate Board of Metropolitan St.
Louis. Title shall be conveyed by Special Warranty Deed free and clear of all
mortgage encumbrances, and subject only to (i) the exceptions listed on Exhibit
D hereto, (ii) normal utility easements not interfering with the reasonable use
or value of the Demised Premises, and (iii) other exceptions to which Tenant
contributed or consented affecting the title to the Demised Premises. This Lease
shall be automatically terminated upon closing of said sale. In the event Tenant
fails to exercise said option, said option shall lapse and terminate and be of
no further force and effect. In the event that Tenant exercises said option and
fails to close, this Lease shall remain in full force and effect, and Tenant
shall be liable for specific performance and damages for breach of its
obligation to purchase.
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XXII
TENANT'S RIGHT OF FIRST REFUSAL
During the term of this Lease, in the event that Landlord should
from time to time receive any bona fide offer to purchase the Demised Premises
which Landlord desires to accept, Landlord shall advise Tenant in writing
(within ten (10) days of Landlord's intent to accept such offer) of the price,
terms and conditions embodied in said offer. Within thirty (30) days from date
of said notice, Tenant shall have the right to elect to purchase the Demised
Premises at the same price and upon the same terms and conditions as those
embodied in said offer, and Tenant may exercise said right by giving to Landlord
a written notice of exercise within said thirty (30) day period. Said acceptance
must be accompanied by a Bank Cashier's Check drawn on a St. Louis, Missouri
area bank for any xxxxxxx money deposit applicable to said offer. Upon any such
acceptance, Tenant shall be bound to complete said purchase upon the terms and
conditions of said offer except those specifically applicable only to the
identity of the original offeror.
In the event Tenant does not exercise Tenant's aforesaid right of
first refusal, Landlord shall be free to accept the offer and complete the sale
at the price and upon the terms and conditions set forth in Landlord's aforesaid
notice to Tenant, and Tenant's right of first refusal shall be terminated and
extinguished, and shall not apply to any subsequent sales of the Demised
Premises. In the event that Tenant does not exercise Tenant's right of first
refusal with respect to any offer, and,
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for any reason, the sale at the same price and on the same terms and conditions
is not consummated, Tenant shall have the same right of first refusal with
respect to subsequent offers to Landlord.
This right of first refusal shall not prohibit any financing secured
by mortgage or deed of trust nor shall it apply to any judicial or nonjudicial
sale conducted under any mortgages or deeds of trust, but said right of first
refusal shall survive any judicial or nonjudicial sale conducted under any
mortgages or deeds of trust to which this Lease is prior and therefore said
right of first refusal shall be applicable to transactions following such
judicial or nonjudicial foreclosure of any such mortgage or deed of trust to
which this Lease is prior.
Conveyance upon exercise of said right of first refusal shall be by
Special Warranty Deed, subject only to items of record to which a deed would be
subject pursuant to the terms of Article XXI of this Lease. This Lease shall
terminate upon closing of any sale to Tenant pursuant to said first right of
refusal. In the event Tenant exercises said right of first refusal and Tenant
fails to close, Tenant shall be subject to specific performance and damages for
breach of its purchase obligation, and this Lease shall remain in full force and
effect. In the event Tenant exercises said right of first refusal and Landlord
fails to close, Landlord shall be subject to specific performance and damages
for breach of its sale obligation.
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XXIII
NET LEASE
Except for Landlord's obligations to maintain the structural
components of the building on the Demised Premises and to make sure that the
HVAC, electrical and plumbing components are delivered to Tenant in operable
condition, all as provided in Article VIII hereof and except for the initial
work to be done by Landlord pursuant to Article IV hereof, this is a net Lease
and except as set forth in this Lease, Tenant, during the term of this Lease, is
to do all things and make all payments connected with or arising out of any
occupation of the Demised Premises and its appurtenances, and, except as herein
stated, under no condition is Landlord to be required to do or perform any act
or acts or be subject to any liabilities with respect to the Demised Premises or
any part thereof or its appurtenances. Landlord shall have the right to (but
shall not be obligated to) pay any taxes on the Demised Premises or any utility
or other charges against the Demised Premises and any other debts incurred by
Tenant with respect to the Demised Premises or the use or occupation of the
Demised Premises which Tenant shall fail to pay when due, and to obtain
appropriate insurance coverage if Tenant shall fail to provide Landlord with
evidence that such insurance is in effect as required by this lease, and to make
repairs, if Tenant shall fail to do so as required by this Lease, and the amount
of any payment by Landlord with respect to items which are the responsibility of
Tenant under this Lease shall be due
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immediately by Tenant to Landlord as additional rental payments under this
Lease.
XXIV
NOTICES TO MORTGAGEES
Tenant agrees to give any Mortgagees and/or Deed of Trust Holders,
by United States Registered Mail postage prepaid, a copy of any notice of
default served upon the Landlord, provided that prior to such notice Tenant has
been notified, in writing (by way of Notice of Assignment of Rents and Leases,
or otherwise) of the address of such Mortgagees and/or Deed of Trust Holders.
Tenant further agrees that if Landlord shall have failed to cure such default
within the time provided for in this Lease, or if no such period is provided,
then within thirty (30) days, then the Mortgagees and/or Deed of Trust Holders
shall have an additional thirty (30) days within which to cure such default or
if such default cannot be cured within that time, then such additional time as
may be necessary if within such thirty (30) days, any Mortgagee and/or Deed of
Trust Holder has commenced and is diligently pursuing the remedies necessary to
cure such default (including but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure), in which event this Lease shall
not be terminated while such remedies are being so diligently pursued. In no
event shall more than sixty (60) days be permitted for said cure.
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XXV
BROKERAGE
The parties acknowledge and represent and warrant to each other that
the only brokers involved in this transaction are Xxxxxx Xxxxxxxx acting on
behalf of the Landlord and Midland Group acting on behalf of Tenant. Landlord
hereby agrees to pay the leasing commission of Xxxxxx Xxxxxxxx (and the sales
commission, if the Demised Premises are sold to Tenant pursuant to the options
to purchase or right of first refusal contained herein) in accordance with the
Listing Contract dated January 13, 1992, and Xxxxxx Xxxxxxxx shall share said
commissions) with Midland Group in accordance with the practices of the Real
Estate Board of Metropolitan St. Louis. Each party hereto hereby agrees to
indemnify and hold harmless the other for all claims for real estate commissions
and finders' fees (other than those of Xxxxxx Xxxxxxxx and Midland Group)
arising from this transaction and the conduct of the indemnifying party.
XXVI
INDEMNIFICATION OF TENANT
Landlord agrees that Landlord will protect, defend, indemnify and
save Tenant harmless against any and all loss or damage of any nature
whatsoever, including attorneys fees, arising in connection with the financing
statements or mechanics liens listed on Exhibit E to this Lease. In the event
that Tenant shall be subject to any loss or damage of any nature whatsoever,
including attorneys fees, arising in connection with such financing statements
or mechanics liens, Tenant shall notify
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Landlord of the amount of such loss or damage, including attorneys fees. If
Landlord shall fail to pay such amounts to Tenant within ninety (90) days after
such notice, Tenant shall notify any mortgagees of record of the Demised
Premises of the amount of such loss or damage, including attorneys fees. If such
mortgagee(s), if any, shall fail to pay such amounts to Tenant within thirty
(30) days after such notice, Tenant may apply such amounts as an offset against
rents or other sums owed by Tenant to Landlord under this Lease.
Landlord agrees that Landlord will protect, defend, indemnify and
save Tenant, its agents, employees, invitees and independent contractors
harmless against any and all loss, damage, claims, suits, demands, and causes of
action of any nature whatsoever, judgments and any expense incidental to the
defense thereof, including attorney fees, arising in connection with the action
or suit of Landlord's partners or any other person or entity and relative to the
actions or omissions of Landlord or involving Landlord, other than litigation by
Landlord or to which Landlord is a party relating to a breach or breaches of any
provisions of this Lease by Tenant and other than claims for personal injury or
property damage by third parties occurring in or about the Demised Premises
after the date hereof.
XXVII
QUIET ENJOYMENT
Provided that and for so long as Tenant pays all rent and additional
payments as and when due hereunder, materially complies with and observes all of
the terms, conditions and
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provisions of this Lease, and fulfills all of Tenant's obligations of
performance hereunder, Landlord covenants that Tenant shall have peaceable and
quiet enjoyment of the Demised Premised during the term of this Lease. Landlord
agrees to notify Tenant within thirty (30) days of assignment if Landlord
assigns its interest under this Lease.
XXVIII
RECORDATION OF MEMORANDUM OF LEASE
Tenant shall have the right to record in the real property records
of St. Louis County, Missouri, a memorandum of lease regarding this Lease and
the related options to purchase, which memorandum shall be prepared by Tenant at
Tenant's sole cost and expense and shall be in form and substance reasonably
satisfactory to Landlord.
XXIX
INSPECTION OF PROPERTY AND FINANCIAL INFORMATION
The effectiveness of this Lease is expressly conditioned upon the
following, time being of the essence with respect to the performance and/or
satisfaction of such conditions:
(a) Within fifteen (15) days of the last to occur of (i) the
delivery of the updated Phase I environmental assessment regarding the
Demised Premises described in Article XIX hereof and (ii) the delivery to
Tenant of possession of the Demised Premises, (which date is referred to
herein as the "Environmental Marking Date"), Tenant or
-41-
Tenant's agent shall perform a physical inspection of the Demised
Premises, including a review of a Phase I environmental assessment
provided to Tenant by Landlord, the results of which shall be reasonably
satisfactory to the Tenant.
(b) Within forty five (45) days of the Environmental Marking Date,
Tenant or Tenant's agent shall complete a Phase II environmental
assessment of the Demised Premises, the results of which shall be
reasonably satisfactory to Tenant. The costs of such Phase II
environmental assessment shall be the sole responsibility of Tenant unless
the results of such Phase II environmental assessment cause Tenant to
terminate the transactions contemplated in this Lease, in which case the
reasonable costs of such Phase II environmental assessment, which costs
shall not exceed Twenty Five Thousand Dollars ($25,000.00) in the
aggregate, shall be paid by Landlord.
(c) Within fifteen (15) days of the date of this Lease, review by
the Landlord of the Tenant's balance sheet and income statement for the
most recent two (2) fiscal years, prepared in accordance with generally
accepted accounting principles, and such other financial information as
Landlord shall reasonably request in writing, the results of which review
shall be reasonably satisfactory to Landlord.
(d) Within fifteen (15) days of the date of this Lease, review by
the Tenant of the Landlord's balance sheet
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and income statement for the Landlord's most recent two (2) fiscal years,,
prepared in accordance with generally accepted accounting principles, and
such other financial information as Tenant shall reasonably request in
writing, the results of which review shall be reasonably satisfactory to
Tenant.
Failure by either party hereto to satisfy any or all of the
conditions described above within the time allocated by the terms of this Lease
shall be deemed a waiver of such conditions.
XXX
HOLDING OVER
If, without objection by Landlord, and absent contrary agreement
between the parties, Tenant holds possession of the Demised Premises after
expiration of the term of this Lease, Tenant shall become a tenant from month to
month upon the terms specified herein but at a monthly rental equivalent to one
hundred fifty percent (150%) of the then prevailing monthly rental paid by
Tenant at the expiration of the term of this Lease,, payable in advance on or
before the first day of each month. Each party shall give the other notice at
least one month prior to the date of termination of such monthly tenancy of its
intention to terminate such tenancy.
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IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered
to each other this Lease as of the day and year first above written.
NET 2 L.P.
(a Delaware Limited Partnership)
By: LEPERCQ NET 2 L.P.
(a Delaware Limited
Partnership)
general partner
By: LEPERCQ NET 2, Inc.
(a Delaware corporation)
general partner
By: _________________________
Title:
Landlord
EVEREST & XXXXXXXX, INC., a
California
corporation
By: _____________________________
Title
Tenant
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EXHIBIT A
Lot 2450 of Earth City Plat 21, a Subdivision in St. Louis County, Missouri,
according to the plat thereof recorded in Plat Book 221 pages 19 and 20, being
more particularly described as follows: Beginning at a point in the North line
of Rider Trail (formerly Riverglen Drive), 44 feet wide, said point being the
Southwest corner of said Lot 2450; thence North 24 degrees 30 minutes 37 seconds
East 891.24 feet along the West line of said Lot 2450 to the Northwest corner
thereof; thence South 58 degrees 32 minutes 30 seconds East, 503.91 feet along
the Northeast line of said Lot 2450 to the Northeast corner thereof; thence
South 24 degrees 31 minutes 28 seconds West 830.37 feet along the East line of
said Lot 2450 to a point in said North line of Rider Trail (formerly Riverglen
Drive); thence North 65 degrees 28 minutes 50 seconds West 500.00 feet along
said North line of Rider Trail (formerly Riverglen Drive) to the point of
beginning.
EXHIBIT C
Tenant plans to utilize the Demised Premises for the manufacturing,
assembling and maintenance of durable hospital equipment. Tenant's operation
shall include the cutting, stamping, polishing, bending, welding and assembly of
steel. Any chrome and paint work relative to the steel equipment shall not be
done on the Demised Premises. Tenant's operation shall also include the
utilization of materials incidental to the processes described above.
EXHIBIT D
1. Building lines and easements established by the recorded plat, and
covenants and restrictions, including a provision for Subdivision
Assessments, contained in the instrument recorded in Book 6597 page 1631
and Book 6994 pages 59 and 86 and amended by instrument recorded in Book
7170 page 1579 and page 1582.
2. Flood Control of Indenture, according to instrument recorded in Book 6597
page 1685 and amended by instrument recorded in Book 7143 page 35.
3. Development Plan of Earth City, according to plat recorded in Plat Book
140 page 32 and as amended by Plats recorded in Plat Book 141 page 90,
Plat Book 145 page 16 and Plat Book 221 page 63, together with Ordinance
of St. Louis County, Missouri according to instrument recorded in Book
6543 page 1567.
4. Rights of the Railroad Company servicing the railroad siding located on
insured premises in and to the ties, rails and other properties
constituting said railroad siding or in and to the use thereof.
5. Easement Grant executed by and between Xxxxx X. Xxxxxxxxx Company and
Xxxxxxx Packing Company, together with agreements, covenants,
restrictions, maintenance and repair agreements by instrument recorded in
Book 7531 page 95.
EXHIBIT E
1. Financing Statement executed by Xxxxxxx Packaging Company to MDPC
Equipment Leasing Corporation recorded in Book 7684 page 1779.
2. Financing Statement executed by Consolidated Packaging Corporation to MNC
Credit Corp recorded in Book 8750 page 1622. (affects leasehold)
3. Financing Statement executed by Consolidated Packaging Corporation to MNC
Credit Corp. recorded in Book 9000 page 495.
4. Xxxxxxxxx Xxxx Xx. 00000 filed October 9, 1990 by Granite Sheet Metal
Works, Inc. in the amount or $14,129.91.
5. Xxxxxxxxx Xxxx Xx. 00000 filed October 26, 1990 by Clayco Construction
Company, Inc. in the amount of $75,803.00.
Suit to enforce the above lien is pending in Cause Xx. 000000 xx xxx Xx.
Xxxxx Xxxxxx Circuit Court, styled Clayco Construction Co., Inc. VS.
Consolidated Packaging Corp., et al.
6. Xxxxxxxxx Xxxx Xx. 00000 filed December 6, 1990 by The Xxxxxxxxx Group,
Incorporated in the amount of $32,295.61.
