EXHIBIT 10.12
LEASE
AVAX TECHNOLOGIES, INC.
AND
XXXXXXXXXXXXX PROPERTIES, INC. XXI
9 CORPORATE XXXXX
0000 XXXXXX XXXXX XXXXXXX
XXXXX 000
XXXXXXXX XXXX, XXXXXX 00000
-1-
INDEX
PAGE
1. TERM.............................................................................1
2. LEASED PREMISES..................................................................1
3. SECURITY DEPOSIT.................................................................2
4. LANDLORD'S LIEN..................................................................2
5. RENT.............................................................................2
6. RENT ADJUSTMENT..................................................................3
7. PRORATION OF FIRST AND LAST MONTH'S RENT.........................................4
8. USE..............................................................................4
9. SERVICES.........................................................................5
10. REPAIRS, MAINTENANCE AND ALTERATIONS.............................................5
11. LIENS............................................................................7
12. ASSIGNMENT AND SUBLETTING........................................................7
13. CONSTRUCTION OF IMPROVEMENTS.....................................................9
14. ACCEPTANCE OF LEASED PREMISES....................................................9
15. COMPLIANCE WITH APPLICABLE LAWS AND INSURANCE REQUIREMENTS.......................9
16. INDEMNITY.......................................................................10
17. INSURANCE, LOSS, DAMAGE, REIMBURSEMENT..........................................10
18. LANDLORD'S USE OF BUILDING......................................................12
19. DAMAGE OR DESTRUCTION...........................................................12
20. CONDEMNATION....................................................................13
21. ABANDONMENT.....................................................................14
22. PARKING.........................................................................14
23. DEFAULT.........................................................................14
24. AGENCY; BROKERAGE COMMISSIONS...................................................15
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25. WAIVER OF BENEFITS..............................................................15
26. MISCELLANEOUS TAXES.............................................................16
27. SPRINKLERS......................................................................16
28 RIGHTS AND REMEDIES.............................................................16
29. ATTORNEYS' FEES AND COSTS.......................................................16
30. MEMORANDUM OF
LEASE.............................................................17
31. RIGHT TO CHANGE BUILDING NAME...................................................17
32. SUBORDINATION...................................................................17
33. ESTOPPEL CERTIFICATE............................................................17
34. ASSIGNMENT OF
LEASE BY LANDLORD.................................................18
35. LIMITED LIABILITY OF LANDLORD...................................................18
36. TRANSFER OF TENANT..............................................................18
37. PEACEABLE SURRENDER.............................................................18
38. HOLDING OVER....................................................................19
39. QUIET ENJOYMENT.................................................................19
40. NOTICE..........................................................................20
41. TENANT..........................................................................20
42. RULES AND REGULATIONS...........................................................20
43. HEIRS, SUCCESSORS AND ASSIGNS...................................................21
44 MISCELLANEOUS PROVISIONS........................................................21
45. REPRESENTATIONS.................................................................21
46. ADDENDUM AND EXHIBITS...........................................................22
47. INTEGRATED AGREEMENT............................................................22
ADDENDUM:
3. LETTER OF CREDIT
16.B. INDEMNITY
48. DAMAGE AND DESTRUCTION
ii
LEASE
THIS
LEASE ("
Lease"), is made as of the 18th day of October, 2001,
between XXXXXXXXXXXXX PROPERTIES, INC. XXI, as "Landlord", and AVAX
TECHNOLOGIES, INC., a Delaware corporation, as "Tenant".
WITNESSETH:
For and in consideration of the rents, covenants and agreements
hereinafter set forth, Landlord hereby
leases to Tenant and Tenant hereby
leases
from Landlord, the Leased Premises (hereinafter defined) upon the following
terms and conditions:
1. TERM.
A. The term of this Lease ("Term". or "Lease Term") shall be
three (3) years commencing on the first (1st) day of December, 2001
("Commencement Date"), unless adjusted as hereinafter provided, and ending on
the last day of November, 2004, unless sooner terminated as hereinafter
provided.
B. If Landlord shall permit Tenant to enter into possession of the
Leased Premises prior to the Commencement Date, Tenant covenants and agrees that
its occupancy shall be deemed to be under all of the covenants and agreements of
this Lease and that it shall pay Landlord Rent, on a daily basis, in the amount
or amounts herein otherwise provided for, as though the date Tenant did enter
into possession was the designated Commencement Date. In the event Tenant's
entry into possession shall occur on a day other than the first day of the month
in which possession is permitted, all Rent provided for herein shall be prorated
for such month on a daily basis, at the rate payable during the first month for
which Rent is payable hereunder.
C. If Tenant enters into possession of the Leased Premises on a date
other than the Commencement Date, the expiration date of the Lease Term shall
not be adjusted unless otherwise hereafter agreed to in writing by Landlord.
D. If by the Commencement Date specified in Section 1, paragraph A
hereof, the Leased Premises have not been substantially completed pursuant to
the plans and specifications set forth on Exhibit B, due to omission, delay or
default by Tenant or anyone acting under or for Tenant ("Tenant Delay") or due
to any cause other than Landlord's default, Landlord shall have no liability,
and the obligations of this Lease (including, without limitation, the obligation
to pay Rent) shall nonetheless commence as of the specific date set forth in
Section 1, paragraph A hereof.
E. If, however, the Leased Premises are not substantially completed
due to default on the part of Landlord, then as Tenant's sole remedy for the
delay in Tenant's occupancy of the Leased Premises, the Commencement Date shall
be delayed and the Rent herein provided shall not commence until the earlier of
actual occupancy by Tenant or substantial completion of the work which Landlord
has agreed to perform.
2. LEASED PREMISES.
Landlord hereby rents, leases and lets to Tenant, and Tenant hereby
rents, leases and takes from Landlord, the following described premises,
consisting of an area of approximately 5,531 square feet of space ("Leased
Premises") together with the pro rata share of common floor area allocable
thereto, which is approximately 636 square feet, for a total of approximately
6,167 net rentable square feet, which is designated as Suite 200 located on the
second (2nd) floor in that building designated as 9 Corporate Xxxxx
("Building"), which Building contains approximately 100,795 total net rentable
square feet, the street address of which is 0000 Xxxxxx Xxxxx Xxxxxxx, and which
is located within the Corporate Xxxxx Subdivision ("Corporate Xxxxx"), in
Xxxxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxx 00000. The location of the
Leased Premises within the Building is further shown on Exhibit A attached
hereto and is that area crosshatched.
3. SECURITY DEPOSIT. See Addendum for Section 3.
4. LANDLORD'S LIEN.
As security for the performance of the obligations of Tenant under this Lease,
Tenant hereby grants Landlord a security interest in all equipment, inventory,
fixtures, furniture, and all other property now owned or hereafter acquired by
Tenant which is located in the Leased Premises, and all additions thereto, and
all proceeds and products thereof. Without excluding any other manner of notice,
any requirement of reasonable notice to Tenant of Landlord's intention to
dispose of any property pursuant to the enforcement of such security interest
will be met if such notice is given at least ten (10) days before the time of
such disposition. Any sale made pursuant to the enforcement of such security
interest shall be deemed to have been a public sale conducted in a commercially
reasonable manner if held at the Leased Premises or at any warehouse in Xxxxxxx
County,
Kansas to where such property has been relocated by Landlord after
advertisement of the time, place, method of sale and a general description of
the property to be sold, in a daily newspaper published in Xxxxxxx County,
Kansas, or
Kansas City, Missouri for five (5) consecutive business days before
the date of sale. The Tenant agrees to execute upon demand and deliver to the
Landlord within ten (10) days after written request therefor by or on behalf of
Landlord, such financing statements, continuation statements and other
instruments which might reasonably be required to perfect, protect or continue
the foregoing security interest.
Notwithstanding anything in this Section 4 to the contrary, and provided that
Tenant is not then in Default, the security interest granted pursuant to this
Section 4 shall automatically terminate without further action if Tenant in good
faith gives Landlord written notice that Tenant has entered into or becomes
bound by any credit agreement, indenture or similar agreement the terms of which
prohibit the security interest granted herein, and, in such event, Tenant shall
be authorized to terminate of record any financing statements evidencing such
security interest.
5. RENT.
Tenant agrees to pay Landlord rent as follows:
A. BASE RENT. The monthly base rent ("base Rent") shall be: NINE
THOUSAND TWO HUNDRED FIFTY AND 50/100 DOLLARS ($9,250.50) from December 1, 2001,
to November 30, 2004. All Base Rent shall be payable in advance. The Base Rent
for the first calendar month or partial calendar month of the Term shall be due
upon the Commencement Date subject to Section 7 hereof, and the remaining
payments of Base Rent shall be due on the first day of each calendar month
thereafter during the Term. The Base Rent includes annual Operating Costs
(hereinafter defined) to the extent they do not exceed EIGHT AND 59/100 DOLLARS
($8.59) with four percent (4%) annual caps per net rentable square foot
("Operating Stop").
B. ADDITIONAL RENT. In addition to the Base Rent, Tenant shall
pay during the Lease Term as additional rent ("Additional Rent"), the following:
(i) Subject to the provisions of Section 6.E. below, Tenant's pro
rata share of all Operating Costs (hereinafter defined) reasonably
attributable to the Leased Premises during the Term, to the extent
such Operating Costs attributable to the Leased Premises exceed the
Operating Stop included in the Base Rent; and
(ii) All other sums or amounts herein otherwise provided for,
which are to be paid for by Tenant.
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C. All Base Rent and Additional Rent (both Base Rent and
Additional Rent are herein included in the term "Rent") due hereunder shall be
due and payable on the fast day of each month in U.S. dollars without notice or
demand, both of which are hereby expressly waived, and without offset or
counterclaim, except as herein specifically provided otherwise. Tenant's pro
rata share of any item under this Lease shall be that percentage which the net
rentable square feet of space in the Leased Premises bears to the total net
rentable square feet of space in the Building. All Rent shall be payable to
Xxxxxxxxxxxxx Properties, Inc. XXI, X.X. Xxx 00000 X.X.X., Xxx Xxxx, XX
00000-0000, or at such other address as Landlord may from time to time direct in
the manner required hereunder for giving notice. If any Rent is not paid within
ten (10) days after the same is due, Tenant shall pay to Landlord a late payment
fee to compensate Landlord for its extra expenses, inclusive of legal fees,
involved in handling such delinquency. The late payment fee shall be the greater
of five percent (5%) of the amount delinquent, or $100.00, plus interest at the
rate of eighteen percent (18%) per annum or the maximum rate which can be
legally charged, whichever is less, on the entire delinquent sum from its due
date until paid, which amounts shall be payable as Additional Rent.
6. RENT ADJUSTMENT.
A. OPERATING COSTS. Operating Costs ("Operating Costs") for the
Building shall be determined on an accrual basis for each calendar year by
taking into account on a consistent accounting basis all costs of management,
maintenance, and operation of the Building, including, but not limited to, the
costs of cleaning, utilities, water, air conditioning, heating, plumbing,
elevator service, insurance and general maintenance contracts, costs of
maintaining lawns, drives and parking areas, costs amortized over at least a
five-year period for capital improvements designed to conserve energy or
expected to reduce Operating Costs, sales, use and excise taxes on goods or
services acquired by Landlord in connection with the maintenance or operation of
the Building, property taxes and special assessments against the Building, plus
this Building's allocate share of all costs of maintaining and insuring common
areas within Corporate Xxxxx, and all taxes and special assessments against such
common areas, plus all other costs which can properly be considered operating
expenses for the Building, but excluding costs of capital improvements (other
than those amortized over at least a five-year period for capital improvements
designed to conserve energy or expected to reduce Operating Costs), alterations
tenants, leasing commissions, advertising, depreciation, interest, income taxes
and administrative costs not specifically incurred in the management and
operation of the Building.
B. PROJECTED OPERATING COSTS. Whenever Landlord determines that
projected Operating Costs ("Projected Operating Costs") attributable to the
Leased Premises pursuant to the terms and provisions of this Lease during any
calendar year will exceed the Operating Stop, Tenant shall pay to Landlord as
Additional Rent on the first day of each month that portion of the Projected
Operating Costs for the current calendar year, retroactive to January 1 of such
calendar year, equal to one-twelfth (1/12) of the amount by which the Projected
Operating Costs for the Leased Premises during the current calendar year exceed
the Operating Stop. Any adjustment in Projected Operating Costs shall not cause
an adjustment in the monthly Base Rent or the Operating Stop for the. Leased
Premises. Notice of any adjustment in Projected Operating Costs for the Leased
Premises shall be given Tenant on or before April 1st of the year for which such
adjustment is effective, or as soon thereafter as Landlord has determined the
amount of such adjustment, if any, and any increase in the monthly payment
toward the Projected Operating Costs in excess of the Operating Stop for the
Leased Premises prior to the giving of such notice, after deducting all
prepayments thereon made by Tenant, if any, shall be due in a lump sum as
Additional Rent within ten (10) days after receipt of Landlord's statement
therefor.
C. INTERIM ADJUSTMENT. If at any time during the Lease Term,
Landlord determines that the Projected Operating Costs attributable to the
Leased Premises during any calendar year are anticipated to be in excess of the
last Projected Operating Costs submitted to Tenant, Landlord may provide Tenant
with a revised summary of Projected Operating Costs for such calendar year and
advise Tenant of the sum by
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which Projected Operating Costs exceed the last Projected Operating Costs
submitted to Tenant. In such event, Tenant shall pay to Landlord monthly during
such calendar year as Additional Rent, a sum equal to one-twelfth (1/12) of the
sum by which the Projected Operating Costs, as reflected in the revised summary,
exceed the last Projected Operating Costs submitted to Tenant. Tenant shall also
pay to Landlord as Additional Rent, one-twelfth (1/12) of such sum for each
month or fractional month of the calendar year which has elapsed as of the date
of such notice.
D. YEAR-END ADJUSTMENT. Upon completion of each. calendar year,
Landlord shall determine the Operating Costs for- such calendar year and shall
advise Tenant of such actual figures by April 1 of the following year, or as
soon thereafter as such figures are available. If the Operating Costs for the
Leased Premises for any calendar year exceed the total of the Operating Stop and
all additional payments of Projected Operating Costs for such calendar year,
such excess shall be due in a lump sum as Additional Rent within ten (10) days
after receipt of Landlord's statement therefor. If the Operating Costs for the
Leased Premises for any calendar year exceed the Operating Stop, but are less
than the total of the Operating Stop and all additional payments of Projected
Operating Costs for such calendar year, Landlord shall credit such excess
against any unpaid Rent then due hereunder, but if none, at Tenant's option,
Landlord shall either refund to Tenant the amount of any excess payment of Rent,
or credit such excess against the next maturing installment of Rent due
hereunder. If the Term of this Lease shall end during any calendar year in which
Additional Rent is due hereunder, Tenant's obligation to pay Additional Rent
shall be applicable to only those calendar months prior to the end of the Lease
Term hereunder. The provisions of this paragraph shall survive termination of
the Lease.
E. CAP ON OPERATING COSTS. Any other provisions of this Lease to the
contrary notwithstanding, Tenant shall have no obligation to pay any Operating
Costs for calendar year 2001 in excess of the Operating Stop, and Tenant's
obligation to pay Operating Costs for years after 2001 in excess of the
Operating Stop shall not exceed the difference between a sum equal to the
Operating Stop escalated at the compound rate of four percent (4%) per year and
the Operating Stop.
7. PRORATION OF FIRST AND LAST MONTH'S RENT.
A. Tenant shall not be obligated to pay Rent hereunder until delivery
of possession of the Leased Premises is tendered by Landlord unless otherwise
herein provided. Delivery of possession of the Leased Premises to Tenant shall
be deemed to have been made when the Leased Premises have been substantially
completed in compliance with and subject to the provisions of Section 13 hereof
and the Leased Premises are tendered to or made available to Tenant for the
installation of its fixtures and equipment. In the event delivery of possession
is made on a day other than the first day of a calendar month, all Rent provided
for herein shall be prorated for said month on a daily basis by taking the
annualized Rent, dividing it by 365 to establish the daily Rent, and then
multiplying the daily Rent times the actual days following the delivery of
possession included within such month.
B. If the Lease Term ends on any date other than the last day of a
month, whether by expiration of the stated Lease Term or otherwise, all Rent
provided for herein shall be prorated for such month on a daily basis by taking
the annualized Rent, dividing it by 365 to establish the daily Rent, and then
multiplying the daily Rent times the actual days included within such month.
8. USE.
Tenant agrees that it shall use the Leased Premises solely for administrative
and sales offices and uses reasonably incidental thereto, and for no other
purpose. Tenant agrees that it will not do or permit anything to be done in or
about the Leased Premises or in the Building or in Corporate Xxxxx which will in
any way obstruct or interfere with the rights of any other tenant or occupant of
the Building or Corporate Xxxxx, or injure or annoy them or disturb their quiet
enjoyment, or interfere with any services to be provided to any common .areas or
to any other tenant within the Building or Corporate Xxxxx, or
4
use or allow the Leased Premises to be used for any improper, immoral, unlawful
or objectionable purpose, or in any manner which might injure or tend to injure,
impair or tend to impair, the character, reputation or appearance of the
Building, Corporate Xxxxx, or any part thereof or which may invalidate or
increase the premium cost of any insurance carried on the Building. Tenant shall
not commit waste in, on or about the Leased Premises, the Building or Corporate
Xxxxx. Tenant shall not use the name "Corporate Xxxxx" or the Building name in
any manner other than as the address of the Leased Premises.
9. SERVICES.
A. So long as Tenant is not in default under this Lease within
the limitations hereinafter set forth, Landlord shall furnish Tenant during the
Lease Term with the following services:
(i) Normal Business Hours: Landlord shall operate the Building
during normal business hours ("Normal Business Hours") which shall be
Monday through Friday, from 8:00 a.m. to 6:00 p.m., and on Saturday
from 8:00 a.m. to 1:00 p.m., exclusive of holidays.
(ii) Water: Landlord shall supply to the common areas of the
Building warm and cold water as reasonably necessary for normal
drinking, lavatory, toilet and cleaning purposes.
(iii) Elevator: Landlord shall supply appropriate elevator
services for the Building during Normal Business Hours and at all
other times shall provide what Landlord deems to be sufficient
elevator service, subject always to reasonable security requirements,
to permit Tenant reasonable access to the Leased Premises.
(iv) HVAC: Landlord shall supply to the common areas and to the
Leased Premises, on a year-round basis during Normal Business Hours,
heat, ventilation and air conditioning, on a reasonable basis, through
the heating, ventilating and air conditioning systems of the Building,
at such temperatures and in such amounts as are considered by Landlord
to be standard or as required by governmental authority. Landlord
further agrees to provide upon prior written request from Tenant to
Landlord, prior to 3:00 p.m. of the preceding business day, heating or
air conditioning services for the Leased Premises at times other than
as above specified, but Tenant shall pay as Additional Rent, the
entire cost of such additional services, based upon an hourly rate
determined by Landlord.
(v) Electricity: Landlord shall supply electrical power to meet
normal electrical power needs for normal office uses during Normal
Business Hours including power for standard lighting or other lighting
approved by Landlord, typewriters, dictating equipment, calculating
machines, personal computers and other machines of similar low
electrical consumption, but not including electricity required for any
item of electrical equipment which singularly consumes more than .25
kilowatts per hour at rated capacity or requires voltage other than
120 volts single phase. Landlord, at Landlord's expense, may cause the
Leased Premises to be separately metered or submetered, and from time
to time, Landlord may at its option, cause a qualified electrical
engineer or consultant to make an electrical usage analysis of the
Leased Premises. If Tenant's electrical usage as determined either by
metering, submetering or an electrical usage survey exceeds the normal
electrical usage to be provided by Landlord hereunder, Tenant shall
pay monthly as Additional Rent the entire cost of providing such
excess electricity.
(vi) Maintenance: Landlord shall provide routine maintenance and
electric lighting service (including lamp replacement), for all common
areas and service areas of the Building and Corporate Xxxxx in the
manner and to the extent deemed by Landlord to be standard; and lamp
replacement for all standard fluorescent light fixtures in the Leased
Premises necessary to maintain the lighting provided by Landlord as a
part of the improvements. In addition, solely at
5
Tenant's cost, Landlord agrees to replace lamps in any non-standard
light fixtures installed in the Leased Premises with Landlord's
consent, using lamps supplied by and at the cost of Tenant.
(vii) Security: Landlord shall provide security in the form of
limited access to the Building during other than Normal Business
Hours, in such form as Landlord deems appropriate. Landlord shall have
no liability to Tenant, Tenant's agents, servants, employees,
customers, invitees, licensees or any person entering the Leased
Premises, the Building or Corporate Xxxxx under the invitation of
Tenant or any assignee or subtenant of Tenant (all of whom, exclusive
of Tenant only, are hereinafter jointly and severally referred to as
"Invitees") for any losses resulting from theft or burglary, or for
damages done by persons on the Leased Premises and Landlord shall not
be required to insure against any such losses. Tenant shall fully
cooperate with Landlord's efforts to maintain security in the Building
and within Corporate Xxxxx and Tenant shall follow and shall cause its
agents and employees to follow all regulations promulgated from time
to time by Landlord with respect thereto.
(viii) Janitorial: Landlord shall furnish to the common areas and
to the Leased Premises, reasonable janitorial services and normal
trash removal five (5) times weekly, exclusive of Saturdays, Sundays
and holidays, compatible with other office buildings within Corporate
Xxxxx.
B. If at any time or from time to time Tenant requires, requests or
obtains any additional work or services of any type in excess of those required
to be supplied by Landlord, or if Tenant installs or causes Landlord to install
any floor covering, lighting or other improvements which require any special
care or treatment, Landlord may furnish such additional work or service to
Tenant upon reasonable notice, and Tenant shall pay to Landlord all additional
costs associated therewith, including a reasonable administrative or overhead
charge by Landlord, as Additional Rent, upon being billed therefore, and the
costs of such additional work or services billed directly to Tenant shall be
excluded from Operating Costs.
C. Landlord does not warrant that any of the services referred to
above, or any other services which Landlord may supply to the Building or the
Leased Premises, will be free from interruption. Landlord shall not be
responsible or liable for any damage, loss or inconvenience resulting from
failure to furnish any of the above services or any other services which
Landlord agrees to provide to the extent such failure is caused by acts of God,
strikes, lockouts, embargoes, material shortages, war, accidents or other
conditions reasonably beyond Landlord's control, or to the extent caused by
maintenance, inspections, repairs, alterations, changes or improvements in any
part of the Building, or in Corporate Xxxxx, or to the extent caused by the
failure of outside agencies to furnish such services. No failure to provide any
such service or services for the reasons specified above shall constitute an
eviction nor entitle Tenant to any reduction, offset, discontinuation or delay
in the payment of any Rent or Additional Rent.
D. Tenant shall pay for the installation, use and maintenance of all
its telephone and other communication services, subject to Landlord's right to
direct and approve the location and method of installation of all wires and
other equipment which are to be installed in the Building. Tenant shall have no
right to install any portion of any such installation, other than normal wiring,
outside of the Leased Premises.
10. REPAIRS, MAINTENANCE AND ALTERATIONS.
A. Landlord agrees to maintain the structure, roof, exterior walls,
exterior doors, exterior windows, public restrooms, elevators, all plumbing,
heating, air conditioning and similar equipment and the corridors of the
Building of which the Leased Premises is a part, and the grounds and parking
areas serving the Building, and the common areas within Corporate Xxxxx in good
repair, provided, however, that if any repairs to any part of the Building or
any such equipment installed in or used in connection with the Building or any
of the grounds or parking areas serving the Building or any common areas of
6
Corporate Xxxxx is necessitated by the negligent act or omission of Tenant or
its Invitees, Tenant shall immediately reimburse Landlord for the cost thereof
upon demand, as Additional Rent, and such reimbursed costs shall be excluded
from the Operating Costs.
B. Tenant shall make no alterations, improvements or changes to the
Leased Premises, the Building or Corporate Xxxxx or install any vending machines
on the Leased Premises without Landlord's prior written consent. Unless Landlord
shall otherwise agree in writing, all maintenance, alterations, replacements,
repairs, improvements or changes to which Landlord may consent shall be done
either by or under the direction of Landlord, but at the sole cost of Tenant and
only pursuant to such plans, specifications and agreements as are approved by
Landlord. By consenting to or approving any plans, specifications and agreements
for any alterations, improvements or changes which Tenant desires to make to the
Leased Premises, Landlord does not warrant and shall assume no responsibility or
liability for the completeness, design sufficiency, or compliance of such plans
with all applicable taws, rules and regulations of governmental agencies or
authorities.
C. Tenant shall be responsible for the Leased Premises and at Tenant's
cost, shall keep it in a safe, neat and attractive condition. Except as provided
in Section 13 hereof, Tenant shall pay for all redecoration, remodeling,
alteration and painting of the Leased Premises desired by Tenant which are
approved by Landlord. Tenant shall also pay for the repair and maintenance
during the Lease Term of all special equipment or improvements installed in the
Leased Premises, including, but not limited to, supplemental air handling units,
dishwashers, icemakers, disposals, showers, sinks, commodes, parquet floors,
glass walls or sidelights and other similar equipment or improvements.
D. Tenant covenants and agrees to reimburse Landlord for all costs and
expenses incurred by Landlord to repair or replace any damage done to Corporate
Xxxxx, the Building, the Leased Premises, or any part of any of such property,
caused by Tenant or its Invitees, ordinary wear and tear excepted, and such
repairs shall restore the damaged property to as good a condition as it was in
prior to such damage, and shall be, effected in compliance with all applicable
laws; ordinances; rules and regulations, and Tenant shall pay the cost thereof
to Landlord on demand as Additional Rent. The Tenant shall not contract for any
work or service which might interfere with Landlord's employees, agents or
contractors doing work or performing services for the benefit of the Building or
the Leased Premises. Any and all alterations to the Leased Premises shall become
the property of Landlord upon termination of this Lease (except for movable
equipment or furniture owned by Tenant), provided, however, that the Tenant
shall not be obligated to remove any improvements or fixtures or restore the
Leased Premises to the condition required by Section 37 if the Landlord
consented to such improvements or fixtures without indicating at the time of
such consent, that such improvements or fixtures would need to be removed at the
end of the Lease Term. In the event that Landlord so elects, and Tenant fails to
remove any such leasehold improvements, fixtures, equipment or property,
Landlord may remove such at Tenant's cost, with no obligation on the part of
Landlord to preserve or store any such removed improvements, fixtures, equipment
or property, and Tenant shall pay Landlord on demand as Additional Rent, all
costs incurred by Landlord in removing such and restoring the Leased Premises as
hereinabove provided.
11. LIENS.
Tenant shall not under any circumstances permit any mechanics', materialmen's,
laborers' or other liens to be placed upon the Leased Premises, the Building, or
Corporate Xxxxx and nothing in this Lease shall be deemed or construed in any
way as constituting the consent or request of Landlord, express or implied, by
inference or otherwise, to any person for the performance of any labor or the
furnishing of any materials to the Leased Premises, the Building or Corporate
Xxxxx, or any part thereof, nor as giving Tenant any right, power, or authority
to contract for or permit the rendering of any services or the furnishing of any
materials that would give rise to any mechanics', materialmen's, laborers' or
other liens against the Leased Premises, the Building or Corporate Xxxxx. In
addition to any and all other rights or remedies then available to Landlord,
Landlord may, but shall not be obligated to, discharge any such lien, without
7
obligation to determine the propriety of the lien amount. In the event any such
lien is attached to the Leased Premises, the Building or Corporate Xxxxx, or in
the event anyone attempts to attach any such lien on any part of the Leased
Premises, the Building or Corporate Xxxxx, then forthwith upon notice from
Landlord, Tenant shall cause such lien to be released. Tenant hereby indemnifies
and agrees to hold Landlord harmless from all costs and expenses, including
payment to Landlord of all costs and expenses, including but not limited to
legal fees incurred by Landlord and all costs incurred by Landlord to discharge
such lien and any amount paid by Landlord for any of the aforesaid purposes
shall be paid by Tenant to Landlord on demand as Additional Rent.
12. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not sell, assign, transfer or encumber this Lease, or
any interest herein, voluntarily or involuntarily, by operation of law or
otherwise, or sublet the Leased Premises or any part thereof, or allow any other
occupant to come in, with or under Tenant, or use or occupy any portion of the
Leased Premises, or permit this Lease or the leasehold estate created hereby to
become vested in or owned by any person, firm or corporation by operation of law
or otherwise, without in every instance, first obtaining the prior written
consent of Landlord, which consent, subject to the terms and conditions of this
Lease, may not be unreasonably withheld. If Tenant is a corporation, the sale or
transfer of over fifty percent (50%) or more of the stock of Tenant, (exclusive
only of those units of Tenant which are traded on any regulated securities
exchange after such transfers) shall constitute an assignment of this Lease for
the purposes of this paragraph. If Tenant is a partnership, any change in
control of the general partnership interest of Tenant shall constitute an
assignment of this Lease for the purposes of this paragraph. If Tenant is a
limited liability company ("LLC"), any change in control of the LLC or any sale
or transfer of fifty percent (50%) or more of the units in the LLC (exclusive
only of those units of Tenant which are traded on any regulated securities
exchange after such transfers) shall constitute an assignment of this Lease for
the purposes of this paragraph. Any breach of the foregoing provisions shall
constitute a breach hereof, and Landlord may, at its option, at any time
thereafter, declare Tenant to be in Default hereunder.
B. If Tenant shall request Landlord's consent to an assignment of this
Lease or to a subletting of the whole or any part of the Leased Premises, Tenant
shall first pay to Landlord the sum of $250.00 and shall also submit to Landlord
with such request, the name of the proposed assignee or subtenant, such
information concerning its business, financial responsibility and standing as
Landlord may reasonably require, and a complete disclosure of all consideration
to be paid for and the effective date of the proposed assignment or subletting.
Upon receipt of such request and all such information by Landlord, it shall have
the right, exercisable by notice in writing to Tenant within fourteen (14) days
thereafter, (i) if the request is for an assignment or a subletting of all the
Leased Premises, to cancel and terminate this Lease; or (ii) if such request is
to sublet a portion of the Leased Premises only, to cancel and terminate this
Lease with respect to such portion. If Landlord exercises its rights hereunder,
the effective date of such cancellation shall be set forth in Landlord's notice
to Tenant, but such date shall not be earlier than the effective date of the
proposed assignment or subletting nor later than ninety (90) days thereafter.
Further, Tenant shall continue to pay to Landlord all Rent as herein otherwise
provided, until the effective date of such cancellation, on which date Tenant
shall surrender to Landlord, possession of the Leased Premises or the portion
thereof subject to such cancellation. If this Lease shall be canceled as to a
portion of the Leased Premises only, then Tenant's obligations to pay Rent as
herein otherwise provided, shall be abated proportionately from and after the
effective date of such cancellation, and Tenant shall pay to Landlord all costs
incurred to construct an appropriate demising wall separating the canceled
portion of the Leased Premises from the remainder of the Leased Premises. The
foregoing provisions to the contrary notwithstanding, if Tenant desires to
assign this Lease or sublease all or any portion of the Leased Premises, and
upon Landlord receiving notice of such, Landlord gives Tenant notice that
Landlord has elected to cancel and terminate this Lease as above provided,
within ten (10) days of such notice from Landlord, Tenant may withdraw its
request to so assign or sublease, and in such event this Lease shall remain in
full force and effect as though no such notice had been given to Landlord by
Tenant.
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C. If Tenant requests Landlord's consent to an assignment or
subletting of this Lease, and if Landlord elects to consent thereto, an amount
equal to the total of (i) all reasonable costs and fees incurred by Landlord in
implementing such assignment or subletting including attorneys' fees, and (ii)
any consideration other than Rent paid Tenant by the assignee or subtenant for
or in connection with such assignment or subletting shall be payable forthwith
by Tenant to Landlord as Additional Rent. If Tenant requests and obtains
Landlord's consent to an assignment or subletting of all of the Leased Premises,
the Rent attributable to the Leased Premises so assigned or sublet during. each
month of the term of such assignment or subletting, shall be the greater of the
Rent attributable thereto then payable under this Lease, or the Rent to be paid
Tenant by its subtenant or assignee for the Leased Premises. If Tenant requests
and obtains Landlord's consent to an assignment or subletting of less than all
of the Leased Premises, the Rent attributable to that portion of the Leased
Premises so assigned or sublet during each month of the term of such assignment
or subletting, shall be the greater of the Rent attributable thereto then
payable under this Lease (calculated on a pro rata basis based upon the net
rentable square feet so subleased or assigned as it relates to the total net
rentable square feet in the Leased Premises), or the Rent to be paid Tenant by
its subtenant or assignee for such subleased or assigned portion of the Leased
Premises.
D. If Tenant wishes to assign or sublet all or any portion of the
Leased Premises, and wishes to use a real estate broker to secure such assignee
or subtenant, Tenant agrees to use the real estate broker then representing
Landlord in Corporate Xxxxx as Tenant's exclusive agent for such purposes, and
to continue to use such broker so long as it is diligently seeking an assignee
or subtenant for such space. Tenant shall not directly or indirectly advertise
or permit anyone else to advertise the Leased Premises, or any portion of it, as
being available for sublease or assignment, unless otherwise agreed to in
writing by Landlord.
E. Any permitted assignment or subletting shall be only for the uses
herein permitted and otherwise upon and subject to all the terms, provisions,
covenants and conditions contained in this Lease and, notwithstanding Landlord's
consent thereto, Tenant and all guarantors hereunder, if any, shall continue to
be and remain liable hereunder.
F. Any person, firm or corporation which enters into possession of all
or any portion of the Leased Premises, either with or without Landlord's prior
written consent, by such act, shall be deemed to have assumed as a joint obligor
with Tenant and unconditionally guaranteed the timely performance of all of
Tenant's obligations under this Lease, including but not limited to the payment
of all Rent and other payments which become due and payable to Landlord
hereunder, whether then due or thereafter accruing, and all damages due
hereunder because of any default by Tenant hereunder or breach of this Lease.
Acceptance of Rent or any other payment by Landlord from anyone other than
Tenant who is in possession of all or any portion of the Leased Premises, or any
notice or demand made by Landlord to anyone other than Tenant who has entered
into possession of all or any portion of the Leased Premises in violation of the
terms of this Lease shall not be deemed to be a waiver, consent or approval by
Landlord of such breach or a consent to or approval of such person, firm or
entity entering into such possession.
13. CONSTRUCTION OF IMPROVEMENTS.
Prior to the commencement of the Lease Term, Landlord agrees to cause the Leased
Premises to be improved in accordance with the plans, specifications, and
agreements approved by Landlord and Tenant per construction plans dated
September 26, 2001 (three (3) pages, not attached) and to be known as "Exhibit
B" and made a part of this Lease. Landlord shall not be obligated to construct
or install any improvements or facilities of any kind other than those called
for by Exhibit B. The total cost of constructing the improvements as outlined in
Exhibit B hereof shall be borne by Landlord. However, Tenant shall pay all costs
and expenses resulting from any change order or change orders requested by
Tenant and approved by landlord within ten (10) business days after Tenant is
advised in writing of such sum. Any delay resulting from any such change order
shall be Tenant Delay. Landlord agrees to
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commence and complete the construction of the improvements called for by Exhibit
B in a timely manner.
14. ACCEPTANCE OF LEASED PREMISES.
Tenant's taking possession of the Leased Premises shall be evidence that the
Leased Premises were in good order and satisfactory condition when the Tenant
took possession, provided however that within thirty (30) days after delivery of
possession, Tenant may prepare a punchlist which sets forth any incomplete item
required by Exhibit B, and Landlord agrees to thereafter in a timely manner
commence to complete all such items set forth on the punchlist as soon as
reasonably possible. Tenant has agreed to accept the Leased Premises in an "as
is" condition except as herein otherwise provided, and Landlord shall have no
obligation to alter, remodel, repair or improve the Leased Premises or the
Building and no representations respecting the condition of the Leased Premises
or the Building. have been made by Landlord to Tenant, other than as may be
contained herein.
15. COMPLIANCE WITH APPLICABLE LAWS AND INSURANCE REQUIREMENTS.
A. During the Lease Term, Tenant shall not use or occupy, or permit
any portion of the Leased Premises, the Building or Corporate Xxxxx to be used
or occupied, (a) in violation of any law, ordinance, order, rule, regulation,
certificate of occupancy, or other governmental requirement, or (b) for any
disreputable business or purpose, or (c) in any manner or for any business or
purpose which creates risks of fire or other hazards, or which in any way
violates, suspends, voids, or increases the cost of any fire or liability or any
other insurance coverage of any kind carried by Landlord upon all or any part of
the Building, its contents or Corporate Xxxxx. Tenant shall comply with all
present and future laws, ordinances, orders, rules, regulations, and other
governmental requirements of all federal, state, county and municipal
authorities relating to the use, condition or occupancy of the Leased Premises,
including, but not limited to the Americans with Disabilities Act and the Clean
Air Act, and all rules, orders, regulations and requirements of any board of
fire underwriters or insurance service office or any other similar body, having
jurisdiction over the Building.
B. Tenant shall not do or commit, or permit to be done or committed,
any act or thing (other than using the Leased Premises as administrative and
sales offices and for uses reasonably incidental thereto) which might cause any
policy or policies of insurance written in connection with the Building or the
property therein, or Corporate Xxxxx, to become void or suspended or which might
cause the insurance risk on the Building, or the property therein, or Corporate
Xxxxx, to be rendered more hazardous or otherwise increase the rate of premium
for any such insurance over the rate in effect on the Commencement Date. Tenant
shall pay to Landlord on demand as Additional Rent, the amount of any increase
in premiums for the Building and Corporate Xxxxx caused by any breach of this
covenant.
16. INDEMNITY.
A. Landlord, its agents, servants and employees, shall not be liable
to Tenant or its Invitees, for any injury to person or damage to property caused
by any act, omission, or negligence of Tenant or its Invitees, or arising out of
the use of the Leased Premises, the Building or Corporate Xxxxx by Tenant or its
Invitees or arising out of the conduct of Tenant's business or out of a default
by Tenant in the performance of any of its obligations hereunder. Tenant hereby
indemnifies and agrees to save Landlord, its agents, servants and employees,
harmless from and against any and all claims, liabilities and expenses,
including reasonable attorneys' fees, arising from the conduct or operation of
Tenant's business or from the use or occupation of the Leased Premises by Tenant
or its Invitees or anyone on the Leased Premises with Tenant's permission, or
from any breach of this Lease by Tenant or its Invitees.
B. See Lease Addendum for Section 16.B.
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17. INSURANCE, LOSS, DAMAGE, REIMBURSEMENT.
A. TENANT'S INSURANCE REQUIREMENTS. Tenant shall maintain at its own
cost and expense:
(i) Commercial general liability insurance on an occurrence basis
naming Tenant as insured and Landlord, Landlord's asset manager and
Landlord's property manager and mortgagees as additional insureds, as
their interests may appear, covering claims and liabilities for injury
or damage to persons or property or for the loss of life or property
occurring upon, in or about the Leased Premises or the contiguous
sidewalks, parking lots, driveways and private streets, caused by or
resulting from any act or omission of Tenant or its Invitees, such
insurance to afford minimum protection during the Lease Term in an
amount of not less than $5,000,000 combined single limit coverage per
occurrence for bodily injury, death, property damages or a combination
thereof;
(ii) Worker's Compensation and Employer's Liability Insurance in
accordance with the laws of the State of
Kansas;
(iii) Fire insurance in an amount adequate to cover the cost of
replacement of, all equipment, installations, fixtures and contents in
the Leased Premises, including leasehold improvements paid for -by
Tenant, in the event of loss or damage by fire and against loss or
damage by other risks now or hereafter embraced by so-called "All-Risk
Coverage", with protection against vandalism, malicious mischief and
sprinkler leakage; and
(iv) When required by Landlord, such other insurance against other
insurable hazards and in such amounts as may from time to time be
commonly and customarily insured against and are generally available
for tenants in first class office buildings in the City of Overland
Park,
Kansas.
All of the above insurance may be affected by one or more policies (which may
cover the Leased Premises and other locations), but shall be issued by insurers
of recognized responsibility reasonably acceptable to Landlord, with a minimum
Best's rating of A-VIII, and each such policy shall contain a provision whereby
the insurer agrees not to cancel or terminate such coverage without at least
thirty (30) days prior written notice to Landlord, and that no act or omission
to act of any of the named insureds will invalidate such insurance as to the
other named insureds. All insurance maintained by Tenant shall be primary
coverage to the extent Tenant has agreed to indemnify, save harmless and/or
release Landlord, its agents, servants, employees, customers, invitees,
licensees and mortgagees, or any one or more of them, from liability for such
claim or liability pursuant to any other provision of this Lease, and as to such
claim or liability, any insurance maintained by Landlord shall be excess
coverage and non-contributory.
B. WAIVER OF LIABILITY FOR DAMAGES. Landlord, its agents, servants and
employees shall not be liable for any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam; gas, electricity, water,
rain, snow, earthquakes or leaks from any part of the Building, or from the
pipes, appliances or plumbing works or from the roof, street or subsurface or
from any other place or by dampness or by any other cause of whatsoever nature,
unless caused by or due to the gross negligence or willful misconduct of
Landlord, and-Tenant does hereby expressly waive any consequential damages,
compensation or claims for inconvenience or loss of business, rents or any
profits as a result of any such injury or damage. Tenant does hereby expressly
waive any claim against Landlord, its agents, servants and employees, which
Tenant may have for damages or loss of any kind or type, because Tenant fails
for any reason to carry any insurance coverage required hereunder, or because
Tenant has elected, with Landlord's prior written consent, to self insure any
such risk or exposure, or because such damage or loss is not fully paid because
of any deductible amount provided for under any insurance policy actually
carried by Tenant in compliance with the terms and provisions of this Lease.
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C. WAIVER OF SUBROGATION. Landlord and Tenant each hereby waives on
behalf of itself and its property insurers (none of which shall ever be assigned
any such claim or be entitled thereto due to subrogation or otherwise) any and
all rights of recovery, claim, action, or cause of action, against the other,
and their respective agents, servants, officers, partners, shareholders, or
employees, and against every other tenant in the Building to the extent they
have executed a similar waiver as set forth in this Section, and the agents,
servants, officers, partners, shareholders and employees of each such other
tenant, for any loss or damage that may occur to the Leased Premises, or any
improvements thereto, or the Building or any improvements thereto, or any
personal property of such party therein, by reason of fire, the elements, or any
other cause or origin, which is insured against under any insurance policy
actually being maintained from time to time, even if not required hereunder, or
which would be insured against under the terms of any insurance policy required
to be carried or maintained hereunder, whether or not such insurance coverage is
actually being maintained by Tenant and regardless of the cause or origin,
including in every instance negligence of the other party hereto, its agents,
servants, officers, partners, shareholders or employees, or the negligence of
any other tenant in the Building who shall have executed a similar waiver, or
its agents, servants, officers, partners, shareholders or employees. Landlord
and Tenant each agree to cause appropriate clauses to be included in all of
their insurance policies necessary to implement the foregoing provisions.
D. REIMBURSEMENT OBLIGATION OF TENANT. Tenant shall reimburse Landlord
and its agents, servants, employees, customers, invitees, licensees and
mortgagees, including, but not limited to Landlord's asset manager and
Landlord's property manager, for all expenses, damages and fines incurred or
suffered by each by reason of any breach, violation or nonperformance by Tenant
or its Invitees, of any covenant or provision of this Lease, or by reason of
damage to persons or property caused by moving property of or for Tenant in or
out of the Building, or by the installation or removal of furniture or other
property of or for Tenant, or by reason of or arising out of the carelessness,
negligence or improper conduct of Tenant or its Invitees, in the use or
occupancy of the Leased Premises or the Building or Corporate Xxxxx.
E. TENANT NOTICE OBLIGATIONS. Tenant shall give Landlord immediate
notice in case of fire or accidents in the Leased Premises or in the Building.
Tenant shall give Landlord prompt notice if any of the insurance coverage and
the clauses required to be included in each of Tenant's insurance policies
pursuant to the provisions of this Section cannot be obtained. Tenant shall give
Landlord immediate notice of any cancellation or change of the terms of any such
policy which would affect any such clause or naming.
F. EVIDENCE OF INSURANCE. On or before the Commencement Date, Tenant
shall furnish Landlord with a certificate or certificates evidencing the
aforesaid insurance coverage, or a copy of the actual insurance policy providing
such insurance coverage. Renewal policies or certificates therefor shall be
furnished to Landlord at least thirty (30) days prior to the expiration date of
each policy for which either a certificate or a copy of the policy was
theretofore furnished to Landlord.
18. LANDLORD'S USE OF BUILDING.
Landlord reserves the exclusive right to use the Building of which the Leased
Premises is a part, and every part thereof, except the interior of the Leased
Premises, for promotional purposes. Landlord reserves the right at all
reasonable times to enter and be upon the Leased Premises for the purpose of
examining same, to show the same to prospective purchasers and mortgagees, for
cleaning, and to evaluate the need for repairs, alterations, additions,
installations and removals as Landlord may deem proper or useful for serving the
Leased Premises or the Building, and to enter and be upon the Leased Premises,
through its agents, employees and contractors, at all reasonable times after
first attempting to give Tenant actual notice (not notice pursuant to Section 40
hereof) to repair, maintain, alter, improve and remodel the Leased Premises or
the Building, or carry out any provision of this Lease, but Landlord shall to
the extent reasonably possible, exercise such rights in a manner which will not
unreasonably interrupt
12
or interfere with Tenant's use and occupancy of the Leased Premises. Tenant
shall not be entitled to any compensation, damages, abatement or reduction in
Rent on account of any such repairs, maintenance, alterations, improvements,
remodeling or entry upon the Leased Premises as herein permitted. For a period
of one hundred eighty (180) days prior to the expiration of this Lease, Landlord
shall have the right to enter upon the Leased Premises at all reasonable times
and exhibit the same to prospective tenants.
19. DAMAGE OR DESTRUCTION.
Subject always to Lease Addendum Section 48:
A. If the Leased Premises or the Building is substantially and
materially damaged by fire or other casualty, so that all or any portion of the
Leased Premises is untenantable, even if the Leased Premises are not actually
damaged, Landlord may, at its option, exercisable within ninety (90) days after
the date of such damage, elect by written notice to Tenant either to repair and
restore the same or to terminate this Lease. If Landlord so elects to terminate
this Lease and if any portion of the Leased Premises continues to be usable,
with Landlord's prior consent not to be unreasonably withheld, Tenant may elect
to continue to use such space for up to ninety (90) days after such damage, and
Tenant shall pay Rent on such portion of the Leased Premises being used by
Tenant on a prorata basis.
B. If Landlord shall elect under Paragraph A above to repair or
restore the Leased Premises, or the Building, Landlord shall do so as promptly
as reasonably possible, and this Lease shall remain in full force and effect
during the making of such repairs, except that if such loss or damage was not
caused in whole or in part by the negligent act of Tenant or its Invitees, Rent
shall xxxxx as follows:
(i) If as a result of such damage or destruction the Leased
Premises is rendered totally untenantable, Rent shall xxxxx from the
date of such damage or destruction until the Leased Premises, or any
portion thereof accepted by Tenant, is ready for occupancy; or
(ii) If as a result of such damage or destruction the Leased
Premises is rendered partially untenantable, and from and after the
date Landlord restores a portion, but less than all of the Leased
Premises to tenantable condition, and Tenant with Landlord's written
consent elects to reoccupy such portion prior to the entire Leased
Premises being restored to tenantable condition, Rent shall be reduced
in the proportion that the untenantable square foot area of the Leased
Premises bears to the total square foot area of the Leased Premises,
and such reduction shall continue until the damaged or destroyed
portion of the Leased Premises is ready for occupancy.
The foregoing provisions to the contrary notwithstanding, Landlord's obligation
to repair, replace and restore the Leased Premises shall never exceed the scope
of the work required to be done by Landlord at its cost in originally
constructing the Leased Premises pursuant to Exhibit B, and Landlord shall not
be obligated or required to repair, replace or restore any damage or injury, or
make any repairs to or replacement or restoration of any tenant finish items or
additions or improvements made in or to the Leased Premises by Tenant, or by
Landlord for or on behalf of Tenant (hereinafter "Tenant Paid Improvements"),
which are in excess of the original tenant finish which Landlord was obligated
to provide at its cost pursuant to Section 13 hereof, except to the extent that
the loss or damage of such Tenant Paid Improvements is insured under one or more
insurance policies maintained or paid for by Tenant, and which are payable to
Landlord, but then only to the extent that Landlord does in fact receive such
insurance proceeds and can use such proceeds to repair or replace such damaged
or destroyed Tenant Paid Improvements.
C. If Landlord shall elect under Paragraph A above to terminate this
Lease, this Lease shall terminate as of the date of such damage or destruction.
13
D. Anything contained in this Section 19 to the contrary
notwithstanding, if the Building of which the Leased Premises is a part, is
substantially damaged or destroyed by fire or other casualty and Landlord elects
not to repair or rebuild the same, Landlord may, at its option, elect to
terminate this Lease, even though the Leased Premises may not be damaged or
destroyed by such fire or other casualty; and provided further, that if the
Leased Premises are substantially damaged or destroyed by fire or other casualty
at any time when the then remaining Lease Term is less than twelve (12) months
(exclusive of any unexercised renewal options), Landlord may, at its option,
exercised within thirty (30) days after the date of such damage or destruction,
elect to cancel this Lease rather than restore the Leased Premises as herein
provided, in which event Landlord may retain all insurance proceeds payable to
Landlord because of such loss or damage.
E. Any notice given hereunder shall be given in the manner provided by
Section 40 hereof.
20. CONDEMNATION.
A. If the whole of the Leased Premises shall be taken for any public
or quasi public use under any statute or by right of eminent domain, or by
private purchase in lieu thereof, this Lease shall automatically terminate as of
the date that possession shall be taken by or given to the condemning authority.
B. If only a portion of the Leased Premises or the Building of which
it is a part or the site upon which it is located shall be so taken, or if any
or all of the common areas comprising Corporate Xxxxx which directly, materially
and adversely affect the Building are so taken, Landlord, at its option, may
terminate this Lease as of the date that possession shall be taken by or given
to the condemning or acquiring authority, upon giving written notice of
termination to Tenant. If Landlord elects not to terminate this Lease, it shall
restore the Leased Premises to an architectural unit as nearly like its
condition prior to such taking as shall be practicable; but such work shall not
exceed the scope of the work required to be done by Landlord in originally
constructing the Leased Premises. Landlord shall notify Tenant of its election
either to terminate or to restore not later than ninety. (90) days after the
effective date of any such taking. If this Lease is not terminated, in
connection with any condemnation or sale in lieu of condemnation as hereinbefore
provided, all of the terms of this Lease shall continue in effect, provided
however, that if any portion of the Leased Premises has been taken, then the
Rent, or a fair and just proportion thereof, according to the nature and extent
of the taking of the Leased Premises, shall be suspended or abated.
C. All compensation awarded or paid upon a total or partial taking of
the Leased Premises, the Building or any common areas of Corporate Xxxxx shall
belong to and be the property of Landlord without any participation by Tenant;
provided, however, that nothing contained herein shall be construed to preclude
Tenant from prosecuting any claim directly against the condemning authority in
such condemnation proceedings for loss of business, depreciation to, damage to,
cost of removal of, or for the value of, stock and trade fixtures, furniture and
other personal property belonging to Tenant, and for any relocation allowance or
award, so long as such claim, allowance or award shall not diminish or otherwise
adversely affect Landlord's award.
21. ABANDONMENT.
If Tenant shall vacate or abandon the Leased Premises or if Tenant should refuse
or fail to take possession of the Leased Premises at the Commencement Date,
Tenant shall be deemed to be in Default hereunder, and Landlord shall have the
right to enter upon the Leased Premises and exhibit it to prospective tenants
without notice, and to exercise all of Landlord's rights provided hereunder in
event of a Default hereunder.
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22. PARKING.
Tenant shall be entitled to use and to permit its Invitees to use Tenant's pro
rata share of all parking spaces provided by Landlord for the Building, in the
parking lots provided for the Building or as otherwise designated by Landlord,
subject always to all applicable rules and regulations. In order to keep all
required fire lanes open, to protect persons and property from injury or damage
due to fire or other casualty, to avoid unreasonably interfering with the rights
of Landlord and other tenants within Corporate Xxxxx, and such other tenant's
Invitees, to keep all driveways, aisles, entry ramps, roadways, sidewalks and
parking areas available for their intended uses, to provide suitable parking for
visitors and the disabled, and to not unreasonably interfere with anyone's
ingress and egress to any building within Corporate Xxxxx, Tenant agrees to
restrict the parking of its motor vehicles and the motor vehicles of all of its
Invitees to only those striped, designated parking areas provided for the
Building, so that all roadways, driveways, aisles, entry ramps, sidewalks and
pedestrian passageways shall remain open and unobstructed at all times for their
intended use, and that those parking spaces designated as reserved for visitors
and the disabled will be available to and used only by those for whom they are
intended. Tenant shall not park any vehicles in any parking lot overnight,
unless the owner of such car is then within the Building, without Landlord's
prior consent. Should a motor vehicle be parked by Tenant or by any of its
Invitees other than in such designated parking areas, or overnight without
Landlord's consent, or otherwise fail to be in compliance with all applicable
rules and regulations, Landlord may remove or cause the removal of such vehicle
from Corporate Xxxxx or to other locations within Corporate Xxxxx at the cost of
the owner thereof, and Landlord shall not be liable to Tenant or any of its
Invitees or any other person for any loss or damage which may result therefrom.
23. DEFAULT.
Any failure by Tenant to pay any installment of Base Rent within five (5) days
after its due date, or any failure by Tenant to pay any other Rent or any other
sum of money due hereunder within ten (10) days after notice to Tenant of the
sum due, shall constitute a monetary default ("Monetary Default") under this
Lease. If apparent Monetary Default exists at any time and if Tenant has not
previously been in actual Monetary Default under this Lease, Landlord will
attempt to advise Tenant, either by telephone or in writing, that such apparent
Monetary Default exists, before Landlord actually gives Tenant notice of Default
hereunder. However, Landlord's right to give actual notice of Default under this
Lease shall not be conditional in any manner upon Landlord first advising Tenant
of any such apparent Monetary Default. Any failure by Tenant to perform or
comply with any other covenant or agreement herein contained (all of which shall
be deemed to be material hereunder) which failure shall continue for a period of
thirty (30) days after written notice thereof is given Tenant shall constitute a
non-monetary default ("Non-Monetary Default") under this Lease. In the event of
any Monetary Default or Non-Monetary Default hereunder (jointly and severally
"Default"), this Lease shall be in Default. At any time thereafter while such
Default continues to exist, Landlord may, at its option.
A. Terminate this Lease; or
B. Effect or pay or perform that obligation as to which the Tenant is
in Default, and the Tenant shall thereupon be indebted to the Landlord for all
amounts so paid or advanced and all costs and expenses incurred in connection
therewith, such indebtedness to be payable on demand as Additional Rent; or
C. Re-enter, take possession of the Leased Premises and remove all
persons and property therefrom (any property so removed may be stored in a
public warehouse or elsewhere at the cost of, at the sole risk of loss of and
for the account of Tenant), all without notice or legal process and without
being deemed guilty of trespass, or liable for any loss or damage occasioned
thereby. If Tenant shall, either before or after Default, voluntarily give up
possession of the Leased Premises to Landlord, or deliver the keys to said
Leased Premises to Landlord, or both, such actions shall be deemed to be in
15
compliance with Landlord's rights and the acceptance thereof by Landlord or its
agent shall not be deemed to be a termination of this Lease or constitute a
surrender of the Leased Premises, unless Landlord specifically so elects in
writing at such time. Should Landlord elect to re-enter into possession, or
should it take possession pursuant to legal proceedings or pursuant to any
notice provided by law, it may either terminate this Lease or, without
terminating this Lease, may relet said Leased Premises (or any part thereof)
separately or with any other portion or portions of the Building, for such term
or terms (including a term extending beyond the Term of this Lease), at such
rental or rentals and upon such other terms and conditions as Landlord in its
sole discretion may deem advisable. Upon each such reletting all rentals shall
be applied first to the payment of any costs and expenses of such reletting,
including brokerage fees, attorneys' fees and cost of any alterations and
repairs which Landlord, in its sole judgment, deemed necessary in connection
with such reletting (if leased in whole or in part with other space in the
Building, all such costs and expenses shall be allocated on a square foot
basis); second to the payment of any indebtedness other than Rent due hereunder
from Tenant to Landlord; third to the payment of Rent due and unpaid hereunder;
and the residue, if any, shall be held by Landlord and applied in payment of
future Rent or damage as the same may become due and payable hereunder. If such
rentals received from such reletting during any month shall be less than the
Rent to be paid during said month by Tenant hereunder, Tenant shall pay any such
deficiency to Landlord monthly. No such re-entry or retaking of possession by
Landlord shall be construed as an election by Landlord to terminate this Lease
unless a written notice of such election is given to Tenant or unless the
termination thereof is decreed by a court of competent jurisdiction.
Notwithstanding' any such reletting without terminating this Lease, Landlord may
at any time thereafter elect to terminate this Lease for such previous breach.
Should this Lease be terminated at any time due to Tenant's Default, Tenant
shall forthwith surrender possession of the Leased Premises to Landlord without
further demand, and Landlord, in addition to any other remedies it may have, may
recover from Tenant all damages it may incur by reason of such breach, including
the costs of recovering the Leased Premises, reasonable attorneys' fees, and the
worth at the time of such termination of the amount of Rent and charges
equivalent to Rent reserved in this Lease for the remainder of the stated Term,
all of which amounts shall be immediately due and payable from Tenant to
Landlord as Additional Rent. In determining the Rent which would be payable by
Tenant hereunder subsequent to Default, the Rent for each year of the unexpired
Term shall be equal to the Base Rent provided for the balance of the Lease Term,
plus the average of the total annual Additional Rent and other charges due from
Tenant from the Commencement Date of the then current Term hereof to the time of
Default, or for the preceding three (3) full calendar years, whichever is the
shorter period.
After any such Default, Landlord shall not be obligated to notify Tenant of the
due date of Rent nor demand payment thereof on its due date, the same being
expressly waived by Tenant. The acceptance of any sums of money from Tenant
after the expiration of any ten (10) day or thirty (30) day notice as above
provided shall be taken to be a payment on account by Tenant and shall not
constitute a waiver by Landlord of any of its rights hereunder or at law, nor
shall it reinstate this Lease or cure a Default on the part of Tenant, unless
Landlord then so agrees in writing.
24. AGENCY; BROKERAGE COMMISSIONS.
Tenant represents and warrants that it has dealt with no broker, agent or other
person in connection with this transaction other than Glaze Commercial Realty
("Tenant's Broker"), which, to Tenant's knowledge, is acting in this transaction
solely as agent for the Tenant, and MC Real Estate Services, Inc. ("Listing
Broker"), which is acting in this transaction solely as agent for Landlord (even
if there is no Tenant's Broker involved in this transaction) and that no broker,
agent or other person brought about this transaction, other than the identified
Tenant's Broker and Listing Broker. Tenant hereby indemnifies and does hereby
agree to hold Landlord harmless from and against any claims by any other broker,
agent or other person claiming a commission or other form of compensation by
virtue of having dealt with Tenant with regard to this leasing transaction. The
provisions of this paragraph shall survive the termination of this Lease.
Nothing in this Lease obligates Tenant or shall be construed to infer that
Tenant has any
16
obligation to pay any commission, fee, expenses or other amounts to Tenant's
Broker in connection with this Lease.
25. WAIVER OF BENEFITS.
A. Tenant waives the benefits of all existing and future rent control
legislation and statutes and any similar governmental rules and regulations,
whether in time of war or not, to the extent permitted by law.
B. Tenant agrees to waive any right to trial by jury in any legal
action, proceedings or counterclaims brought by Tenant against Landlord, or
Landlord against Tenant (except for personal injury or property damage), on any
matter whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant or Tenant's use of or occupancy of the
Leased Premises, or any statutory remedy. It is further agreed that Tenant will
not interpose any counterclaim of whatsoever nature or description in any such
proceeding, except for mandatory counterclaims.
26. MISCELLANEOUS TAXES.
Tenant shall pay prior to delinquency all taxes assessed against or levied upon
its occupancy of the Leased Premises, or upon the fixtures, furnishings,
equipment and all other personal property of Tenant located in the Leased
Premises, if nonpayment thereof shall give rise to a lien on any part of the
Building, and when possible Tenant shall cause said fixtures, furnishings,
equipment and other personal property to be assessed and billed separately from
the property of Landlord. In the event any or all of Tenant's occupancy of the
Leased Premises, shall be assessed and taxed with the property of Landlord,
Tenant shall pay to Landlord as Additional Rent, Tenant's share of such taxes,
as determined by Landlord, within ten (10) days after delivery to Tenant by
Landlord of a statement in writing setting forth the amount of such taxes
applicable to Tenant's fixtures, furnishings, equipment or personal property.
27. SPRINKLERS.
If there now is or shall be installed in the Building a "sprinkler system", and
such a system or any of its appliances shall be damaged or injured or not in
proper working order by reason of any act or omission of the Tenant or its
Invitees, the Tenant shall immediately notify Landlord in writing, and, within a
reasonable period after Landlord's receipt of such notice, Landlord shall have
the sprinkler system restored at Tenant's expense, which costs Tenant shall
forthwith pay as Additional Rent upon receipt of a billing therefor; and if any
bureau, department or official of the state or city government, requires or
recommends that any changes, modifications, alterations, or additional sprinkler
heads or other equipment be made or supplied by reason of the Tenant's business,
or the location of partitions, trade fixtures, or other contents of the Leased
Premises, or for any other reason attributable to Tenant's business, or if any
such changes, modifications, alterations, additional sprinkler heads or other
equipment, become necessary to prevent the imposition of a penalty or charge
against the full allowance in the fire insurance rate for a sprinkler system,
Landlord shall at the Tenant's expense, promptly make and supply such changes,
modifications, alterations, additional sprinkler heads or other equipment, all
of which Tenant shall forthwith pay as Additional Rent upon receipt of a billing
therefor.
28. RIGHTS AND REMEDIES.
The rights and remedies of Landlord hereunder and any others provided by law
shall be construed as cumulative and no one of them is exclusive of any other
right or remedy. Such rights and remedies shall further be continuing rights and
remedies, none of which shall be exhausted by being exercised on one or more
occasions. Landlord shall be entitled to an injunction in proper cases, from
time to time, if sought by Landlord to enforce any part or parts of-this Lease
or to prevent or stop any violation or Default hereunder on the part of Tenant,
its agents, servants or employees. A waiver by Landlord of any Default,
17
breach or failure of Tenant to comply with this Lease shall not be construed as
a continuing waiver thereof or as a waiver by Landlord of its right to enforce
the terms of this Lease in the event of any subsequent default, breach or
failure of Tenant to comply with this Lease. Any failure or waiver of Landlord
to terminate this Lease upon the happening of any event giving Landlord the
right or option to terminate this Lease, shall not be construed as a waiver of
the right of Landlord to terminate this Lease thereafter, upon the happening of
any event giving Landlord the right or option to terminate this Lease. Whenever
in this Lease Landlord reserves or is given the right and power to give or
withhold its consent to any action on the part of Tenant, such right and power
shall not be exhausted by its exercise on one or more occasions, but shall be a
continuing right and power for the full Term of this Lease.
29. ATTORNEYS' FEES AND COSTS.
In case suit shall be brought for recovery of possession of the Leased Premises,
or because of the breach of any other covenant or agreement herein contained or
for an interpretation of any provision of this Lease, or for any other reason
involving this Lease, all expenses incurred therefor by the prevailing party,
including a reasonable attorney's fee, shall be paid by the other party.
30. MEMORANDUM OF LEASE.
Landlord may record this Lease, or a memorandum hereof, at any time, at
Landlord's option. Tenant shall execute and record a memorandum of this Lease at
any time Landlord so requests. Tenant shall not record a memorandum of this
Lease at any time, without Landlord's prior written request or consent to do so,
which request or consent can be withheld or granted at Landlord's absolute
discretion.
31. RIGHT TO CHANGE BUILDING NAME.
Landlord reserves the right to change the name of the Building of which the
Leased Premises is a part, upon not less than thirty (30) days notice to Tenant,
and Landlord shall not be liable to Tenant for any loss, cost or expense because
of such name change.
32. SUBORDINATION.
This Lease shall be subject and subordinate to all existing or future mortgages
or deeds of trust placed by Landlord on the Building of which the Leased
Premises is a part, or on Corporate Xxxxx; provided, however, that Landlord may,
at its option at any time, by written document duly recorded in the Office of
the Register of Deeds in and for Xxxxxxx County,
Kansas, cause this Lease to
become superior to any mortgage or deed of trust on the Building, or Corporate
Xxxxx, or any portion thereof. Further, at Landlord's option, this Lease may be
assigned by Landlord to any mortgagee or cestui que trust as additional security
for any loan to Landlord, and Tenant shall acknowledge within ten (10) days
after written request, receipt of notice of each such assignment. Any such
assignment maybe recorded. Tenant shall, upon notice of any such assignment,
comply with the terms thereof.
33. ESTOPPEL CERTIFICATE.
Within ten (10) days after Landlord's written request therefor, Tenant shall
without charge, execute a written instrument addressed to Landlord or to any
other person, firm or corporation specified by Landlord, certifying:
A. That Tenant has accepted the Leased Premises, is in occupancy, and
is paying Rent on a current basis with no offsets or claims, or if it is not
paying Rent on a current basis or does have offsets or claims, Tenant shall
specify the status of its Rent payments and the basis and amount claimed due as
offsets or claims;
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B. That this Lease is unmodified and in full force and effect, or if
there has been any modification, that the same is in full force and effect as so
modified, and identifying any such modification;
C. Whether or not there are any offsets or defenses then existing in
favor of Tenant against the enforcement of any of the terms, covenants and
conditions of this Lease, and if so, specifying the same, and also stating that
Landlord has observed and performed all of the terms, covenants and conditions
to be observed and performed by Landlord hereunder, and if not, specifying to
what extent Landlord has not observed or performed all of the terms, covenants
and conditions to be observed and performed by Landlord hereunder;
D. The dates to which monthly Base Rent, Additional Rent and all other
charges equivalent to Rent hereunder have been paid; and
E. Any other items reasonably requested by Landlord.
Such request may be made by Landlord at any time and from time to time during
the Lease Term.
34. ASSIGNMENT OF LEASE BY LANDLORD.
Landlord and each party succeeding to Landlord's interest in the Building may
transfer, assign, convey or otherwise dispose of this Lease and in each such
event, from and after the date of such transfer, assignment, conveyance or other
disposition of this Lease, Landlord and each successor shall be free from and
relieved of all covenants and obligations of the Landlord herein and from any
and all liability resulting from any act or omission or event occurring
thereafter. Each party succeeding to Landlord's interest in the Building shall
be deemed to have agreed to assume and carry out any and all of the covenants of
Landlord under this Lease accruing from and after the date such successor
acquires its interest herein, and continuing only for so long thereafter as it
shall hold such interest, all without further agreement between the parties
hereto or their successors in interest. Tenant shall acknowledge within ten (10)
days after written request, receipt of notice of any such transfer, assignment,
conveyance or other disposition of Landlord's interest herein or in the
Building.
35. LIMITED LIABILITY OF LANDLORD.
The liability, of Landlord and each of its successors for any default by
Landlord (or its successors) under the terms of this Lease shall be limited to
such claims and causes of action which accrue during Landlord's and each of its
successor's respective ownership of the Building, and then shall be limited only
to the interest of Landlord from time to time in the Building, or if the
Building has been sold after such liability accrued but before it is fully
satisfied, then the sale proceeds from the Building, and Tenant agrees to look
solely to Landlord's interest in the Building or the sale proceeds therefrom for
recovery of any judgment against the Landlord, it being intended that neither
Landlord nor its successors shall have any personal liability for any judgment
or deficiency hereunder.
Any claim which Tenant may have against Landlord hereunder as of the date
Landlord terminates its ownership of the Building, shall be deemed to have been
waived or terminated by Tenant unless Landlord is given notice of such claim
within six (6) months after the date Landlord gives notice to Tenant that
Landlord has terminated its ownership of the Building, provided further however,
that Tenant shall be deemed to have waived or terminated any claim it may have
against Landlord unless Tenant files suit in a court of competent jurisdiction
and timely obtains service of process upon Landlord, all within twelve (12)
months after the date Landlord gives notice to Tenant that Landlord has
terminated its ownership of the Building.
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36. TRANSFER OF TENANT:
Landlord shall have the right to transfer the Tenant to other premises within
Corporate Xxxxx so long as the premises to which Tenant is transferred shall
contain net rentable square footage not less than the net rentable square
footage in the Leased Premises, and have tenant improvements similar to or
better than the existing tenant improvements in the vacated space, as reasonably
determined by Landlord and Tenant. Tenant's occupancy of any premises to which
Tenant may be transferred shall be under all the covenants and agreements of
this Lease and at the same Rent as herein otherwise provided, however, that in
no event shall Tenant be required to pay Rent in an aggregate amount greater
than Tenant would have paid had Tenant remained in the original space (event if
the new space contains more rentable square footage) unless Tenant requests that
the space to which Tenant is being transferred contains increased space, in
which event Tenant shall pay Rent on such increased space. Landlord may exercise
its rights hereunder at any time and from time to time during the Term of this
Lease by giving written notice of the exercise thereof to Tenant at least sixty
(60) days prior to that date upon which Tenant is to be transferred. If Landlord
exercises its rights hereunder, Tenant shall be reimbursed for reasonable costs
and expenses incurred by Tenant in connection with such transfer.
37. PEACEABLE SURRENDER.
A. Upon termination of this Lease, whether by expiration of the Lease
Term or otherwise, Tenant shall peaceably quit and surrender to Landlord the
Leased Premises, broom clean, in good condition and repair, ordinary wear and
tear and damage by fire or other insured casualty excepted, together with all
improvements constructed by Tenant thereon; provided, however, Landlord may
require Tenant to remove all such alterations, improvements or changes to the
Leased Premises and restore the Leased Premises to as good of condition as
existed prior to the commencement of the Lease Term, ordinary wear and tear and
loss by fire or other insured casualty excepted, provided, however, that (i)
Tenant shall not be obligated to remove any improvements or fixtures or restore
the Leased Premises to the condition required by this Section 37 unless the
Landlord consented to such improvements or fixtures, conditional upon Tenant
agreeing to remove such at the end of the Lease Term, and (ii) if Landlord does
not so elect to cause Tenant to remove all or any portion of such alterations or
improvements or changes, all such designated alterations, improvements and
changes shall become the property of Landlord, and shall remain upon and be
surrendered with the Leased Premises. If upon termination of the Lease Term, the
Leased Premises are surrendered to Landlord with damage suffered by fire or any
other insured casualty, if Tenant has not previously assigned to Landlord all of
Tenant's rights in and to any insurance proceeds payable because of such fire or
other insured casualty damage to the Leased Premises, Tenant shall forthwith
assign and set over to Landlord, all of Tenant's right, title and interest in
and to all such insurance proceeds payable because of such fire or other insured
casualty, and Tenant shall cooperate with Landlord as requested by Landlord, in
pursuing any such claim on Landlord's behalf. If Tenant is not then in Default
hereunder, Tenant shall have the right and privilege, and at Landlord's option,
even if Tenant is in Default hereunder, the obligation at the termination of
this Lease to forthwith remove any movable office equipment installed and
maintained by Tenant in the Leased Premises and Tenant shall pay to Landlord as
Additional Rent, all costs which would be incurred by Landlord if Landlord were
to repair all such damage, if any, to the Leased Premises or the Building
resulting from the removal of such property. Tenant's obligation hereunder shall
survive the expiration or other termination of the Lease Term.
B. Upon Tenant surrendering possession of the Leased Premises to
Landlord, if any property remains in or on the Leased Premises, at Landlord's
option, such property shall be deemed to be abandoned by Tenant and shall become
the property of Landlord, as though it had been conveyed by Tenant to Landlord
as of the end of the Lease Term by an appropriate xxxx of sale with full
warranties of title, free and clear of all liens and encumbrances, and Tenant
hereby authorizes Landlord to make such disposition of such property as Landlord
may desire without liability for compensation or damages to Tenant; and in the
event that such property is the property of someone other than Tenant or is
subject to
20
any lien of any kind or type, Tenant hereby agrees to indemnify and hold
Landlord harmless from all suits, actions, liability, loss, damages and expenses
incurred in connection with or incident to any removal, exercise or dominion
over and/or disposition of such property by Landlord, including reasonable
attorney fees. In any such event, Tenant shall reimburse Landlord on demand for
all costs and expenses incurred by Landlord in removing such property from the
Lease Premises, all costs of restoring the Leased Premises to its required
condition and all costs, including reasonable attorney fees, if any, incurred by
Landlord because of any breech of the above warranties of title. Tenant's
obligation hereunder shall survive the expiration or other termination of the
Lease Term.
38. HOLDING OVER.
In the event Tenant or any of its successors in interest hold over the Leased
Premises, or any part thereof, upon expiration or other termination of this
Lease or in the event Tenant continues to occupy the Leased Premises after the
termination of Tenant's right of possession pursuant to Section 23 hereof,
unless otherwise agreed in writing by Landlord, such holding over shall
constitute and be construed as a tenancy at will, and in such event Tenant shall
pay double Rent for all the time Tenant retains possession of the Leased
Premises, or any part thereof, after the termination of this Lease, whether by
expiration of the Lease Term or otherwise, and in addition Tenant shall pay all
consequential damages, including legal fees, suffered by Landlord because of
such holding over. Should Tenant hold over in any manner after expiration of
this Lease, such holding over by Tenant shall be subject to all terms, covenants
and conditions of this Lease which are not inconsistent with such holding over,
and no such holding over by Tenant shall ever be construed as an extension of
the Lease Term without Landlord's written consent.
39. QUIET ENJOYMENT.
Upon Tenant paying the Rent and observing and performing all the terms,
covenants and conditions on Tenant's part to be observed and performed
hereunder, Tenant may peaceably and quietly enjoy the Leased Premises without
hindrance or molestation by anyone claiming by, through or under the Landlord,
subject, nevertheless, to the terms and conditions of this Lease, and to any
ground leases, underlying leases, mortgages, laws, regulations, covenants,
restrictions and easements affecting title to the Building, the land upon which
the Building is situated or Corporate Xxxxx.
40. NOTICE.
Any notice permitted, provided for or required under this Lease must, unless
otherwise expressly provided in this Lease, be in writing, and shall be given or
served by depositing the same in the United States mail, postage prepaid,
registered or certified and addressed to the party to be notified, with return
receipt requested, or by delivering the same in person to an officer of such
party with written acknowledged receipt, or by overnight delivery, when
appropriate, addressed to the party to be notified at the address set forth
below or such other address, notice of which has been given to the other party.
Any such notice shall be effective as of the date it is so delivered, mailed or
sent by overnight delivery. If directed to Landlord, it shall be addressed to:
Xxxxxxxxxxxxx Properties, Inc. XXI
c/o Clarion Partners
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Portfolio Manager
21
with a copy directed to:
MC Real Estate Services, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attention: General Manager
If directed to Tenant, it shall be addressed to Tenant at the Leased Premises.
41. TENANT.
The term "Tenant" as used in this Lease means and applies to whomever executes
this Lease as a Tenant regardless of number, gender or nature of the entity, and
shall also include each person, corporation, partnership or other entity, if
any, which has guaranteed Tenant's performance hereunder, and so far as
affirmative covenants hereunder, shall also include each person, corporation,
partnership or other entity, if any, which goes into possession of any portion
of the Leased Premises at any time during the Lease Term, with or without
Landlord's consent, but no person, corporation, partnership or other entity, if
any, which goes into possession of any part of the Leased Premises without
Landlord's consent and in violation of the provisions of Section 12 hereof shall
acquire any rights, legal or equitable, in the Leased Premises or under this
Lease. If more than one person, corporation, partnership or other entity has
executed this Lease, or any guarantee hereof, all such persons, corporations,
partnerships and other entities shall be jointly and severally liable hereunder.
Notice to Tenant in compliance with Section 40 hereof, shall be deemed to be
notice to each such person, corporation, partnership or other entity.
42. RULES AND REGULATIONS.
Tenant agrees to abide by all rules and regulations for tenants in the Building
and occupants of space within Corporate Xxxxx, as the same now exists and as
they are established and modified by Landlord from time to time in accordance
with the terms of this Lease. The current rules and regulations are set forth in
Exhibit C attached hereto and incorporated herein by reference. Unless otherwise
provided in such rules and regulations, each term used therein shall have the
meaning subscribed to such term herein. Landlord reserves the right to
establish, modify and enforce additional reasonable and nondiscriminatory rules
and regulations for the Building, the parking areas and common areas serving the
Building and Corporate Xxxxx, and to modify existing rules and regulations from
time to time, provided in each case that such modified or additional rules and
regulations are not inconsistent with the terms of this Lease, all for the
safety, maintenance, repair and cleanliness of the Building and the parking
areas and common areas serving the Building and Corporate Xxxxx, and for the
preservation of good order therein, and tenant agrees to comply with and abide
by all such rules and regulations as they exist from time to time.
43. HEIRS, SUCCESSORS AND ASSIGNS.
Subject to the provisions of Sections 34 and 35 hereof, all covenants,
conditions and agreements herein contained shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns.
44. MISCELLANEOUS PROVISIONS.
A. SEVERABILITY. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable,- the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than-those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and enforced to the fullest
extent permitted by law notwithstanding the invalidity of any other term or
provision hereof.
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B. AUTHORITY. Each person executing this Lease for or on behalf of any
party, in so doing, individually represents and warrants to the other
party hereto, that such person has the actual and legal authority to bind such
party for whom such person purports to be executing this Lease.
C. GOVERNING LAW. This Lease and the rights and obligations of the
parties hereto shall be interpreted, forced in accordance with the laws of the
State of
Kansas.
D. FORCE MAJEURE. Whenever a period of time is herein prescribed for
the taking of any action by Landlord or Tenant, Landlord or Tenant as the case
may be, shall not be liable or responsible for, and there shall be excluded from
the computation of such period of time, any delays due to strikes, riots, acts
of God, shortages of labor or materials, war, governmental laws, regulations or
restrictions, or any other cause whatsoever beyond the control of Landlord or
Tenant, as the case may be. The provisions of this Section shall not operate to
excuse Tenant from the prompt payment of Rent or the prompt payment of any other
sum required by the terms of this Lease.
E. TIME OF PERFORMANCE. Except as expressly otherwise herein provided,
with respect to all required acts of Tenant, time is of the essence of this
Lease.
F. LANDLORD'S AGENTS. Each reference herein to "Landlord's agents"
shall always include, but not be limited to Landlord's asset manager and
Landlord's property manager.
G. EFFECT OF DELIVERY OF THIS LEASE. Landlord has delivered a copy of
this Lease to Tenant for Tenant's review only, and the delivery hereof does not
constitute an offer to Tenant or an option. This Lease shall not be binding and
effective until a copy executed by Tenant is delivered to, accepted and executed
by Landlord.
H. INDEX AND HEADINGS, COPIES. The Index and Section headings of this
Lease are for convenience only and shall not limit or define the meaning or
content of this Lease or any Section hereof. This Lease is being executed in
several copies, each of which shall be deemed an original.
45. REPRESENTATIONS.
The Tenant hereby represents and warrants that (i) Tenant is not a "Plan", as
that term is used to mean either (a) an employee benefit plan as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), which is subject to Title 1 of ERISA or (b) a plan which is subject
to Section 4975 of the Internal Revenue Code of 1986, as amended, and (ii)
Tenant is not an entity whose assets constitute "plan assets" of a Plan or Plans
under Department of Labor Regulation Section 2510-3.101. Any breach by Tenant of
this representation shall constitute a Default by Tenant under the terms of this
Lease and, in addition to all of Landlord's remedies under this Lease upon the
occurrence of a Default, Tenant hereby indemnifies and holds Landlord harmless
from any and all damages, claims and liabilities (including attorneys' fees and
court costs) that Landlord may suffer or incur in connection with Tenant's
breach of this representation.
45. ADDENDUM AND EXHIBITS.
A. An addendum ("Addendum") consisting of two (2) pages, containing
Sections numbered 3, 16.B, and 48, is attached hereto and made a part hereof as
though fully set forth herein. Should there be any conflict between the
foregoing terms and provisions of this Lease, and the terms and provisions set
forth in the Addendum, the terms and provisions set forth in the Addendum shall
control.
B. The following exhibits ("Exhibits") are attached hereto and
incorporated herein by reference and made a part of this Lease for all purposes:
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Exhibit "A" - Floor Plate of Leased Premises
Exhibit "B" - Plans and Specifications for Leasehold
Improvements Not attached, per Section 13
Exhibit "C" - Current Rules and Regulations for Corporate
Xxxxx Office Park
47. INTEGRATED AGREEMENT.
This Lease, including the Addendum and all attached Exhibits, contains and
constitutes the entire agreement between Landlord and Tenant relating to the
subject matter hereof and supersedes all prior agreements and understandings
between the parties to this Lease relating to the subject matter of this Lease.
There are no agreements, understandings, restrictions, warranties,
representations or inducements between the parties to this Lease relating to the
subject matter hereof, other than those set forth in this Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
LANDLORD TENANT:
XXXXXXXXXXXXX PROPERTIES, INC. XXI AVAX TECHNOLOGIES, INC.
a Delaware corporation
Signature: /s/ Xxxxx X. Xxxxxxxx Signature: /s/ Xxxxx Xxxxxxx
--------------------------- -----------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxx Xxxxxxx
Title: Vice President Title: CEO
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ADDENDUM
THIS ADDENDUM is made a part of the Lease between XXXXXXXXXXXXX
PROPERTIES, INC. XXI, a New York corporation, and AVAX TECHNOLOGIES, INC., a
Delaware corporation, which Lease is dated October 18, 2001.
3. LETTER OF CREDIT.
Tenant shall deliver to Landlord an irrevocable, unconditional commercial Letter
of Credit in form acceptable to Landlord in the sum of $37,002.00, issued by an
FDIC insured national banking association acceptable to Landlord, having a
maturity date not earlier than October 31, 2004, and drawn in favor of Landlord
(the "Letter of Credit'). The Letter of Credit shall, among other terms and
provisions, permit multiple draws thereunder by Landlord issuing sight drafts
against such Letter of Credit. The Letter of Credit shall serve as additional
security for the performance by Tenant of its covenants and obligations under
this Lease, it being understood and agreed that the, security evidenced and
represented by the Letter of Credit shall not be considered as a measure of
Landlord's damages in the event of a Default by Tenant under this Lease. In the
event that Tenant ever becomes in Monetary Default (as defined in Section 23
hereof) under this Lease or if Tenant becomes in Non-Monetary Default (as
defined in Section 23 hereof) under this Lease, then in either event, Landlord
may (but shall not be obligated to) draw on such Letter of Credit for any and
all amounts due to Landlord but not paid by Tenant as a result of or in
connection with any such Default. However, by drawing any such sums under the
Letter of Credit, Tenant's Default shall not be deemed to have been cured and
Landlord shall continue to have the right to pursue all rights and remedies it
may have as a result of said Default unless Landlord provides written notice to
the contrary to Tenant within thirty (30) days after Landlord draws such sums
under the Letter of Credit In the event Landlord obtains possession of the
Leased Premises because of any Default hereunder by Tenant, whether by judicial
proceeding or otherwise, Landlord shall have the right to draw the
entire-proceeds available under the Letter of Credit to apply such proceeds to
damages to which Landlord may be entitled as a result of said default by Tenant,
but such proceeds shall not be a measure of or limit on Landlord's damages. In
the event that a final non-appealable judgment is obtained from a court of
competent jurisdiction which establishes Landlord's final damages at a sum which
is less than the amounts drawn therefore by Landlord under the Letter of Credit,
or if Landlord, in its sole discretion, determines that its total actual damages
are less than the amounts drawn by Landlord under the Letter of Credit, then
Landlord shall refund the balance, without interest, to Tenant. If by reason of
one or more sight drafts drawn on the Letter of Credit by Landlord, the amount
of the Letter of Credit is reduced or exhausted, Tenant shall immediately
provide a new or additional Letter of Credit, subject to the same terms as set
forth in the original Letter of Credit so that Landlord at all times during the
Lease Term is holding one or more Letters of Credit with an undrawn balance
thereunder totaling at least $37,002.00. Tenant shall have the right to replace
the Letter of Credit with other security so long as such security and Landlord's
rights to obtain access to and the use of such security or the proceeds thereof
are satisfactory to Landlord, in its sole discretion.
16. INDEMNITY.
A. See Lease for Section 16.A.
B. Landlord hereby indemnifies and agrees to save Tenant harmless from
and against any and all claims, suits, demands, liabilities, and expenses
including reasonable attorneys fees, arising from the Common Areas of the
Building which arise from the personal injury to, death of, or damage to the
property of any person as a result of an occurrence or condition in the Common
Areas of the Building except to the extent caused by the willful misconduct or
negligence of Tenant, its employees, officers, agents, invitees or contractors.
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48. DAMAGE AND DESTRUCTION.
Notwithstanding anything herein to the contrary in Section 19 of the Lease, if
within sixty (60) days after any damage to the Leased Premises, Landlord
determines that it will repair or restore such damage but that such repair or
restoration will take more than one hundred twenty (120) days to substantially
complete, Landlord shall so advise Tenant in writing, and if such fire or other
casualty was not the result of any negligence or any willful act of Tenant, its
agents, servants or employees, then within thirty (30) days after receipt of
such notice, Tenant may elect to terminate this Lease by giving Landlord written
notice of termination hereof, provided, however, that if Tenant does not elect
to terminate this Lease as herein provided, Landlord shall thereafter diligently
repair or restore the Leased Premises, and Landlord shall have no obligation to
commence any repair or restoration until Tenant has waived its right to
terminate this Lease, or the time within which Tenant may elect to terminate
this Lease has expired, without Tenant exercising such right.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum the
day and year first above written.
LANDLORD: TENANT:
XXXXXXXXXXXXX PROPERTIES, INC. XXI AVAX TECHNOLOGIES, INC.
a Delaware Corporation
Signature: /s/ Xxxxx X. Xxxxxxxx Signature: /s/ Xxxxx Xxxxxxx
----------------------------- ------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxx Xxxxxxx
Title: Vice President Title CEO
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