Approved by Legal Counsel
Exhibit 10.19
COMMERCIAL AND INDUSTRIAL LEASE AGREEMENT
THIS LEASE is made as of the 24th day of March, 1995, between BOND STREET
BUILDING CO., a Missouri partnership c/o B.A. Karbank & Co., 1200 Main Street,
Suite 3910, Kansas City, Missouri 64105-2107 (816-221-4488, fax 816-221-4494),
LESSOR, and E for M Corporation, a Delaware corporation having an address at
9221 Quivira Road, Overland Park, Kansas 66214 (913-894-7594, fax 913-894-
7633), LESSEE.
LESSOR hereby leases to LESSEE and LESSEE hereby leases from LESSOR, the
following described premise ("the premises") in the City of Overland Park,
Johnson County, Kansas:
Approximately 7,200 sq. ft. in an office warehouse building comprising
approximately 14,400 sq. ft. located at 9215-33 Bond Street, all as indicated on
Exhibit "A" annexed hereto and made a part hereof. The address of the premises
shall be 9215 Bond Street.
1. TERM:
1.1 The term of this lease (the "Term") shall commence on the first day of
April 1995, and shall continue for twenty-three (23) months ending on the 28th
day of February, 1997, unless sooner terminated in accordance with provisions
hereof.
2. Rental: The basic rental for the premises shall be at sum Sixty-Nine
Thousand ($69,000) Dollars, payable in monthly installments of Three Thousand
($3,000) Dollars per month.
2.1 The basic rental for the premises shall be paid without deduction or
setoff, each due and payable to LESSOR on the first day of each and every month
of the Term, in advance, at the above address (or such other place as LESSOR may
designate from time to time). Any rentals or additional rentals not received by
LESSOR within ten (10) days after the due date set forth herein shall be subject
to a late charge of ten percent (10%) of the amount thereof, in accordance with
Section 24 herein. Failure by LESSEE to pay said late charge shall constitute a
default of this lease by LESSEE. LESSOR acknowledges receipt of Three Thousand
($3,000) Dollars paid to Lessor by LESSEE concurrently with the execution of
this lease to be applied as rent for the first month of the Term.
3. SECURITY DEPOSIT: Concurrently with the execution of this lease, LESSEE
delivered to LESSOR Three Thousand ($3,000) Dollars as Security for the
performance by LESSEE of every covenant and condition of this lease. Said
deposit may be co-mingled with other funds of LESSOR and shall bear no interest.
If LESSEE shall default with respect to any covenant or condition of this lease,
including but not limited to the payment of rent, additional rent and any late
charges, LESSOR may apply the whole or any part of such security deposit to the
payment of any sum in default or any sum which LESSOR may be required to spend
by reason of LESSEE'S default. In the case of every such use, application or
retention LESSEE shall, on demand, reimburse to LESSOR within ten (10) days the
sum so used, applied or retained which shall be added to the security deposit so
that the same shall be replenished to its former amount. Should LESSEE comply
with all of the covenants and conditions of this lease, the security deposit or
any balanced thereof shall be returned to LESSEE at the expiration of the Term.
4. POSSESSION AT BEGINNING OF TERM: LESSOR shall use due diligence to give
possession as nearly as possible at the beginning of the Term. It is understood
that if LESSOR shall be unable to give LESSEE occupancy of the premises hereby
leased at the time above provided, LESSOR shall not be liable for damages to the
LESSEE therefor, but during the period LESSEE shall be unable to occupy said
premises as hereinbefore provided, the rental therefor shall be abated and at
the option of LESSOR the Term may be extended to the full original Term recited
in Section 1 herein, and the commencement date of this lease, ending date and
option dates (if any) shall be modified in accordance therewith. Should LESSEE
occupy the herein leased premises prior to the commencement date of this lease,
with such prior occupancy being in all respects fully approved by LESSOR, all
terms of this lease shall then and there go into effect and the rental and any
other rental or additional charges shall commence (and shall be pro rated if
necessary) as of the date of such prior occupancy.
5. PERMITTED USE OF PREMISES: LESSEE covenants, warrants and represents to
LESSOR that the premises shall be used and occupied only for the purpose of
storage and distribution of film (medical grade) and processing chemicals, as
well as other medical supplies and equipment. LESSEE shall not use the premises
for any other purposes without first having secured the written consent of
LESSOR. LESSEE shall occupy the leased premises, conduct its business and
control its agents, employees, invitees and visitors in such a way as is lawful,
reputable and will not create any nuisance or otherwise interfere with, annoy or
disturb any neighbor. LESSEE shall not commit, or suffer to be committed any
waste on the leased premises. Nor shall LESSEE use the premises for storage or
processing of any toxic or hazardous materials except those stated on attached
list pesticides, solvents, flammable products or any "red label" merchandise
without LESSOR's written consent in each instance.
6. INSURANCE: LESSOR shall, throughout the Term, maintain liability, fire,
extended coverage and rent insurance on the leased premises in an amount equal
to the sound insurable value thereof, subject to any allowance for coinsurance
rating provisions utilized by LESSOR. All such insurance shall be for the sole
benefit of LESSOR and under its sole control. LESSEE shall comply with all
insurance regulations, including sprinkler system inspections and sprinkler
monitoring requirements and adhere to fire regulations required by LESSOR'S
insurance carrier and governmental regulations in the jurisdiction where the
premises are located so the lowest insurance rates consistent with the use of
the
premises permitted by this lease may be obtained, and shall not permit anything
in or about the leased premises which would make void or voidable any insurance
now or hereafter on the premises. If, during the Term, the fire, extended
coverage, liability or rent insurance rates are increased or the amount of
insurance coverage is increased in order to comply with LESSOR'S obligations
contained herein, LESSEE agrees to reimburse LESSOR for LESSEE'S proportionate
share of the amount of such increased insurance premium in any year of the Term,
in excess of the insurance premium covering the premises for the policy year
1994. Such reimbursement shall be paid by LESSEE as additional rent within ten
(10) days from the date of LESSOR'S notice of the amount so due hereunder.
7. INDEMNITY AND PUBLIC LIABILITY: LESSEE covenants at all times to save
LESSOR harmless from all loss, liability, cost or damages that may occur or be
claimed with respect to any person or persons, corporation, or property on or
about the premises resulting from any act done or omission by or through LESSEE,
its agents, employees, invitees, or any person on the premises by reason of
LESSEE'S use or occupancy or resulting from LESSEE'S non-use or possession of
the premises and any and all loss, cost, liability, or expense resulting
therefrom. LESSEE further covenants and agrees to maintain at all times during
the Term, broad form comprehensive public liability insurance with a responsible
insurance company, licensed to do business in the state in which the premises
are located and satisfactory to LESSOR, properly protecting and indemnifying
LESSOR and LESSOR'S mortgages (if any) for a single combined limit of not less
than Two Million ($2,000,000) Dollars for personal injury, bodily injury, death
or property damage with respect to the premises. LESSEE shall furnish LESSOR
with a certificate or certificates of insurance regarding such insurance so
maintained by LESSEE, naming LESSOR and LESSOR'S mortgages as additional
insureds and stating that such insurance may not be modified or cancelled, nor
the coverage thereunder reduced, except upon thirty (30) days' prior written
notice to LESSOR and LESSOR'S mortgages.
8. INCREASE IN TAXES: In the event that the real estate taxes, including
without limitation both general and special, payable with respect to the
premises during any calendar year during the Term shall be greater than those
payable for the year 1994, whether by reason of an increase in tax rate or an
increase in assessed valuation or otherwise, LESSEE shall pay to LESSOR LESSEE'S
proportionate share of such increase as additional rent within ten (10) days
after notice from LESSOR that the same is due. For any partial calendar year
during the Term, such excess shall be prorated for the actual number of days of
the Term in such calendar year.
9. MAINTENANCE & REPAIRS BY LESSEE: LESSEE shall at its own cost and
expense keep and maintain all parts of the premises (except those for which
LESSOR is expressly responsible under the terms of this lease) in good
condition, promptly making and performing all regular maintenance, necessary
repairs and replacements, including but not limited to, windows, glass and plate
glass, doors, overhead doors, sliding doors, door tracks, frames, any special
office entry, exterior stairways, interior walls and furnish work, floors and
floor covering, heating and air-conditioning systems, mechanical & electrical
systems, dock boards, dock levelers and bumpers, pipe guards, fences, gates,
paving, plumbing work and fixtures, sewer lines, sprinkler systems, sprinkler
monitoring systems, elevators and alarm systems (if any), termite and pest
extermination, regular removal of trash and debris, regular mowing of any grass,
trimming, weed removal, shrubbery and general landscape maintenance, including
rail spur areas and maintaining any spur track serving the premises (LESSEE
agrees to sign a joint maintenance agreement with the railroad company servicing
the premises, if requested by the railroad company). LESSEE shall maintain a
preventive maintenance contract, approved by LESSOR, providing for the regular
inspection and maintenance of the heating and air-conditioning systems by a
licensed heating and air-conditioning contractor. If the premises shall have
lawn sprinklers, LESSEE shall maintain a lawn sprinkler inspection contract,
approved by LESSOR, providing for the regular inspection and maintenance of the
lawn sprinkler system by a licensed, reputable lawn sprinkler contractor. LESSEE
shall be responsible for repair and maintenance of the driveways, sidewalks,
alleyways and parking lot, including without limitation snow removal, cleaning,
repainting, striping, paving, resurfacing and repairs. LESSEE shall also insure
that the parking lot is not damaged by placement or movement of trash
containers, truck trailer dollies, etc. LESSEE shall not damage any exterior or
demising wall or disturb the integrity and support provided by any wall or
interior columns and shall, at its sole cost and expense, promptly repair to
LESSOR'S satisfaction any damage or injury to any wall or column caused by
LESSEE or its employees, agents or invitees. LESSEE shall be responsible for any
damage, to the extent the cost of repair or replacement resulting therefrom is
not reimbursed to LESSOR by LESSOR'S insurer, caused by any burglary or
vandalism. Any equipment installed on or removed from the roof or modifications
made to the roof by LESSEE must first be approved by LESSOR and flashed and
mopped-in by LESSOR'S roofing contractor at the LESSEE'S cost. Upon removal of
any such roof-top equipment, whether during or at the expiration of the lease,
LESSEE shall be responsible for repairs to the roof in a manner approved by
LESSOR. LESSEE shall not store, release or dispose of any hazardous, toxic or
dangerous substance, waste or material at or on the leased premises ("Hazardous
Material") defined as such in any federal, state or local statute, law,
ordinance, code, rule, regulations, order or decree regulating, relating to, or
imposing liability or standards of conduct concerning any Hazardous Material
("Environmental Law"). If LESSEE receives (a) any notice of violation or
possible violation of any Environmental Law affecting LESSEE or the premises or
any part thereof or (b) any complaint, order, citation or notice with regard to
any Hazardous Material or any air emissions, water discharges, noise emissions
or any other environmental, health or safety matter affecting LESSEE or the
premises or any part thereof from any court, government or quasi-governmental
agency or any other entity which is authorized by law to issue orders under any
Environmental Law or from anyone else, LESSEE shall give, within three (3) days
of receipt of such notice, written notice thereof to LESSOR. All of LESSEE'S
obligations recited in Section 9 hereof shall
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be accomplished at LESSEE'S sole expense. If LESSEE fails to maintain or repair
the premises as required by this provision, LESSOR may, upon ten (10) days'
prior written notice to LESSEE, enter the premises and perform such maintenance
or repair on behalf of LESSEE. In such case, LESSEE shall reimburse LESSOR as
additional rent for all costs incurred in performing such maintenance or repair
within ten (10) days of LESSOR's notice of the amount so due hereunder. It is
specifically understood and agreed by the parties hereto that the LESSEE'S
obligations under this Section 9 shall survive the expiration of the Term or any
holdover period.
10. OUTSIDE STORAGE: LESSEE understands and agrees that no personal
property shall be stored in the parking areas or anyplace outside of the
building without the prior written consent of LESSOR and any outside storage so
permitted shall be maintained only in accordance with the provisions of such
permission. No trash, crates, pallets or refuse shall be permitted anywhere on
the outside of the premises by LESSEE except in enclosed metal containers.
11. MAINTENANCE AND REPAIRS BY LESSOR: LESSOR shall at its expense maintain
only the roof, gutters, downspouts, foundation and structural soundness of the
exterior walls of the building in good repair. Notwithstanding the foregoing,
LESSEE shall repair and pay for any damage caused by the negligence of LESSEE,
its employees, agents or invitees, or caused by LESSEE'S default hereunder. The
term "walls" as used herein shall not include windows, glass or plate glass,
doors (interior or exterior), special store fronts or office entries. LESSEE
shall immediately give LESSOR written notice of defects or need for repairs,
after which LESSOR shall have reasonable opportunity to repair same or cure such
defect. LESSOR'S liability with respect to any defects, repairs or maintenance
for which LESSOR is responsible under any of the provisions of this lease shall
be limited to the cost of such repairs or maintenance or the curing of such
defect.
12. LESSOR'S RIGHT OF ENTRY: LESSOR and/or LESSOR'S agents may enter the
premises at reasonable hours to examine the same and to do anything LESSOR may
be required to do hereunder or which LESSOR may deem necessary for the good of
the premises, and during the last six (6) months of the Term, LESSOR may display
a sign on and show the premises. If LESSEE fails to maintain the premises
(including without limitation the lawns, shrubs, sidewalks, driveways and
parking lots) in good and sanitary order, condition and repair as required by
this lease, or if the premises are damaged by the negligent or willful act or
omission of LESSEE or any of its agents, employees, invitees or licensees,
LESSOR shall have the right but no obligation, in addition to all other rights
and remedies available to LESSOR under this lease or by law, to enter the
premises and to do such acts and expend such funds at the expense of LESSEE as
are reasonably required to keep the premises in good and sanitary order,
condition and repair. Any amount so expended by LESSOR shall be reimbursed by
LESSEE as additional rent within ten (10) days from the date of LESSOR'S notice
of the amounts so expended. LESSOR'S entry into the premises shall not
unreasonably interfere with LESSEE'S business conducted therein. Notwithstanding
the foregoing, the preceding sentence shall be of no force or effect with
respect to any entry by LESSOR made for the purpose of (a) curing LESSEE'S
defaults (including without limitation by collecting late rent) or (b)
responding to emergencies. LESSOR shall no liability to LESSEE for any damage,
inconvenience or interference with the use of the premises by LESSEE resulting
from LESSOR'S performance of maintenance or repair work.
13. SIGNS AND ADVERTISEMENTS: LESSEE shall not put upon nor permit to be
put upon any part of the premises any signs, billboards, or advertisements
whatever, including real estate signs, without the prior written consent (which
shall not be unreasonably withheld) of LESSOR and subject to any applicable
governmental laws, ordinances, regulations and other applicable requirements.
LESSEE shall remove all such signs by the termination date of this lease. The
installations and removals shall be made in such manner as to avoid damage or
defacement of the building and other improvements, and LESSEE shall repair any
damage or defacement, including without limitation, discoloration caused by such
installations and/or removal.
14. ASSIGNMENT AND SUBLETTING: LESSEE shall not have the right to assign
this lease or to sublet the whole or any part of the premises without prior
written consent of LESSOR in each and every instance. For the purpose of this
provision, any transfer of a majority or controlling interest in LESSEE (whether
in one or more related or unrelated transactions), whether by transfer of stock,
consolidation, merger, transfer or a partnership interest or transfer of any or
all of LESSEE'S assets or otherwise, or by operation of law, shall be deemed an
assignment of this lease. Any assignment or sublet in contravention of this
provision shall be void an shall be a default hereunder. Notwithstanding any
permitted assignment or subletting, LESSEE shall at all times remain directly,
primarily and fully responsible and liable for the payment of the rent herein
specified and for compliance with all of its other obligations under the terms,
provisions and covenants of this lease. Upon the occurrence of a default
hereunder, if the premises or any part thereof are then sublet or if the lease
shall be assigned, LESSOR, in addition to any other remedies herein provided, or
provided by law, may at its option collect directly from such subtenant or
assignee all rents and additional rents becoming due to LESSEE under such
assignment or sublease and apply such rent against any sums due to LESSOR from
LESSEE hereunder, and no such collection shall be construed to constitute a
novation or release of LESSEE from the further performance of LESSEE'S
obligations hereunder.
15. DAMAGE BY CASUALTY: If, during the Term of previous thereto, the
premises hereby let, or the building of which said premises are a part, shall be
destroyed or shall be so damaged by fire or other casualty, as to become
untenantable, then in such event, at the option of LESSOR, the Term hereby
created shall cease as of the date of such damage or destruction and LESSEE
shall immediately surrender the premises and all interest therein to LESSOR, and
LESSEE shall pay rent within said term only to the time of such surrender;
provided, however, that LESSOR shall exercise such option to so terminate this
lease by notice in writing delivered to LESSEE within thirty (30) days after
damage or destruction.
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In case LESSOR shall not so elect to terminate this lease, in such event, this
lease shall continue in full force and effect and LESSOR shall repair the
premises with all reasonable promptitude, placing the same in as good a
condition as they were at the time of the damage or destruction, and for that
purpose may enter said premises and rent shall abate (to the extent such rent is
reimbursed to LESSOR by the proceeds of rent insurance) in proportion to the
extent and duration of untenantability. It is further agreed that the period for
reconstruction may be delayed for such time during which strikes, riots, civil
commotion, governmental intervention, acts of god or any other contingency such
as adjustment of insurance claims, beyond LESSOR's control, may occur. In either
event, LESSEE shall remove all rubbish, debris, merchandise, furniture,
equipment and other of its personal property, within five (5) days after the
request of LESSOR. If the premises shall be but slightly injured by fire or
other casualty, so as not to render the same untenantable and unfit for
occupancy, then LESSOR, shall repair the same with all reasonable promptitude,
and in that case the rent shall not abate. No compensation or claim shall be
made by or allowed to the LESSEE by reason of any inconvenience or annoyance
arising from the necessity of repairing any portion of the building or the
premises, however the necessity may occur. Notwithstanding anything to the
contrary herein, in the event the holder of any indebtedness secured by a
mortgage or deed of trust covering the premises requires that the insurance
proceeds be applied to such indebtedness, then LESSOR shall have the right to
terminate this lease by delivering written notice of termination to LESSEE,
whereupon all rights and obligations hereunder shall cease and terminate.
16. PERSONAL PROPERTY: LESSOR shall not be liable for any loss or damage to
any merchandise or personal property in or about the premises, regardless of the
cause of such loss or damage.
17. ALTERATIONS AND FIXTURES: LESSEE shall not make any alterations,
additions or improvements to the premises (including but not limited to roof,
floor and wall penetrations) without prior written consent of LESSOR of the
plans and specifications and of the proposed contractor who is to perform such
work. All work, if approved, shall be done in accordance with applicable
building codes and shall be completed in a good workmanlike manner. Racking and
shelving to be attached to the floor shall be installed only in a manner
satisfactory to LESSOR in all respects and only under the supervision of LESSOR.
LESSEE also agrees to indemnify LESSOR in connection with any improvements by
providing a completion bond or such other guarantee to preclude the filing of
liens by the LESSEE'S contractors. LESSOR's approval of any plans for
modifications or improvements to the property by the LESSEE does not imply
LESSOR's approval of the integrity or structural design of the improvements and
LESSOR assumes no liability should such improvements fail and cause damage or
bodily injury due to the inadequacy of design. All alterations, additions,
improvements and partitions erected by LESSEE shall become part of the premises;
provided, however, that at LESSOR'S option anytime prior to the expiration of
the Term, LESSOR may require LESSEE to restore the premises to their original
condition at the end of the Term or other termination of this lease, including
without limitation by removing warehouse racking and fastening bolts and by
repairing damage therefrom. If after LESSOR'S request LESSEE fails to remove
such installations, alterations, additions, improvements or partitions, LESSOR
may perform such removal and make repairs to the premises as are required by
such removal, at LESSEE's sole cost and expense. Any increase in real estate
taxes, both general and special, and insurance resulting from such improvements
shall be the sole responsibility of LESSEE. LESSEE may, without the consent of
LESSOR, but at its own cost and expense and in a good workmanlike manner erect
such shelves, bins, machinery and trade fixtures as it may deem advisable,
without altering the basic character of the building or improvements and without
overloading or damaging the roof, walls, floors or other improvements, and in
each case complying with all applicable governmental laws, ordinances,
regulations and other requirements. Only pneumatic or non-metallic (i.e. rubber)
wheeled equipment may be used on the floors of the premises. LESSEE shall remove
from the premises all personal property, i.e. machinery, equipment and business
and trade fixtures at the termination of this lease, and LESSEE shall repair any
damage occasioned by the installation and/or removal of such personal property.
If LESSEE shall obtain written consent of LESSOR to leave any machinery or like
equipment in the premises, then the full title to such machinery and equipment
shall thereupon pass to LESSOR.
18. UTILITIES AND SERVICES: LESSEE shall contract in its own name, and pay
for all charges for water, sewer charges, sprinkler line charges, gas, heat,
electricity, fuel, telephone, alarm systems, and other utilities (including
utility taxes and/or surcharges) used in or serving the premises during the
Term. LESSEE'S use of such utilities in the premises shall not, at any time,
exceed the capacity of any of the lines or equipment in or otherwise serving the
building.
19. PUBLIC REQUIREMENTS: LESSEE shall comply with all laws, orders,
ordinances and other public requirements now or hereafter affecting the premises
or the use thereof (including without limitation the Americans With Disabilities
Act), and save LESSOR harmless from expense or damage resulting from failure to
do so.
20. MULTIPLE TENANCY BUILDING: If the premises are a part of a multiple
tenancy building and/or complex, it is understood and agreed that LESSOR may
elect to perform certain maintenance obligations of the LESSEE pertaining to the
entire building/complex and the common areas of which the premises are a part.
Said common areas shall include sidewalks, driveways, parking areas, green areas
and all other ancillary accessory areas serving the building/complex. Charges
for which the LESSOR shall receive reimbursement as additional rent from LESSEE
shall include labor and supplies for the following (by way of illustration and
not limitation): snow removal, trash removal, exterior painting, cleaning,
repairing, pavement repair and resurfacing and restriping, lighting, utilities,
sprinkler line charges, common sewage and plumbing lines, mowing, spraying,
trimming, removal and/or replacement of plantings, seeding and laying of sod,
maintenance repair or replacement of sprinkler systems, maintenance of rail
trackage, management fees. If LESSEE uses any such services for other than
normal use, LESSOR may equitably adjust such charges.
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For the purposes of pro rating (a) common area maintenance charges,
LESSEE'S proportionate share shall be a percentage based on the total rentable
square footage in the two-building complex compared to the rentable square
footage occupied by LESSEE, which is 25% percent and (b) taxes and insurance
premium and charges shall be a percentage based on the total rentable square
footage in the building compared to the rentable square footage occupied by
LESSEE, which is 50% percent. Should additional buildings be built within the
complex, LESSOR reserves the right to reapportion LESSEE'S pro rata percentage
of common area maintenance charges in relation to the adjusted total rentable
square footage within the complex.
Such reimbursement shall be made by LESSEE to LESSOR as additional rent
within ten (10) days from the date of LESSOR'S notice of the amount so due
hereunder. In addition thereto, on or after January 1 of any calendar year
subsequent to the commencement date of the lease Term, LESSOR may elect to
notify LESSEE of LESSOR'S estimate of common area maintenance charges, increase
in taxes, and increase in insurance, which estimate shall be based on the actual
amounts so billed to the LESSEE for the previous year. If LESSOR so notifies
LESSEE, LESSEE shall be required on the first day of each calendar month after
receipt of such notice to pay as additional rent 1/12 of the amount of such
estimate; provided, however, that within sixty (60) days after the end of each
calendar year LESSOR shall determine the actual amounts expended for common area
maintenance, insurance and taxes for such calendar year (and LESSEE'S
proportionate share thereof) and furnish a copy of such computations in writing
to LESSEE. If the monthly payments made by LESSEE in such calendar year exceed
LESSEE'S proportionate share of actual costs, LESSOR shall rebate such excess to
the LESSEE; if LESSEE'S pro rata portion of such actual costs exceeds the
monthly payments made in such calendar year by LESSEE, then LESSEE shall pay the
difference to LESSOR as additional rent within ten (10) days from the date of
LESSOR'S notice of the amount so due hereunder. LESSEE'S obligation to pay its
pro rata share of such actual amounts above those estimated shall survive the
expiration of this lease.
LESSEE agrees to conduct its business in a manner that will not be
objectionable to other tenants in the building/complex of which the premises are
a part, including noise, vibration, odor, or fumes. In the event LESSOR receives
complaints from other tenants in the building/complex or determines, in its sole
reasonable judgment, that LESSEE is conducting its operations in a manner so as
to be objectionable to other tenants, LESSEE agrees, upon notice from LESSOR
thereof, to promptly modify the conduct of its operations to eliminate such
objectionable operations. It is herewith understood by LESSEE that it shall have
the non-exclusive use of the parking lot and driveways serving the
building/complex.
21. EMINENT DOMAIN: If the premises or any substantial part thereof shall
be taken by any competent authority under the power of eminent domain or be
acquired for any public or quasi-public use or purpose or by purchase in lieu
thereof, the Term shall cease and terminate upon the date when the possession of
the premises or the part thereof so taken shall be required for such use or
purpose and without apportionment of the award, and LESSEE shall have no claim
against LESSOR for the value of any unexpired Term of this lease. If any
condemnation proceeding shall be instituted in which it is sought to take or
damage any part of LESSOR'S building or the land under it or if the grade of any
street or alley adjacent to the building is changed by any competent authority
and such change of grade makes it necessary or desirable to remodel the building
to conform to the changed grade, LESSOR shall have the right to cancel this
lease after having given written notice of cancellation to LESSEE not less than
ninety (90) days prior to the date of cancellation designated in the notice. In
either of said events, rent at the then current rate shall be apportioned as of
the date of the termination. No money or other consideration shall be payable by
LESSOR to LESSEE for the right of cancellation and LESSEE shall have no right to
share in the condemnation award or in any judgment for damages caused by the
taking or the change of grade. Nothing in this Section shall preclude a separate
award being made to LESSEE for loss of its business or depreciation to and cost
of removal of equipment or fixtures; provided, however, that no award to LESSEE
shall diminish any award made by the taking authority to LESSOR.
22. WAIVER OF SUBROGATION: As part of the consideration for this lease,
each of the parties hereto does hereby release the other party hereto from all
liability for damage due to any act or neglect of the other party (except as
hereinafter provided) occasioned to property owned by said parties which is or
might be incident to or the result of a fire or any other casualty against loss
for which either of the parties is now carrying or hereafter may carry
insurance; provided however, that the releases herein contained shall not apply
to any loss or damage occasioned by the willful or wanton acts of either of the
parties hereto, and the parties hereto further covenant that any insurance that
they obtain on their respective properties shall contain an appropriate
provision whereby the insurance company or companies consent to the mutual
release of liability contained in this Section.
23. DEFAULT AND REMEDIES: In the event:(a) LESSEE fails to comply with any
term, provision, condition or covenant of this lease; (b) LESSEE deserts,
vacates or abandons the premises; (c) any petition is filed by or against LESSEE
under any section or chapter of the Federal Bankruptcy Act, as amended, or under
any similar law or statute of the United States or any state thereof; (d) LESSEE
becomes insolvent or makes a transfer in fraud of creditors; (e) LESSEE makes an
assignment for benefit of creditors; (f) LESSEE shall commit waste in or about
the premises; or (g) a receiver is appointed for LESSEE or any of the assets of
LESSEE, then in any of such event, LESSEE shall be in default and LESSOR shall
have the option to do any one or more of the following, in addition to and not
in limitation of any other remedy permitted by law: LESSOR may enter upon the
premises or any part thereof either with or without process of law, and to
expel, remove and put out LESSEE or any other persons who might be thereon,
together with all personal property found therein; and, LESSOR may terminate
this lease or it may from time to time, without terminating this lease, rent the
premises or any part thereof for such term or terms (which may be for a term
extending beyond the Term of this lease) and at such rental or rentals and upon
such other terms and conditions as LESSOR in its sole discretion may deem
advisable, with the
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right to repair, renovate remodel, redecorate, alter and change said premises.
At the option of LESSOR, rents received by LESSOR from such reletting shall be
applied first to the payment of any costs and expenses of such reletting,
including but not limited to attorney's fees, advertising fees and brokerage
fees, and to the payment of any repairs, renovation, remodeling, redecorations,
alterations and changes in the premises third, to the payment of rent and
additional rent and interest thereon due and payable hereunder, and, if after
applying said rentals there is any deficiency in the rent and additional rent
and interest to be paid by LESSEE under this lease, LESSEE shall pay any such
deficiency to LESSOR and such deficiency shall be calculated and collected by
LESSOR monthly. No such re-entry or taking possession of said premises shall be
construed as an election on LESSOR'S part to terminate this lease unless a
written notice of such intention be given to LESSEE. Notwithstanding any such
reletting without termination, LESSOR may at any time thereafter elect to
terminate this lease, for such previous breach and default. Should LESSOR at any
time terminate this lease by reason of any default, in addition to any other
remedy it may have, it may recover from LESSEE a sum equal to the entire rent
payable to the end of the Term. LESSOR shall also have the right and remedy to
seek redress in the courts at any time to correct or remedy any default of
LESSEE by injunction or otherwise, without such resulting or being deemed a
termination of this lease, and LESSOR, whether this lease has been or is
terminated or not, shall have the absolute right by court action or otherwise to
collect any and all amounts of unpaid rent, unpaid additional rent and interest
thereon or any other sums due from LESSEE to LESSOR under this lease which were
or are unpaid at the date of termination.
24. LATE CHARGES: LESSEE acknowledges that LESSOR shall be required to
expend certain administrative efforts in the event LESSEE shall fail to timely
remit payment due under the terms of this lease. Accordingly, LESSEE agrees to
pay LESSOR a late charge of ten percent (10%) of any remittance (i.e. rent,
additional rent or reimbursement due hereunder) which is not received by LESSOR
within ten (10) days of the due date hereunder. Failure by LESSEE to pay said
late charge shall constitute a default of this lease by LESSEE.
25. WAIVER: The rights and remedies of LESSOR under this lease, as well as
those provided or accorded by law, shall be cumulative, and none shall be
exclusive of any other rights or remedies hereunder or allowed by law. A waiver
by LESSOR of any breach or breaches, default or defaults of LESSEE hereunder
shall not be deemed or construed to be a continuing waiver of such breach or
default nor as a waiver of or permission, expressed or implied, for any
subsequent breach or default, and it is agreed that the acceptance by LESSOR of
any installment of rent subsequent to the date the same should have been paid
hereunder, shall in no manner alter or affect the covenant and obligation of
LESSEE to pay subsequent installments of rent promptly upon the due date
thereof. No receipt of money by LESSOR after the termination in any way of this
lease shall reinstate, continue or extend the Term.
26. NOTICES: All rent and other payments required to be made by LESSEE
shall be payable to LESSOR at the address set forth on the first page of this
lease. All payments required to be made by LESSOR to LESSEE shall be payable to
LESSEE at the premises or at any other address within the United States as
LESSEE may specify from time to time by written notice. Any notice or document
required or permitted to be delivered under this lease shall be deemed to be
delivered (whether or not actually received) when deposited in the United States
Mail, postage prepaid, certified mail, return receipt requested, addressed to
the parties at their respective address.
27. SUBORDINATION: This lease shall be subject and subordinate to any
mortgage or deed of trust now or at any time hereafter constituting a lien or
charge upon the premises or the improvements situated thereon. LESSEE shall at
any time hereafter on demand execute any instruments, releases or other
documents which may be required by any such mortgagee for the purpose of
subjecting and subordinating this lease to the lien of any such mortgage or deed
of trust. LESSOR shall endeavor to obtain for the benefit of LESSEE an
instrument of nondisturbance in the event of any financing of the premises.
28. SUCCESSORS: The provisions, covenants and conditions of this lease
shall bind and inure to the benefit of the legal representatives, heirs,
successors and assigns of each of the parties hereto, except that no assignment
or subletting by LESSEE without the written consent of LESSOR shall vest any
right in the assignee or sublessee of LESSEE.
29. QUIET POSSESSION: LESSOR agrees that so long as LESSEE fully complies
with all of the terms, covenants and conditions herein contained on LESSEE'S
part to be kept and performed, LESSEE shall and may peaceably and quietly have,
hold and enjoy the premises during the Term, it being expressly understood and
agreed that such covenant of quiet enjoyment shall be binding upon LESSOR, its
heirs, successors or assigns. LESSOR further covenants and represents that
LESSOR has full right, title, power and authority to make, execute and deliver
this lease.
30. BANKRUPTCY: Neither this lease nor any interest therein nor any estate
hereby created shall pass to any trustee or receiver in bankruptcy or to any
other receiver or assignee for the benefit of creditors by operation of law of
otherwise during the Term or any renewal thereof. Notwithstanding the foregoing,
LESSOR may demand reasonable assurances of continued performance under this
lease in connection with any proceeding pertaining to bankruptcy, insolvency or
reorganization of LESSEE or its affiliates or principals.
31. SURRENDER: At the expiration of this lease or any extension thereof,
LESSEE agrees, without demand or notice by LESSOR, to return the premises to
LESSOR in broom-clean condition with restrooms mopped, all trash removed inside
and outside, all painted or tape lines removed from the concrete floors. All
plumbing, plumbing fixtures, electrical systems, heating, ventilation and air
conditioning systems, overhead unit heaters, dock levelers, overhead doors and
door tracks shall be in good working order and repair. All light fixtures shall
be in working order with working bulbs installed. All dock bumpers and dock
shelters shall be present and in good condition. All storage racks and
connecting bolts shall be removed and holes resulting therefrom shall be filled
and leveled to LESSOR'S satisfaction. LESSEE agrees to repair all damage to the
premises which may be required as a result of LESSEE'S obligations under the
terms and conditions of Section 9 herein, including those repairs which may be
necessitated by the removal of signs, personal property, etc. This provision is
further subject to the terms and conditions recited in Section 17. LESSEE shall
remain liable for rent and additional rent due hereunder until the same are
paid in full and all keys to the premises are returned to and accepted by
LESSOR.
32. HOLDING OVER: In the event of holding over by LESSEE after the
expiration of the Term or termination of this lease, the holdover shall be as a
tenant at will and all of the terms and provisions of this lease shall be
applicable during that period, except that LESSEE shall pay LESSOR as rental for
the period of such holdover and amount equal to one and one-half the rent which
would have been payable by LESSEE had the holdover period been a part of the
Term created by this lease. LESSEE agrees to vacate and deliver the premises
to LESSOR upon LESSEE'S receipt of notice from LESSOR to vacate. The rental
payable during the holdover period shall be payable to LESSOR on demand.
LESSEE'S obligation to pay LESSOR and reimbursements due hereunder and its pro
rata share of any additional rents due in accordance with Sections 6 and 8
hereof shall survive the expiration of the Term or and holdover thereof. No
holding over by LESSEE, whether with or without consent of LESSOR, shall operate
to extend this lease except as otherwise expressly provided, and LESSEE shall
indemnify LESSOR against any and all liability to other parties claiming rights
in or to the premises during the period of LESSEE'S holdover tenancy.
33. MECHANIC'S LIENS: LESSEE shall not permit any mechanic's or
materialmen's liens arising from any work or materials requested or suffered by
LESSEE and affecting the premises to be filed prior to, during or after the
expiration of the Term, and if any such lien if filed, LESSEE agrees to remove
such lien within ten (10) days thereafter. If LESSEE shall fail to clear any
such lien within such ten (10) day period, LESSOR shall have the right to remove
such lien (by bonding or otherwise) at LESSEE'S sole cost and expense, and
LESSEE shall reimburse LESSOR for such removal (together with LESSOR'S expense
therefor) upon demand. LESSEE'S failure to clear any such liens shall be a
default hereunder.
34. FORCE MAJEURE: LESSOR shall not be required to perform any covenant or
obligation in this lease, or be liable in damages to LESSEE, so long as the
performance or non-performance of the covenant or obligation is delayed, caused
by or prevented by an act of God or force majeure.
35. ATTORNEY'S FEES: In the event LESSEE defaults in the performance of
any of the terms, covenants, agreements or conditions contained in this lease
and LESSOR places in the hands of an attorney the enforcement of all or any part
of this lease, the collection of any rent due or to become due or recovery of
the possession of the leased premises, LESSEE agrees to pay LESSOR reasonable
attorney's fees for the services of the attorney, whether suit is actually filed
or not.
36. LESSOR'S LIABILITY: Recourse by LESSEE for any claim against LESSOR
shall at all times be limited to LESSOR'S interest in the premises, and LESSEE
hereby waives any right to assert any claims against any other interest of
LESSOR or of LESSOR'S partners, principals or stockholders. The term "LESSOR" as
used in this lease, so far as agreements on the part of LESSOR to be performed
are concerned, shall be limited to mean the owner of the landlord's interest in
the premises at the time in question; in the event of any transfer of such
interest (except for transfers as security), the particular lessor named herein
shall be automatically freed and relieved from and after the date of such
transfer of any and all liability for acts then to be performed by LESSOR
hereunder.
37. INTERPRETATION; CHOICE OF FORUM: The parties hereto agree that it is
their intention hereby to create only the relationship of the LESSOR and LESSEE,
and no provision hereof, nor act of either party hereunder shall ever be
construed as creating the relationship of principal and agent, or a
partnership, or a joint venture or any enterprise between the parties hereto.
Any suit to enforce any rights hereunder, or for the interpretation of any of
the provisions of this Lease, or for damages or any other relief arising from or
in connection with this Lease, shall be filed in and only in the state or
federal courts located in the county (or district and division, in the instance
of federal courts) in which the premises are located.
38. LEASE STATUS: Upon request of LESSOR, LESSEE shall execute,
acknowledge and deliver an estoppel certificate prepared by LESSOR stating, if
the same be true, that this lease is a true and exact copy of the lease between
the parties hereto and that there are no amendments hereof (or stating what the
amendments are) that the same is then in full force and effect and that, to the
best of LESSEE'S knowledge, there are no offsets, defense or counterclaims with
respect to the payment of rent reserved hereunder or in the performance of the
other terms, covenants, and conditions hereof on the part of LESSEE to be
performed, and that as of such date, no default has been declared hereunder by
either party hereto, and that LESSEE, at the time, has no knowledge of any facts
or circumstances which it might reasonably believe would give rise to a default
by either party. Notwithstanding anything to the contrary contained herein,
without relieving LESSEE of its obligation under this Section, LESSEE'S failure
to execute, acknowledge and deliver to LESSOR such estoppel certificate within
(10) days after written demand shall constitute the acknowledgement of LESSEE
that all matters set for in such instrument are true and correct. LESSEE shall
deliver to LESSOR, within ten (10) days after the commencement date, an estoppel
certificate confirming the Commencement Date and setting forth the matters
prescribed in this Section 38.
39. RECORDING: LESSEE shall not record this lease, or any memorandum
thereof, without the written consent of LESSOR.
40. CAPTIONS: Captions throughout this instrument are for convenience and
reference only, and the words contained herein shall in no way be held to
explain, modify, amplify or aid in the interpretation, construction or meaning
of the provisions of this lease.
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41. SEVERABILITY: If any provision of this lease or any term, paragraph,
sentence, clause, phrase or word appearing herein shall be judicially or
administratively held invalid or unenforceable for any reason, such holding
shall not be deemed to affect, alter, modify or impair in any manner any other
provision, term, paragraph, sentence, clause,phrase or word appearing herein.
42. NO OFFER: Submission of this instrument for examination or signature
by LESSEE does not constitute a reservation or offer of or option for lease, and
it is not effective as a lease or otherwise until execution and delivery by
LESSOR and LESSEE.
43. ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES: This lease is the
complete agreement between LESSOR and LESSEE concerning the premises. There are
no oral agreements, understanding, promises or representations between LESSOR
and LESSEE affecting this lease. All prior negotiations and understandings, if
any, between the parties hereto with respect to the premises shall be of no
force or effect and shall not be used to interpret this lease. LESSOR and LESSEE
expressly agree that there are and shall be no implied warranties of
merchantability, habitability, fitness for a particular purpose or of any kind
arising out of this lease and there are no warranties which extend beyond those
expressly set forth in this lease. It is likewise agreed that this lease may not
be altered, waived, amended, or extended except by an instrument in writing
signed and dated by both LESSOR and LESSEE.
44. INTENTIONALLY OMITTED
45. BROKERS: LESSEE represents and warrant to LESSOR that except with
respect to B.A. Karbank & Co. ( the "Broker"), there are no brokers or other
parties entitled to any brokerage or leasing commissions or finder's fees in
connection with the leasing of the premises to LESSEE. In reliance upon such
representation and warranty, LESSOR agrees to pay any brokerage commission which
may be payable to the Broker in connection with this lease. LESSEE agrees to
indemnify, defend and hold LESSOR harmless from any and all costs, expenses,
liabilities, claims and fees arising out of any claim for any other brokerage
commission or finder's fee claimed in connection with the lease of the premises
by LESSEE.
46. LESSOR'S WORK: Prior to the commencement or the Term, LESSOR will
perform the following work at LESSORS's sole cost and expense:
**Replace pedestrian door at rear of building.
**Clean the office carpeting.
Except for the foregoing, LESSEE accepts the premises in "as is" condition.
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IN WITNESS WHEREOF, LESSOR and LESSEE have each caused to be subscribed
their names as of the date first above written. This lease has been executed in
four counterpart originals.
LESSOR: BOND STREET BUILDING CO.
/s/ Neil D. Karbank
By:_________________________________________________________
Neil D. Karbank, Partner
LESSEE: E for M Corporation
/s/ Drew Hofmann
By:_________________________________________________________
Drew Hofmann, Chief Operating officer
AGENCY DISCLOSURE FOR LEASE OF REAL PROPERTY
____________________________________________
The following agency relationships are hereby confirmed:
LICENSEE REPRESENTS LESSOR:
1. B.A. Karbank & Co. is the agent of the Lessor, has a duty to represent
the lessor's interest, and will not be the agent of the Lessee.
2. Jack Allen, licensee, representing B.A. Karbank & Co. (licensee's
company), is the agent of the Lessor, has a duty to represent the Lessor's
interest, and will not be the agent of the Lessee. Information given to the
licensee will be disclosed to the Lessor.
Lessee: E for M Corporation
/s/ Drew Hofmann
By:________________________________________ Date:_________________
Drew Hofmann, Chief Operating Officer
/s/ Jack Allen 3-21-95
___________________________________________ Date:_________________
Jack Allen, Licensee
Addendum
________
3-24-96
To lease agreement dated:__________________________________,
by and between Bond Street Building, Co., Lessor, and E for M Corporation,
Lessee, for property located at 9215 Bond Street, Overland Park, Kansas.
This shall confirm that the above recited agency disclosures were made.
LESSOR: BOND STREET BUILDING CO.
/s/ Neil D. Karbank 3-24-95
By:_______________________________________ Date:__________________
Neil D. Karbank, Partner
LESSEE: E FOR M CORPORATION
/s/ Drew Hofmann
By:_______________________________________ Date:__________________
Drew Hofmann, Chief Operating Officer
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Exhibit A -- Floor Plan
[DIAGRAM OF A/C--WAREHOUSE]
LIST OF MATERIALS
Chempact (TM) Microfilm Developer Replenisher (BW-92)
Chempact HD Cine Film Developer Replenisher (BW-95)
Chempact (TM) Cine Film Developer/Replenisher (BW-89M)
Chempact (TM) Cine Cath Fixer/Non-Hardening (BW-90)
2407 Automatic X-Ray Fixer Hardener Part B
Vari-X FFCV-1C Fixer Concentrate
Vari-X Developer Concentrate #CFS-HDT * XL
Vari-Cath PDCV-1C Developer Concentrate
Vari-X HMCV-1C Developer Concentrate (5570)
Vari-X MDCV-1C Developer
CFS MD Developer Concentrate
Vari-X Developer Concentrate #CFS-HDT * LC
Vari-X LDCV-1C Heart Cath Developer Concentrate
CFS HDT Developer Concentrate
Vari-X ADCV-3C Developer Concentrate
Medical Gases Containing Various Mixtures of the following:
Nitrous Oxide
Oxygen
Carbon Dioxide
Nitrogen
Chlorodifluoromethane
Argon
Enflurane
Isoflurane
Halothane
Refer to attached Material Safety Data Sheets for further information.