EXHIBIT 10.28
AMENDMENT AND RESTATEMENT OF SUBLEASE
This Amendment and Restatement of Sublease is made and entered into as
of the 14th day of June, 2000, by and between NewSpace, Inc., a Missouri
corporation ("Landlord"), and Build-A-Bear Workshop, Inc., a Delaware
corporation, the successor to Build-A-Bear Workshop, L.L.C., a Missouri limited
liability company ("Tenant").
WITNESSETH THAT:
WHEREAS, Landlord and Tenant entered into a Sublease dated as of
February 15, 2000, a copy of which is attached hereto as Exhibit A (the
"Sublease"); and
WHEREAS, Landlord and Tenant entered into a Sublease as of April 10,
2000, a copy of which is attached hereto as Exhibit B (the "Space 1990
Sublease"); and
WHEREAS, Landlord has entered into an Amended and Restated Industrial
Lease with State of California Public Employees Retirement System (the "Prime
Lessor") dated as of June 14, 2000, a copy of which is attached hereto as
Exhibit C (the "New Prime Lease") for Landlord's interest in the Building; and
WHEREAS, Landlord and Tenant desire to Amend and Restate their
Sublease.
NOW, THEREFORE, in consideration of the premises, the mutual covenants,
promises and conditions set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Landlord and Tenant agree as follows:
1. Section 1 of the Sublease and Section 1 of the Space 1990
Sublease be and hereby are amended to acknowledge by Tenant that Landlord's
interest in the Building is as a tenant under the New Prime Lease. Except as
provided in the Sublease or the Space 1990 Sublease, the Sublease and the Space
1990 Sublease are expressly made subject to all of the terms and conditions of
the New Prime Lease insofar as they relate to the Premises of the Sublease or
the Space 1990 Sublease or the use and occupancy thereof, Tenant agrees to
comply with all covenants and obligations of Landlord under the New Prime Lease.
2. Except as herein amended, Landlord and Tenant reaffirm and
restate all of the terms and conditions of the Sublease and the Space 1990
Sublease and all of the terms and conditions therein shall remain unaltered and
in full force and effect and are hereby ratified and confirmed.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amended and
Restated Sublease as of the day and year first above written.
LANDLORD: NEWSPACE, INC.,
a Missouri corporation
By: /s/ Robert Fox
---------------------------------
Its: CEO
TENANT: BUILD-A-BEAR WORKSHOP, INC.
a Delaware corporation
BY: /s/ Maxine Clark
---------------------------------
Its: President
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EXHIBIT A
SUBLEASE
THIS SUBLEASE ("Sublease") is made and entered into as of the 15th day
of February, 2000, by and between NewSpace, Inc., a Missouri corporation
("Landlord"), and Build-A-Bear Workshop, L.L.C., a Missouri limited liability
company ("Tenant").
WITNESSETH, THAT;
WHEREAS, Landlord is the tenant of the property known as 1954 Innerbelt
Business Center Drive, located in St. Louis County, Missouri, as more
particularly shown on Exhibit A attached hereto and incorporated herein by
reference (the "Building"); and
WHEREAS, Landlord hag agreed to sublease the portion of the Building
outlined in pink on Exhibit A attached hereto and incorporated herein by
reference (the "Premises") to Tenant.
NOW, THEREFORE, in consideration of the premises, the mutual covenants,
promises and conditions set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant agree as follows:
1. Sublease. Landlord hereby subleases the Premises to Tenant and
Tenant hereby subleases the Premises from Landlord for the term, at the rental,
and upon all the conditions set forth herein. This agreement constitutes a
sublease, and Tenant acknowledges that Landlord interest in the Building is as
a tenant under a written lease with State of California Public Employees
Retirement System (the "Prime Lessor"), dated July 26, 1986 and amended seven
(7) times (the "Prime Lease"), a copy of which along with all amendments is
attached hereto, marked Exhibit B and incorporated herein by reference. Except
as provided herein, this Sublease is expressly made subject to all the terms and
conditions of the Prime Lease, and, insofar as they relate to the Premises or
the use and occupancy thereof, Tenant agrees to observe and comply with all
covenants and obligations of Landlord under the Prime Lease.
2. Term. The term of this Sublease (the "Term") shall commence
February 15, 2000, and expire on June 30, 2008.
3. Option to Renew. Subject to the terms and conditions set
forth herein, Tenant shall have the option to renew this Sublease for an
additional term of five (5) years commencing on the first day following the
expiration of the Term. So long as Tenant is not in default of a material
covenant under this Sublease, Tenant may renew this Sublease as provided
hereinabove upon giving Landlord written notice of such renewal not less than
nine (9) months prior to the expiration of the Term. Any renewal of this
Sublease shall be on the, same terms and conditions of this Sublease except
that the base rent payable during such renewal shall be determined pursuant to
Exhibit D to the Amended and Restated Lease attached as an exhibit to the 6th
Amendment to the Prime Lease.
4. Rental. Tenant shall pay to Landlord as base rent, commencing
on June 14, 2000 (the "Rental Commencement Date"), without deduction, setoff,
notice or demand, at c/o Robert Fox, NewSpace, Inc., 1960 Innerbelt Business
Center Drive, St. Louis, Missouri 63114 or at such other place as Landlord shall
designate from time to time by notice to Tenant, Thirteen Thousand Four Hundred
Fifty-Seven Dollars ($13,457.00) per month (based on $10,765 per square foot per
year) for each month during the first twelve (12) months of this Sublease
(prorated for the first partial month); Thirteen Thousand six Hundred Fourteen
($13,614.00) per month (based on $10.89) per square foot per year) for each
month from the thirteenth (13th) through the thirty-sixth (36th) months of the
term of this Sublease; Thirteen Thousand Nine Hundred Twenty Dollars
($13,920.00) per month (based on $11.136 per square foot per year) from the
thirty-seventh (37th) through the sixtieth (60th) months of the term of this
Sublease; and Fourteen Thousand Seventy-Five Dollars ($14,075.00) per month
(based on $11,26 per square foot per year) for each month from the sixty-first
(61st) month of the term of this Sublease through the Termination Date. For the
period commencing on the Rental Commencement Date and ending on the last day of
the month in which the Rental Commencement Date occurs, rental shall be
apportioned on the basis of the number of days in said month.
5. Additional Rent. As and for additional rent (the "Additional
Rent") for the Premises, Tenant shall pay Landlord, commencing on the Rental
commencement Date, CAM Expenses, increases, if any, in Property Taxes of the
Property Taxes paid by the Landlord under the Prime Lease in 2000, the Base
Year, and Insurance Costs incurred by the Landlord under the Prime Lease over
Insurance Costs incurred in 2000 (collectively, "Operating Costs"). Tenant shall
pay to Landlord as additional rent a prorata portion of the amounts payable by
Landlord as Operating Costs under the Prime Lease. The prorata amount shall be
determined by multiplying the total amount of Operating Costs that Landlord is
required to
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pay under the Prime Lease by a fraction, the numerator of which is 15,000 and
the denominator of which is 40,749. Such additional rent shall be payable as and
when Operating Costs are payable by Landlord. If the Prime Lease provides for
the payment by Landlord of Operating Costs on the basis of an estimate thereof,
then as and when adjustments between estimated and actual operating Costs are
made under the Prime Lease, the obligations of Landlord and Tenant hereunder
shall be adjusted in a like manner; and if any such adjustment shall occur after
the expiration or earlier termination of the Term, then the obligations of
Landlord and Tenant under this Subsection 5 shall survive such expiration or
termination. Landlord shall, upon request by Tenant, furnish Tenant with copies
of all statements submitted to Landlord of actual or estimated Operating Costs
during the Term.
In addition to the foregoing, Tenant shall pay Landlord as additional rent
the sum of Three Hundred Dollars ($300.00) on the Rental Commencement Date and
on each anniversary of the Rental Commencement Date during the term of this
Sublease in lieu of a security deposit. Additional Rent shall be due thirty (30)
days following Tenant's receipt thereof.
6. Quiet Enjoyment. So long as Tenant shall observe and perform the
covenants and agreements binding on it hereunder, Tenant shall, at all times
during the Term, peacefully and quietly have and enjoy possession of the
Premises without any encumbrance and hindrance by, from or through Landlord, or
anyone else lawfully claiming an interest in the Premises, subject, however, to
the terms and conditions of this Sublease.
7. Use of the Premises. Tenant warrants and represents to Landlord that
the Premises shall be used and occupied only for office, warehouse and
distribution purposes. Tenant shall occupy the Premises, conduct its business
and control its employees, agents and invitees in such a manner as is lawful and
reputable and without creating any nuisance. Tenant shall neither permit any
waste on the Premises, nor allow anything to be stored in the Premises which
would, in the reasonable opinion of Landlord, be extra hazardous on account of
fire, or which would in any way increase or render void the fire insurance on
the Premises.
8. Mechanic's Liens. Tenant shall have no authority, expressed or
implied, to create or place any lien or encumbrance of any kind or nature
whatsoever on, or in any manner to bind the interest of Landlord or Prime Lessor
in the Premises or to charge the rentals payable hereunder for any claim in
favor of any person dealing with the Tenant, including those who may furnish
materials or perform labor for any of Tenant's construction or repairs, and each
such claim shall affect and each such lien shall attach to, if at all, only the
leasehold interest granted to the Tenant herein. Tenant covenants and agrees
that it will pay or cause to be paid all sums legally due and payable by it on
account of any labor performed or materials furnished in connection with any
work performed on the Premises, and that it will save and hold the Landlord and
Prime Lessor harmless from any and all liability, loss, damage, cost and expense
arising out of asserted claims or liens against the leasehold estate or against
the right, title and interest of Landlord and the Prime Lessor in the Building.
9. Estoppel Certificates. Upon delivery of the Premises to Tenant, and
thereafter within ten (10) days following the written request of Landlord or the
Prime Lessor, from time to time Tenant shall execute, acknowledge, and deliver
to Landlord or to Prime Lessor or Prime Lessor's mortgagee, proposed mortgagee
or proposed purchaser of the Building, an estoppel certificate stating whether
this Sublease is in full force and effect and whether any changes may have been
made to the original Sublease; whether there are any defaults by Landlord and,
if so, the nature of such defaults; whether rent has been paid more than thirty
(30) days in advance; whether there are any security deposits; and such other
matters pertaining to the status of this Sublease as Landlord or the Prime
Lessor may reasonably request.
10. Indemnification By Tenant. Tenant hereby releases Landlord and Prime
Lessor from any liability for any loss or damage of any kind or for any injury
or death of persons or damage to property of Tenant or any other person from any
cause whatsoever by reason of the use, occupancy or enjoyment of the Premises by
Tenant or any person therein holding under Tenant. Tenant shall indemnify,
defend and save harmless Landlord and Prime Lessor, and each of their officers,
directors, agents and employees, from all claims, actions, demands, damages,
costs, expenses and liabilities whatsoever, including reasonable attorneys'
fees, on account of any real or claimed loss, damage or liability occurring in
or at the Premises, or arising out of the use, occupancy or enjoyment of the
Premises, or occasioned in whole or in part by the act or omission of Tenant or
its agents, contractors, employees, guests or invitees; provided, however,
notwithstanding the foregoing, Tenant shall not be responsible for any of the
foregoing to the extent directly attributable to the gross negligence or
intentional misconduct of Landlord or Prime Lessor.
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11. Insurance/Release
(a) Insurance Coverages and Amounts. Tenant shall, at all times during
the term of this Lease and at Tenant's sole cost and expense, obtain and keep
in force the insurance coverages and amounts set forth in this section. Tenant
shall maintain commercial general liability insurance, including contractual
liability, broad form property damage liability, fire legal liability, premises
and completed operations, and medical payments, with limits not less than one
million dollars ($1,000,000) per occurrence and aggregate, insuring against
claims for bodily injury, personal injury and property damage arising from the
use, occupancy or maintenance of the Premises and the Building. The policy shall
contain an exception to any pollution exclusion which insures damage or injury
arising out of heat, smoke or fumes from a hostile fire. Any general aggregate
shall apply on a per location basis. Tenant shall maintain business auto
liability insurance with limits not less than one million dollars ($1,000,000)
per accident covering owned, hired and non-owned vehicles used by Tenant. Tenant
shall maintain umbrella excess liability insurance on a following form basis in
excess of the required commercial general liability, business auto and employers
liability insurance with limits not less than two million dollars ($2,000,000)
per occurrence and aggregate. Tenant shall carry workers' compensation insurance
for all of its employees in statutory limits in the state in which the Property
is located and employers liability insurance which affords not less than five
hundred thousand dollars ($500,000) for each coverage. Tenant shall maintain all
risk property insurance for all personal property of Tenant and improvements,
fixtures and equipment constructed or installed by Tenant in the Premises in an
amount not less than the full replacement cost, which shall include business
income and extra expense coverage with limits not less than fifty percent (50%)
of gross revenues for a period of twelve (12) months. If required by Landlord,
Tenant shall maintain plate glass insurance coverage against breakage of plate
glass in the Premises. Any deductibles selected by Tenant shall be the sole
responsibility of Tenant.
(b) Insurance Requirements. All insurance and renewals thereof shall be
issued by companies with a rating of at least "A-" "VIII" or better in the
current edition of Best's Insurance Report and be licensed to do and doing
business in the state in which the Property is located. Each policy shall
expressly provide that the policy shall not be canceled or materially altered
without thirty (30) days prior written notice to Landlord and shall remain in
effect notwithstanding any such cancellation or alteration until such notice
shall have been given to Landlord and such thirty (30) days shall have expired.
All liability insurance (except employers liability) shall name Landlord and
any other parties designated by Landlord (including any investment manager,
asset manager or property manager) as an additional insured, shall be primary
and noncontributing with any insurance which may be carried by Landlord, shall
afford coverage for all claims based on any act, omission, event or condition
that occurred or arose ) or the onset of which occurred or arose) during the
policy period, and shall expressly provide that Landlord, although named as an
insured, shall nevertheless be entitled to recover under the policy for any
loss, injury or damage to Landlord. All property insurance shall name Landlord
as loss payee as respects Landlord's interest in any improvements and
betterments. Tenant shall deliver certificates of insurance, acceptable to
Landlord, to Landlord at least ten (10) days before the Commencement Date and at
least ten (10) days before expiration of each policy. If Tenant fails to insure
or fails to furnish any such insurance certificate, Landlord shall have the
right from time to time to effect such insurance for the benefit of Tenant or
Landlord or both of them, and Tenant shall pay to Landlord on written demand, as
additional rent, all premiums paid by Landlord.
(c) Subrogation. Tenant waives, on behalf of all insurers, under all
policies of property insurance now or hereafter carried by Tenant insuring or
covering the Premises, or any portion or any contents thereof, or any operations
therein, all rights of subrogation which any such insurer might otherwise, if at
all, have to any claims of Tenant against Landlord. Landlord waives, on behalf
of all insurers under all policies of property insurance now or hereafter
carried by Landlord insuring or covering the Property, or any portion or any
contents thereof, or any operations therein, all rights of subrogation which any
insurer might otherwise, if at all, have to any claims of Landlord against
Tenant. Tenant shall procure from each of the insurers under all policies of
property insurance now or hereafter carried by Tenant insuring or covering the
Premises, or any portion or any contents thereof, or any operations therein, a
waiver of all rights of subrogation which the insurer might otherwise, if at
all, have to any claims of Tenant against Landlord as required by this section
11.
12. Holding Over. Unless otherwise agreed to in writing by Landlord and
Tenant, if Tenant retains possession of the Premises, or any part thereof, after
termination or expiration of the Term, Tenant shall be deemed to be in default
hereunder, Landlord shall have any and all remedies provided for in this
Sublease and at law or in equity, and Tenant shall pay Landlord rent for the
time Tenant remains in possession at double the monthly rate in effect
immediately prior to such termination or expiration. The provisions of this
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Section 14 do not exclude Landlord's right of re-entry or any other right
hereunder and such holding over shall be deemed to constitute a renewal or
extension of the Term.
13. Notices. All notices required or permitted to be given hereunder
shall be in writing and shall be deemed to be given on the date which is three
(3) days after being deposited in the United States Mail, registered or
certified mail, return receipt requested, postage prepaid, or if personally
delivered, upon actual receipt, addressed as follows:
If to Landlord: NewSpace, Inc.
1360 Innerbelt Business Center Drive
St. Louis, MO 63114
If to Tenant: Build-A-Bear Workshop, L.L.C.
1954 Innerbelt Business Center Drive
St. Louis, MO 63114
subject to the right of either party to designate a different address or notice
person by notice similarly given in accordance with the provision of this
paragraph 15.
14. Repairs and Maintenance. Tenant shall, at all times during the
term of this Sublease and at Tenant's sole cost and expense, maintain and repair
the Premises and every part thereof (except only the parts for which expressly
made the responsibility of the Landlord under the Prime Lease) and all
equipment, fixtures and improvements therein (including walls, floors, heating
and air conditioning systems, dock boards, truck doors, dock bumpers, plumbing
fixtures and equipment, electrical components and mechanical systems) and keep
all of the foregoing clean and in good order and operating condition, ordinary
wear and tear excepted. Tenant shall not damage the Premises or disturb the
integrity and support provided by any wall. Tenant shall, at Tenant's expense,
promptly repair any damage to the Premises caused by Tenant or any agent,
officer, employee, contractor, licensee or invitee of Tenant. Tenant shall take
good care of the Premises and keep the Premises free from dirt, rubbish, waste
and debris at all times. Tenant shall not overload the floors in the Premises
or exceed the load-bearing capacity of the floors in the Premises. Tenant shall,
at Tenant's expense, enter into a regularly scheduled preventive maintenance and
service contract with a maintenance contractor approved in writing by Landlord
for servicing all hot water, heating and air conditioning systems and equipment
in the Premises. The maintenance and service contract shall include all services
suggested by the equipment manufacturer and shall become effective (and Tenant
shall deliver a copy to Landlord) within thirty (30) days after the Commencement
Date. Sublessee shall, at the end of the term of this Sublease, surrender to
Landlord the Premises and all alterations, additions, fixtures and improvements
therein or thereto in the same condition as when received, ordinary wear and
tear excepted. Notwithstanding anything to the contrary contained in this
section, Tenant's obligation under this section shall not include making (i) any
repair or improvement necessitated by the negligence or willful misconduct of
Landlord, its agents, employees, servants or contractors; or (ii) any repair or
improvement caused by Landlord's failure to perform its obligations under the
Prime Lease or this Sublease, as the case may be.
15. Utility Services. Tenant shall pay, directly to the appropriate
supplier before delinquency, for all water, gas, heat, light, power, telephone,
sewer, refuse disposal and other utilities and services supplied to the
Premises, together with all taxes, assessments, surcharges and similar expenses
relating to such utilities and service. Tenant shall, at its expense, install
separate meters for such services. If any such utilities or services are jointly
metered with the Premises and the adjoining premises occupied by Landlord,
Landlord shall determine Tenant's share of the cost as such jointly metered
utilities and services based on Landlord's estimate of usage, and Tenant shall
pay as additional rent Tenant's share of the cost of such jointly metered
utilities and services to Landlord within twenty (20) days after receipt of
Landlord's written statement for such cost. Tenant shall furnish the Premises
with all telephone service, window washing, security service, janitor, scavenger
and disposal services, and other services required by Tenant for the use of the
Premises permitted by this Sublease. Tenant shall furnish all electric light
bulbs and tubes and restroom supplies used in the Premises. Landlord shall not
be in default under this Sublease or be liable for any damage or loss directly
or indirectly resulting from, nor shall the rent be abated or a constructive or
other eviction be deemed to have occurred by reason of, any interruption of or
failure to supply or delay in supplying any such utilities and services or any
limitation, curtailment, rationing or restriction on use of water, electricity,
gas or any resource or form of energy or other service serving the Premises,
whether such results from mandatory restrictions or voluntary compliance with
guidelines.
16. Eminent Domain. In the event title to the whole or a material part
of the Premises shall be lawfully condemned or taken in any manner for any
public or quasi-public use, this Sublease and estate hereby granted shall
forthwith cease and terminate as of the
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date of vesting of title. Tenant hereby assigns to Prime Lessor Tenant's
interest in any award granted pursuant to this Section 17; provided, however,
nothing herein shall be deemed to give Prime Lessor any interest in or to
require Tenant to assign to Prime Lessor any award made to Tenant for the taking
of personal property or fixtures belonging to Tenant or for the interruption of
or damage to Tenant's business or for any funds awarded for Tenant's relocation.
17. Landlord's Remedies. All rights and remedies of Landlord herein
enumerated shall be cumulative, and none shall exclude any other right or remedy
allowed by law. In addition to the other remedies in this Sublease provided,
Landlord shall be entitled to the restraint by injunction of the violation or
attempted violation of any of the covenants, agreements or conditions of this
Sublease or the Prime Lease, and Landlord shall be entitled to recover all
direct and consequential damages arising out of or caused by Tenant's violation
of any of the covenants, agreements or conditions of this Sublease or the Prime
Lease.
(a) If Tenant shall (i) apply for or consent to the appointment of a
receiver, trustee or liquidator of Tenant or of all or a substantial part of its
assets, (ii) file a voluntary petition in bankruptcy, (iii) make a general
assignment for the benefit of creditors, (iv) file a petition or an answer
seeking reorganization or arrangement with creditors or to take advantage of any
insolvency law, or (v) file an answer admitting the material allegations of a
petition filed against Tenant in any bankruptcy, reorganization or insolvency
proceeding, or if an order, judgment or decree shall be entered by any court of
competent jurisdiction adjudicating Tenant a bankrupt or insolvent or approving
a petition seeking reorganization of Tenant or appointing a receiver, trustee or
liquidator of Tenant or of all or a substantial part of its assets, then, in any
of such events, Landlord may terminate this Sublease by giving written notice to
Tenant, and upon the giving of such notice the term of this Sublease and all
right, title and interest of Tenant hereunder shall expire as fully and
completely as if that day were the date herein specifically fixed for the
expiration of the term.
(b) If Tenant defaults in the payment of rent or Additional Rent and
such default continues for ten (10) days after written notice to Tenant, or if
Tenant defaults in the prompt and full performance of any other provision of
this Sublease, and if such other default continues for thirty (30) days after
written notice, or if the leasehold interest of Tenant be levied upon under
execution or be attached by process of law, then, and in any such event,
Landlord may, at its election, either terminate this Sublease and Tenant's right
to possession of the Premises, or, without terminating this Sublease, re-enter
and endeavor to relet the Premises. Nothing herein shall relieve Tenant of any
obligation, including the payment of rent and Additional Rent, as provided in
this Sublease.
(c) Upon any termination of this Sublease, Tenant shall surrender
possession and vacate the Premises immediately, and deliver possession thereof
to Landlord, and Tenant hereby grants to Landlord full and free license to enter
into and upon the Premises in such event and to repossess the Premises, and to
expel or remove Tenant and any others who may be occupying or within the
Premises, and to remove any and all property therefrom, using such force as may
be allowed by law, without being deemed in any manner guilty of trespass,
eviction or forcible entry or detainer, and without relinquishing Landlord's
right to rent and Additional Rent, or any other right given to Landlord
hereunder or by operation of law.
(d) If Landlord elects, without terminating the Sublease, to endeavor to
relet the Premises, Landlord may, at Landlord's option, enter into the Premises
and take and hold possession thereof, without such entry and possession
terminating the Sublease or releasing Tenant, in whole or in part, from Tenant's
obligation to pay rent and Additional Rent hereunder for the full Term as
hereinafter provided. Upon and after entry into possession without termination
of the Sublease, Landlord shall endeavor in good faith (but without being
obligated to incur out of pocket costs as part of such endeavor) to relet the
Premises for the account of Tenant to any person, firm or corporation other than
Tenant for such rent, for such time and upon such terms as Landlord shall
determine to be reasonable. In any such case, Landlord may make repairs in or to
the Premises as are necessary to restore the Premises to as good a condition as
existed at the commencement date of this Sublease, and Tenant shall, upon
demand, pay the cost thereof, together with Landlord's expenses of the
reletting. If the consideration collected by Landlord upon any such reletting
for Tenant's account is not sufficient to pay monthly the full amount of the
rent and Additional Rent reserved in this Sublease, together with the cost of
repairs and Landlord's expenses, Tenant shall pay to Landlord the amount of each
monthly deficiency upon demand.
(e) If Landlord elects to terminate this Sublease pursuant to this
Section 19, it being understood that Landlord may elect to terminate the
Sublease after and notwithstanding its election to terminate Tenant's right to
possession provided in Section 19(b) above. Landlord shall forthwith upon such
termination be entitled to recover an amount equal to the
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damages sustained by Landlord as a result of Tenant's default hereunder, and in
addition thereto, an amount equal to the rent provided in this Sublease for the
residue of the Term, less the current rental value of the Premises for the
residue of the Term.
(f) Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of this Sublease or of law, to which Tenant
is or may be entitled, may be handled, removed or stored by Landlord at the
risk, cost and expense of Tenant, and Landlord shall in no event be responsible
for the value, preservation or safekeeping thereof, Tenant shall pay to
Landlord, upon demand, any and all expenses incurred in such removal and all
storage charges against such property so long as the same shall be in Landlord's
possession or under Landlord's control. Any such property of Tenant not removed
from the Premises or retaken from storage by Tenant within thirty (30) days
after the end of the Term or of Tenant's right to possession of the Premises,
however terminated, shall be conclusively deemed to have been forever abandoned
by Tenant and either may be retained by Landlord as its property, or may be
disposed of in such manner as Landlord may see fit.
18. Subordination of Sublease. This Sublease is and shall be subject and
subordinate to any and all mortgages, deeds of trust or land leases now existing
upon or that may be hereafter placed upon the Premises, and to all advances made
or to be made thereon, and all renewals, modifications, consolidations,
replacements or extensions thereof, and the lien of any such mortgages, deeds of
trust and land leases shall be superior to all rights hereby or hereunder vested
in Tenant, to the full extent of all sums secured thereby. This provision shall
be self-operative, and no further instrument of subordination shall be
necessary to effectuate such subordination; and the recording of any such
mortgage, deed of trust or land lease shall have preference and precedence and
be superior and prior in lien to this Sublease, irrespective of the date of
recording. In confirmation of such subordination, Tenant shall within ten (10)
days after request of Landlord, Prime Lessor, or the holder of any such
mortgage, deed of trust, or land lease, execute and deliver to Landlord, Prime
Lessor or such holder, as the case may be, any instrument acknowledging such
subordination that Landlord, Prime Lessor or such holder may reasonably request.
Tenant agrees to attorn to any person or entity who may acquire title to the
Building by way of transfer or foreclosure provided that such transferee or
purchaser agrees to recognize Tenant's rights under this Sublease so long as
Tenant is not in default in any of its obligations hereunder. Tenant shall also,
within twenty (20) days after Landlord's or Prime Lessor's request, execute an
attornment agreement evidencing the obligations of Tenant herein to attorn to
such mortgagee in the event of a future succession of the rights of Landlord
herein to any mortgagee, deed of trust holder or land lessor of the Premises. In
the event of any act or omission of Landlord constituting a default by Landlord,
Tenant shall not exercise any remedy until Tenant has given Landlord, Prime
Lessor and any mortgagee, deed of trust holder or land lessor of the Building a
prior thirty (30) day written notice of such act or omission; provided, however,
if such act or omission cannot, with due diligence and in good faith, be
remedied within such thirty (30) day period, Landlord, Prime Lessor and any
mortgagee, deed of trust holder or land lessor shall be allowed such further
period of time as may be reasonably necessary provided that it commences
remedying the same with due diligence and in good faith within said thirty (30)
day period.
19. Prevailing Party. In the event of litigation between Landlord and
Tenant in connection with this Sublease, in addition to any other relief therein
granted, the prevailing party shall be entitled to judgment for reasonable
attorneys' fees, costs of litigation, and court costs incurred therein.
20. Governing Law. This sublease has been made and executed in the
County of St. Louis, State of Missouri, and shall be governed and construed in
accordance with the laws of the State of Missouri without regard to its conflict
of laws provisions.
21. Act of God or Force Majeure. Landlord or Tenant shall not be
required to perform any covenant or obligation in this Sublease or be liable in
damages for its nonperformance, so long as the performance or non-performance of
the covenant or obligation is delayed, caused or prevented by an act of God or
force majeure or by the other party. An "act of God" or "force majeure" is
defined for purposes of this Sublease as strikes, lockouts, sitdowns, material
or labor restrictions by any governmental authority, unusual transportation
delays, riots, floods, washouts, explosions, earthquakes, fire, storms, weather
(including wet grounds or inclement weather which prevents construction), acts
of the public enemy, wars, insurrections and any other cause not reasonably
within the control of the party required to perform and which by the exercise of
due diligence the party required to perform is unable to prevent or overcome.
The foregoing provisions of this Section 23 shall not apply, however, to
Tenant's obligation to timely pay rent, Additional Rent or any other monies
payable by Tenant under this Sublease.
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22. Severability. The invalidity of any provision of this Sublease as
determined by a court of competent jurisdiction shall in no way affect the
validity of any other provision hereof.
23. Assignment and Sublease. Tenant shall not voluntarily or by operation
of law assign or encumber any interest in this Sublease, or sublet any part of
the Premises, without obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease as of
the day and year first above written.
LANDLORD: NEWSPACE, INC.,
a Missouri corporation
By: /s/ [ILLEGIBLE]
-----------------------------------
Its: CEO
TENANT: BUILD-A-BEAR WORKSHOP, L.L.C.,
a Missouri limited liability company
By: Maxine Clark
-----------------------------------
Its: Manager
7
EXHIBIT B
SUBLEASE
(SPACE 1990)
THIS SUBLEASE ("Sublease") is made and entered into as of the 4/10 day of
April, 2000, by and between NewSpace, Inc., a Missouri corporation ("Landlord"),
and Build-A-Bear Workshop, Inc., a Delaware corporation ("Tenant").
WITNESSETH, THAT;
WHEREAS, Landlord is the tenant of the property known as 1990 Innerbelt
Business Center Drive, located in St. Louis County, Missouri (the "Premises");
and
WHEREAS, Landlord has agreed to sublease the Premises to Tenant.
NOW, THEREFORE, in consideration of the premises, the mutual covenants,
promises and conditions set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant agree as follows:
1. Sublease. Landlord hereby subleases the Premises to Tenant and Tenant
hereby subleases the Premises from Landlord for the term, at the rental, and
upon all the conditions set forth herein. This agreement constitutes a sublease,
and Tenant acknowledges that Landlord's interest in the Building is as a tenant
under a written lease with state of California Public Employees Retirement
System (the "Prime Lessor"), dated July 26, 1986 and amended eight (8) times
(the "Prime Lease"), a copy of which along with all amendments is attached
hereto, marked Exhibit B and incorporated herein by reference. Except as
provided herein, this Sublease is expressly made subject to all the terms and
conditions of the Prime Lease, and, insofar as they relate to the Premises or
the use and occupancy thereof, Tenant agrees to observe and comply with all
covenants and obligations of Landlord under the Prime Lease.
2. Term. The term of this Sublease (the "Term") shall commence April 10,
2000, and expire on June 30, 2003 unless extended as hereinafter provided.
3. Option to Renew. Subject to the terms and conditions set forth herein,
Tenant shall have the option to renew this Sublease for two additional terms of
five (5) years each commencing on the first day following the expiration of the
immediately preceding Term. So long as Tenant is not in default of a material
covenant under this Sublease, Tenant may renew this Sublease as provided
hereinabove upon giving Landlord written notice of such renewal not less than
nine (9) months prior to the expiration of the initial Term or the renewal term,
as appropriate. Any renewal of this Sublease shall be on the same terms and
conditions of this Sublease except that the base rent payable during such
renewal shall be the Fair Market Rental Rate determined in accordance with
Paragraph 16(d) of the Amended and Restated Lease attached as Exhibit 4 to the
6th Amendment to the Prime Lease with respect to the Premises.
4. Rental. Tenant shall pay to Landlord as base rent, commencing on June
14, 2000 (the "Rental Commencement Date"), without deduction, setoff, notice or
demand, at c/o Robert Fox, NewSpace, Inc., 1960 Innerbelt Business Center Drive,
St. Louis, Missouri 63114 or at such other place as Landlord shall designate
from time to time by notice to Tenant, Two Thousand Six Hundred Seventy-Nine and
63/100 Dollars ($2,679.63) per month for each month during Term of this
Sublease. For the period commencing on the Rental Commencement Date and ending
on the last day of the month in which the Rental Commencement Date occurs,
rental shall be apportioned on the basis of the number of days in said month.
5. Additional Rent. As and for additional rent (the "Additional Rent") for
the Premises, Tenant shall pay Landlord, commencing on the Rental Commencement
Date, CAM Expenses, increases, if any, in Property Taxes of the Property Taxes
paid by the Landlord under the Prime Lease in 2000, the Base Year, and Insurance
Costs incurred by the Landlord under the Prime Lease over Insurance Costs
incurred in 2000 (collectively, "Operating Costs"). The Tenant's prorata amount
of Operating Costs shall be determined by multiplying the total amount of
Operating Coats that Landlord is required to pay under the Prime Lease by a
fraction, the numerator of which is 4,946 and the denominator of which is
45,696. Such additional rent shall be payable as and when Operating Costs are
payable by Landlord under the Prime Lease. If the Prime Lease provides for the
payment by Landlord of operating Costs on the basis of an estimate thereof, then
as and when adjustments between estimated and actual Operating Costs are made
under the Prime Lease, the obligations of Landlord and Tenant hereunder shall be
adjusted in a like manner; and if any such adjustment shall occur after the
expiration or earlier termination of the Term, then the obligations of Landlord
and Tenant under this Subsection 5 shall survive such expiration or termination.
Landlord shall,
1
upon request by Tenant, furnish Tenant with copies of all statements submitted
to Landlord of actual or estimated Operating Costs during the Term.
6. Quiet Enjoyment. So long as Tenant shall observe and perform the
covenants and agreements binding on it hereunder, Tenant shall, at all times
during the Term, peacefully and quietly have and enjoy possession of the
Premises without any encumbrance and hindrance by, from or through Landlord, or
anyone else lawfully claiming an interest in the Premises, subject, however, to
the terms and conditions of this Sublease.
7. Use of the Premises. Tenant warrants and represents to Landlord that
the Premises shall be used and occupied for the repository of goods to be sold
on the Internet (but not for retail sales to the public from the Premises).
Tenant shall occupy the Premises, conduct its business and control its
employees, agents and invitees in such a manner as is lawful and reputable and
without creating any nuisance. Tenant shall neither permit any waste on the
Premises, nor allow anything to be stored in the Premises which would, in the
reasonable opinion of Landlord, be extra hazardous on account of fire, or which
would in any way increase or render void the fire insurance on the Premises.
8. As-Is Condition. Tenant acknowledges that it has inspected the Premises
or has had the Premises inspected by professional consultants retained by
Tenant. Tenant is familiar with the condition of the Premises, and the Premises
is acceptable to Tenant and Tenant accepts the Premises "AS IS". Tenant agrees
to remove all alterations, additions, fixtures and improvements made by it to
the Premises upon the expiration or earlier termination of this Sublease and
restore the Premises to the condition in which the Premises existed before such
alterations, additions, fixtures and improvements were made by Tenant to the
Premises.
9. Mechanic's Liens. Tenant shall have no authority, expressed or
implied, to create or place any lien or encumbrance of any kind or nature
whatsoever on, or in any manner to bind the interest of Landlord or Prime Lessor
in the Premises or to charge the rentals payable hereunder for any claim in
favor of any person dealing with the Tenant, including those who may furnish
materials or perform labor for any of Tenant's construction or repairs, and each
such claim shall affect and each such lien shall attach to, if at all, only the
leasehold interest granted to the Tenant herein. Tenant covenants and agrees
that it will pay or cause to be paid all sums legally due and payable by it on
account of any labor performed or materials furnished in connection with any
work performed on the Premises, and that it will save and hold the Landlord and
Prime Lessor harmless from any and all liability, loss, damage, cost and expense
arising out of asserted claims or liens against the leasehold estate or against
the right, title and interest of Landlord and the Prime Lessor in the Building.
10. Estoppel Certificates. Upon delivery of the Premises to Tenant, and
thereafter within ten (10) days following the written request of Landlord or the
Prime Lessor, from time to time Tenant shall execute, acknowledge, and deliver
to Landlord or to Prime Lessor or Prime Lessor's mortgagee, proposed mortgagee
or proposed purchaser of the Building, an estoppel certificate stating whether
this Sublease is in full force and effect and whether any changes may have been
made to the original Sublease; whether there are any defaults by Landlord and,
if so, the nature of such defaults; whether rent has been paid more than thirty
(30) days in advance; whether there are any security deposits; and such other
matters pertaining to the status of this Sublease as Landlord or the Prime
Lessor may reasonably request.
11. Indemnification By Tenant. Tenant hereby releases Landlord and Prime
Lessor from any liability for any loss or damage of any kind or for any injury
or death of persons or damage to property of Tenant or any other person from any
cause whatsoever by reason of the use, occupancy or enjoyment of the Premises by
Tenant or any person therein holding under Tenant. Tenant shall indemnify,
defend and save harmless Landlord and Prime Lessor, and each of their officers,
directors, agents and employees, from all claims, actions, demands, damages,
costs, expenses and liabilities whatsoever, including reasonable attorneys'
fees, on account of any real or claimed loss, damage or liability occurring in
or at the Premises, or arising out of the use, occupancy or enjoyment of the
Premises, or occasioned in whole or in part by the act or omission of Tenant or
its agents, contractors, employees, guests or invitees; provided, however,
notwithstanding the foregoing, Tenant shall not be responsible for any of the
foregoing to the extent directly attributable to the gross negligence or
intentional misconduct of Landlord or Prime Lessor.
12. Insurance/Release
(a) Insurance Coverages and Amounts. Tenant shall, at all times during
the term of this Lease and at Tenant's sole cost and expense, obtain and keep in
force the insurance
2
coverages and amounts set forth in this section. Tenant shall maintain
commercial general liability insurance, including contractual liability, broad
form property damage liability, fire legal liability, premises and completed
operations, and medical payments, with limits not less than one million dollars
($1,000,000) per occurrence and aggregate, insuring against claims for bodily
injury, personal injury and property damage arising from the use, occupancy or
maintenance of the Premises and the Building. The policy shall contain an
exception to any pollution exclusion which insures damage or injury arising out
of heat, smoke or fumes from a hostile fire. Any general aggregate shall apply
on a per location basis. Tenant shall maintain business auto liability insurance
with limits not less than one million dollars ($1,000,000) per accident covering
owned, hired and non-owned vehicles used by Tenant. Tenant shall maintain
umbrella excess liability insurance on a following form basis in excess of the
required commercial general liability, business auto and employers liability
insurance with limits not less than two million dollars ($2,000,000) per
occurrence and aggregate. Tenant shall carry workers' compensation insurance for
all of its employees in statutory limits in the state in which the Property is
located and employers liability insurance which affords not less than five
hundred thousand dollars ($500,000) for each coverage. Tenant shall maintain all
risk property insurance for all personal property of Tenant and improvements,
fixtures and equipment constructed or installed by Tenant in the Premises in an
amount not less than the full replacement cost, which shall include business
income and extra expense coverage with limits not less than fifty percent (50%)
of gross revenues for a period of twelve (12) months. If required by Landlord,
Tenant shall maintain plate glass insurance coverage against breakage of plate
glass in the Premises. Any deductibles selected by Tenant shall be the sole
responsibility of Tenant.
(b) Insurance Requirements. All insurance and renewals thereof shall be
issued by companies with a rating of at least "A-" "VIII" or better in the
current edition of Best's Insurance Report and be licensed to do and doing
business in the state in which the Property is located. Each policy shall
expressly provide that the policy shall not be canceled or materially altered
without thirty (30) days prior written notice to Landlord and shall remain in
effect notwithstanding any such cancellation or alteration until such notice
shall have been given to Landlord and such thirty (30) days shall have expired.
All liability insurance (except employers liability) shall name Landlord and any
other parties designated by Landlord (including any investment manager, asset
manager or property manager) as an additional insured, shall be primary and
noncontributing with any insurance which may be carried by Landlord, shall
afford coverage for all claims based on any act, omission, event or condition
that occurred or arose )or the onset of which occurred or arose) during the
policy period, and shall expressly provide that Landlord, although named as an
insured, shall nevertheless be entitled to recover under the policy for any
loss, injury or damage to Landlord. All property insurance shall name Landlord
as loss payee as respects Landlord's interest in any improvements and
betterments. Tenant shall deliver certificates of insurance, acceptable to
Landlord, to Landlord at least ten (10) days before the Commencement Date and at
least ten (10) days before expiration of each policy. If Tenant fails to insure
or fails to furnish any such insurance certificate, Landlord shall have the
right from time to time to effect such insurance for the benefit of Tenant or
Landlord or both of them, and Tenant shall pay to Landlord on written demand, as
additional rent, all premiums paid by Landlord.
(c) Subrogation. Tenant waives, on behalf of all insurers, under all
policies of property insurance now or hereafter carried by Tenant insuring or
covering the Premises, or any portion or any contents thereof, or any operations
therein, all rights of subrogation which any such insurer might otherwise, if at
all, have to any claims of Tenant against Landlord. Landlord waives, on behalf
of all insurers under all policies of property insurance now or hereafter
carried by Landlord insuring or covering the Property, or any portion or any
contents thereof, or any operations therein, all rights of subrogation which any
insurer might otherwise, if at all, have to any claims of Landlord against
Tenant. Tenant shall procure from each of the insurers under all policies of
property insurance now or hereafter carried by Tenant insuring or covering the
Premises, or any portion or any contents thereof, or any operations therein, a
waiver of all rights of subrogation which the insurer might otherwise, if at
all, have to any claims of Tenant against Landlord as required by this section
11.
13. Holding Over. Unless otherwise agreed to in writing by Landlord and
Tenant, if Tenant retains possession of the Premises, or any part thereof, after
termination or expiration of the Term, Tenant shall be deemed to be in default
hereunder, Landlord shall have any and all remedies provided for in this
Sublease and at law or in equity, and Tenant shall pay Landlord rent for the
time Tenant remains in possession at double the monthly rate in effect
immediately prior to such termination or expiration. The provisions of this
Section 14 do not exclude Landlord's right of re-entry or any other right
hereunder and such holding over shall be deemed to constitute a renewal or
extension of the Term.
3
14. Notices. All notices required or permitted to be given hereunder shall
be in writing and shall be deemed to be given on the date which is three (3)
days after being deposited in the United States Mail, registered or certified
mail, return receipt requested, postage prepaid, or if personally delivered,
upon actual receipt, addressed as follows:
If to Landlord: NewSpace, Inc.
1960 Innerbelt Business Center Drive
St. Louis, MO 63114
If to Tenant: Build-A-Bear Workshop, L.L.C.
1954 Innerbelt Business Center Drive
St. Louis, MO 63114
subject to the right of either party to designate a different address or notice
person by notice similarly given in accordance with the provision of this
paragraph 15.
15. Repairs and Maintenance. Tenant shall, at all times during the term
of this Sublease and at Tenant's sole cost and expense, maintain and repair the
Premises and every part thereof (except only the parts for which expressly made
the responsibility of the Landlord under the Prime Lease) and all equipment,
fixtures and improvements therein (including walls, floors, heating and air
conditioning systems, dock boards, truck doors, dock bumpers, plumbing fixtures
and equipment, electrical components and mechanical systems) and keep all of the
foregoing clean and in good order and operating condition, ordinary wear and
tear excepted. Tenant shall not damage the Premises or disturb the integrity and
support provided by any wall. Tenant shall, at Tenant's expense, promptly repair
any damage to the Premises caused by Tenant or any agent, officer, employee,
contractor, licensee or invitee of Tenant. Tenant shall take good care of the
Premises and keep the Premises free from dirt, rubbish, waste and debris at all
times. Tenant shall not overload the floors in the Premises or exceed the
load-bearing capacity of the floors in the Premises. Tenant shall, at Tenant's
expense, enter into a regularly scheduled preventive maintenance and service
contract with a maintenance contractor approved in writing by Landlord for
servicing all hot water, heating and air conditioning systems and equipment in
the Premises. The maintenance and service contract shall include all services
suggested by the equipment manufacturer and shall become effective (and Tenant
shall deliver a copy to Landlord) within thirty (30) days after the Commencement
Date. Sublessee shall, at the end of the term of this Sublease, surrender to
Landlord the Premises and all alterations, additions, fixtures and improvements
therein or thereto in the same condition as when received, ordinary wear and
tear excepted. Notwithstanding anything to the contrary contained in this
section, Tenant's obligation under this section shall not include making (i) any
repair or improvement necessitated by the negligence or willful misconduct of
Landlord, its agents, employees, servants or contractors; or (ii) any repair or
improvement caused by Landlord's failure to perform its obligations under the
Prime Lease or this Sublease, as the case may be.
16. Utility Services. Tenant shall pay, directly to the appropriate
supplier before delinquency, for all water, gas, heat, light, power, telephone,
sewer, refuse disposal and other utilities and services supplied to the
Premises, together with all taxes, assessments, surcharges and similar expenses
relating to such utilities and service. Tenant shall, at its expense, install
separate meters for such services. If any such utilities or services are jointly
metered with the Premises and the adjoining premises occupied by Landlord,
Landlord shall determine Tenant's share of the cost as such jointly metered
utilities and services based on Landlord's estimate of usage, and Tenant shall
pay as additional rent Tenant's share of the cost of such jointly metered
utilities and services to Landlord within twenty (20) days after receipt of
Landlord's written statement for such cost. Tenant shall furnish the Premises
with all telephone service, window washing, security service, janitor, scavenger
and disposal services, and other services required by Tenant for the use of the
Premises permitted by this Sublease. Tenant shall furnish all electric light
bulbs and tubes and restroom supplies used in the Premises. Landlord shall not
be in default under this Sublease or be liable for any damage or loss directly
or indirectly resulting from, nor shall the rent be abated or a constructive or
other eviction be deemed to have occurred by reason of, any interruption of or
failure to supply or delay in supplying any such utilities and services or any
limitation, curtailment, rationing or restriction on use of water, electricity,
gas or any resource or form of energy or other service serving the Premises,
whether such results from mandatory restrictions or voluntary compliance with
guidelines.
17. Eminent Domain. In the event title to the whole or a material part of
the Premises shall be lawfully condemned or taken in any manner for any public
or quasi-public use, this Sublease and estate hereby granted shall forthwith
cease and terminate as of the date of vesting of title. Tenant hereby assigns to
Prime Lessor Tenant's interest in any award granted pursuant to this Section 17;
provided, however, nothing herein shall be deemed to give Prime Lessor any
interest in or to require Tenant to assign to Prime Lessor any award
4
made to Tenant for the taking of personal property or fixtures belonging to
Tenant or for the interruption of or damage to Tenant's business or for any
funds awarded for Tenant's relocation.
18. Landlord's Remedies. All rights and remedies of Landlord herein
enumerated shall be cumulative, and none shall exclude any other right or remedy
allowed by law. In addition to the other remedies in this Sublease provided,
Landlord shall be entitled to the restraint by injunction of the violation or
attempted violation of any of the covenants, agreements or conditions of this
Sublease or the Prime Lease, and Landlord shall be entitled to recover all
direct and consequential damages arising out of or caused by Tenant's violation
of any of the covenants, agreements or conditions of this Sublease or the Prime
Lease.
(a) If Tenant shall (i) apply for or consent to the appointment of a
receiver, trustee or liquidator of Tenant or of all or a substantial part of its
assets, (ii) file a voluntary petition in bankruptcy, (iii) make a general
assignment for the benefit of creditors, (iv) file a petition or an answer
seeking reorganization or arrangement with creditors or to take advantage of any
insolvency law, or (v) file an answer admitting the material allegations of a
petition filed against Tenant in any bankruptcy, reorganization or insolvency
proceeding, or if an order, judgment or decree shall be entered by any court of
competent jurisdiction adjudicating Tenant a bankrupt or insolvent or approving
a petition seeking reorganization of Tenant or appointing a receiver, trustee or
liquidator of Tenant or of all or a substantial part of its assets, then, in any
of such events, Landlord may terminate this Sublease by giving written notice to
Tenant, and upon the giving of such notice the term of this Sublease and all
right, title and interest of Tenant hereunder shall expire as fully and
completely as if that day were the date herein specifically fixed for the
expiration of the term.
(b) If Tenant defaults in the payment of rent or Additional Rent and such
default continues for ten (10) days after written notice to Tenant, or if Tenant
defaults in the prompt and full performance of any other provision of this
Sublease, and if such other default continues for thirty (30) days after written
notice, or if the leasehold interest of Tenant be levied upon under execution or
be attached by process of law, then, and in any such event, Landlord may, at its
election, either terminate this Sublease and Tenant's right to possession of the
Premises, or, without terminating this Sublease, re-enter and endeavor to relet
the Premises. Nothing herein shall relieve Tenant of any obligation, including
the payment of rent and Additional Rent, as provided in this Sublease.
(c) Upon any termination of this Sublease, Tenant shall surrender
possession and vacate the Premises immediately, and deliver possession thereof
to Landlord, and Tenant hereby grants to Landlord full and free license to enter
into and upon the Premises in such event and to repossess the Premises, and to
expel or remove Tenant and any others who may be occupying or within the
Premises, and to remove any and all property therefrom, using such force as may
be allowed by law, without being deemed in any manner guilty of trespass,
eviction or forcible entry or detainer, and without relinquishing Landlord's
right to rent and Additional Rent, or any other right given to Landlord
hereunder or by operation of law.
(d) If Landlord elects, without terminating the Sublease, to endeavor to
relet the Premises, Landlord may, at Landlord's option, enter into the Premises
and take and hold possession thereof, without such entry and possession
terminating the Sublease or releasing Tenant, in whole or in part, from Tenant's
obligation to pay rent and Additional Rent hereunder for the full Term as
hereinafter provided. Upon and after entry into possession without termination
of the Sublease, Landlord shall endeavor in good faith (but without being
obligated to incur out of pocket costs as part of such endeavor) to relet the
Premises for the account of Tenant to any person, firm or corporation other than
Tenant for such rent, for such time and upon such terms as Landlord shall
determine to be reasonable. In any such case, Landlord may make repairs in or to
the Premises as are necessary to restore the Premises to as good a condition as
existed at the commencement date of this Sublease, and Tenant shall, upon
demand, pay the cost thereof, together with Landlord's expenses of the
reletting. If the consideration collected by Landlord upon any such reletting
for Tenant's account is not sufficient to pay monthly the full amount of the
rent and Additional Rent reserved in this Sublease, together with the cost of
repairs and Landlord's expenses, Tenant shall pay to Landlord the amount of each
monthly deficiency upon demand.
(e) If Landlord elects to terminate this Sublease pursuant to this Section
19, it being understood that Landlord may elect to terminate the Sublease after
and notwithstanding its election to terminate Tenant's right to possession
provided in Section 19 (b) above, Landlord shall forthwith upon such termination
be entitled to recover an amount equal to the damages sustained by Landlord as a
result of Tenant's default hereunder, and in addition thereto, an amount equal
to the rent provided in this Sublease for the residue of the Term, less the
current rental value of the Premises for the residue of the Term.
5
(f) Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of this Sublease or of law, to which Tenant
is or may be entitled, may be handled, removed or stored by Landlord at the
risk, cost and expense of Tenant, and Landlord shall in no event be responsible
for the value, preservation or safekeeping thereof. Tenant shall pay to
Landlord, upon demand, any and all expenses incurred in such removal and all
storage charges against such property so long as the same shall be in Landlord's
possession or under Landlord's control. Any such property of Tenant not removed
from the Premises or retaken from storage by Tenant within thirty (30) days
after the end of the Term or of Tenant's right to possession of the Premises,
however terminated, shall be conclusively deemed to have been forever abandoned
by Tenant and either may be retained by Landlord as its property, or may be
disposed of in such manner as Landlord may see fit.
19. Subordination of Sublease. This Sublease is and shall be subject and
subordinate to any and all mortgages, deeds of trust or land leases now existing
upon or that may be hereafter placed upon the Premises, and to all advances made
or to be made thereon, and all renewals, modifications, consolidations,
replacements or extensions thereof, and the lien of any such mortgages, deeds of
trust and land leases shall be superior to all rights hereby or hereunder vested
in Tenant, to the full extent of all sums secured thereby. This provision shall
be self-operative, and no further instrument of subordination shall be necessary
to effectuate such subordination; and the recording of any such mortgage, deed
of trust or land lease shall have preference and precedence and be superior and
prior in lien to this Sublease, irrespective of the date of recording. In
confirmation of such subordination, Tenant shall within ten (10) days after
request of Landlord, Prime Lessor, or the holder of any such mortgage, deed of
trust, or land lease, execute and deliver to Landlord, Prime Lessor or such
holder, as the case may be, any instrument acknowledging such subordination that
Landlord, Prime Lessor or such holder may reasonably request. Tenant agrees to
attorn to any person or entity who may acquire title to the Building by way of
transfer or foreclosure provided that such transferee or purchaser agrees to
recognize Tenant's rights under this Sublease so long as Tenant is not in
default in any of its obligations hereunder. Tenant shall also, within twenty
(20) days after Landlord's or Prime Lessor's request, execute an attornment
agreement evidencing the obligations of Tenant herein to attorn to such
mortgagee in the event of a future succession of the rights of Landlord herein
to any mortgagee, deed of trust holder or land lessor of the Premises. In the
event of any act or omission of Landlord constituting a default by Landlord,
Tenant shall not exercise any remedy until Tenant has given Landlord, Prime
Lessor and any mortgagee, deed of trust holder or land lessor of the Building a
prior thirty (30) day written notice of such act or omission; provided, however,
if such act or omission cannot, with due diligence and in good faith, be
remedied within such thirty (30) day period, Landlord, Prime Lessor and any
mortgagee, deed of trust holder or land lessor shall be allowed such further
period of time as may be reasonably necessary provided that it commences
remedying the same with due diligence and in good faith within said thirty (30)
day period.
20. Prevailing Party. In the event of litigation between Landlord and
Tenant in connection with this Sublease, in addition to any other relief
therein granted, the prevailing party shall be entitled to judgment for
reasonable attorneys' fees, costs of litigation, and court costs incurred
therein.
21. Governing Law. This Sublease has been made and executed in the County
of St. Louis, State of Missouri, and shall be governed and construed in
accordance with the laws of the State of Missouri without regard to its conflict
of laws provisions.
22. Act of God or Force Majeure. Landlord or Tenant shall not be required
to perform any covenant or obligation in this Sublease or be liable in damages
for its nonperformance, so long as the performance or non-performance of the
covenant or obligation is delayed, caused or prevented by an act of God or force
majeure or by the other party. An "act of God" or "force majeure" is defined for
purposes of this Sublease as strikes, lockouts, sitdowns, material or labor
restrictions by any governmental authority, unusual transportation delays,
riots, floods, washouts, explosions, earthquakes, fire, storms, weather
(including wet grounds or inclement weather which prevents construction), acts
of the public enemy, wars, insurrections and any other cause not reasonably
within the control of the party required to perform and which by the exercise of
due diligence the party required to perform is unable Co prevent or overcome.
The foregoing provisions of this Section 23 shall not apply, however, to
Tenant's obligation to timely pay rent, Additional Rent or any other monies
payable by Tenant under this Sublease.
23. Severability. The invalidity of any provision of this Sublease as
determined by a court of competent jurisdiction shall in no way affect the
validity of any other provision hereof.
6
24. Assignment and Sublease. Tenant shall not voluntarily or by operation
of law assign or encumber any interest in this Sublease, or sublet any part of
the Premises, without obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease as of
the day and year first above written.
LANDLORD: NEWSPACE, INC.,
a Missouri corporation
By: /s/ Robert Fox
--------------------------------
Its: CEO
TENANT: BUILD-A-BEAR WORKSHOP, INC.,
a Delaware corporation
By: /s/ Brian Vent
--------------------------------
Its: Manager
7
EXHIBIT C
AMENDED AND RESTATED
INDUSTRIAL LEASE
BASIC LEASE INFORMATION
Date: June 14, 2000
Landlord: State of California Public Employees' Retirement System, a unit of the
State and Consumer Services Agency of the State of California
Tenant: NewSpace, Inc., a Missouri corporation
Guarantor: None
Premises (section 1.1): The spaces in the buildings outlined in Exhibit A,
containing approximately 45,696 square feet (more or less) of building area, the
street addresses of which are known as Suite 1950-54 (13,362 square feet, more
or less), Suite 1956 (6,186 square feet, more or less), Suite 1958 (5,309 square
feet, more or less), Suite 1960-62 (7,943 square feet, more or less), Suite 1964
(7,949 square feet, more or less) and Suite 1990 (4,947 square feet, more or
less)
Property (section 1.1): The land and the building(s) outlined in Exhibit A,
containing approximately 192,963 square feet (more or less) of total building
area, located in Overland, Missouri and known as Innerbelt Business Center
Term (section 2.1): 96 months
Commencement Date (section 2.1): June 14, 2000
Expiration Date (section 2.1): June 30, 2008
Monthly Base Rent (dollars
per month) (section 3.1(a)): Months 1-12: $30,179.63 per month
Months 13-36: $30,596.30 per month
Months 37-60: $28,750.00 per month (subject to
adjustment if Tenant elects to renew the Lease
with respect to Suite 1990)
Months 61-96: $29,166.67 per month (subject to
adjustment if Tenant elects to renew the Lease
with respect to Suite 1990)
Tenant's Percentage
Share (section 3.1(b)): Months 1-36: 23.68%
Months 37-96: 21.12% (unless Tenant
elects to renew the Lease with
respect to Suite 1990, in which event
the Percentage Share shall remain at 23.68%)
Property Taxes Base Year (section 3.1(b)): 2000
Insurance Costs Base Year (section 3.1(b)): 2000
Initial Additional Monthly Rent Estimate (dollars per month) (section 3.2(a)):
$3,389.12
Security Deposit (section 3.3): $28,251.67 Letter of Credit
Rent Payment Address (section 3.7): LaSalle Investment Management, Inc.
St. Louis- MidCounty
P.O. Box 73564
Chicago, Illinois 60673-7584
Permitted Use of the Premises (section 4.1): General Office and Warehousing and
Light Manufacturing
Landlord's Address (section 14.1): State of California Public Employees'
Retirement System, c/o LaSalle Investment Management, Inc., 3424 Peachtree
Road NE, Suite 300, Atlanta, GA 30326 Attn: Rebecca S. Smith and a copy
simultaneously c/o Trammell Crow Company, 8000 Maryland Avenue, Suite
850, St. Louis, Missouri 63105
Tenant's Address (section 14.1): NewSpace, Inc., 1960 Innerbelt Business Center
Drive, Overland, Missouri 63114
Guarantor's Address (section 14.1): None
Real Estate Broker(s) (section 15.5): Crow Brokerage Co., Inc. (d/b/a Trammell
Crow Company)
(i)
Exhibit A - Plan(s) Outlining the Premises and the Property
Exhibit B - Description of Landlord's work
Exhibit C - Form of Memorandum Confirming Term
Exhibit D - Addendum
The foregoing Basic Lease Information is incorporated in and made a part
of the Lease to which it is attached. If there is any conflict between the Basic
Lease Information and the Lease, the Basic Lease Information shall control.
NEWSPACE, INC., STATE OF CALIFORNIA PUBLIC EMPLOYEES'
a Missouri corporation RETIREMENT SYSTEM, a unit of the State and
Consumer Services Agency of the State of California
By: CalEast Industrial Investors, LLC.
By:_______________________ Its: Duly authorized agent
Name __________________
Title _________________ By: LaSalle Investment Management, Inc.
Its: Manager
By:______________________________________
Rebecca S. Smith
Its: Vice President
(ii)
TABLE OF CONTENTS
ARTICLE PAGE
- ------- ----
ARTICLE I Premises.............................................................. 1
1.1 Lease of Premises..................................................... 1
ARTICLE 2 Term.................................................................. 1
2.1 Term of Lease......................................................... 1
2.2 Improvements.......................................................... 1
2.3 Adjustment of Commencement Date....................................... 2
2.4 Holding Over.......................................................... 2
ARTICLE 3 Rent.................................................................. 2
3.1 Base Rent and Additional Rent......................................... 2
3.2 Procedures............................................................ 2
3.3 Security Deposit...................................................... 3
3.4 Late Payment.......................................................... 3
3.5 Other Taxes Payable by Tenant......................................... 3
3.6 Certain Definitions................................................... 4
3.7 Rent Payment Address.................................................. 4
ARTICLE 4 Use of the Premises................................................... 4
4.1 Permitted Use......................................................... 4
4.2 Environmental Definitions............................................. 5
4.3 Environmental Requirements............................................ 5
4.4 Compliance With Law................................................... 6
4.5 Rules and Regulations................................................. 6
4.6 Entry By Landlord..................................................... 6
ARTICLE 5 Utilities and Services................................................ 6
5.1 Tenant's Responsibilities............................................. 6
ARTICLE 6 Maintenance and Repairs............................................... 6
6.1 Obligations of Landlord............................................... 6
6.2 Obligations of Tenant................................................. 7
ARTICLE 7 Alteration of the Premises............................................ 7
7.1 No Alterations by Tenant.............................................. 7
7.2 Landlord's Property................................................... 8
ARTICLE 8 Indemnification and Insurance......................................... 8
8.1 Damage or Injury...................................................... 8
8.2 Insurance Coverage and Amounts........................................ 8
8.3 Insurance Requirements ............................................... 8
8.4 Subrogation .......................................................... 9
8.5 Landlord Insurance Requirements ...................................... 9
ARTICLE 9 Assignment or Sublease ............................................... 9
9.1 Prohibition .......................................................... 9
9.2 Landlord's Consent or Termination .................................... 10
9.3 Completion ........................................................... 10
9.4 Tenant Not Released .................................................. 10
ARTICLE 10 Events of Default and Remedies ...................................... 10
10.1 Default by Tenant ................................................... 10
10.2 Termination ......................................................... 11
10.3 Continuation ........................................................ 11
10.4 Remedies Cumulative.................................................. 11
10.5 Tenant's Primary Duty ............................................... 11
10.6 Abandoned Property .................................................. 11
10.7 Landlord Default..................................................... 11
ARTICLE 11 Damage or Destruction ............................................... 12
11.1 Restoration ......................................................... 12
11.2 Termination of Lease ................................. .............. 12
ARTICLE 12 Eminent Domain ...................................................... 12
12.1 Condemnation ........................................................ 12
12.2 Award .......................... .................................... 12
(iii)
12.3 Temporary Use........................................................ 12
12.4 Definition of Taking................................................. 13
ARTICLE 13 Subordination and Sale............................................... 13
13.1 Subordination........................................................ 13
13.2 Sale of the Property................................................. 13
13.3 Estoppel Certificate................................................. 13
ARTICLE 14 Notices.............................................................. 13
14.1 Method............................................................... 13
ARTICLE 15 Miscellaneous........................................................ 14
15.1 General.............................................................. 14
15.2 No Waiver............................................................ 14
15.3 Attorneys' Fees...................................................... 14
15.4 Exhibits............................................................. 14
15.5 Broker(s)............................................................ 14
15.7 Entire Agreement..................................................... 14
Lease Guaranty
Exhibit A - Plan(s) Outlining the Premises and the Property
Exhibit B - Description of Landlord's Work
Exhibit C - Form of Memorandum Confirming Term
Exhibit D - Addendum
Other Attachments (if any)
(iv)
AMENDED AND RESTATED INDUSTRIAL LEASE
THIS AMENDED AND RESTATED LEASE, made as of the date specified in
the BASIC LEASE INFORMATION, by and between STATE Of CALIFORNIA PUBLIC
EMPLOYEES' RETIREMENT SYSTEM, a unit of the State and Consumer Services Agency
of the State of California ("Landlord"), and the tenant specified in the BASIC
LEASE INFORMATION ("Tenant"),
WITNESSETH:
ARTICLE I
Premises
1.1 Lease of Premises. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, for the term and subject to the covenants
hereinafter set forth, to all of which Landlord and Tenant hereby agree, the
space(s) in the building(s) specified in the BASIC LEASE INFORMATION (the
"Premises") located on the real property specified in the BASIC LEASE
INFORMATION (the "Property"), all as outlined on the plan(s) attached hereto as
Exhibit A. The Property includes the land and the building(s) in which the
Premises is located. Landlord and Tenant agree that, for purposes of this Lease,
the Premises and the Property, respectively, each contains the number of square
feet of building area specified in the BASIC LEASE INFORMATION and Tenant's
Percentage Share specified in the BASIC LEASE INFORMATION is the ratio of such
building area of the Premises to such building area of the Property. During the
term of this Lease, Tenant shall have the nonexclusive right, in common with
other tenants of the Property, to use only for their intended purposes the
common areas (such as driveways, sidewalks, parking areas, loading areas and
access roads) in the Property that are designated by Landlord as common areas
and not leased to or allocated for the exclusive use of another tenant of the
Property. Landlord shall have the right from time to time to change the size,
location, configuration, character or use of any such common areas, construct
additional improvements or facilities in any such common areas, or close any
such common areas. Tenant shall not interfere with the rights of Landlord and
other tenants of the Property to use such common areas.
ARTICLE 2
Term
2.1 Term of Lease. The term of this Lease shall be the term
specified in the BASIC LEASE INFORMATION, which shall commence on the
commencement date specified in the BASIC LEASE INFORMATION (the "Commencement
Date") and, unless sooner terminated as hereinafter provided, shall end on the
expiration date specified in the BASIC LEASE INFORMATION (the "Expiration
Date"). If Landlord, for any reason whatsoever, does not deliver possession of
the Premises to Tenant on the Commencement Date, this Lease shall not be void or
voidable and Landlord shall not be liable to Tenant for any loss or damage
resulting therefrom, but, in such event, the Commencement Date shall be
postponed until the date on which Landlord delivers possession of the Premises
to Tenant and the Expiration Date shall be extended for an equal period (subject
to adjustment in accordance with section 2.3 hereof). Tenant acknowledges that
Tenant has inspected the Premises and the Property or has had the Premises and
the Property inspected by professional consultants retained by Tenant. Tenant is
familiar with the condition of the Premises and the Property, the Premises and
the Property are suitable for Tenant's purposes, and, except for the
improvements to be constructed or installed by Landlord pursuant to Exhibit B
(if any), the condition of the Premises and the Property is acceptable to
Tenant. Except for the improvements to be constructed or installed by Landlord
pursuant to Exhibit B (if any), Landlord shall have no obligation to construct
or install any improvements in the Premises or the Property or to remodel,
renovate, recondition, alter or improve the Premises or the Property in any
manner, and Tenant shall accept the Premises "as is" on the Commencement Date.
2.2 Improvements. This section 2.2 shall apply only if Landlord is
required to construct or install improvements in the Premises or the Property
pursuant to Exhibit B. Landlord shall construct or install the improvements to
be constructed or installed by Landlord pursuant to Exhibit B. Landlord shall
deliver possession of the Premises to Tenant on the Commencement Date or the
date of substantial completion of the improvements, whichever is later, and
Tenant shall accept such delivery of the Premises. Notwithstanding section 2.1
hereof, the term of this Lease shall not commence until Landlord has
substantially completed the improvements pursuant to Exhibit B attached hereto
and delivered possession of the Premises to Tenant. The date of substantial
completion of the improvements shall be the date on which construction is
sufficiently complete, substantially in accordance with the plans and
specifications, so the improvements may be used or occupied for their intended
purpose as permitted under this Lease. If Landlord is delayed in substantially
completing the improvements by any cause of delay for which Tenant is
responsible, then Tenant shall pay to Landlord, as additional rent, the monthly
Base Rent (based on the first month for which the Base Rent is to be paid) and
the additional monthly rent payable under section 3.1 hereof, calculated on a
per diem basis, multiplied by the number of days of such delay, which shall be
due and payable on the Commencement Date specified in the BASIC LEASE
INFORMATION for such delay before such date and monthly in arrears on the first
day of each month thereafter for such delay after such date. If the improvements
are substantially complete and the Premises is ready for occupancy by Tenant
prior to the Commencement Date, Tenant shall have the right to take early
occupancy of the Premises prior to the Commencement Date and the term of this
Lease shall commence on such date of early occupancy by Tenant, in which event
the Commencement Date shall be advanced to such date of early occupancy and the
Expiration Date shall be advanced by an equal period (subject to adjustment in
accordance with section 2.3 hereof). Tenant shall give Landlord written notice
of Tenant's determination to take early occupancy of the Premises at least ten
(10) days in advance, which notice shall specify the date of such early
occupancy.
1
2.3 Adjustment of Commencement Date. If the Commencement Date as
determined in accordance with section 2.1 or section 2.2 hereof would not be the
first day of the month and the Expiration Date would not be the last day of the
month, then the actual Commencement Date shall be the first day of the next
calendar month following the date so determined and the actual Expiration Date
shall be the last day of the appropriate calendar month so the term of this
Lease shall be the full term specified in the Basic Lease Information. The
period of the fractional month between the date so determined and the actual
Commencement Date shall be on and subject to all of the covenants in this Lease
and, on the actual Commencement Date, Tenant shall pay to Landlord, as
additional rent, the monthly Base Rent (based on the first month for which the
Base Rent is to be paid) and the additional monthly rent payable under section
3.1 hereof, calculated on a per diem basis, for such period. Landlord and Tenant
each shall, promptly after the actual Commencement Date and the actual
Expiration Date have been determined, execute and deliver to the other a
Memorandum Confirming Term in the form of Exhibit C attached hereto, which shall
set forth the actual Commencement Date and the actual Expiration Date for this
Lease, but the term of this Lease shall commence and end in accordance with this
Lease whether or not the Memorandum Confirming Term is executed.
2.4 Holding Over. In the event that Tenant shall continue in
occupancy of the Premises after the expiration of the Term, such occupancy shall
not be deemed to extend or renew the term of this Lease, but such occupancy
shall continue as a month-to-month tenancy at will upon the covenants,
provisions and conditions herein contained at a monthly Base Rental equal to one
hundred fifty percent (150%) of the monthly Base Rental in effect at the
expiration of the term of this Lease.
ARTICLE 3
Rent
3.1 Base Rent and Additional Rent. Tenant shall pay to Landlord the
following amounts as rent for the Premises:
(a) During the term of this Lease, Tenant shall pay to Landlord, as
base monthly rent, the amount of monthly Base Rent specified in the Basic Lease
Information.
(b) During each calendar year (or part thereof) during the term of
this Lease, Tenant shall pay to Landlord, as additional monthly rent:
(i) Tenant's Percentage Share specified in the Basic Lease
Information of all CAM Expenses paid or incurred by Landlord in such year;
(ii) Tenant's Percentage Share specified in the Basic Lease
Information of the total dollar increase, if any, in all Property Taxes paid or
incurred by Landlord in such year over all Property Taxes paid or incurred by
Landlord in the Base Year for Property Taxes specified in the Basic Lease
Information; and
(iii) Tenant's Percentage Share specified in the Basic Lease
Information of the total dollar increase, if any, in all Insurance Costs paid or
incurred by Landlord in such year over all Insurance Costs paid or incurred by
Landlord in the Base Year for Insurance Costs specified in the Basic Lease
Information.
(c) Throughout the term of this Lease, Tenant shall pay, as
additional rent, all other amounts of money and charges required to be paid by
Tenant under this Lease, whether or not such amounts of money or charges are
designated "additional rent". As used in this Lease, "rent" shall mean and
include all Base Rent, additional monthly rent and additional rent payable by
Tenant in accordance with this Lease.
3.2 Procedures. The additional monthly rent payable by Tenant
pursuant to section 3.1(b) hereof (CAM Expenses, Property Taxes and Insurance
Costs) shall be calculated and paid in accordance with the following procedures:
(a) On or before the Commencement Date, or as soon thereafter as
practicable, and on or before the first day of each subsequent calendar year
during the term of this Lease, or as soon thereafter as practicable, Landlord
shall give Tenant written notice of Landlord's estimate of the amounts payable
under section 3.1(b) hereof for the balance of the first calendar year after the
Commencement Date or for the ensuing calendar year, as the case may be.
Landlord's estimate of the initial monthly rent payable by Tenant under section
3.1(b) hereof each month for the balance of the first calendar year after the
Commencement Date is specified in the Basic Lease Information. Tenant shall pay
such estimated amounts to Landlord in equal monthly installments, in advance, on
or before the Commencement Date and on or before the first day of each month
during such balance of the first calendar year after the Commencement Date or
during such ensuing calendar year, as the case may be. If such notice is not
given for any calendar year, Tenant shall continue to pay on the basis of the
prior year's estimate until the month after such notice is given, and subsequent
payments by Tenant shall be based on Landlord's current estimate. If, at any
time, Landlord determines that the amounts payable under section 3.1(b) hereof
for the current calendar year will vary from Landlord's estimate. Landlord may,
by giving written notice to Tenant, revise Landlord's estimate for such year,
and subsequent payments by Tenant for such year shall be based on such revised
estimate.
(b) Within a reasonable time after the end of each calendar year,
Landlord shall give Tenant a written statement of the amounts payable by Tenant
under section 3.1(b) hereof for such calendar year certified by Landlord. If
such statement shows a total amount owing by Tenant that is less than the
estimated payments for such
2
calendar year previously made by Tenant, Landlord shall credit the excess to the
next monthly installments of the amounts payable by Tenant under section 3.1(b)
hereof (or, if the term of this Lease has ended, Landlord shall refund the
excess to Tenant with such statement). If such statement shows a total amount
owing by Tenant that is more than the estimated payments for such calendar year
previously made by Tenant, Tenant shall pay the deficiency to Landlord within
fifteen (15) days after delivery of such statement (notwithstanding any
assertion by Tenant that the written statement contains errors). Tenant or
Tenant's authorized agent or representative shall have the right once each
calendar year to inspect the books of Landlord relating to CAM Expenses,
Property Taxes and Insurance Costs for the prior calendar year, after giving
reasonable prior written notice to Landlord and during the business hours of
Landlord at the office of Landlord's property manager for the Property, for the
purpose of verifying the information in such statement. Unless Tenant asserts
specific errors in writing to Landlord within forty-five (45) days after the
date of the written statement received from Landlord, the statement shall be
deemed conclusively correct. Landlord and Tenant shall attempt in good faith to
resolve any timely objection made by Tenant to the written statement with
respect to Landlord's calculation of the additional monthly rent payable by
Tenant pursuant to Section 3.1(b) hereof for any fiscal year within sixty (60)
days after Landlord's receipt of Tenant's written objection. If the dispute
cannot be resolved by Landlord and Tenant within such period, the decision of
Landlord's accountant, whose decision shall be based upon generally accepted
accounting principals, shall be final and binding upon the parties. If the
written statement is determined to overstate Tenant's additional monthly rent
payable pursuant to Section 3.1(b) by more than five percent (5%), Landlord
shall pay Tenant its reasonable costs and expenses incurred in connection with
such audit within thirty (30) days after written notice of said determination is
delivered to Landlord with an invoice therefor. Failure by Landlord to give any
notice or statement to Tenant under this section 3.2 shall not waive Landlord's
right to receive, or Tenant's obligation to pay, the amounts payable by Tenant
under section 3.1(b) hereof.
(c) If the term of this Lease commences or ends on a day other than
the first or last day of a calendar year, respectively, the amounts payable by
Tenant under section 3.1(b) hereof applicable to the calendar year in which such
term commences or ends shall be prorated according to the ratio which the number
of days during the term of this Lease in such calendar year bears to three
hundred sixty-five (365). Termination of this Lease shall not affect the
obligations of Landlord and Tenant pursuant to section 3.2(b) hereof to be
performed after such termination.
3.3 Security Deposit. Upon signing this Lease, Tenant shall pay to
Landlord the amount of the security deposit specified in the Basic Lease
Information (the "Security Deposit"). The Security Deposit shall be held by
Landlord as security for the performance by Tenant of all of the covenants of
this Lease to be performed by Tenant, and Tenant shall not be entitled to
interest thereon. If Tenant fails to perform any of the covenants of this Lease
to be performed by Tenant, then Landlord shall have the right, but no
obligation, to apply the Security Deposit, or so much thereof as may be
necessary, to cure any such failure by Tenant. If Landlord applies the Security
Deposit or any part thereof to cure any such failure by Tenant, then Tenant
shall immediately pay to Landlord the sum necessary to restore the Security
Deposit to the full amount required by this section 3.3. Landlord shall return
any remaining portion of the Security Deposit to Tenant within 30 days after
termination of this Lease. Upon termination of the original Landlord's or any
successor owner's interest in the Premises, the original Landlord or such
successor owner shall be released from further liability with respect to the
Security Deposit upon the original Landlord's or such successor owner's
transferring the Security Deposit to the new owner and shall provide Tenant with
an acknowledgment of receipt thereof by the successor owner.
3.4 Late Payment. Tenant acknowledges that the late payment by
Tenant of any monthly installment of Base Rent or additional monthly rent will
cause Landlord to incur costs and expenses, the exact amount of which is
extremely difficult and impractical to fix. Such costs and expenses will include
administration and collection costs and processing and accounting expanses.
Therefore, if any monthly installment of Base Rent or additional monthly rent is
not received by Landlord within five (5) days after such installment is due,
Tenant shall immediately pay to Landlord a late charge equal to five percent
(5%) of such delinquent installment. Landlord and Tenant agreed that such late
charge represents a reasonable estimate of such costs and expenses and is fair
reimbursement to Landlord. In no event shall such late charge be deemed to grant
to Tenant a grace period or extension of time within which to pay any monthly
rent or prevent Landlord from exercising any right or enforcing any remedy
available to Landlord upon Tenant's failure to pay each installment of monthly
rent due under this Lease when due, including the right to terminate this Lease
and recover all damages from Tenant. All amounts of money payable by Tenant to
Landlord hereunder, if not paid when due, shall bear interest from the due date
until paid at the rate of ten percent (10%) per annum, and Tenant shall pay such
interest to Landlord on written demand.
3.5 Other Taxes Payable by Tenant. Tenant shall reimburse Landlord
upon written demand for all taxes, assessments, excises, levies, fees and
charges, including all payments related to the cost of providing facilities or
services, whether or not now customary or within the contemplation of Landlord
and Tenant, that are payable by Landlord and levied, assessed, charged,
confirmed or imposed by any public or government authority upon, or measured by,
or reasonably attributable to (a) the cost or value of Tenant's furniture,
fixtures, equipment and other personal property located in the Premises or the
cost or value of any improvements made in or to the Premises by or for Tenant,
regardless of whether title to such improvements is vested in Tenant or
Landlord, (b) any rent payable under this Lease, including any gross income tax
or excise tax levied by any public or government authority with respect to the
receipt of any such rent so long as such tax is a tax on rent, (c) the
possession, leasing, operation, management, maintenance, alteration, repair, use
or occupancy by Tenant of the Premises, exclusive of any gross income tax or
excise tax levied by any public or government authority with respect to the
same, or (d) this transaction or any document to which Tenant is a party
creating or transferring an interest or an estate in the Premises. Such taxes,
assessments, excises, levies, fees and charges shall not include net income
(measured by the income of Landlord from all sources or from sources other than
solely rent) or franchise taxes of Landlord, unless
3
levied or assessed against Landlord in whole or in part in lieu of, as a
substitute for, or as an addition to any such taxes, assessments, excises,
levies, fees and charges. All taxes, assessments, excises, levies, fees and
charges payable by Tenant under this section 3.5 shall be deemed to be, and
shall be paid as, additional rent.
3.6 Certain Definitions. As used in this Lease, certain words are
defined as follows:
(a) "CAM Expenses" shall mean all direct and indirect costs and
expenses paid or incurred by Landlord in connection with the ownership,
management, operation, maintenance or repair of the Property or providing
services in accordance with this Lease, including license, permit and inspection
fees; electricity, gas, fuel, steam, heat, light, power, water, sewer and other
utilities; management fees and expenses; security, guard, extermination, water
treatment, garbage and waste disposal, rubbish removal, plumbing and other
services; snow and ice removal; maintenance of the fire suppression systems;
landscape maintenance; supplies, tools, materials and equipment; accounting and
other professional fees and expenses; painting the exterior of the Property;
maintaining and repairing the foundations, the exterior walls and roof, the
parking and loading areas, the sidewalks, landscaping and common areas, and the
other parts of the Property; costs and expenses required by or resulting from
compliance with any laws, ordinances, rules, regulations or orders applicable to
the Property; and costs and expenses of contesting by appropriate proceedings
any matter concerning managing, operating, maintaining or repairing the
Property, or the validity or applicability of any law, ordinance, rule,
regulation or order relating to the Property, or the amount or validity of any
Property Taxes. CAM Expenses shall not include Property Taxes, Insurance Costs,
charges payable by Tenant pursuant to section 3.5 hereof, depreciation on the
Property, costs of tenants' improvements, real estate brokers' commissions,
interest, or capital costs for major roof or major parking lot replacement or
restoration work necessitated by fire or other casualty damage to the extent of
net insurance proceeds received by Landlord with respect thereto; attorney's
fees, accounting fees and expenditures incurred in connection with negotiations,
disputes and claims of other tenants or occupants of the Property, or with
other third parties except as specifically provided in this Lease; advertising
expenses and other costs incurred in leasing or procuring new tenants; expenses
for which the Landlord is or will be reimbursed by another source, excluding
Tenant reimbursement for amounts payable under Section 3.1(b) hereof, including,
but not limited to, repair or replacement of any item covered by warranty;
expenses for the defense of the Landlord's title to the Property; structural
repairs and replacement, depreciation and amortization of the Property or
financing costs, including interest and principal amortization of debts;
charitable and political contributions; costs to correct original or latent
defects in the design, construction or equipment of the Property; the costs of
alteration of any tenant's premises, except for any alterations required by law;
or expenses in connection with services or other benefits of a type which are
not provided or available to Tenant but which are provided to another tenant of
the Property or which are paid to Landlord by such other tenant.
(b) "Property Taxes" shall mean all taxes, assessments, excises,
levies, fees and charges (and any tax, assessment, excise, levy, fee or charge
levied wholly or partly in lieu thereof or as a substitute therefor or as an
addition thereto) of every kind and description, general or special, ordinary or
extraordinary, foreseen or unforeseen, secured or unsecured, whether or not now
customary or within the contemplation of Landlord and Tenant, that are levied,
assessed, charged, confirmed or imposed by any public or government authority on
or against, or otherwise with respect to, the Property or any part thereof or
any personal property used in connection with the Property. Property Taxes shall
not include net income (measured by the income of Landlord from all sources or
from sources other than solely rent) or franchise taxes of Landlord, unless
levied or assessed against Landlord in whole or in part in lieu of, as a
substitute for, or as an addition to any Property Taxes. Property Taxes shall
not include charges payable by Tenant pursuant to section 3.5 hereof.
(c) "Insurance Costs" shall mean all premiums and other charges for
all property, earthquake, flood, loss of rental income, business interruption,
liability and other insurance relating to the Property carried by Landlord.
3.7 Rent Payment Address. Tenant shall pay all Base Rent and
additional monthly rent under section 3.1 hereof to Landlord, in advance, on or
before the first day of each and every calendar month during the term of this
Lease. Tenant shall pay all rent to Landlord without notice, demand, deduction
or offset, in lawful money of the United States of America, at the address for
the payment of rent specified in the Basic Lease Information, or to such other
person or at such other place as Landlord may from time to time designate in
writing.
ARTICLE 4
Use of the Premises
4.1 Permitted Use. Tenant shall use the Premises only for the
Permitted Use of the Premises specified in the Basic Lease Information and for
lawful purposes incidental thereto, and no other purpose whatsoever. Tenant
shall not do or permit to be done in, on or about the Premises, nor bring or
keep or permit to be brought or kept therein, anything which is prohibited by or
will in any way conflict with any law, ordinance, rule, regulation or order now
in force or which may hereafter be enacted, or which is prohibited by any
insurance policy carried by Landlord for the Property, or will in any way
increase the existing rate of. or disallow any fire rating or sprinkler credit,
or cause a cancellation of, or affect any insurance for the Property. If Tenant
causes any increase the premium for any insurance covering the Property carried
by Landlord, Tenant shall pay to Landlord, on written demand as additional rent,
the entire amount of such increase. Tenant shall not do or permit anything to be
done in or about the Premises which will in any way obstruct or interfere with
the rights of Landlord or other tenants of the Property, or injure or annoy
them. Tenant shall not use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable activity, nor shall Tenant cause, maintain or
permit any nuisance in, on or about the Premises or commit or suffer to be
committed any waste in, on or about the Premises. Tenant shall not store any
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materials, equipment or vehicles outside the Premises, provided, however, that
Tenant shall be permitted to park its trucks on the parking lot overnight, and
agrees that no washing of any type (including washing vehicles) shall take place
in or outside the Premises, provided, however, that Tenant shall have the right
to wash its vehicles, but only in the truck court area located behind the
Premises. Tenant shall not receive, store or otherwise handle any product or
material that is explosive or highly inflammable. Notwithstanding the foregoing,
Tenant shall be entitled to use paints and adhesives which from time to time are
customary in the operation of Tenant's business provided that such paints and
adhesives shall only be used for Tenant's business (and Tenant shall not produce
said paints or adhesives and the Premises) and no such paints or adhesives shall
be stored in bulk at the Premises. Tenant's use, storage and disposal of all
such paints and adhesives shall be in accordance with all laws, ordinances,
rules, regulations, orders and other requirements of any government or public
authority now in force or which may hereafter be in force, provided that Tenant
shall pay to Landlord, on written demand, all cost and expense incurred by
Landlord and attributable to Tenant's use, storage or disposal of such paints
and/or adhesives including by way of example and not limitation, any additional
sprinkler installations in the Premises. Landlord's consent to the use of such
paints and adhesives does not relieve Tenant of any obligations or indemnities
under this Lease, including, but not limited to, any obligations and indemnities
under Article 4 of this Lease, with respect to the use, storage or disposal of
such paints and/or adhesives or release Tenant from the obligation to pay any
increased insurance premiums that may be attributable to the use, storage or
disposal of such paints and/or adhesives by Tenant at the Premises. Tenant shall
not install any signs on the Premises without the prior written consent of
Landlord. Tenant shall, at Tenant's expense, remove all such signs prior to or
upon termination of this Lease, repair any damage caused by the installation or
removal of such signs, and restore the Premises to the condition that existed
before installation of such signs.
4.2 Environmental Definitions. As used in this Lease, "Hazardous
Material" shall mean any substance that is (a) defined under any Environmental
Law as a hazardous substance, hazardous waste, hazardous material, pollutant or
contaminant, (b) a petroleum hydrocarbon, including crude oil or any fraction or
mixture thereof, (c) hazardous, toxic, corrosive, flammable, explosive,
infectious, radioactive, carcinogenic or a reproductive toxicant, or (d)
otherwise regulated pursuant to any Environmental Law. As used in this Lease,
"Environmental Law" shall mean all federal, state and local laws, statutes,
ordinances, regulations, rules, judicial and administrative orders and decrees,
permits, licenses, approvals, authorizations and similar requirements of all
federal, state, and local governmental agencies or other governmental
authorities pertaining to the protection of human health and safety or the
environment, now existing or later adopted during the term of this Lease. As
used in this Lease, "Permitted Activities" shall mean the lawful activities of
Tenant that are part of the ordinary course of Tenant's business in accordance
with the Permitted Use specified in the Basic Lease Information. As used in this
Lease, "Permitted Materials" shall mean the materials handled by Tenant in the
ordinary course of conducting Permitted Activities.
4.3 Environmental Requirements. Tenant hereby agrees that: (a)
Tenant shall not conduct, or permit to be conducted, on the Premises any
activity which is not a Permitted Activity; (b) Tenant shall not use, store or
otherwise handle, or permit any use, storage or other handling of, any Hazardous
Material which is not a Permitted Material on or about the Premises; (c) Tenant
shall obtain and maintain in effect all permits and licenses required pursuant
to any Environmental Law for Tenant's activities on the Premises, and Tenant
shall at all times comply with all applicable Environmental Laws; (d) Tenant
shall not engage in the storage, treatment or disposal on or about the Premises
of any Hazardous Material except for any temporary accumulation of waste
generated in the course of Permitted Activities; (e) Tenant shall not install
any aboveground or underground storage tank or any subsurface lines for the
storage or transfer of any Hazardous Material, except for the lawful discharge
of waste to the sanitary sewer, and Tenant shall store all Hazardous Materials
in a manner that protects the Premises, the Property and the environment from
accidental spills and releases; (f) Tenant shall not cause or permit to occur
any release of any Hazardous Material or any condition of pollution or nuisance
on or about the Premises, whether affecting surface water or groundwater, air,
the land or the subsurface environment; (g) Tenant shall promptly remove from
the Premises any Hazardous Material introduced, or permitted to be introduced,
onto the Premises by Tenant which is not a Permitted Material and, on or before
the date Tenant ceases to occupy the Premises, Tenant shall remove from the
Premises all Hazardous Materials and all Permitted Materials handled by or
permitted on the Premises by Tenant; and (h) if any release of a Hazardous
Material to the environment, or any condition of pollution or nuisance, occurs
on or about or beneath the Premises as a result of any act or omission of Tenant
or its agents, officers, employees, contractors, invitees or licensees. Tenant
shall, at Tenant's sole cost and expense, promptly undertake all remedial
measures required to clean up and abate or otherwise respond to the release,
pollution or nuisance in accordance with all applicable Environmental Laws.
Landlord and Landlord's representatives shall have the right, but not the
obligation, to enter the Premises at any reasonable time for the purpose of
inspecting the storage, use and handling of any Hazardous Material on the
Premises in order to determine Tenant's compliance with the requirements of this
Lease and applicable Environmental Law. If Landlord gives written notice to
Tenant that Tenant's use, storage or handling of any Hazardous Material on the
Premises may not comply with this Lease or applicable Environmental Law, Tenant
shall correct any such violation within five (5) days after Tenant's receipt of
such notice from Landlord. Tenant shall indemnify and defend Landlord against
and hold Landlord harmless from all claims, demands, actions, judgments,
liabilities, costs, expenses, losses, damages, penalties, fines and obligations
of any nature (including reasonable attorneys' fees and disbursements incurred
in the investigation, defense or settlement of claims) that Landlord may incur
as a result of, or in connection with, claims arising from the presence, use,
storage, transportation, treatment, disposal, release or other handling, on or
about or beneath the Premises, of any Hazardous Material introduced or permitted
on or about or beneath the Premises by any act or omission of Tenant or its
agents, officers, employees, contractors, invitees or licensees. The liability
of Tenant under this section 4.3 shall survive the termination of this Lease
with respect to acts or omissions that occur before such termination.
Notwithstanding anything to the contrary herein, in the event any governmental
authorities require the removal of any Hazardous Materials located and existing
on the Premises prior to July 29, 1986 and, with respect to Suites
5
1950-1954 and Suite 1956 prior to the date of Tenant's possession of such
portion of the Premises. Landlord shall be solely responsible for the payment of
all costs in connection therewith, including the costs of removal or
encapsulation and the costs of repair and restoration of the Premises to the
condition existing immediately prior to such required removal or encapsulation
and Tenant's rent shall abate proportionately to Tenant's ability to continue
the operation of its business from the Premises during the period of such work.
In the event a governmental authority requires the removal of any Hazardous
Materials brought, stored or discharged upon the Premises by Tenant, its
contractors, subcontractors, agents, employees or servants, Tenant shall be
solely responsible for all such costs including, but not limited to, removal,
encapsulation and fines levied by such governmental authorities.
4.4 Compliance with Law. Tenant shall, at Tenant's sole cost and
expense, promptly comply with all laws, ordinances, rules, regulations, orders
and other requirements of any government or public authority now in force or
which may hereafter be in force, with all requirements of any board of fire
underwriters or other similar body now or hereafter constituted, and with all
directions and certificates of occupancy issued pursuant to any law by any
governmental agency or officer, insofar as any thereof relate to or are required
by the condition, use or occupancy of the Premises or the operation, use or
maintenance of any personal property, fixtures, machinery, equipment or
improvements in the Premises, but Tenant shall not be required to make
structural changes unless structural changes are related to or required by
Tenant's acts or use of the Premises or by improvements made by or for Tenant.
4.5 Rules and Regulations. Tenant shall faithfully observe and fully
comply with all rules and regulations (the "Rules and Regulations") from time to
time made in writing by Landlord for the safety, care, use and cleanliness of
the Property or the common areas of the Property and the preservation of good
order therein. If there is any conflict, this Lease shall prevail over the Rules
and Regulations.
4.6 Entry by Landlord. Landlord shall have the right to enter the
Premises at any time to (a) inspect the Premises upon three (3) days' prior
written notice, during normal business hours, expect in case of emergency, (b)
exhibit the Premises to prospective purchasers, lenders or tenants, (c)
determine whether Tenant is performing all of Tenant's obligations, (d) supply
any service to be provided by Landlord (e) post notices of nonresponsibility,
and (f) make any repairs to the Premises, or make any repairs to any adjoining
space or utility services, or make any repairs, alterations or improvements to
any other portion of the Property, provided all such work shall be done as
promptly as reasonably practicable and so as to cause as little interference to
Tenant as reasonably practicable. Tenant waives all claims for damages for any
injury or inconvenience to or interference with Tenant's business, any loss of
occupancy or quiet enjoyment of the Premises or any other loss occasioned by
such entry. Landlord shall have the right to use any and all means which
Landlord may deem proper to open such doors in an emergency to obtain entry to
the Premises. Any entry to the Premises obtained by Landlord by any of such
means shall not under any circumstances be construed or deemed to be a forcible
or unlawful entry into or a detainer of the Premises or an eviction, actual or
constructive, of Tenant from the Premises or any portion thereof.
ARTICLE 5
Utilities and Services
5.1 Tenant's Responsibilities. Tenant shall pay, directly to the
appropriate supplier before delinquency, for all water, gas, heat, light, power,
telephone, sewer, refuse disposal and other utilities and services supplied to
the Premises, together with all taxes, assessments, surcharges and similar
expenses relating to such utilities and services. If any such utilities or
services are jointly metered with the Premises and another part of the Property,
Landlord shall determine Tenant's share of the cost of such jointly metered
utilities and services based on Landlord's estimate of usage, and Tenant shall
pay as additional rent, Tenant's share of the cost of such jointly metered
utilities and services to Landlord within twenty (20) days after receipt of
Landlord's written statement for such cost. Tenant shall furnish the Premises
with all telephone service, window washing, security service, janitor, scavenger
and disposal services, and other services required by Tenant for the use of the
Premises permitted by this Lease. Tenant shall furnish all electric light bulbs
and tubes and restroom supplies used in the Premises. Landlord shall not be in
default under this Lease or be liable for any damage or loss directly or
indirectly resulting from, nor shall the rent be abated or a constructive or
other eviction be deemed to have occurred by reason of, any interruption of or
failure to supply or delay in supplying any such utilities and services or any
limitation, curtailment, rationing or restriction on use of water, electricity,
gas or any resource or form of energy or other service serving the Premises or
the Property, whether such results from mandatory restrictions or voluntary
compliance with guidelines.
ARTICLE 6
Maintenance and Repairs
6.1 Obligations of Landlord. Landlord shall maintain and repair only
the foundations, the exterior walls (which shall not include windows, glass or
plate glass, doors, special fronts, entries, or the interior surfaces of
exterior walls, all of which shall be the responsibility of Tenant), the roof
and other structural components of the Premises and the common areas of the
Property and keep them in good condition, reasonable wear and tear excepted.
Tenant shall give Landlord written notice of the need for any maintenance or
repair for which Landlord is responsible, after which Landlord shall have a
reasonable opportunity to perform the maintenance or make the repair, and
Landlord shall not be liable for any failure to do so unless such failure
continues for an unreasonable time after Tenant gives such written notice to
Landlord. Tenant waives any right to perform maintenance or make repairs for
which Landlord is responsible at Landlord's expense. Landlord's liability with
respect to any maintenance or repair for which Landlord is responsible shall be
limited to the cost of the maintenance or repair. Any damage to any part of the
Property for which Landlord is responsible that is caused by Tenant or any
agent, officer, employee, contractor, licensee or invitee of Tenant shall be
repaired by Landlord at
6
Tenant's expense and Tenant shall pay to Landlord, upon billing by Landlord, as
additional rent, the cost of such repairs incurred by Landlord.
6.2 Obligations of Tenant. Tenant shall, at all times during the
term of this Lease and at Tenant's sole cost end expense, maintain and repair
the Premises and every part thereof (except only the parts for which Landlord is
expressly made responsible under this Lease) and all equipment, fixtures and
improvements therein (including windows, glass, plate glass, doors, special
fronts, entries, the interior surfaces of exterior walls, interior walls,
floors, heating and air conditioning systems, dock boards, truck doors, dock
bumpers, plumbing fixtures and equipment, electrical components and mechanical
systems) and keep all of the foregoing clean and in good order and operating
condition, ordinary wear and tear excepted. Tenant shall not damage the Premises
or disturb the integrity and support provided by any wall. Tenant shall, at
Tenant's expense, promptly repair any damage to the Premises caused by Tenant or
any agent, officer, employee, contractor, licensee or invitee of Tenant. Tenant
shall take good care of the Premises and keep the Premises free from dirt,
rubbish, waste and debris at all times. Tenant shall not overload the floors in
the Premises or exceed the load-bearing capacity of the floors in the Premises.
Tenant shall, at Tenant's expense, enter into a regularly scheduled preventative
maintenance and service contract with a maintenance contractor approved in
writing by Landlord for servicing all hot water, heating and air conditioning
systems and equipment in the Premises. The maintenance and service contract
shall include all services suggested by the equipment manufacturer and shall
become effective (and Tenant shall deliver a copy to Landlord) within thirty
(30) days after the Commencement Date. Tenant shall, at the end of the term of
this Lease, surrender to Landlord the Premises and all alterations, additions,
fixtures and improvements therein or thereto in the same condition as when
received, ordinary wear and tear excepted. Notwithstanding anything to the
contrary contained in this Article 6, Tenant's obligation under this Section 6
shall not include making (i) any repair or improvement necessitated by the
negligence or willful misconduct of Landlord, its agents, employees, servants or
contractors; or (ii) any repair or improvement caused by Landlord's failure to
perform its obligations under this Lease.
ARTICLE 7
Alteration of the Premises
7.1 No Alterations by Tenant. Tenant shall not make any
alterations, additions or improvements in or to the Premises or any part
thereof, or attach any fixtures or equipment thereto, without Landlord's prior
written consent. Notwithstanding the preceding sentence, Tenant may make such
alterations, additions or improvements without Landlord's consent only if the
total cost of such alterations, additions or improvements is ten thousand
dollars ($10,000) or less and such alterations, additions or improvements will
not affect in any way the structural, exterior or roof elements of the Property
or the mechanical, electrical, plumbing or life safety systems of the Property,
but Tenant shall give prior written notice of any such alterations, additions or
improvements to Landlord. All alterations, additions and improvements (except
improvements made by Landlord pursuant to Exhibit B. if any, in or to the
Premises to which Landlord consents shall be made by Tenant at Tenant's sole
cost and expense as follows:
(a) Tenant shall submit to Landlord, for Landlord's written
approval, which shall not be unreasonably withheld or delayed, complete plans
and specifications for all work to be done by Tenant. Such plans and
specifications shall be prepared by responsible licensed architect(s) and
engineer(s), shall comply with all applicable codes, laws, ordinances, rules and
regulations, shall not adversely affect any systems, components or elements of
the Property, shall be in a form sufficient to secure the approval of all
government authorities with jurisdiction over the Property, and shall be
otherwise satisfactory to Landlord in Landlord's reasonable discretion.
(b) Tenant shall obtain all required permits for the work. Tenant
shall engage responsible licensed contractor(s) to perform all work. Tenant
shall perform all work in accordance with the plans and specifications approved
by Landlord, which shall not be unreasonably withheld or delayed, in a good and
workmanlike manner, in full compliance with all applicable laws, codes,
ordinances, rules and regulations, and free and clear of any mechanics' liens.
Tenant shall pay for all work (including the cost of all utilities, permits,
fees, taxes, and property and liability insurance premiums in connection
therewith) required to make the alterations, additions and improvements. Tenant
shall pay to Landlord all direct costs and shall reimburse Landlord for all
expenses incurred by Landlord in connection with the review, approval and
supervision of any alterations, additions or improvements made by Tenant. Under
no circumstances shall Landlord be liable to Tenant for any damage, loss, cost
or expense incurred by Tenant on account of design of any work, construction of
any work, or delay in completion of any work.
(c) Tenant shall give written notice to Landlord of the date on
which construction of any work will be commenced at least five (5) days prior to
such date. Tenant shall keep the Premises and the Property free from mechanics',
material men's and all other liens arising out of any work performed, labor
supplied, materials furnished or other obligations incurred by Tenant. Tenant
shall promptly and fully pay and discharge all claims on which any such lien
could be based. Tenant shall have the right to contest the amount or validity of
any such lien, provided Tenant gives prior written notice of such contest to
Landlord, prosecutes such contest by appropriate proceedings in good faith and
with diligence, and, upon request by Landlord, furnishes such bond as may be
required by law or such security as Landlord may require to protect the Premises
and the Property from such lien. Landlord shall have the right to post and keep
posted on the Premises any notices that may be provided by law or which Landlord
may deem to be proper for the protection of Landlord, the Premises and the
Property from such liens, and to take any other action Landlord deems necessary
to remove or discharge liens or encumbrances at the expense of Tenant.
7
7.2 Landlord's Property. All alterations, additions, fixtures and
improvements, including improvements made pursuant to Exhibit B (if any),
whether temporary or permanent in character, made in or to the Premises by
Landlord or Tenant, shall become pan of the Property and Landlord's property.
Upon termination of this Lease, Landlord shall have the right, at Landlord's
option, by giving written notice to Tenant at any time before or within sixty
(60) days after such termination, to retain all such alterations, additions,
fixtures, built-ins, and improvements in the Premises (provided said
alterations, additions, fixtures, built-ins, and improvements, including any
built-in items, have been paid for by Landlord pursuant to any tenant
improvement or construction allowance), without compensation to Tenant, or to
remove all such alterations, additions, fixtures, built-ins and improvements
from the Premises, repair all damage caused by any such removal, and restore the
Premises to the condition in which the Premises existed before such alterations,
additions, fixtures, built-ins and improvements were made, and in the latter
case Tenant shall pay to Landlord, upon billing by Landlord, the cost of such
removal, repair and restoration (including a reasonable charge for Landlord's
overhead and profit), Notwithstanding the foregoing, all built-in movable
furniture (paid for exclusively by Tenant), equipment, trade fixtures,
computers, office machines and other personal property shall remain the properly
of Tenant. Upon termination of this Lease, Tenant shall, at Tenant's expense,
remove all such built-in movable furniture, equipment, trade fixtures,
computers, office machines and other personal property from the Property and
repair all damage caused by any such removal. Termination of this Lease shall
not affect the obligations of Tenant pursuant to this section 7.2 to be
performed after such termination.
ARTICLE 8
Indemnification and Insurance
8.1 Damage or Injury. Landlord shall not be liable to Tenant, and
Tenant hereby waives all claims against Landlord, for any damage to or loss or
theft of any property or for any bodily or personal injury, illness or death of
any person in, on or about the Premises or the Property arising at any time and
from any cause whatsoever, except to the extent caused by the gross negligence
or willful misconduct of Landlord. Tenant shall indemnify and defend Landlord
against and hold Landlord harmless from all claims, demands, liabilities,
damages, losses, costs and expenses, including reasonable attorneys' fees and
disbursements, arising from or related to any use or occupancy of the Premises,
or any condition of the Premises, or any default in the performance of Tenant's
obligations under this Lease, or any damage 10 any property (including property
of employees and invitees of Tenant) or any bodily or personal injury, illness
or death of any person (including employees and invitees of Tenant) occurring
in, on or about the Premises or any part thereof arising at any time and from
any cause whatsoever (except to the extent caused by the gross negligence or
willful misconduct of Landlord) or occurring in, on or about any part of the
Property other than the Premises when such damages, bodily or personal injury,
illness or death is caused by any act or omission of Tenant or its agents,
officers, employees, contractors, invitees or licensees. Landlord shall
indemnify and defend Tenant against and hold Tenant harmless from all claims,
demands, liabilities, damages, losses, costs and expenses, including reasonable
attorneys' fees and disbursements, arising from or related to the willful
misconduct or gross negligence of Landlord with respect to the common areas of
the Property resulting in any damage to property (subject to Section 8.4
hereof), or any bodily or personal injury, illness or death of any person
(including employees and invitees of Tenant) (except to the extent such damage
to property, bodily or personal injury, illness or death is caused by any act or
omission of Tenant or its agents, officers, employees, contractors, invitees or
licensees). This section 8.1 shall survive the termination of this Lease with
respect to any damage, bodily or personal injury, illness or death occurring
prior 10 such termination.
8.2 Insurance Coverage and Amounts. Tenant shall, at all times
during the term of this Lease and at Tenant's sole cost and expense, obtain and
keep in force the insurance coverages and amounts set forth in this section 8.2.
Tenant shall maintain commercial general liability insurance, including
contractual liability, broad form property damage liability, fire legal
liability, premises and completed operations, and medical payments, with limits
not less than one million dollars ($1,000,000) per occurrence and aggregate,
insuring against claims for bodily injury, personal injury and property damage
arising from the use, occupancy or maintenance of the Premises and the Property.
The policy shall contain an exception to any pollution exclusion which insures
damage or injury arising out of heat, smoke or fumes from a hostile fire. Any
general aggregate shall apply on a per location basis. Tenant shall maintain
business auto liability insurance with limits not less than one million dollars
($1,000,000) per accident covering owned, hired and non-owned vehicles used by
Tenant. Tenant shall maintain umbrella excess liability insurance on a following
form basis in excess of the required commercial general liability, business auto
and employers liability insurance with limits not less than two million dollars
($2,000,000) per occurrence and aggregate. Tenant shall carry workers'
compensation insurance for all of its employees in statutory limits in the state
in which the Property is located and employers liability insurance which affords
not less than five hundred thousand dollars ($500,000) for each coverage. Tenant
shall maintain all risk property insurance for all personal property of Tenant
and improvements, fixtures and equipment constructed or installed by Tenant in
the Premises in an amount not less than the full replacement cost, which shall
include business income and extra expense coverage with limits not less than
fifty percent (50%) of gross revenues for a period of twelve (12) months. If
required by Landlord, Tenant shall maintain plate glass insurance coverage
against breakage of plate glass in the Premises. Any deductibles selected by
Tenant shall be the sole responsibility of Tenant.
8.3 Insurance Requirements. All insurance and all renewals thereof
shall be issued by companies with a rating of at least "A-" "VIII" or better in
the current edition of Best's Insurance Reports and be licensed to do and doing
business in the state in which the Property is located. Each policy shall
expressly provide that the policy shall not be canceled or materially altered
without thirty (30) days prior written notice to Landlord and shall remain in
effect notwithstanding any such cancellation or alteration until such notice
shall have been given to Landlord and such period of thirty (30) days shall have
expired. All liability insurance (except employers liability) shall name
Landlord and any oilier parties designated by Landlord (including any investment
manager,
8
asset manager or property manager) as an additional insured, shall be primary
and noncontributing with any insurance which may be carried by Landlord, shall
afford coverage for all claims based on any act, omission, event or condition
that occurred or arose (or the onset of which occurred or arose) during the
policy period, and shall expressly provide that Landlord, although named as an
insured, shall nevertheless be entitled to recover under the policy for any
loss, injury or damage to Landlord. All property insurance shall name Landlord
as loss payee as respects Landlord's interest in any improvements and
betterments. Tenant shall deliver certificates of insurance, acceptable to
Landlord, to Landlord at least ten (10) days before the Commencement Date and at
least ten (10) days before expiration of each policy. If Tenant fails to insure
or fails to furnish any such insurance certificate, Landlord shall have the
right from time to time to effect such insurance for the benefit of Tenant or
Landlord or both of them, and Tenant shall pay to Landlord on written demand, as
additional rent, all premiums paid by Landlord.
8.4 Subrogation. Tenant waives, on behalf of all insurers, under
all policies of property insurance now or hereafter carried by Tenant insuring
or covering the Premises, or any portion or any contents thereof, or any
operations therein, all rights of subrogation which any such insurer might
otherwise, if at all, have to any claims of Tenant against Landlord. Landlord
waives, on behalf of all insurers under all policies of property insurance now
or hereafter carried by Landlord insuring or covering the Property, or any
portion or any contents thereof, or any operations therein, all rights of
subrogation which any such insurer might otherwise, if at all, have to any
claims of Landlord against Tenant. Tenant shall procure from each of the
insurers under all policies of property insurance now or hereafter carried by
Tenant insuring or covering the Premises, or any portion or any contents
thereof, or any operations therein, a waiver of all rights of subrogation which
the insurer might otherwise, if at all, have to any claims of Tenant against
Landlord as required by this section 8.4.
8.5 Landlord Insurance Requirements. Landlord shall, at all times
during the term of this Lease, secure and maintain:
(a) All risk property insurance coverage on the Property. Landlord
shall not be obligated to insure any furniture, equipment, trade fixtures,
machinery, goods, or supplies which Tenant may keep or maintain in the Premises
or any alteration, addition or improvement which Tenant may make upon the
Premises. In addition, Landlord shall secure and maintain rental income
insurance. Landlord may elect to self-insure for the coverage's required under
this Section 8.5. If the annual cost to Landlord for such property or rental
income insurance exceeds the standard rates because of the nature of Tenant's
operations, Tenant shall, upon the receipt of appropriate invoices, reimburse
Landlord for such increased cost.
(b) Commercial general liability insurance with limits not less
than 55,000,000 per occurrence and aggregate. Such insurance shall be in
addition to, and not in lieu of, insurance required to be maintained by Tenant.
Landlord may elect to self-insure for this coverage. Tenant shall not be named
as an additional insured on any policy of liability insurance maintained by
Landlord.
ARTICLE 9
Assignment or Sublease
9.1 Prohibition. Tenant shall not, directly or indirectly, without
the prior written consent of Landlord (which consent shall not be unreasonably
withheld or delayed), assign this Lease or any interest herein, or sublease the
Premises or any part thereof, or permit the use or occupancy of the Premises by
any person or entity other than Tenant. Tenant shall not, directly or
indirectly, without the prior written consent of Landlord, which shall not be
unreasonably withheld or delayed, pledge, mortgage or hypothecate this Lease or
any interest herein. Notwithstanding the foregoing grammatical sentence,
Landlord hereby consents to the sublease from time to time of all or any portion
of the Premises to Build-A-Bear Workshop, L.L.C., a Missouri limited liability
company ("Build-A-Bear"). This Lease shall not, nor shall any interest herein,
be assignable as to the interest of Tenant involuntarily or by operation of law
without the prior written consent of Landlord. For purposes of this Lease, any
of the following transfers on a cumulative basis shall constitute an assignment
of this Lease that requires the prior written consent of Landlord: if Tenant is
a corporation, the transfer of more than forty-nine percent (49%) of the stock
of the corporation if Tenant is a partnership, the transfer of more than
forty-nine percent (49%) of the capital or profits interest in the partnership;
and if Tenant is a trust, the transfer of more than forty-nine (49%) of the
beneficial interest under the trust. Any of the foregoing acts, without such
prior written consent of Landlord, shall be void and shall, at the option of
Landlord, constitute a default that entitles Landlord to terminate this Lease.
Tenant agrees that the instrument by which any assignment or sublease to which
Landlord consents is accomplished shall expressly provide that the assignee or
subtenant will perform all of the covenants to be performed by Tenant under this
Lease (in the case of a sublease, only insofar as such covenants relate to the
portion of the Premises subject to such sublease and provided further, that only
in the event of a sublease of all or a portion of the Premises to Build-A-Bear,
Build-A-Bear shall not be required to carry business income and extra expense
insurance) as and when performance is due after the effective date of the
assignment or sublease and that Landlord will have the right to enforce such
covenants directly against such assignee or subtenant. Any purported assignment
or sublease without an instrument containing the foregoing provisions shall be
void. Tenant shall in all cases remain liable for the performance by any
assignee or subtenant of all such covenants.
Without first obtaining Landlord's written consent, the Tenant named
herein may, at any time and from time to time, assign its interest under this
Lease or sublet all or any part of the Premises to a Related Corporation (as
hereinafter defined) to the Tenant named herein or a Successor Corporation (as
hereinafter defined) to the Tenant named herein (provided said Related
Corporation or Successor Corporation, as the case may be, has a net worth as of
the date of said assignment or transfer equal to or greater than that of Tenant,
expressly assumes this Lease and Tenant's obligations hereunder, without release
of the Tenant named herein, and delivers to Landlord
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such assumption in writing prior to the effective date of such assignment or
sublease). The term "Related Corporation" means a corporation, partnership, or
other business entity, which, directly or indirectly controls, is controlled by,
or is under common control with, another corporation, partnership, or other
business entity. If more than fifty percent (50%) of the voting stock of a
corporation shall be owned by another corporation or by any partnership or other
business entity, the corporation whose stock is 50 owned shall be deemed to be
controlled by the corporation, partnership, or business entity owning such
stock. The term "Successor Corporation" means a corporation or other business
entity into or with which another corporation or other business entity shall be
merged or consolidated or to which all or substantially all of the assets of
such other corporation or other business entity shall be transferred.
9.2 Landlord's Consent or Termination. If Tenant wishes to assign
this Lease or sublease all or any part of the Premises. Tenant shall give
written notice to Landlord identifying the intended assignee or subtenant by
name and address and specifying all of the terms of the intended assignment or
sublease. Tenant shall give Landlord such additional information concerning the
intended assignee or subtenant (including complete financial statements and a
business history) or the intended assignment or sublease (including true copies
thereof) as Landlord requests. Except for a sublease to Build-A-Bear and the
assignments permitted without consent pursuant to Section 9.1 above, for a
period of thirty (30) days after such written notice is given by Tenant,
Landlord shall have the right, by giving written notice to Tenant, (a) to
consent in writing to the intended assignment or sublease, unless Landlord
determines not to consent, or (b) in the case of an assignment of this Lease or
sublease of substantially the entire Premises for substantially the balance of
the term of this Lease, to terminate this Lease, which termination shall be
effective as of the date on which the intended assignment or sublease would have
been effective if Landlord had not exercised such termination right.
9.3 Completion. If Landlord consents in writing, Tenant may
complete the intended assignment or sublease subject to the following covenants:
(a) the assignment or sublease shall be on the same terms as set forth in the
written notice given by Tenant to Landlord, (b) no assignment or sublease shall
be valid and no assignee or subtenant shall take possession of the Premises or
any part thereof until an executed duplicate original of such assignment or
sublease, in compliance with section 9.1 hereof, has been delivered to Landlord,
(c) no assignee or subtenant shall have a right further to assign or sublease,
and (d) all "excess rent" (as hereinafter defined) derived from such assignment
or sublease shall be paid to Landlord. Such excess rent shall be deemed to be,
and shall be paid by Tenant to Landlord as additional rent. Tenant shall pay
such excess rent to Landlord immediately as and when such excess rent becomes
due and payable to Tenant. As used in this section 9.3, "excess rent" shall mean
the amount by which the total money and other economic consideration to be paid
by the assignee or subtenant as a result of an assignment or sublease, whether
denominated rent or otherwise, exceeds, in the aggregate, the total amount of
rent which Tenant is obligated to pay to Landlord under this Lease (prorated to
reflect the rent allocable to the portion of the Premises subject to such
assignment or sublease), less only the reasonable costs paid by Tenant for
additional improvements installed in the portion of the Premises subject to such
assignment or sublease by Tenant at Tenant's sole cost and expense for the
specific assignee or subtenant in question and reasonable leasing commissions
paid by Tenant in connection with such assignment or sublease, without deduction
for carrying costs due to vacancy or otherwise. Such costs of additional
improvements and leasing commissions shall be amortized without interest over
the term of such assignment or sublease.
9.4 Tenant Not Released. No assignment or sublease whatsoever
shall release Tenant from Tenant's obligations and liabilities under this Lease
or alter the primary liability of Tenant to pay all rent and to perform all
obligations to be paid and performed by Tenant. No assignment or sublease shall
amend or modify this Lease in any respect, and every assignment and sublease
shall be subject and subordinate to this Lease. The acceptance of rent by
Landlord from any other person or entity shall not be deemed to be a waiver by
Landlord of any provision of this Lease. Consent to one assignment or sublease
shall not be deemed consent to any subsequent assignment or sublease. Tenant
shall pay to Landlord all direct costs and shall reimburse Landlord for all
expenses incurred by Landlord in connection with any assignment or sublease
requested by Tenant. If any assignee, subtenant or successor of Tenant defaults
in the performance of any obligation to be performed by Tenant under this Lease,
Landlord may proceed directly against Tenant without the necessity of
exhausting remedies against such assignee, subtenant or successor. Landlord may
consent to subsequent assignments or subleases or amendments or modifications to
this Lease with assignees, subtenants or successors of Tenant, without notifying
Tenant or any successor of Tenant and without obtaining any consent thereto from
Tenant or any successor of Tenant, and such action shall not release Tenant from
liability under this Lease.
ARTICLE 10
Events of Default and Remedies
10.1 Default by Tenant. The occurrence of any one or more of the
following events ("Event of Default") shall constitute a breach of this Lease by
Tenant:
(a) Tenant fails to pay any Base Rent, or any additional monthly
rent under section 3.1 hereof, or any additional rent or other amount of money
or charge payable by Tenant hereunder as and when such rent becomes due and
payable and such failure continues for more than five (5) days after Landlord
gives written notice thereof to Tenant, provided, however, that after the second
such failure in a calendar year, only the passage of time, but no further
written notice, shall be required to establish an Event of Default in the same
calendar year; or
(b) Tenant fails to perform or breaches any other agreement or
covenant of this Lease to be performed or observed by Tenant as and when
performance or observance is due and such failure or breach continues for more
than twenty (20) days after Landlord gives written notice thereof to Tenant;
provided, however,
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that if, by the nature of such agreement or covenant, such failure or breach
cannot reasonably be cured within such period of twenty (20) days, an Event of
Default shall not exist as long as Tenant commences with due diligence and
dispatch the curing of such failure or breach within such period of twenty (20)
days and, having so commenced, thereafter prosecutes with diligence and dispatch
and completes the curing of such failure or breach; or
(c) Tenant (i) files, or consents by answer or otherwise to the
filing against it of, a petition for relief or reorganization or arrangement or
any other petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy, insolvency or other debtors' relief law of any jurisdiction, (ii)
makes an assignment for the benefit of its creditors, or (iii) consents to the
appointment of a custodian, receiver, trustee or other officer with similar
powers of Tenant or of any substantial part of Tenant's property; or
(d) Without consent by Tenant, a court or government authority
enters an order, and such order is not vacated within thirty (30) days, (i)
appointing a custodian, receiver, trustee or other officer with similar powers
with respect to Tenant or with respect to any substantial part of Tenant's
property, or (ii) constituting an order for relief or approving a petition for
relief or reorganization or arrangement or any other petition in bankruptcy or
for liquidation or to take advantage of any bankruptcy, insolvency or other
debtors' relief law of any jurisdiction, or (iii) ordering the dissolution,
winding-up or liquidation of Tenant; or
(e) This Lease or any estate of Tenant hereunder is levied upon
under any attachment or execution and such attachment or execution is not
vacated within thirty (30) days; or
(f) Tenant abandons the Premises.
10.2 Termination. If an Event of Default occurs, Landlord shall
have the right at any time to give a written termination notice to Tenant and,
on the date specified in such notice, Tenant's right to possession shall
terminate and this Lease shall terminate. Upon such termination, Landlord shall
have the full and immediate right to possession of the Premises and Landlord
shall have the right to recover from Tenant all unpaid rent which had been
earned at the time of termination, all unpaid rent for the balance of the term
of this Lease after termination, and all other amounts necessary to compensate
Landlord for all the detriment proximately caused by Tenant's failure to perform
all of Tenant's obligations under this Lease or which in the ordinary course of
things would be likely to result therefrom.
10.3 Continuation. If an Event of default occurs, this Lease shall
continue in effect for so long as Landlord does not terminate Tenant's right to
possession, and Landlord shall have the right to enforce all its rights and
remedies under this Lease, including the right to recover all rent as it becomes
due under this Lease. Acts of maintenance or preservation or efforts to relet
the Premises or the appointment of a receiver upon initiative of Landlord to
protect Landlord's interest under this Lease shall not constitute a termination
of Tenant's right to possession unless written notice of termination is given by
Landlord to Tenant.
10.4 Remedies Cumulative. Upon the occurrence of an Event of
Default, Landlord shall have the right to exercise and enforce all rights and
remedies granted or permitted by law. The remedies provided for in this Lease
are cumulative and in addition to all other remedies available to Landlord at
law or in equity by statute or otherwise. Exercise by Landlord of any remedy
shall not be deemed to be an acceptance of surrender of the Premises by Tenant,
either by agreement or by operation of law. Surrender of the Premises can be
effected only by the written agreement of Landlord and Tenant.
10.5 Tenant's Primary Duty. All agreements and covenants to be
performed or observed by Tenant under this Lease shall be at Tenant's sole cost
and expense and without any abatement of rent. If Tenant fails to pay any sum of
money to be paid by Tenant or to perform any other act to be performed by Tenant
under this Lease. Landlord shall have the right, but shall not be obligated, and
without waiving or releasing Tenant from any obligations of Tenant, to make any
such payment or to perform any such other act on behalf of Tenant in accordance
with this Lease. All sums so paid by Landlord and all costs incurred or paid by
Landlord shall be deemed additional rent hereunder and Tenant shall pay the same
to Landlord on written demand, together with interest on all such sums and costs
from the date of expenditure by Landlord to the date of repayment by Tenant at
the rate of ten percent (10%) per annum.
10.6 Abandoned Property. If Tenant abandons the Premises, or is
dispossessed by process of law or otherwise, any movable furniture, equipment,
trade fixtures or personal property belonging to Tenant and left in the Premises
shall be deemed to be abandoned, at the option of Landlord, and Landlord shall
have the right to sell or otherwise dispose of such personal property in any
commercially reasonable manner.
10.7 Landlord Default. If Landlord defaults under this Lease,
Tenant shall give written notice to Landlord specifying such default with
particularity, and Landlord shall have thirty (30) days after receipt of such
notice within which to cure such default. In the event of any default by
Landlord, Tenant's exclusive remedy shall be an action for damages.
Notwithstanding any other provision of this Lease, Landlord shall not have any
personal liability under this Lease. In the event of any default by Landlord
under this Lease, Tenant agrees to look solely to the equity or interest then
owned by Landlord in the Property, and in no event shall any deficiency judgment
or personal money judgment of any kind be sought or obtained against Landlord.
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ARTICLE 11
Damage or Destruction
11.1 Restoration. If the Property or the Premises, or any part
thereof, is damaged by fire or other casually before the Commencement Date or
during the term of this Lease, and this Lease is not terminated pursuant to
section 11.2 hereof, Landlord shall repair such damage and restore the Property
and the Premises to substantially the same condition in which the Property and
the Premises existed before occurrence of such fire or other casualty and
this Lease shall, subject to this section 11.1, remain in full force and effect.
If such fire or other casualty damages the Premises or common areas of the
Property necessary for Tenant's use and occupancy of the Premises and if such
damage is not the result of the negligence or willful misconduct of Tenant or
Tenant's agents, officers, employees, contractors, licensees or invitees, then,
during the period the Premises is rendered unusable by such damage, Tenant shall
be entitled to a reduction in Base Rent in the proportion that the area of the
Premises rendered unusable by such damage bears to the total area of the
Premises. Landlord shall not be obligated to repair any damage to, or to make
any replacement of, any movable furniture, equipment, trade fixtures or personal
property in the Premises. Tenant shall, at Tenant's sole cost and expense,
repair and replace all such movable furniture, equipment, trade fixtures and
personal property.
11.2 Termination of Lease. If the Property or the Premises, or any
part thereof, is damaged by fire or other casualty before the Commencement Date
or during the term of this Lease and (a) such fire or other casualty occurs
during the last twelve (12) months of the term of this Lease and the repair and
restoration work to be performed by Landlord in accordance with section 11.1
hereof cannot, as reasonably estimated by Landlord, be completed within sixty
(60) days after the occurrence of such fire or other casualty, or (b) the
insurance proceeds received by Landlord in respect of such damage are not
adequate to pay the entire cost, as reasonably estimated by Landlord, of the
repair and restoration work to be performed by Landlord in accordance with
section 11.1 hereof (including inadequacy resulting from the requirement of the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises that the insurance proceeds be applied to such indebtedness), or (c)
the repair and restoration work to be performed by Landlord in accordance with
section 11.1 hereof cannot, as reasonably estimated by Landlord, be completed
within one hundred twenty (120) days after the occurrence of such fire or other
casualty, then, in any such event, Landlord or Tenant shall have the right, by
giving written notice to the other party hereto within sixty (60) days after the
occurrence of such fire or other casualty, to terminate this Lease as of the
date of such notice. If Landlord or Tenant does not exercise the right to
terminate this Lease in accordance with this section 11.2, Landlord shall repair
such damage and restore the Property and the Premises in accordance with section
11.1 hereof and this Lease shall, subject to section 11.1 hereof, remain in full
force and effect.
ARTICLE 12
Eminent Domain
12.1 Condemnation. Landlord shall have the right to terminate this
Lease if any part of the Premises or any substantial part of the Property
(whether or not it includes the Premises) is taken by exercise of the power of
eminent domain before the Commencement Date or during the term of this Lease.
Tenant shall have the right to terminate this Lease if a substantial portion of
the Premises is taken by exercise of the power of eminent domain before the
Commencement Date or during the term of this Lease and the remaining portion of
the Premises is not reasonably suitable for Tenant's purposes. In each such
case, Landlord or Tenant shall exercise such termination right by giving
written notice to the other within thirty (30) days after the date of such
taking. If either Landlord or Tenant exercises such right to terminate this
Lease in accordance with this section 12.1, this Lease shall terminate as of the
date of such taking. If neither Landlord nor Tenant exercises such right to
terminate this Lease in accordance with this section 12.1, this Lease shall
terminate as to the portion of the Premises so taken as of the date of such
taking and shall remain in full force and effect as to the portion of the
Premises not so taken, and the Base Rent and Tenant's Percentage Share shall be
reduced as of the date of such taking in the proportion that the area of the
Premises so taken bears to the total area of the Premises. If all of the
Premises is taken by exercise of the power of eminent domain before the
Commencement Date or during the term of this Lease, this Lease shall terminate
as of the date of such taking.
12.2 Award. If all or any part of the Premises is taken by exercise
of the power of eminent domain, all awards, compensation, damages, income, rent
and interest payable in connection with such taking shall, except as expressly
set forth in this section 12.2, be paid to and become the property of Landlord,
and Tenant hereby assigns to Landlord all of the foregoing. Without limiting the
generality of the foregoing, Tenant shall have no claim against Landlord or the
entity exercising the power of eminent domain for the value of the leasehold
estate created by this Lease or any unexpired term of this Lease. Tenant shall
have the right to claim and receive directly from the entity exercising the
power of eminent domain only the share of any award determined to be owing to
Tenant for the taking of improvements installed in the portion of the Premises
so taken by Tenant at Tenant's sole cost and expense based on the unamortized
cost actually paid by Tenant for such improvements, for the taking of Tenant's
movable furniture, equipment, trade fixtures and personal property, for loss of
goodwill, for interference with or interruption of Tenant's business, or for
removal and relocation expenses.
12.3 Temporary Use. Notwithstanding sections 12.1 and 12.2 hereof
to the contrary, if the use of all or any part of the Premises is taken by
exercise of the power of eminent domain during the term of this Lease on a
temporary basis for a period less than the term of this Lease remaining after
such taking, this Lease shall continue in full force and effect. Tenant shall
continue to pay all of the rent and to perform all of the covenants of Tenant in
accordance with this Lease, to the extent reasonably practicable under the
circumstances, and the condemnation proceeds in respect of such temporary taking
shall be paid to Tenant.
12
12.4 Definition of Taking. As used herein, a "taking" means the
acquisition of all or part of the Property for a public use by exercise of the
power of eminent domain or voluntary conveyance in lieu thereof and the taking
shall be considered to occur as of the earlier of the date on which possession
of the Property (or part so taken) by the entity exercising the power of eminent
domain is authorized as stated in an order for possession or the date on which
title to the Properly (or part so taken) vests in the entity exercising the
power of eminent domain.
ARTICLE 13
Subordination and Sale
13.1 Subordination. This Lease shall be subject and subordinate at
all times to the lien of all mortgages and deeds of trust securing any amount or
amounts whatsoever which may now exist or hereafter be placed on or against the
Property or on or against Landlord's interest or estate therein, all without the
necessity of having further instruments executed by Tenant to effect such
subordination. Notwithstanding the foregoing, in the event of a foreclosure of
any such mortgage or deed of trust or of any other action or proceeding for the
enforcement thereof, or of any sale thereunder, this Lease shall not be
terminated or extinguished, nor shall the rights and possession of Tenant
hereunder be disturbed, if no Event of Default (beyond any applicable cure
period) then exists under this Lease, and Tenant shall attorn to the person who
acquires Landlord's interest hereunder through any such mortgage or deed of
trust. Tenant agrees to execute, acknowledge and deliver upon demand such
further instruments evidencing such subordination of this Lease to the lien of
all such mortgages and deeds of trust as may reasonably be required by Landlord.
Notwithstanding the foregoing, if the holder of any such mortgage or deed of
trust requests that this Lease be made superior, rather than subordinate to such
deed of trust or mortgage, then Tenant agrees to execute, acknowledge and
deliver upon demand such instruments effectuating such priority.
13.2 Sale of the Property. If the original Landlord hereunder, or
any successor owner of the Property, sells or conveys the Property, all
liabilities and obligations on the part of the original Landlord, or such
successor owner, under this Lease accruing after such sale or conveyance shall
terminate and the original Landlord, or such successor owner, shall
automatically be released therefrom, and thereupon all such liabilities and
obligations shall be binding upon the new owner, Tenant agrees to attorn to such
new owner.
13.3 Estoppel Certificate. At any time and from time to time,
Landlord or Tenant shall, within thirty (30) days after written request by
Landlord, execute, acknowledge and deliver to the other party hereto a
certificate certifying; (a) that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that this Lease is in full force
and effect as modified, and stating the date and nature of each modification);
(b) the Commencement Date and the Expiration Date determined in accordance with
Article 2 hereof and the date, if any, to which all rent and other sums payable
hereunder have been paid; (c) that no notice has been received of any default
hereunder which has not been cured, except as to defaults specified in such
certificate; (d) that there is no default under this Lease, except as to
defaults specified in such certificate; and (e) such other matters as may be
reasonably requested by the requesting party or any actual or prospective
purchaser or mortgage lender. Landlord shall not be required to give any such
estoppel certificate more than once per calendar year. Any such certificate may
be relied upon by the requesting party and any actual or prospective purchaser
or mortgage lender of the Property or any part thereof. At any time and from
time to time, Tenant shall, within ten (10) days after written request by
Landlord, deliver to Landlord copies of all current financial statements
(including a balance sheet, an income statement, and an accumulated retained
earnings statement), annual reports, and other financial and operating
information and data of Tenant prepared by Tenant in the course of Tenant's
business, which Tenant has already prepared at the time of such, request. Unless
available to the public, Landlord shall disclose such financial statements,
annual reports and other information or data only to actual or prospective
purchasers or mortgage lenders of the Property or any part thereof, and
otherwise keep them confidential unless other disclosure is required by law.
ARTICLE 14
Notices
14.1 Method. All requests, approvals, consents, notices and other
communications given by Landlord or Tenant under this Lease shall be properly
given only if made in writing and either deposited in the United States mail,
postage prepaid, certified with return receipt requested, or delivered by hand
(which may be through a messenger or recognized delivery, courier or air express
service, which obtains a receipt for delivery) and addressed as follows: To
Landlord at the address of Landlord specified in the Basic Lease Information, or
at such other place as Landlord may from time to time designate in a written
notice to Tenant; to Tenant at the address of Tenant specified in the Basic
Lease Information, or at such other place as Tenant may from time to time
designate in a written notice to Landlord; and to Guarantor at the address of
Guarantor specified in the Basic Lease information, or at such other place as
Guarantor may from time to time designate in a written notice to Landlord. Such
requests, approvals, consents, notices and other communications shall be
effective on the date of receipt (evidenced by the certified mail receipt) if
mailed or on the date of hand delivery if hand delivered. If any such request,
approval, consent, notice or other communication is not received or cannot be
delivered due to a change in the address of the receiving party of which notice
was not previously given to the sending party or due to a refusal to accept by
the receiving party, such request, approval, consent, notice or other
communication shall be effective on the date delivery is attempted. Any request,
approval, consent, notice or other communication under this Lease may be given
on behalf of a party by the attorney for such party.
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ARTICLE 15
Miscellaneous
15.1 General. The words "Landlord" and "Tenant" as used herein
shall include the plural as well as the singular. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation". If there is more than one Tenant, the obligations hereunder imposed
upon Tenant shall be joint and several. Time is of the essence of this Lease and
each and all of its provisions. This Lease shall benefit and bind Landlord and
Tenant and the permitted personal representatives, heirs, successors and assigns
of Landlord and Tenant. If any provision of this Lease is determined to be
illegal or unenforceable, such determination shall not affect any other
provision of this Lease and all such other provisions shall remain in full force
and effect. Tenant shall not record this Lease or any memorandum or short form
of it. This Lease shall be governed by and construed in accordance with the laws
of the state in which the Property is located.
15.2 No Waiver. The waiver by Landlord or Tenant of any breach of
any covenant in this Lease shall not be deemed to be a waiver of any subsequent
breach of the same or any other covenant in this Lease, nor shall any custom or
practice which may grow up between Landlord and Tenant in the administration of
this Lease be construed to waive or to lessen the right of Landlord or Tenant to
insist upon the performance by Landlord or Tenant in strict accordance with
this Lease. The subsequent acceptance of rent hereunder by Landlord or the
payment of rent by Tenant shall not waive any preceding breach by Tenant of any
covenant in this Lease, nor cure any Event of Default, nor waive any forfeiture
of this Lease or unlawful detainer action, other than the failure of Tenant to
pay the particular rent so accepted, regardless of Landlord's or Tenant's
knowledge of such preceding breach at the time of acceptance or payment of such
rent.
15.3 Attorneys' Fees. If there is any legal action or proceeding
between Landlord and Tenant to enforce this Lease or to protect or establish any
right or remedy under this Lease, the unsuccessful party to such action or
proceeding shall pay to the prevailing party all costs and expenses, including
reasonable attorneys' fees and disbursements incurred by such prevailing party
in such action or proceeding and in any appeal in connection therewith. If such
prevailing party recovers a judgment in any such action, proceeding or appeal,
such costs, expenses and attorneys' fees and disbursements shall be included in
and as a part of such judgment.
15.4 Exhibits. Exhibit A (Plan(s) Outlining the Premises and the
Property), Exhibit B (Description of Landlord's Work), Exhibit C (Form of
Memorandum Confirming Term), Exhibit D (Renewal Option) and any other
attachments specified in the BASIC LEASE INFORMATION, are attached to and made a
part of this Lease.
15.5 Broker(s). Tenant warrants and represents to Landlord that
Tenant has negotiated this Lease directly with the real estate broker(s)
specified in the BASIC LEASE INFORMATION and has not authorized or employed, or
acted by implication to authorize or to employ, any other real estate broker to
act for Tenant in connection with this Lease. Landlord agrees to pay any all
brokerage fees and commissions to the real estate broker(s) specified in the
BASIC LEASE INFORMATION.
15.6 Waivers of Jury Trial and Certain Damages. Landlord and Tenant
each hereby expressly, irrevocably, fully and forever releases, waives and
relinquishes any and all right to trial by jury and any and all right to receive
punitive, exemplary and consequential damages from the other (or any past,
present or future board member, trustee, director, officer, employee, agent,
representative, or advisor of the other) in any claim, demand, action, suit,
proceeding or cause of action in which Landlord and Tenant are parties, which in
any way (directly or indirectly) arises out of, results from or relates to any
of the following, in each case whether now existing or hereafter arising and
whether based on contract or tort or any other legal basis: This Lease; any
past, present, or future act, omission, conduct or activity with respect to this
Lease; any transaction, event or occurrence contemplated by this Lease; the
performance of any obligation or the exercise of any right under this Lease; or
the enforcement of this Lease. Landlord and Tenant reserve the right to recover
actual or compensatory damages, with interest, attorneys' fees, costs and
expenses as provided in this Lease, for any breach of this Lease.
15.7 Entire Agreement. There are no oral agreements between
Landlord and Tenant affecting this Lease, and this Lease supersedes and cancels
any and all previous negotiations, arrangements, brochures, offers, agreements,
and understandings, oral or written, if any, between Landlord and Tenant or
displayed by Landlord to Tenant with respect to the subject matter of this
Lease, the Premises or the Property. There are no commitments, representations
or assurances between Landlord and Tenant or between any real estate broker and
Tenant other than those expressly set forth in this Lease and all reliance with
respect to any commitments, representations or assurances is solely upon
commitments, representations and assurances expressly set forth in this Lease.
This Lease may not be amended or modified in any respect whatsoever except by an
agreement in writing signed by Landlord and Tenant.
14
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as
of the date specified in the Basic Lease Information.
NEWSPACE, INC., STATE OF CALIFORNIA PUBLIC EMPLOYEES'
a Missouri corporation RETIREMENT SYSTEM, a unit of the State
and Consumer Services Agency of the State
of California
By: CalEast Industrial Investors, LLC.
By: ___________________________ Its: Duly authorized agent
Name_______________________
Title______________________ By: LaSalle Investment Management, Inc.
Its: Manager
By: _____________________________________
Rebecca S. Smith
Its: Vice President
15
EXHIBIT A
Plan(s) Outlining the Premises and the Property
Premises: Suites 1950-54, 1956, 1958, 1960-62, 1964, and 1990, comprising.
45,696 total square feet.
[FLOOR PLAN]
Building Name [ILLEGIBLE] Business Description Marketing State of California TRAMMELL
Center Plan Public Employee's CROW
Building Code BIBC Date [ILLEGIBLE] Retirement System COMPANY
Building [ILLEGIBLE] [ILLEGIBLE] Project No. [ILLEGIBLE] Advisor: GRAY
LaSelle Advisors LTD.
This site plan or floor plan is used solely for the purpose of identifying the
approximate location and size of the Premises. Building sizes, site dimensions,
access, common and parking areas, and existing tenants and locations are subject
to change at Landlord's discretion.
Exhibit A-1
EXHIBIT B
Description of Landlord's Work
NONE
EXHIBIT C
MEMORANDUM CONFIRMING TERM
THIS MEMORANDUM, made as of June 14, 2000, by and between STATE OF
CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM, a unit of the State and Consumer
Services Agency of the State of California ("Landlord"), and NEWSPACE, INC., a
Missouri corporation, ("Tenant").
WITNESSETH:
Recital of Facts:
Landlord and Tenant entered into the Industrial Lease (the "Lease") dated
June 14, 2000. Words defined in the Lease have the same meanings in this
Memorandum.
NOW, THEREFORE, in consideration of the covenants in the Lease, Landlord
and Tenant agree as follows:
1. Landlord and Tenant hereby confirm that:
(a) The Commencement Date under the Lease is June 14, 2000
(b) The Expiration Date under the Lease is June 30, 2008
(c) Landlord has delivered possession of the Premises to Tenant as
required by the Lease, and Tenant's obligation to pay rent begins under
the Lease is June 14, 2000.
2. Tenant hereby confirms that:
(a) All commitments, representations and assurances made to induce
Tenant to enter into the Lease have been fully satisfied;
(b) All improvements to the Property and in the Premises to be
constructed or installed by Landlord have been completed and furnished
in accordance with the Lease to the satisfaction of Tenant; and
(c) Tenant has accepted and is in full and complete possession of the
Premises.
3. This Memorandum shall be binding upon and inure to the benefit of
Landlord and Tenant and their permitted successors and assigns under
the Lease. The Lease is in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum as
of the date first hereinabove written.
NEWSPACE, INC. STATE OF CALIFORNIA PUBLIC EMPLOYEES'
a Missouri corporation RETIREMENT SYSTEM, a unit of the State and
Consumer Services Agency of the State of California
By: CalEast Industrial Investors, LLC.
By: _______________________ Its: Duly authorized agent
Name____________________
Title___________________ By: LaSalle Investment Management, Inc.
Its: Manager
By:______________________________________
Rebecca S. Smith
Its: Vice President
EXHIBIT D
ADDENDUM ATTACHED TO AND MADE A PART OF INDUSTRIAL
LEASE BETWEEN
STATE OF CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM, LANDLORD, AND
NEWSPACE, INC.
16. Suite 1990. The term of the Lease with respect to Suite 1990 (approximately
4,947 square feet, more or less) shall terminate and be of no further force or
effect on June 30, 2003. Tenant shall vacate and surrender possession of Suite
1990 in accordance with the terms of the Lease on or before June 30, 2003.
Provided there is no outstanding Event of Default beyond any applicable cure
period by Tenant under this Lease and subject to the terms and conditions of
this Section. Tenant shall have two (2) options to renew ("Option to Renew") the
term of the Lease with respect to Suite 1990 for two (2) periods of five (5)
years each ("Option Terms"). If the Options to Renew are exercised during any
applicable cure period following an event, which with the passage of time or the
giving of notice, or both, would constitute an Event of Default, then such
exercise shall be void and of no further force or effect unless the cure is
fully completed within the applicable cure period, but in no event later than
the expiration or earlier termination of the Lease. Except as set forth in this
Section, all terms and conditions shall remain the same during the Option Terms
except the Base Rent for Suite 1990 shall be adjusted to the then Fair Market
Rental Rate. Unless otherwise agreed, there shall be no rent concessions or
tenant improvements. "Fair Market Rental Rate" shall mean the market rental then
being offered for comparable space in comparable location and condition to Suite
1990, computed as described in the remainder of this Section. If Tenant fails to
notify Landlord in writing of its intent to exercise its Options to Renew as set
forth in the preceding paragraph, the Options to Renew shall terminate, and
Landlord shall be free to enter into a Lease with a third party. If Tenant fails
to exercise the first five year Option to Renew for Suite 1990, then the second
five year Option to Renew shall terminate.
Tenant shall give Landlord written notice of Its intent to exercise
the Options to Renew at least six (6) months but not more than fifteen (15)
months prior to June 30, 2003 with respect to the first five (5) year Option to
Renew and at least six (6) months but not more than fifteen (15) months prior to
June 30, 2008 with respect to the second five (5) year Option to Renew. Within
twenty (20) days after Landlord receives the notice described in the previous
sentence. Landlord will provide Tenant with Landlord's determination of the Fair
Market Rental Rate for comparable space as of the end of the expiring Lease Term
with respect to Suite 1990. Tenant shall have thirty (30) days from Landlord's
notification of the proposed Base Rent to accept Landlord's determination of
Base Rent for the Option Term(s) or provide its own determination of Base Rent
based upon comparable space for Landlord's consideration. Such Fair Market
Rental Rate shall be determined by agreement between Landlord and Tenant.
If Landlord and Tenant do not agree on the Fair Market Rental Rate
for Suite 1990 by the date seven (7) months prior to the first day of the Option
Term(s), such Fair Market Rental Rate shall be determined as follows: Landlord
and Tenant each shall appoint one (1) appraiser within fifteen (15) days after
such date. If either Landlord or Tenant fails to appoint its appraiser within
such period of fifteen (15) days, such appraiser shall be appointed by the
following process; Landlord shall make application to the president of the Real
Estate Board of Metropolitan St. Louis to name three qualified appraisers for
consideration; then Landlord and Tenant will each strike one of those
appraisers, with the appraiser that was not struck becoming the previously
unnamed appraiser. Each such appraiser shall appraise such Fair Market Rental
Rate for Suite 1990 and complete and submit his written appraisal setting forth
the appraised value to Landlord and Tenant within thirty (30) days after the
appointment of both such appraisers. If the higher appraised value in such two
(2) appraisals is not more than one hundred ten percent (110%) of the lower
appraised value, such Fair Market Rental Rate for Suite 1990 shall be the
average of the two (2) appraised values. If the higher appraised value is more
than one hundred ten percent (110%) of the lower appraised value, Landlord and
Tenant shall agree upon and appoint a neutral third appraiser within fifteen
(15) days after both of the first two (2) appraisals have been submitted to
Landlord and Tenant. If Landlord and Tenant do not agree upon and fail to
appoint such neutral third appraiser within such period of fifteen (15) days,
such neutral third appraiser shall be appointed by the following process:
Landlord shall make application to the president of the Real Estate Board of
Metropolitan St. Louis to name three qualified appraisers for consideration;
then Landlord and Tenant will each strike one of those appraisers, with the
appraiser that was not struck becoming the neutral third appraiser. The neutral
third appraiser shall appraise such Fair Market Rental Rate for Suite 1990 and
complete and submit his written appraisal setting forth the appraised value to
Landlord and Tenant within thirty (30) days after his appointment. Such Fair
Market Rental Rate for Suite 1990 shall be the average of the two (2) appraised
values in such three (3) appraisals that are closest to each other. If the
middle appraised rental is the average of the other two, the then middle rental
shall be such Fair Market Rental Rate. The Fair Market Rental Rate for Suite
1990, determined in accordance with this Section, shall be conclusive and
binding upon Landlord and Tenant. All appraisers so appointed, shall be members
of the American Institute of Real Estate Appraisers of the National Association
of Realtors or real estate professionals qualified by appropriate training or
experience and having at least ten (10) years of experience dealing with
commercial real estate. The appraisers shall have no power or authority to amend
or modify this Lease in any respect and their jurisdiction is limited
accordingly. Landlord and Tenant each shall pay the fee and expenses charged by
its appraiser plus one-half of the fee and expenses charged by the neutral third
appraiser. If the Fair Market Rental Rate for Suite 1990 has not been determined
in accordance with this Section by the first day of the Option Term, Tenant
shall pay as Base Rent the average of the amount of Base Rent proposed by
Landlord and the amount of Base Rent proposed by Tenant, but not less than the
monthly Base Rent for the month immediately preceding the Option Term, effective
on the first day of the Option Term and Tenant shall continue to pay such
average until the Fair Market Rental Rate for Suite 1990 has been determined, at
which time any adjustment in the Base Rent resulting therefrom shall be made
retroactively within ten (10) days after such determination.
17. Option to Extend Term of Lease.
(a) Option. Provided there is no outstanding Event of Default beyond
any applicable cure period by Tenant under this Lease and subject to the terms
and conditions of this Section, Tenant shall have one (1) option to renew
("Option to Renew") the term of the Lease for one (1) period of five (5) years
("Option Term"). If the Option to Renew is exercised during any applicable cure
period following an event, which with the passage of time or the giving of
notice, or both, would constitute an Event of Default, then such exercise shall
be void and of no further force or effect unless the cure is fully completed
within the applicable cure period, but in no event later than the expiration or
earlier termination of the Lease. Except as set forth in this Section, all terms
and conditions shall remain the same during the Option Term except the Base Rent
at the end of the initial term, as defined in Base Lease Information of the
Lease, shall be adjusted to the then Fair Market Rental Rate. Unless otherwise
agreed, there shall be no rent concessions or tenant improvements. "Fair Market
Rental Rate" shall mean the market rental then being offered for comparable
space in comparable location and condition to the Premises, computed as
described in the remainder of this Section. If Tenant fails to notify Landlord
in writing of its intent to exercise its Option to Renew as set forth in the
preceding paragraph, the Option to Renew shall terminate, and Landlord shall be
free to enter into a Lease with a third party. The Option to Renew shall be
effective regardless of whether Tenant elects to exercise its Options to Renew
with respect to Suite 1990.
(b) Notice of Exercise. Tenant shall give Landlord written notice of
its intent to exercise the Option to Renew at least six (6) months but not more
than fifteen (15) months prior to the expiration of the expiring Lease Term.
Within twenty (20) days after Landlord receives the notice described in the
previous sentence, Landlord will provide Tenant with Landlord's determination of
the Fair Market Rental Rate for comparable space as of the end of the expiring
Lease Term. Tenant shall have thirty (30) days from Landlord's notification of
the proposed Base Rent to accept Landlord's determination of Base Rent for the
Option Term(s) or provide its own determination of Base Rent based upon
comparable space for Landlord's consideration. Such Fair Market Rental Rate
shall be determined by agreement between Landlord and Tenant.
(c) Determination of Fair Market Value. If Landlord and Tenant do
not agree on the Fair Market Rental Rate of the Premises by the date seven (7)
months prior to the first day of the Option Term, such Fair Market Rental Rate
shall be determined as follows: Landlord and Tenant each shall appoint one (1)
appraiser within fifteen (15) days after such date. If either Landlord or Tenant
fails to appoint its appraiser within such period of fifteen (15) days, such
appraiser shall be appointed by the following process: Landlord shall make
application to the president of the Real Estate Board of Metropolitan St. Louis
to name three qualified appraisers for consideration; then Landlord and Tenant
will each strike one of those appraisers, with the appraiser that was not struck
becoming the previously unnamed appraiser. Each such appraiser shall appraise
such Fair Market Rental Rate of the Premises and complete and submit his written
appraisal setting forth the appraised value to Landlord and Tenant within thirty
(30) days after the appointment of both such appraisers. If the higher appraised
value in such two (2) appraisals is not more than one hundred ten percent (110%)
of the lower appraised value, such Fair Market Rental Rate of the Premises shall
be the average of the two (2) appraised values. If the higher appraised value is
more than one hundred ten percent(110%) of the lower appraised value, Landlord
and Tenant shall agree upon and appoint a neutral third appraiser within fifteen
(15) days after both of the first two (2) appraisals have been submitted to
Landlord and Tenant. If Landlord and Tenant do not agree upon and fail to
appoint such neutral third appraiser within such period of fifteen (15) days,
such neutral third appraiser shall be appointed by the following process:
Landlord shall make application to the president of the Real Estate Board of
Metropolitan St. Louis to name three qualified appraisers for consideration;
then Landlord and Tenant will each strike one of those appraisers, with the
appraiser that was not struck becoming the neutral third appraiser. The neutral
third appraiser shall appraise such Fair Market Rental Rate of the Premises and
complete and submit his written appraisal setting forth the appraised value to
Landlord and Tenant within thirty (30) days after his appointment. Such Fair
Market Rental Rate of the Premises shall be the average of the two (2) appraised
values in such three (3) appraisals that are closest to each other. If the
middle appraised rental is the average of the other two, the then middle rental
shall be such Fair Market Rental Rate. The Fair Market Rental Rate of the
Premises, determined in accordance with this Section, shall be conclusive and
binding upon Landlord and Tenant. All appraisers so appointed, shall be members
of the American Institute of Real Estate Appraisers of the National Association
of Realtors or real estate professionals qualified by appropriate training or
experience and having at least ten (10) years of experience dealing with
commercial real estate. The appraisers shall have no power or authority to amend
or modify this Lease in any respect and their jurisdiction is limited
accordingly. Landlord and Tenant each shall pay the fee and expenses charged by
its appraiser plus one-half of the fee and expenses charged by the neutral third
appraiser. If the Fair Market Rental Rate of the Premises has not been
determined in accordance with this Section by the first day of the Option Term,
Tenant shall pay as Base Rent the average of the amount of Base Rent proposed by
Landlord and the amount of Base Rent proposed by Tenant, but not less than the
monthly Base Rent for the month immediately preceding the Option Term, effective
on the first day of the Option Term and Tenant shall continue to pay such
average until the Fair Market Rental Rate of the Premises has been determined,
at which time any adjustment in the Base Rent resulting therefrom shall be made
retroactively within ten (10) days after such determination.
18. Letter of Credit. Prior to the date of this Lease, Tenant shall deliver to
Landlord an unconditional and irrevocable stand-by letter of credit ("Letter of
Credit") in favor of Landlord in the face amount of $28,251.67, effective for a
period commencing on or prior to the date of the Lease and ending on the date
one month after the estimated Expiration Date of the Lease (as reasonably
estimated by Landlord). The Letter of Credit shall be issued by a bank in St.
Louis City or St. Louis County, Missouri, acceptable to Landlord, shall provide
for payment without condition upon presentation of a sight draft, and shall
otherwise be in form and substance satisfactory to Landlord in Landlord's sole
and absolute discretion. The Letter of Credit shall secure all obligations of
Tenant under the Lease. If, at any time during the Term, any of the Base Rent or
additional rent shall be overdue and Tenant shall be in default under the Lease
by virtue of such Base Rent or additional rent being overdue beyond any
applicable cure period, or if Tenant fails to perform any of the other terms,
covenants or conditions to be performed by Tenant under the Lease and Tenant
shall be in default under the Lease by virtue of such failure beyond any
applicable cure period, then Landlord, at its option, may draw and apply all or
any portion of the Letter of Credit to the payment of any such overdue Base Rent
or additional rent and to the compensation of Landlord for loss or damage
sustained by Landlord due to such default by Tenant, including, without
limitation, fees, expenses or other costs incurred by the Landlord in connection
with any collection efforts relating to the Lease. Any draw on the Letter of
Credit is without prejudice to Landlord's older rights or remedies under the
Lease, at law or in equity. In the event of any drawing under the Letter of
Credit as a result of a default by Tenant under the Lease, Landlord shall be
entitled to draw' the entire face amount of the Letter of Credit and hold the
same as a cash security deposit in accordance with Section 3.3 of the Lease.
Should all or any part of the Letter of Credit or additional letters of
credit remitted to Landlord as hereinafter provided, be drawn and applied by
Landlord as provided above, then Tenant shall, upon demand of Landlord,
forthwith remit to Landlord an additional one or more letters of credit in an
amount in the aggregate equal to the amount applied by Landlord to such default
to restore the credit line (less any cash converted to a security deposit
pursuant to a draw on the entire face amount of the Letter of Credit as
permitted above) available to Landlord to the full amount specified in the
Letter of Credit. The Letter of Credit shall be transferable by Landlord as
beneficiary (at Tenant's cost, if any), and Landlord may deliver the Letter of
Credit delivered hereunder to a purchaser of Landlord's interest in the Property
in the event that such interest is sold, and thereupon Landlord shall be
discharged from any further liability with respect to the Letter of Credit.
If the termination date for the Letter of Credit is prior to one
month after the Expiration Date, Tenant covenants and agrees to take any and all
such action as is necessary to maintain such Letter of Credit continuously in
full force and effect at all times through and including such date, and
specifically covenants with Landlord to provide Landlord with a renewal or
replacement letter of credit (which, upon delivery to and acceptance by
Landlord, shall then constitute the Letter of Credit) at a time not less than
sixty (60) days prior to the termination date of such existing Letter of Credit
such that the protections afforded Landlord are maintained continuously in full
force and effect without loss or diminution in value, and Tenant's failure to do
so in a timely manner shall entitle Landlord to effect a full drawing upon,
prior to its termination date, the then effective Letter of Credit, and shall
constitute a specific and immediate occurrence of default under the Lease. Any
amounts so drawn by Landlord shall be applied to the obligations of Tenant under
the Lease as such obligations become due and payable, including, without
limitation, fees, expenses, or other costs incurred by Landlord in connection
with any collection efforts relating to the Lease by Landlord in the manner
described in the preceding paragraph.
19. Termination of July 29, 1986 Lease Agreement. The Lease Agreement for the
Premises, dated July 29, 1986, as amended by eight addenda thereto (the "1986
Lease Agreement"), between Landlord, as successor to St. Louis Industrial
Properties Ltd. #7. d/b/a Trammell Crow Company, and Tenant (formerly known as
New Space Closet Interiors, Inc.) is hereby terminated effective June 14, 2000;
provided, however, that (i) the terms and conditions of the 1986 Lease Agreement
which have not been performed as of June 14, 2000 shall survive the termination
of the 1986 Lease Agreement; (ii) Tenant shall continue to indemnify Landlord
under the 1986 Lease Agreement with respect to acts and occurrences arising on
or before June 14, 2000 in accordance with the indemnifications set forth in the
1986 Lease Agreement and (iii) Tenant shall remove all alterations, additions,
fixtures and improvements (whether such alterations, additions, fixtures and
improvements were made pursuant to the 1986 Lease Agreement or pursuant to the
terms of the Lease) upon the Expiration Date of the Lease in accordance with
Section 7.2 of the Lease and restore the Premises to the condition such Premises
existed before such alterations, additions, fixtures and improvements were made
to the Premises (unless Landlord paid for any such alterations, additions,
fixtures and improvements, in which event Landlord may elect, in its sole
discretion, to retain such alterations, additions, fixtures or improvements).
SUBLEASE
THIS SUBLEASE ("Sublease") is made and entered into as of the 15th day of
February, 2000, by and between NewSpace, Inc., a Missouri corporation
("Landlord"), and Build-A-Bear Workshop, L.L.C., a Missouri limited liability
company ("Tenant").
WITNESSETH, THAT:
WHEREAS, Landlord is the tenant of the property known as 1954 Innerbelt
Business Center Drive, located in St. Louis County, Missouri, as more
particularly shown on Exhibit A attached hereto and incorporated herein by
reference (the "Building") and
WHEREAS, Landlord has agreed to sublease the portion of the Building
outlined in pink on Exhibit A attached hereto and incorporated herein by
reference (the "Premises") to Tenant.
NOW, THEREFORE, in consideration of the premises, the mutual covenants,
promises and conditions set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant agree as follows:
1. Sublease. Landlord hereby subleases the Premises to Tenant and Tenant
hereby subleases the Premises from Landlord for the term, at the rental, and
upon all the conditions set forth herein. This agreement constitutes a sublease,
and Tenant acknowledges that Landlord's interest in the Building is as a tenant
under a written lease with State of California Public Employees Retirement
System (the "Prime Lessor"), dated July 26, 1986 and amended seven (7) times
(the "Prime Lease"), a copy of which along with all amendments is attached
hereto, marked Exhibit B and incorporated herein by reference. Except as
provided herein, this Sublease is expressly made subject to all the terms and
conditions of the Prime Lease, and, insofar as they relate to the Premises or
the use and occupancy thereof, Tenant agrees to observe and comply with all
covenants and obligations of Landlord under the Prime Lease.
2. Term. The term of this Sublease (the "Term") shall commence February
15, 2000, and expire on June 30, 2008.
3. Option to Renew. Subject to the terms and conditions set forth herein,
Tenant shall have the option to renew this Sublease for an additional term of
five (5) years commencing on the first day following the expiration of the Term.
So long as Tenant is not in default of a material covenant under this
Sublease, Tenant may renew this Sublease as provided hereinabove upon giving
Landlord written notice of such renewal not less than nine (9) months prior to
the expiration of the Term. Any renewal of this Sublease shall be on the same
terms and conditions of this Sublease except that the base rent payable during
such renewal shall be determined pursuant to Exhibit D to the Amended and
Restated Lease attached as an exhibit to the 6th Amendment to the Prime Lease.
4. Rental. Tenant shall pay to Landlord as base rent, commencing on June
14, 2000 (the "Rental Commencement Date"), without deduction, setoff, notice or
demand, at c/o Robert Fox, NewSpace, Inc., 1960 Innerbelt Business Center Drive,
St. Louis, Missouri 63114 or at such other place as Landlord shall designate
from time to time by notice to Tenant, Thirteen Thousand Four Hundred
Fifty-Seven Dollars ($13,457.00Q) per month (based on $10.765 per square foot
per year) for each month during the first twelve (12) months of this Sublease
(prorated for the first partial month); Thirteen Thousand Six Hundred Fourteen
($13,614.00) per month (based on $10.89) per square foot per year) for each
month from the thirteenth (13th) through the thirty-sixth (36th) months of the
term of this Sublease; Thirteen Thousand Nine Hundred Twenty Dollars
($13,920.00) per month (based on $11.135 per square foot per year) from the
thirty-seventh (37th) through the sixtieth (60th) months of the term of this
Sublease; and Fourteen Thousand Seventy-Five Dollars ($14,075.00) per month
(based on $11.26 per square foot per year) for each month from the sixty-first
(61st) month of the term of this Sublease through the Termination Date. For the
period commencing on the Rental Commencement Date and ending on the last day of
the month in which the Rental Commencement Date occurs, rental shall be
apportioned on the basis of the number of days in said month.
5. Additional Rent. As and for additional rent (the "Additional Rent") for
the Premises, Tenant shall pay Landlord, commencing on the Rental Commencement
Date, CAM Expenses, increases, if any, in Property Taxes of the Property Taxes
paid by the Landlord under the Prime Lease in 2000, the Base Year, and Insurance
Costa incurred by the Landlord under the Prime Lease over Insurance Costs
incurred in 2000 (collectively, "Operating Costs"). Tenant shall pay to Landlord
as additional rent a prorata portion of the amounts payable by Landlord as
Operating Costs under the Prime Lease. The prorata amount shall be determined
by multiplying the total amount of Operating Costs that Landlord is required to
1
pay under the Prime Lease by a fraction, the numerator of which is 15,000 and
the denominator of which is 40,749, Such additional rent shall be payable as and
when Operating Costs are payable by Landlord. If the Prime Lease provides for
the payment by Landlord of Operating Costs on the basis of an estimate thereof,
then as and when adjustments between estimated and actual Operating Costs are
made under the Prime Lease, the obligations of Landlord and Tenant hereunder
shall be adjusted in a like manner; and if any such adjustment shall occur
after the expiration or earlier termination of the Term, then the obligations of
Landlord and Tenant under this subsection 5 shall survive such expiration or
termination. Landlord shall, upon request by Tenant, furnish Tenant with copies
of all statements submitted to Landlord of actual or estimated Operating Costs
during the Term.
In addition to the foregoing, Tenant shall pay Landlord as additional
rent the sum of Three Hundred Dollars ($300.00) on the Rental Commencement Date
and on each anniversary of the Rental commencement Date during the term of this
Sublease in lieu of a security deposit. Additional Rent shall be due thirty (30)
days following Tenant's receipt thereof.
6. Quiet Enjoyment. So long as Tenant shall observe and perform the
covenants and agreements binding on it hereunder, Tenant shall, at all times
during the Term, peacefully and quietly have and enjoy possession of the
Premises without any encumbrance and hindrance by, from or through Landlord, or
anyone else lawfully claiming an interest in the Premises, subject, however, to
the term and conditions of this Sublease.
7. Use of the Premises. Tenant warrants and represents to Landlord that
the Premises shall be used and occupied only for office, warehouse and
distribution purposes. Tenant shall occupy the Premises, conduct its business
and control its employees, agents and invitees in such a manner as is lawful and
reputable and without creating any nuisance; Tenant shall neither permit any
waste on the Premises, nor allow anything to be stored in the Premises which
would, in the reasonable opinion of Landlord, be extra hazardous on account of
fire, or which would in any way increase or render void the fire insurance on
the Premises.
8. Mechanic's Liens. Tenant shall have no authority, expressed or implied,
to create or place any lien or encumbrance of any kind or nature whatsoever on,
or in any manner to bind the interest of Landlord or Prime Lessor in the
Premises or to charge the rentals payable hereunder for any claim in favor of
any person dealing with the Tenant, including those who may furnish materials or
perform labor for any of Tenant's construction or repairs, and each such claim
shall affect and each such lien shall attach to, if at all, only the leasehold
interest granted to the Tenant herein. Tenant covenants and agrees that it will
pay or cause to be paid all sums legally due and payable by it on account of any
labor performed or materials furnished in connection with any work performed on
the Premises, and that it will save and hold the Landlord and Prime Lessor
harmless from any and all liability, loss, damage, cost and expense arising out
of asserted claims or liens against the leasehold estate or against the right,
title and interest of Landlord and the Prime Lessor in the Building.
9. Estoppels Certificates. Upon delivery of the Premises to Tenant, and
thereafter within ten (10) days following the written request of Landlord or the
Prime Lessor, from time to time Tenant shall execute, acknowledge, and deliver
to Landlord or to Prime Lessor or Prime Lessor's mortgagee, proposed mortgagee
or proposed purchaser of the Building, an estoppel certificate stating whether
this Sublease is in full force and effect and whether any changes may have been
made to the original Sublease; whether there are any defaults by Landlord and,
if so, the nature of such defaults; whether rent has been paid more than thirty
(30) days in advance; whether there are any security deposits; and such other
matters pertaining to the status of this Sublease as Landlord or the Prime
Lessor may reasonably request.
10. Indemnification By Tenant. Tenant hereby releases Landlord and Prime
Lessor from any liability for any loss or damage of any kind or for any injury
or death of persons or damage to property of Tenant or any other person from any
cause whatsoever by reason of the use, occupancy or enjoyment of the Premises by
Tenant or any person therein holding under Tenant. Tenant shall indemnify,
defend and save harmless Landlord and Prime Lessor, and each of their officers,
directors, agents and employees, from all claims, actions, demands, damages,
costs, expenses and liabilities whatsoever, including reasonable attorneys'
fees, on account of any real or claimed loss, damage or liability occurring in
or at the Premises, or arising out of the use, occupancy or enjoyment of the
Premises, or occasioned in whole or in part by the act or omission of Tenant or
its agents, contractors, employees, guests or invitees; provided, however,
notwithstanding the foregoing, Tenant shall not be responsible for any of the
foregoing to the extent directly attributable to the gross negligence or
intentional misconduct of Landlord or Prime Lessor.
2
11. Insurance/Release
(a) Insurance Coverages and Amounts. Tenant shall, at all times during the
term of this Lease and at Tenant's sole cost and expense, obtain and keep in
force the insurance coverages and amounts set forth in this section. Tenant
shall maintain commercial general liability insurance, including contractual
liability, broad form property damage liability, fire legal liability, premises
and completed operations, and medical payments, with limits not less than one
million dollars ($1,000,000) per occurrence and aggregate, insuring against
claims for bodily injury, personal injury and property damage arising from the
use, occupancy or maintenance of the Premises and the Building. The policy shall
contain an exception to any pollution exclusion which insures damage or injury
arising out of heat, smoke or fumes from a hostile fire Any general aggregate
shall apply on a per location basis. Tenant shall maintain business auto
liability insurance with limits not less than one million dollars ($1,000,000)
per accident covering owned, hired and non-owned vehicles used by Tenant. Tenant
shall maintain umbrella excess liability insurance on a following form basis in
excess of the required commercial general liability, business auto and employers
liability insurance with limits not leas than two million dollars ($2,000,000)
per occurrence and aggregate. Tenant shall carry workers' compensation insurance
for all of its employees in statutory limits in the state in which the Property
is located and employers liability insurance which affords not less than five
hundred thousand dollars ($500,000) for each coverage. Tenant shall maintain all
risk property insurance for all personal property of Tenant and improvements,
fixtures and equipment constructed or installed by Tenant in the Premises in an
amount not less than the full replacement cost, which shall include business
income and extra expense coverage with limits not less than fifty percent (50%)
of gross revenues for a period of twelve (12) months. If required by Landlord,
Tenant shall maintain plate glass insurance coverage against breakage of plate
glass in the Premises. Any deductibles selected by Tenant shall be the sole
responsibility of Tenant,
(b) Insurance Requirements. All insurance and renewals thereof shall be
issued by companies with a rating of at least "A-" "VIII" or better in the
current edition of Best's Insurance Report and be licensed to do and doing
business in the state in which the Property is located. Each policy shall
expressly provide that the policy shall not be canceled or materially altered
without thirty (30) days prior written notice to Landlord and shall remain in
effect notwithstanding any such cancellation or alteration until such notice
shall have bean given to Landlord and such thirty (30) days shall have expired.
All liability insurance (except employers liability) shall name Landlord and any
other parties designated by Landlord (including any investment manager, asset
manager or property manager) as an additional insured, shall be primary and
noncontributing with any insurance which may be carried by Landlord, shall
afford coverage for all claims based on any act, omission, event or condition
that occurred or arose) or the onset of which occurred or arose) during the
policy period, and shall expressly provide that Landlord, although named as an
insured, shall nevertheless be entitled to recover under the policy for any
loss, injury or damage to Landlord. All property insurance shall name Landlord
as loss payee as respects Landlord's interest in any improvements and
betterments. Tenant shall deliver certificates of insurance, acceptable to
Landlord, to Landlord at least ten (10) days before the Commencement Date and at
least ten (10) days before expiration of each policy. If Tenant fails to insure
or fails to furnish any such insurance certificate, Landlord shall have the
right from time to time to effect such insurance for the benefit of Tenant or
Landlord or both of them, and Tenant shall pay to Landlord on written demand, as
additional rent, all premiums paid by Landlord.
(c) Subrogation. Tenant waives, on behalf of all insurers, under all
policies of property insurance now or hereafter carried by Tenant insuring or
covering the Premises, or any portion or any contents thereof, or any operations
therein, all rights of subrogation which any such insurer might otherwise, if at
all, have to any claims of Tenant against Landlord. Landlord waives, on behalf
of all insurers under all policies of property insurance now or hereafter
carried by Landlord insuring or covering the Property, or any portion or any
contents thereof, or any operations therein, all rights of subrogation which any
insurer might otherwise, if at all, have to any claims of Landlord against
Tenant. Tenant shall procure from each of the insurers under all policies of
property insurance now or hereafter carried by Tenant insuring or covering the
Premises, or any portion or any contents thereof, or any operations therein, a
waiver of all rights of subrogation which the insurer might otherwise, if at
all, have to any claims of Tenant against Landlord as required by this section
11.
12. Holding Over. Unless otherwise agreed to in writing by Landlord and
Tenant, if Tenant retains possession of the Premises, or any part thereof, after
termination or expiration of the Term, Tenant shall be deemed to be in default
hereunder, Landlord shall have any and all remedies provided for in this
Sublease and at law or in equity, and Tenant shall pay Landlord rent for the
time Tenant remains in possession at double the monthly rate in effect
immediately prior to such termination or expiration. The provisions of this
3
Section 14 do not exclude Landlord's right of re-entry or any other right
hereunder and such holding over shall be deemed to constitute a renewal or
extension of the Term.
13. Notices. All notices required or permitted to be given hereunder shall
be in writing and shall be deemed to be given on the date which is three (3)
days after being deposited in the United States Mail, registered or certified
mail, return receipt requested, postage prepaid, or it personally delivered,
upon actual receipt, addressed as follows:
If to Landlord: NewSpace, Inc.
1960 Innerbelt Business Center Drive
St. Louis, MO 63114
If to Tenant: Build-A-Bear Workshop, L.L.C.
1954 Innerbelt Business Center Drive
St. Louis, MO 63114
subject to the right of either party to designate a different address or notice
person by notice similarly given in accordance with the provision of this
paragraph 15.
14. Repairs and Maintenance. Tenant shall, at all times during the term of
this Sublease and at Tenant's sole cost and expense, maintain and repair the
Premises and every part thereof (except only the parts for which expressly made
the responsibility of the Landlord under the Prime Lease) and all equipment,
fixtures and improvements therein (including walls, floors, heating and air
conditioning systems, dock boards, truck doors, dock bumpers, plumbing fixtures
and equipment, electrical components and mechanical systems) and keep all of the
foregoing clean and in good order and operating condition, ordinary wear and
tear excepted, Tenant shall not damage the Premises or disturb the integrity and
support provided by any wall. Tenant shall, at Tenant's expense, promptly repair
any damage to the Premises caused by Tenant or any agent, officer, employee,
contractor, licensee or invitee of Tenant. Tenant shall take good care of the
Premises and keep the Premises free from dirt, rubbish, waste and debris at all
times. Tenant shall not overload the floors in the Premises or exceed the
load-bearing capacity of the floors in the Premises. Tenant shall, at Tenant's
expense, enter into a regularly scheduled preventive maintenance and service
contract with a maintenance contractor approved in writing by Landlord for
servicing all hot water, heating and air conditioning systems and equipment in
the Premises. The maintenance and service contract shall include all services
suggested by the equipment manufacturer and shall become effective (and Tenant
shall deliver a copy to Landlord) within thirty (30) days after the
Commencement Date. Sublessee shall, at the end of the term of this Sublease,
surrender to Landlord the Premises and all alterations, additions, fixtures and
improvements therein or thereto in the same condition as when received,
ordinary wear and tear excepted. Notwithstanding anything to the contrary
contained in this section, Tenant's obligation under this section shall not
include making (i) any repair or improvement necessitated by the negligence or
willful misconduct of Landlord, its agents, employees, servants or contractors;
or (ii) any repair or improvement caused by Landlord's failure to perform its
obligations under the Prime Lease or this Sublease, as the case may be.
15. Utility Services. Tenant shall pay, directly to the appropriate
supplier before delinquency, for all water, gas, heat, light, power, telephone,
sewer, refuse disposal and other utilities and services supplied to the
Premises, together with all taxes, assessments, surcharges and similar expenses
relating to such utilities and service. Tenant shall, at its expense, install
separate meters for such services. If any such utilities or services are jointly
matered with the Premises and the adjoining premises occupied by Landlord,
Landlord shall determine Tenant's share of the cost as such jointly metered
utilities and services based on Landlord's estimate of usage, and Tenant shall
pay as additional rent Tenant's share of the cost of such jointly metered
utilities and services to Landlord within twenty (20) days after receipt of
Landlord's written statement for such cost. Tenant shall furnish the Premises
with all telephone service, window washing, security service, janitor, scavenger
and disposal services, and other services required by Tenant for the use of the
Premises permitted by this Sublease. Tenant shall furnish all electric light
bulbs and tubes and restroom supplies used in the Premises. Landlord shall not
be in default under this Sublease or be liable for any damage or loss directly
or indirectly resulting from, nor shall the rent be abated or a constructive or
other eviction be deemed to have occurred by reason of, any interruption of or
failure to supply or delay in supplying any such utilities and services or any
limitation, curtailment, rationing or restriction on use of water, electricity,
gas or any resource or form of energy or other service serving the Premises,
whether such results from mandatory restriction or voluntary compliance with
guidelines.
16. Eminent Domain. In the event title to the whole or a material part of
the Premises shall be lawfully condemned or taken in any manner for any public
or quasi-public use, this Sublease and estate hereby granted shall forthwith
cease and terminate as of the
4
date of vesting of title. Tenant hereby assigns to Prime Lessor Tenant's
interest in any award granted pursuant to this Section 17; provided, however,
nothing herein shall be deemed to give Prime Lessor any interest in or to
require Tenant to assign to Prime Lessor any award made to Tenant for the taking
of personal property or fixtures belonging to Tenant or for the interruption of
or damage to Tenant's business or for any funds awarded for Tenant's relocation.
17. Landlord's Remedies. All rights and remedies of Landlord herein
enumerated shall be cumulative, and none shall exclude any other right or remedy
allowed by law. In addition to the other remedies in this Sublease provided,
Landlord shall be entitled to the restraint by injunction of the violation or
attempted violation of any of the covenants, agreements or conditions of this
Sublease or the Prime Lease, and Landlord shall be entitled to recover all
direct and consequential damages arising out of or caused by Tenant's violation
of any of the covenants, agreements or conditions of this Sublease or the Prime
Lease.
(a) if Tenant shall (i) apply for or consent to the appointment of a
receiver, trustee or liquidator of Tenant or of all or a substantial part of its
assets, (ii) file a voluntary petition in bankruptcy, (iii) make a general
assignment for the benefit of creditors, (iv) file a petition or an answer
seeking reorganization or arrangement with creditors or to take advantage of any
insolvency law, or (v) file an answer admitting the material allegations of a
petition filed against Tenant in any bankruptcy, reorganization or insolvency
proceeding, or if an order, judgment or decree shall be entered by any court of
competent jurisdiction adjudicating Tenant a bankrupt or insolvent or approving
a petition seeking reorganization of Tenant or appointing a receiver, trustee or
liquidator of Tenant or of all or a substantial part of its assets, then, in any
of such events, Landlord may terminate this Sublease by giving written notice to
Tenant, and upon the giving of such notice the term of this Sublease and all
right, title and interest of Tenant hereunder shall expire as fully and
completely as if that day were the date herein specifically fixed for the
expiration of the term.
(b) If Tenant defaults in the payment of rent or Additional Rent and such
default continues for ten (10) days after written notice to Tenant, or if Tenant
defaults in the prompt and full performance of any other provision of this
Sublease, and if such other default continues for thirty (30) days after written
notice, or if the leasehold interest of Tenant be levied upon under execution or
be attached by process of law, then, and in any such event. Landlord may, at its
election, either terminate this Sublease and Tenant's right to possession of the
Premises, or, without terminating this Sublease, re-enter and endeavor to relate
the Premises. Nothing herein shall relieve Tenant of any obligation, including
the payment of rent and Additional Rent, as provided in this Sublease.
(c) Upon any termination of this Sublease, Tenant shall surrender
possession and vacate the Premises immediately, and deliver possession thereof
to Landlord, and Tenant hereby grants to Landlord full and free license to enter
into and upon the Premises in such event and to repossess the Premises, and to
expel or remove Tenant and any others who may be occupying or within the
Premises, and to remove any and all property therefrom, using such force as may
be allowed by law, without being deemed in any manner guilty of trespass,
eviction or forcible entry or detainer, and without relinquishing Landlord's
right to rent and Additional Rent, or any other right given to Landlord
hereunder or by operation of law.
(d) if Landlord elects, without terminating the Sublease, to endeavor to
relet the Premises, Landlord may, at Landlord's option, enter into the Premises
and take and hold possession thereof, without such entry and possession
terminating the Sublease or releasing Tenant, in whole or in part, from Tenant's
obligation to pay rent and Additional Rent hereunder for the full Term as
hereinafter provided. Upon and after entry into possession without termination
of the Sublease, Landlord shall endeavor in good faith (but without being
obligated to incur out of pocket costs as part of such endeavor) to relet the
Premises for the account of Tenant to any person, firm or corporation other than
Tenant for such rent, for such time and upon such terms as Landlord shall
determine to be reasonable. In any such case, Landlord may make repairs in or to
the Premises as are necessary to restore the Premises to as good a condition as
existed at the commencement date of this Sublease, and Tenant shall, upon
demand, pay the cost thereof, together with Landlord's expenses of the
reletting, If the consideration collected by Landlord upon any such reletting
for Tenant's account is not sufficient to pay monthly the full amount of the
rent and Additional Rent reserved in this Sublease, together with the cost of
repairs and Landlord's expenses, Tenant shall pay to Landlord the amount of each
monthly deficiency upon demand.
(e) If Landlord elects to terminate this Sublease pursuant to this Section
19, it being understood that Landlord may elect to terminate the Sublease after
and notwithstanding its election to terminate Tenant's right to possession
provided in Section 19 (b) above, Landlord shall forthwith upon such termination
be entitled to recover an amount equal to the
5
damages sustained by Landlord as a result of Tenant's default hereunder, and in
addition thereto, an amount equal to the rent provided in this Sublease for the
residue of the Term, less the current rental value of the Premises for the
residue of the Term.
(f) Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of this Sublease or of law, to which Tenant
is or may be entitled, may be handled, removed or stored by Landlord at the
risk, cost and expense of Tenant, and Landlord shall in no event be responsible
for the value, preservation or safekeeping thereof. Tenant shall pay to
Landlord, upon demand, any and all expenses incurred in such removal and all
storage charges against such property so long as the same shall be in Landlord's
possession or under Landlord's control. Any such property of Tenant not removed
from the Premises or retaken from storage by Tenant within thirty (30) days
after the end of the Term or of Tenant's right to possession of the Premises,
however terminated, shall be conclusively deemed to have been forever abandoned
by Tenant and either may be retained by Landlord as its property, or may be
disposed of in such manner as Landlord may see fit.
18. Subordination of Sublease. This Sublease is and shall be
subject and subordinate to any and all mortgages, deeds of trust or land leases
now existing upon or that may be hereafter placed upon the Premises, and to all
advances made or to be made thereon, and all renewals, modifications,
consolidations, replacements or extensions thereof, and the lien of any such
mortgages, deeds of trust and land leases shall be superior to all rights hereby
or hereunder vested in Tenant, to the full extent of all sums secured thereby.
This provision shall be self-operative, and no further instrument of
subordination shall be necessary to effectuate such subordination; and the
recording of any such mortgage, deed of trust or land lease shall have
preference and precedence and be superior and prior in lien to this Sublease,
irrespective of the date of recording. In confirmation of such subordination,
Tenant shall within ten (10) days after request of Landlord, Prime Lessor, or
the holder of any such mortgage, deed of trust, or land lease, execute and
deliver to Landlord, Prime Lessor or such holder, as the case may be, any
instrument acknowledging such subordination that Landlord, Prime Lessor or such
holder may reasonably request. Tenant agrees to attorn to any person or entity
who may acquire title to the Building by way of transfer or foreclosure provided
that such transferee or purchaser agrees to recognize Tenant's rights under this
Sublease so long as Tenant is not in default in any of its obligations
hereunder. Tenant shall also, within twenty (20) days after Landlord's or Prime
Lessor's request, execute an attornment agreement evidencing the obligations of
Tenant herein to attorn to such mortgagee in the event of a future succession
of the rights of Landlord herein to any mortgagee, deed of trust holder or land
lessor of the Premises. In the event of any act or omission of Landlord
constituting a default by Landlord, Tenant shall not exercise any remedy until
Tenant has given Landlord, Prime Lessor and any mortgagee, deed of trust holder
or land lessor of the Building a prior thirty (30) day written notice of such
act or omission; provided, however, if such act or omission cannot, with due
diligence and in good faith, be remedied within such thirty (30) day period,
Landlord, Prime Lessor and any mortgagee, deed of trust holder or land lessor
shall be allowed such further period of time as may be reasonably necessary
provided that it commences remedying the same with due diligence and in good
faith within said thirty (30) day period.
19. Prevailing Party. In the event of litigation between Landlord
and Tenant in connection with this Sublease, in addition to any other relief
therein granted, the prevailing party shall be entitled to judgment for
reasonable attorneys' fees, costs of litigation, and court costs incurred
therein.
20. Governing Law. This Sublease has been made and executed in the
County of St. Louis, State of Missouri, and shall be governed and construed in
accordance with the laws of the State of Missouri without regard to its conflict
of laws provisions.
21. Act of God or Force Majeure. Landlord or Tenant shall not be
required to perform any covenant or obligation in this Sublease or be liable in
damages for its nonperformance, so long as the performance or non-performance of
the covenant or obligation is delayed, caused or prevented by an act of God or
force majeure or by the other party. An "act of God" or "force majeure" is
defined for purposes of this Sublease as strikes, lockouts, sitdowns, material
or labor restrictions by any governmental authority, unusual transportation
delays, riots, floods, washouts, explosions, earthquakes, fire, storms, weather
(including wet grounds or inclement weather which prevents construction), acts
of the public enemy, wars, insurrections and any other cause not reasonably
within the control of the party required to perform and which by the exercise of
due diligence the party required to perform is unable to prevent or overcome.
The foregoing provisions of this Section 23 shall not apply, however, to
Tenant's obligation to timely pay rent, Additional Rent or any other monies
payable by Tenant under this Sublease.
6
22. Saverability. The invalidity of any provision of this Sublease
as determined by a court of competent jurisdiction shall in no way affect the
validity of any other provision hereof.
23. Assignment and Sublease. Tenant shall not voluntarily or by
operation of law assign or encumber any interest in this Sublease, or sublet any
part of the Premises, without obtaining the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease
as of the day and year first above written.
LANDLORD: NEWSPACE, INC.,
a Missouri corporation
By: /s/ Robert Fox
-------------------------
Its: CEO
TENANT: BUILD-A-BEAR WORKSHOP, L.L.C.,
a Missouri limited liability company
By: /s/ Maxine Clark
-------------------------
Its: Manager
7
SUBLEASE
THIS SUBLEASE ("Sublease") is made and entered into this _______ day of
__________, 2000, by and between NewSpace, Inc., a Missouri corporation
("Landlord"), and Build-A-Bear Workshop, L.L.C., a Missouri limited liability
company ("Tenant").
WITNESSETH, THAT:
WHEREAS, Landlord is the tenant of the property known as 1954 Innerbelt
Business Center Drive, located in St. Louis County, Missouri, [ILLEGIBLE] more
particularly shown on Exhibit A attached hereto and incorporated herein by
reference (the "Building"); and
WHEREAS, Landlord has agreed to sublease the portion of the Building
outlined in pink on Exhibit A attached hereto and incorporated herein by
reference (the "Premises") to Tenant.
NOW, THEREFORE, in consideration of the premises, the mutual covenants,
promises and conditions set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant agree as follows:
1. Sublease. Landlord hereby subleases the Premises to Tenant and Tenant
hereby subleases the Premises from Landlord for the term, at the rental, and
upon all the conditions set forth herein. This agreement constitutes a sublease,
and Tenant acknowledges that Landlord's interest in the Building is as a Tenant
under a written lease with State of California Public Employees Retirement
System (the Prime Lessor"), dated July 26, 1986 and amended seven (7) times (the
"Prime Lease"), a copy of which along with all amendments is attached hereto,
marked Exhibit B and incorporated herein by reference. Except as provided
herein, this Sublease is expressly made subject to all the terms and conditions
of the Prime Lease, and, insofar as they relate to the Premises or the use and
occupancy thereof, Tenant agrees to observe and comply with all covenants and
obligations of Landlord under the Prime Lease.
2. Term. The term of this sublease (the "Term") shall commance February
15, 2000, and expire on June 30, 2000.
3. Option to Renew. Subject to the terms and conditions set forth herein,
Tenant shall have the option to renew this Sublease for an additional term of
five (5) years commancing on the first day following the expiration of the Term.
So long as Tenant is not in default of a material covenant under this Sublease,
Tenant may renew this Sublease as provided hereinabove upon giving Landlord
written notice of such renewal not less than nine (9) months prior to the
expiration of the Term. Any renewal of this Sublease shall be on the same terms
and conditions of this Sublease except that the base rent payable during such
renewal shall be determined pursuant to Exhibit D to the Amended and Restated
Lease attached as an exhibit to the 6th Amendment to the Prime Lease.
4. Rental. Tenant shall pay to Landlord as base rent, commancing on June
14, 2000 (the "Rental Commancement Date"), without deduction, setoff, notice or
demand, at c/o Robert Fox, NewSpace, Inc., 1960 Innerbelt Business Center Drive,
St. Louis, Missouri 63114 or at such other place as Landlord shall designate
from time to time by notice to Tenant, Thirteen Thousand Four Hundred
Fifty-Seven Dollars ($13,457.00) per month (based on $10.765 per square foot per
year) for each month during the first twelve (12) months of this Sublease
(prorated for the first partial month); Thirteen Thousand Six Hundred Fourteen
($13,614.00) per month (based on $10.89) per square foot per year) for each
month from the thirteenth (13th) through the thirty-sixth (36th) months of the
term of this Sublease; Thirteen Thousand Nine Hundred Twenty Dollars
($13,920.00) per month (based on $11.135 per square foot per year) from the
thirty-seventh (37th) through the sixtieth (60th) months of the term of this
Sublease; and Fourteen Thousand Seventy-Five Dollars ($16,075.00) per month
(based on $21.26 per square foot per year) for each month from the Sixty-first
(61st) month of the term of the Sublease through the Termination date. For the
period commencing on the Rental Commencement Date and ending on the last day of
the month in which the Rental Commencement Date occurs, rental shall be
apportioned on the basis of the number of days in said month.
5. Additional Rent. As and for additional rent (the "Additional Rent") for
the Premises, Tenant shall pay Landlord, commancing on the Rental Commancement
Date, CAM Expenses, increases, if any, in property Taxes of the Property Taxes
paid by the Landlord under the Prime Lease in 2000, the Base Year, and Insurance
Costs incurred by the Landlord under the Prime Lease over Insurance Costs
incurred in 2000 (collectively, "Operating Costs"). Tenant shall pay to Landlord
as additional rent a prorata portion of the amounts payable by Landlord as
Operating Costs under the Prime Lease. The prorata amount shall be determined by
multiplying the total amount of Operating Costs that Landlord is required to
1
pay under the Prime Lease by a fraction, the numerator of which is 15,000 and
the denominator of which is 40,749. Such additional rent shall be payable as and
when Operating Costs are payable by Landlord. If the Prime Lease provides for
the payment by Landlord of Operating Costs on the basis of an estimate thereof,
then as and when adjustments between estimated and actual Operating Costs are
made under the Prime Lease, the obligations of Landlord and Tenant hereunder
shall be adjusted in a like manner; and if any such adjustment shall occur after
the expiration or earlier termination of the Term, then the obligations of
Landlord and Tenant under this Subsection 5 shall survive such expiration or
termination. Landlord shall, upon request by Tenant, furnish Tenant with copies
of all statements submitted to Landlord of actual or estimated Operating Costs
during the Term.
In addition to the foregoing, Tenant shall pay Landlord as additional rent
the sum of Three Hundred Dollars ($300.00) on the Rental Commencement Date and
on each anniversary of the Rental Commencement Date during the term of this
sublease in lieu of a security deposit. Additional Rent shall be due thirty (30)
days following Tenant's receipt thereof.
6. Quiet Enjoyment. So long as Tenant shall observe and perform the
covenants and agreements binding on it hereunder, Tenant shall, at all times
during the term, peacefully and quietly have and enjoy possession of the
Premises without and encumbrance and hindrance by, from or through Landlord, or
anyone else lawfully claiming an interest in the Premises, subject, however, to
the terms and conditions of this Sublease.
7. Use of the Premises. Tenant warrants and represents to Landlord that
the Premises shall be used and occupied only for office, warehouse and
distribution purposes. Tenant shall occupy the Premises, conduct its business
and control its employees, agents and invitees in such a manner as in lawful and
reputable and without creating any nuisance. Tenant shall neither permit any
waste on the Premises, nor allow anything to be stored in the Premises which
would, in the reasonable opinion of Landlord, be extra hazardous on account of
fire, or which would in any way increase or render void the firm insurance on
the Premises.
8. Mechanic's Liens. Tenant shall have no authority, expressed or
implied, to create or place any lien or encumbrance of any kind or nature
whatsoever on, or in any manner to bind the interest of Landlord or Prime
Lessor in the Premises or to charge the rentals payable hereunder for any claim
in favor of any person dealing with the Tenant, including those who may furnish
materials or perform labor for any of Tenant's construction or repairs, and each
such claim shall affect and each such lien shall attach to, if at all, only the
leasehold interest granted to the Tenant herein. Tenant covenants and agrees
that it will pay or cause to be paid all sums legally due and payable by it on
account of any labor performed or materials furnished in connection with any
work performed on the Premises, and that it will save and hold the Landlord and
Prime Lessor harmless from any and all liability, loss, damage, cost and expense
arising out of asserted claims or liens against the leasehold estate or against
the right, title and interest of Landlord and the Prime Lessor in the Building.
9. Estoppel Certificates. Upon delivery of the Premises to Tenant, and
thereafter within ten(10) days following the written request of Landlord or the
Prime Lessor, from time to time Tenant shall execute, acknowledges, and deliver
to landlord or to Prime Lessor or Prime Lessor's mortgagee, proposed
mortgage or proposed purchaser of the Building, an estoppel certificate stating
whether this Sublease is in full force and effect and whether any changes may
have been made to the original Sublease; whether there are any defaults by
Landlord and, if so, the nature of such defaults; whether rent has been paid
more than thirty (30) days in advance; whether there are any security deposits;
and such other matters pertaining to the status of this Sublease as Landlord
or the Prime Lessor may reasonably request.
10. Indemnification By Tenant. Tenant hereby releases Landlord and Prime
Lessor from any liability for any loss or damage of any kind or for any injury
or death of persons or damage to property of Tenant or any other person from any
cause whatsoever by reason of the use, occupancy or enjoyment of the Premises by
Tenant or any person therein holding under Tenant. Tenant shall indemnify,
defend and save harmless Landlord and Prime Lessor, and each of their officers,
directors, agents and employees, from all claims, actions, demands, damages,
costs, expenses and liabilities whatsoever, including reasonable attorneys'
fees, on account of any real or claimed loss, damage or liability occurring in
or at the Premises, or arising out of the use, occupancy or enjoyment of the
Premises, or occasioned in whole or in part by the act or omission of Tenant or
its agents, contractors, employees, guests or invitees; provided, however,
notwithstanding the foregoing, Tenant shall not be responsible for any of the
foregoing to the extent directly attributable to the gross negligence or
intentional misconduct of Landlord or Prime Lessor.
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11. Insurance/Release
(a) Insurance Coverance and Amounts. Tenant shall, at all times during
the term of this Lease and at Tenant's sole cost and expense, obtain and keep in
force the insurance coverages and amounts set forth in this section. Tenant
shall maintain commercial general liability insurance, including contractual
liability, broad form property damage liability, fire legal liability, premises
and completed operations, and medical payments, with limits not less than one
million dollars ($1,000,000) per occurrence and aggregate, insuring against
claims for bodily injury, personal injury and property damage arising from the
use, occupancy or maintenance of the Premises and the Buildings. The policy
shall contain an exception to any pollution exclusion which insures damage or
injury arising out of heat, smoke or fumes from a hostile fire. Any general
aggregate shall apply on a per location basis. Tenant shall maintain business
auto liability insurance with limits not less than one million dollars
($1,000,000) per accident covering owned, hired and non-owned vehicles used by
Tenant. Tenant shall maintain umbrella excess liability insurance on a following
form basis in excess of the required commercial general liability, business auto
and employers liability insurance with limits not less than two million dollars
($2,000,000) per occurrence and aggregate. Tenant shall carry workers'
compensation insurance for all of its employees in statutory limits in the state
in which the Property is located and employers liability insurance which efforts
not less than five hundred thousand dollars ($500,000) for each coverage. Tenant
shall maintain all risk property insurance for all personal property of Tenant
and improvements, fixtures and equipment constructed of installed by Tenant in
the Premises in an amount not less than the full replacement cost, which shall
include business income and extra expense coverage with limits not less than
fifty percent (50%) of gross revenues for a period of twelve (12) months. If
required by Landlord, Tenant shall maintain plate glass insurance coverage
against breakage of plate glass in the Premises. Any deductibles selected by
Tenant shall be the sole responsibility of Tenant.
(b) Insurance Requirements. All insurance and renewals thereof shall be
issued by companies with a rating of at least "A-" "VIII" or better in the
current edition of Best's Insurance Report and be licensed to do and doing
business in the state in which the Property is located. Each policy shall
expressly provide that the policy shall not be canceled or materially altered
without thirty (30) days prior written notice to Landlord and shall remain in
effect notwithstanding any such cancellation or alteration until such notice
shall have been given to Landlord and such thirty (30) days shall have expired.
All liability insurance (except employers liability) shall name Landlord and any
other parties designated by Landlord (including any investment manager, asset
manager or property manager) as an additional insured, shall be primary and
noncontributing with any insurance which may be carried by Landlord, shall
afford coverage for all claims based on any act, omission, event or condition
that occurred or arose or the onset of which occurred or arose) during the
policy period, and shall expressly provide that Landlord, although named as an
insured, shall nevertheless be entitled to recover under the policy for any
loss, injury or damage to Landlord. All property insurance shall name Landlord
as loss payee as respects Landlord's interest in any improvements and
betterments. Tenant shall deliver certificates of insurance, acceptable to
Landlord, to Landlord at least ten (10) days before the Commencement Date and at
least ten (10) days before expiration of each policy. If Tenant fails to insure
or fails to furnish any such insurance certificate, Landlord shall have the
right from time to time to effect such insurance for the benefit of Tenant or
Landlord or both of them, and Tenant shall pay Landlord on written demand, as
additional rent, all premiums paid by Landlord.
(c) Subrogation. Tenant waives, on behalf of all insurers, under all
policies of property insurance now or hereafter carried by Tenant insuring or
covering the Premises, or any portion or any contents thereof, or any operations
therein, all rights or subrogation which any such insurer might otherwise, if at
all, have to any claims of Tenant against Landlord. Landlord waives, on behalf
of all insurers under all policies of property insurance now or hereafter
carried by Landlord insuring or covering the Property, or any portion or any
contents thereof, or any operations therein, all rights of subrogation which
any insurer might otherwise, if at all, have to any claims of Landlord against
Tenant. Tenant shall procure from each of the insurers under all policies of
property insurance now or hereafter carried by Tenant insuring or covering the
Premises, or any portion or any contents thereof, or any operations therein, a
waiver of all rights of subrogation which the insurer might otherwise, if at
all, have to any claims of Tenant against Landlord as required by this section
11.
12. Holding Over. Unless otherwise agreed to in writing by Landlord and
Tenant, if Tenant retains possession of the Premises, or any part thereof, after
termination or expiration, of the Term, Tenant shall be deemed to be in default
hereunder. Landlord shall have any and all remedies provided for in this
Sublease and at law or in equity, and Tenant shall pay Landlord rent for the
time Tenant remain in possession at double the monthly rate in effect
immediately prior to such termination or expiration. The provisions of this
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Section 14 do not exclude Landlord's right of re-entry or any other right
hereunder and such holding over shall be deemed to constitute a renewal or
extension of the Term.
13. Notices. All notices required or permitted to be given hereunder
shall be in writing and shall be deemed to be given on the date which is three
(3) days after being deposited in the United States Mail, registered or
certified mail, return receipt requested, postage prepaid, or if personally
delivered, upon actual receipt, addressed as follows:
If to Landlord: Newspace, Inc.
1960 Innerbelt Business Center Drive
St. Louis, MO 63114
If to Tenant: Build-A-Bear Workshop, L.L.C,
1954 Innerbelt Business Center Drive
St. Louis, MO 63114
subject to the right of either party to designate a different address or notice
person by notice similarly given in accordance with the provision of this
paragraph 15:
14. Repairs and Maintenance. Tenant shall at all times during the term
of this sublease and at Tenant's sole cost and expense, maintain and repair the
Premises and every part thereof (except only the parts for which expressly made
the responsibility of the Landlord under the Prime Lease) and all equipment,
fixtures and improvements therein (including walls, floors, heating and air
conditioning systems, dock boards, truck doors, dock bumpers, plumbing fixtures
and equipment, electrical components and mechanical systems) and keep all of the
foregoing clean and in good order and operating condition, ordinary wear and
tear excepted. Tenant shall not damage the Promises or disturb the integrity and
support provided by any wall. Tenant shall, at Tenant's expense, promptly repair
any damage to the Premises caused by Tenant or any agent, officer, employee,
contractor, licenses or invitee of Tenant. Tenant shall take good care of the
Premises and keep the Premises free from dirt, rubbish [ILLEGIBLE] at all times.
Tenant shall not overload the floors in the Premises or exceed the load-bearing
capacity of the floors in the Premises. Tenant shall, at Tenant's expense, enter
into a regularly scheduled preventive maintenance and service contract with a
maintenance contractor approved in writing by Landlord for servicing all hot
water, heating and air conditioning systems and equipment in the Premises. The
maintenance and service contract shall include all services suggested by the
equipment manufacturer and shall become effective (and Tenant shall deliver a
copy to Landlord) within thirty (30) days after the Commencement Date. Subleasee
shall, at the end of the term of this sublease, surrender to Landlord the
Promises and all alterations, additions, fixtures and improvements therein, or
thereto in the same condition as when received, ordinary wear and tear excepted.
Notwithstanding anything to the contrary contained in this section, Tenant's
obligation under this section shall not include making (i) any repair and
improvement necessitated by the negligence or willful misconduct of Landlord,
its agents, employees, servants or contractors, or (ii) any repair and
improvement caused by Landlord's failure to perform its obligations under the
Prime Lease or this sublease, as the case may be.
15. Utility Services. Tenant shall pay, directly to the appropriate
supplier before delinquency, for all water, gas, heat, light, power, telephone,
sewer, refuse disposal and other utilities and services supplied to the
Premises, together with all taxes, assessments, surcharges and similar expenses
relating to such utilities and service. Tenant shall, at its expense, install
separate moters for such services. If any such utilities or services are jointly
[ILLEGIBLE] with the Premises and the adjoining premises occupied by Landlord.
Landlord shall determine Tenant's share of the cost as such jointly [ILLEGIBLE]
utilities and services based on Landlord's estimate of usage, and Tenant shall
pay as additional rent Tenant's share of the cost of such jointly [ILLEGIBLE]
utilities and services to Landlord within twenty (20) days after receipt of
Landlord's written statement for such cost. Tenant shall furnish the Premises
with all telephone services, window washing, security service, janitor,
scavenger and disposal services, and other services required by Tenant for the
use of the Premises permitted by this Sublease. Tenant shall furnish all
electric light bulbs and tubes and restroom supplies used in the Premises.
Landlord shall not be in default under this Sublease or be liable for any damage
or loss directly or indirectly resulting from, nor shall the rent be abates or a
constructive or other [ILLEGIBLE] be deemed to have occurred by reason of, any
interruption of or failure to supply or delay in supplying any such utilities
and services or any limitation, curtailment, rationing, restriction on use of
water, electricity, gas or any resources or from of energy or other service
serving the Premises, whether such results from mandatory restrictions or
voluntary compliance with guidelines.
16. Eminent Domain. In the event title to the whole or a material part
of the Premises shall be lawfully [ILLEGIBLE] or taken in any manner for any
public or quasi-public use, this Sublease and estate hereby granted shall
forthwith cease and terminate as of the
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date of vesting of title. Tenant hereby assigns to Prime Leasor Tenant's
interest in any award granted pursuant to this Section 17; provided, however,
nothing herein shall be deemed to give Prime Lessor any interest in or to
require Tenant to assign to Prime Lessor any award made to Tenant for the taking
of personal property or fixtures belonging to Tenant or for the interruption of
or damage to Tenant's business or for any funds awarded for Tenant's relocation.
17. Landlord's Remedise. All rights and remedies of Landlord herein
[ILLEGIBLE] shall be cumulative, and none shall exclude any other right or
remedy allowed by law. In addition to the other remedies in this sublease
provided. Landlord shall be entitled to the restraint by injunction of the
violation or attempted violation of any of the covenants, agreements or
conditions of this Sublease or the Prime Loans, and Landlord shall be entitled
to recover all direct and consequential damages arising cut of or caused by
Tenant's violation of any of the covenances, agreements or conditions of this
Sublease or the Prime Lease.
(a) If Tenant shall (i) apply for or consent to the appointment of a
receiver, trustee or liquidator of Tenant or of all or a substantial part of its
assets, (ii) file a voluntary petition in bankruptcy, (iii) make a general
assignment for the benefit of creditors, (iv) file a petition or an answer
seeking reorganization or arrangement with creditors or to take advantage of any
insolvency law, or (v) file an answer admitting the material allegations of a
petition filed against Tenant in any bankruptcy, reorganization or insolvency
proceeding, or if an order, judgment or decree shall be entered by any court of
competant jurisdiction adjudicating Tenant a bankrupt or insolvent or approving
a petition seeking reorganization of Tenant or appointing a receiver, trustee or
liquidator of Tenant or of all or a substantial part of its assets, then, in any
of such events. Landlord may terminate this sublease by giving written notice to
Tenant and upon the giving of such notice the term of this Sublease and all
right, title and interest of Tenant hereunder shall expire as fully and
completely as if that day were the date herein specifically fixed for the
expiration of the term.
(b) If Tenant defaults in the payment of rent or Additional Rent and
such default continues for ten (10) days after written notice to Tenant, or if
Tenant defaults in the prompt and full performance of any other provision of
this sublease, and if such other default continues for thirty (30) days after
written notice, or if the leasehold interest of Tenant be levied upon under
execution, or be attached by process of law, then, and in any such event,
Landlord may, at its election, either terminate this Sublease and Tenant's right
to possession of the Premises, or, without terminating this Sublease, re-enter
and endeavor to [ILLEGIBLE] the Premises. Nothing herein shall relieve Tenant of
any obligation, including the payment of rent and Additional rent, as provided
in this Sublease.
(c) Upon any termination of this Sublease, Tenant shall surrender
possession and vacate the Premises immediately, and deliver possession thereof
to Landlord, and Tenant hereby grants to Landlord full and free License to enter
into and upon the Premises in such event and to repossess the Premises, and to
expel or remove Tenant and any others who may be occupying or within the
Premises, and to remove any and all property therefrom, using such force as may
be allowed by law, without being deemed in any manner guilty of [ILLEGIBLE]
enviction or forcible entry or detainer and without relinquishing Landlord's
right to rent and Additional Rent, or any other right given to Landlord
hereunder or by operation of law.
(d) If Landlord elects, without terminating the Sublease, to endeavor to
relet the Premises, Landlord may, at Landlord's option, enter into the Premises
and take and hole possession thereof, without such entry and possession
terminating the Sublease or releasing Tenant, in whole or in part, from Tenant's
obligation to pay rent and Additional Rent hereunder for the full Term as
hereinafter provided. Upon and after entry into possessions without termination
of the Sublease, Landlord shall endeavor in good faith (but without being
obligated to inour out of pocket costs as part of such endeavor) to relet the
Premises for the account of Tenant to any person, firm or corporation other than
Tenant for such rent, for such time and upon such terms as Landlord shall
determine to be reasonable. In any such case, Landlord may make repairs in or to
the Premises as are necessary to restore the Premises to as good a condition as
existed at the commencement date of this Sublease, and Tenant shall, upon
demand, pay the cost thereof, together with Landlord's expenses of the
reletting. If the consideration collected by Landlord upon any such reletting
for Tenant's account is not sufficient to pay monthly the full amount of the
rent and Additional Rent reserved in this Sublease, together with the cost of
repairs and Landlord's expenses, Tenant shall pay to Landlord the amount of each
monthly deficiency upon demand.
(e) If Landlord elects to terminate this Sublease pursuant to this
Section 19, it being understood that Landlord may elect to terminate the
Sublease after and notwithstanding its election to terminate Tenant's right to
possession provided in Section 19(h) above, Landlord shall forthwith upon such
termination be entitled to recover an amount equal to the
5
damages sustained by Landlord as a result of Tenant's default hereunder, and in
addition thereto, an amount equal to the rent provided in this Sublease for the
residue of the Term, leus the current rental value of the Promises for the
residue of the Term.
(f) Any and all property which may be removed from the promises by
Landlord pursuant to the authority of this Sublease or of law, to which Tenant
is or may be entitled, may be handled, removed or stored by Landlord at the
risk, cost and expense of Tenant, and Landlord shall in no event be responsible
for the value, preservation or safekeeping thereof. Tenant shall pay to
Landlord, upon demand, any and all expenses incurred in such removal and all
storage charges against such property so long as the same shall be in Landlord's
possession or under Landlord's control. Any such property of Tenant not removed
from the Promises or retaken from storage by Tenant within thirty (30) days
after the end of the Term or of Tenant's right to possession of the Premises,
however terminated, shall be conclusively deemed to have been forever abandoned
by Tenant and either may be retained by Landlord as its property, or may be
disposed or in such manner as Landlord may see fit.
18. Subordination of Sublease. This Sublease is and shall be subject and
subordinate to any and all mortgages, deeds of trust or land leases now existing
upon or that may be hereafter placed upon the Premises, and to all advances made
or to be made thereon, and all renewals, modifications, consolidations,
replacements or extensions thereof, and the lien of any such mortgages, deeds of
trust and land leases shall be superior to all rights hereby or hereunder vested
in Tenant, to the full extent of all sums occurred thereby. This provision shall
be self-operative, and no further instrument of Subordination shall be necessary
to effectuate such subordination; and the recording of any such mortgage, deed
of trust or land lease shall have preference and precedence and be superior and
prior in lien to this Sublease, irrespective of the date of recording. In
confirmation of such subordination, Tenant shall within ten (10) days after
request or Landlord, Prime Lessor, or the holder of any such mortgage, deed of
trust, or land lease, execute and deliver to Landlord, Prime Lessor or such
holder, as the case may be, any instrument acknowledging such subordination that
Landlord, Prime Lessor or such holder may reasonably request. Tenant agree to
any person or entity who may acquire title to the Building by way of transfer or
under this Sublease so long as Tenant is not in default in any of its
obligations hereunder. Tenant shall also, within twenty (20) days after
Landlord's or Prime Lessor's request, execute an attornment agreement evidencing
the obligations of Tenant herein to attorn to such mortgagee in the event of a
future succession of the rights of Landlord herein to any mortgagee, deed of
trust holder or land lessor of the Premises. In the event of any act or omission
of Landlord constituting a default by Landlord, Tenant shall not exercise any
remedy until Tenant has given Landlord, Prime Lessor and any mortgagee, deed of
trust holder or land lessor of the Building a prior thirty (30) day written
notice of such act or omission; provided, however, if such not or omission
cannot, with due diligence and in good faith, be remedied within such thirty
(30) day period, Landlord, Prime Lessor and any mortgagee, deed of trust holder
or land lessor shall be allowed such further period of time as may be reasonably
necessary provided that it commences remedying the same with due diligence and
in good faith within said thirty (30) day period.
19. Prevailing Party. In the event of litigation between Landlord and
Tenant in connection with this Sublease, in addition to any other relief therein
granted, the prevailing party shall be entitled to judgment for reasonable
attorneys' fees, costs of litigation, and [ILLEGIBLE] costs incurred therein.
20. Governing Law. This Sublease has been made and executed in the
County of St. Louie, State of Missouri, and shall be governed and construed in
accordance with the laws of the State of Missouri without regard to its conflict
of laws provisions.
21. Act of God or force Majeure. Landlord or Tenant shall not be
required to perform any covenant or obligation in this Sublease or be liable
in damages for its nonperformance, so long as the performance or
non-performance of the covenant or obligation [ILLEGIBLE] delayed, caused or
prevented by an act of God or force majeure or by the other party. An "act of
God" or "force majeure" is defined for purposes of this Sublease as strikes,
lockouts, [ILLEGIBLE], material or labor restrictions by any governmental
authority, unusual transportation delays, riots floods, washouts, explosions,
earthquakes, fire, storms, weather (including wat grounds or inclement weather
which prevents construction), acts of the public enemy, wara, insurrections and
any other cause not reasonably within the control of the party required to
perform and which by the exercise of due diligence the party required to perform
is unable to prevent or overcome. The foregoing provisions of this Section as
shall not apply, however, to Tenant's obligation to timely pay rent. Additional
Rent or any other [ILLEGIBLE] payable by Tenant under this Sublease.
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22. Severability. The invalidity of any provision of this Sublease as
determined by a court of competent jurisdiction shall in no way affect the
validity of any other provision hereof.
23. Assignment and Sublease. Tenant shall not voluntarily or by operation
of law assign or encumber any interest in this Sublease, or sublet any part of
the Premises, without obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease as of
the day and year first above written.
LANDLORD: NEWSPACE, INC.,
a Missouri corporation
By: ____________________________________
Its: CEO
TENANT: BUILD-A-BEAR WORKSHOP, L.L.C.,
a Missouri limited liability company
By: ____________________________________
Its: Manager
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