Exhibit 10.16
-------------
LEASE
By and between
REX REALTY CO., Lessor
and
UNITED INDUSTRIES CORPORATION, Lessee
Effective Date of Lease: December 1, 1995
"Plant II" at 8458-8464 Industrial Drive
Vinita Park, St. Louis County, Missouri
(Consisting of Chemsico Division Offices and Manufacturing, facilities)
LEASE INDEX
8458-8464 Chapin Industrial Drive
Vinita Park, St. Louis County, Missouri
Section Page
- ------- ----
1. Parties 1
2. Premises 1
3. Term 1
4. Rent 1
4.1 When and Where Payable 1
4.2 Amount of Rent 1
4.3 Rental for Renewal Terms 1
5. Use 2
5.1 Use 2
5.2 Compliance with Law at Date of Lease 2
5.3 Condition of Premises at Date of Lease 2
6. Maintenance, Repairs and Modifications 2
6.1 Lessee's Obligations 2
6.2 Condition on Termination 3
6.3 Lessor's Rights 3
6.4 Lessor's Obligations 3
6.5 Modifications of Premises by Lessee 3
6.6 Lessee's Trade Fixtures 4
7. Insurance and Indemnification 4
7.1 Insuring Party; Lessee's Obligation for Cost of All Insurance 4
7.2 Liability Insurance 5
7.3 Property Insurance 5
7.4 Insurance Policies 6
7.5 Waiver of Subrogation 6
7.6 Indemnity 6
7.7 Exemption of Lessor from Liability 7
8. Damage or Destruction 7
8.1 Partial Damage - Insured 7
8.2 Partial Damage - Uninsured 8
8.3 Total Destruction 8
8.4 Damage Near End of Term 8
8.5 Abatement of Rent; Lessee's Remedies 8
8.6 Termination - Advance Payments 9
8.7 Waiver 9
9. Property Taxes 9
9.1 Real Property Taxes 9
9.2 Definition of "Real Property Taxes" 9
9.3 Joint Assessment 10
i
LEASE INDEX
8458-8464 Chapin Industrial Drive
Vinita Park, St. Louis County, Missouri
9.4 Personal Property Taxes 10
10. Utilities 10
11. Assignment and Subletting 10
11.1 Lessor's Consent Required 10
11.2 Named Lessee Affiliate 10
11.3 No Release of Named Lessee 11
11.4 Attorneys' Fees 11
12. Defaults; Remedies 11
12.1 Default by Lessee 11
12.2 Remedies 12
12.3 Default by Lessor 13
12.4 Late Charges 13
13. Condemnation 13
14. Interest 14
15. General Provisions 14
15.1 Estoppel Certificate; Lessee's Financials 14
15.2 Definition of Lessor 15
15.3 Definition of Lessee 15
15.4 Severability 16
15.5 Time is of the Essence 16
15.6 Captions 16
15.7 Incorporation of Prior Agreements; Amendments 16
15.8 Notices 16
15.9 Waivers 16
15.10 Recording 17
15.11 Holding Over 17
15.12 Cumulative Remedies 17
15.13 Covenants and Conditions 17
15.14 Binding Effect; Choice of Law 17
15.15 Subordination 17
15.16 Attorneys' Fees 18
15.17 Lessor's Access 18
15.18 Signs and Auctions 18
15.19 Merger 18
15.20 Corporate Authority 18
15.21 Approvals and Consents 18
15.22 Quiet Possession 19
15.23 Options 19
ii
LEASE INDEX
8458-8464 Chapin Industrial Drive
Vinita Park, St. Louis County, Missouri
15.24 Multiple Tenant Property Rules and Regulations 19
15.25 Insuring Party 19
15.26 When Lessor is Obligated 19
15.27 Effect of Lease on Existing Tenancies 19
iii
LEASE
-----
1. Parties. This Lease, dated effective as of December 1, 1995, is made by and
between Rex Realty Co., a Delaware corporation ("Lessor") and United
Industries Corporation, a Delaware corporation ("Lessee").
2. Premises. Lessor leases to Lessee and Lessee leases from Lessor for the
Term, at the rent, and subject to all of the provisions of this Lease, that
certain real property, together with all improvements thereon, if any,
situated in the County of St. Louis, State of Missouri, known and numbered
as 8458-8464 Chapin Industrial Drive, consisting of an office and
manufacturing plant, of approximately 85,500 square feet, situated on
approximately 3.3 acres of land (the "Premises"). A legal description of the
land is described on Exhibit A attached hereto and incorporated herein by
this reference.
3. Term. The "Terrn" of this Lease shall commence on December 1, 1995,
("Commencement Date") and continue through December 31, 1999. Thereafter the
Term shall automatically be extended on a year-to-year basis from January 1
through December 31 of each year through and until December 31, 2010, unless
either party elects to terminate such year-to-year extension by giving
Termination Notice in which case the Term shall terminate at the end of the
year following the year during which such Termination Notice is given.
4. Rent.
4.1 When and Where Payable. Lessee shall pay rent to Lessor for the
Premises, without offset or demand, in advance, on the first day of
each month of the Term. Rent for any period during the Term which is
for less than one month shall be a pro rata portion of the monthly rent
based on a month of thirty (30) days. Rent shall be payable in lawful
money of the United States to Lessor at Lessor's address stated herein
or to such other persons or at such other places as Lessor may
designate by Notice to Lessee.
4.2 Amount of Rent Rent for the period from the Commencement Date to
December 31, 1999, shall be at the monthly rate of Thirty Thousand Five
Hundred Sixty-Six and 25/100 Dollars ($30,566.25) (bemig an annualized
amount of $366,795.00) ($4.29/sq. ft.).
4.3 Rental for Renewal Terms. The parties shall no later than ninety (90)
days prior to expiration of the then current Term or Renewal Term agree
upon Rent for the next Renewal Term.
1
5. Use.
5.1 Use. The Premises shall be used and occupied for any lawful purpose.
Lessee shall comply at all times with all federal, state and local
ordinances and regulations that apply to the Premises or Lessee's
business. Lessee covenants that it will commit no nuisance or waste on
the Premises. 5.2 Compliance with Law at Date of Lease.
5.2 Compliance with Law at Date of Lease.
(a) Lessor represents to Lessee that, to the best of Lessor's
knowledge, as of the date of this Lease, the Premises do not violate
any existing applicable building code regulation. If it be determined
that a violation exists at the date hereof, then it shall be the
obligation of Lessor, after Notice from Lessee, at Lessor's sole cost
and expense, to promptly rectify any such violation. If Lessee does not
give Notice of any such violation to Lessor within one (1) year after
the Comrnencement Date, it shall be conclusively deemed that such
violation did not exist at the date hereof and the correction of any
violation shall be the obligation of the Lessee.
(b) Except as otherwise provided in ss.5.2(a), Lessee shall, at
Lessee's expense, comply promptly with all applicable laws and
regulations in effect during any part of the Term in respect of the
Premises. Lessee shall not use nor permit the use of the Prermises in
any manner that will tend to create waste, or constitute nuisance, or
disturb Lessor or other tenants of Lessor, if any.
5.3 Condition of Premises at Date of Lease. Except as provided in
ss.5.2(a), Lessee hereby accepts the Premises in the condition existing
as of the date hereof, subject to all applicable laws and regulations
in respect of the Premises.
6. Maintenance, Repairs and Modifications.
6.1 Lessee's Obligations. Lessee shall keep the Premises and every part
thereof in good order, condition and repair, structural and
nonstructural (whether or not the part of the Premises requiring
repair, or the means of repairing the same are reasonably or readily
accessible to Lessee, and whether or not the need for such repairs
occurs as a result of Lessee's use, any prior use, the elements or the
age of the Premises) including, without limiting the generality of the
foregoing, all plumbing, heating, air conditioning, ventilating,
electrical and lighting facilities and equipment, fixtures, walls
(interior and exterior), foundations, ceilings, roofs (interior and
exterior), floors, windows, doors; plate glass and skylights, and all
landscaping, driveways, walkways, parking lots, fences and signs
located on and adjacent to the Premises.
6.2 Condition On Termination. On the last day of the Term, Lessee shall
surrender the Premises to Lessor in the same condition as at the
Comniencement Date except for reasonable wear and tear and for
Modifications made in accordance with ss.6.5 (which
2
Lessor does not require Lessee to remove). Lessee shall repair any
damage to the Premises occasioned by the removal of Lessee's trade
fixtures, furnishings and equipment which repair shall include, but is
not limited to patching and filling of holes and repair of structural
damage, if any.
6.3 Lessor's Rights. If Lessee fails to perform Lessee's obligations under
this ss.6, Lessor may (but shall not be required to) enter the
Premises, after ten (10) days' prior Notice to Lessee (except that no
prior Notice shall be required if Lessor believes prompt action is
required), and put the same in good order, condition and repair, and
the cost thereof together with interest thereon at the rate per annum
stated in ss.14 shall become due and payable as additional rent to
Lessor together with Lessee' next rent installment.
6.4 Lessor's Obligations. Except for the obligations of Lessor under
ss.5.2(a) (relating to Lessor's representation), ss.8 (relating to
destruction of the Premises) and ss.13 (relating to condemnation of the
Premises), it is intended by the parties hereto that Lessor have no
obligation, in any manner whatsoever, to repair or maintain the
Premises, whether structural or nonstructural, all of which obligations
are intended to be obligations of Lessee. Lessee expressly waives the
benefit of any law or Judicial decision now or hereafter in effect
which would require Lessor to repair or maintain the Premises or which
would afford Lessee the right to (i) make repairs at Lessor's expense,
or (ii) terminate this Lease because of Lessor's failure to keep the
Premises in good order, condition and repair.
6.5 Modifications of Premises by Lessee.
(a) Lessee shall not, without Lessor's prior written approval, make any
Modifications in, or about the Premises, except for nonstructural items
not exceeding $5,000 in cost. "Modifications" include but is not
limited to structural and nonstructural alterations, additions and
improvements such as but not limited to partitions, electrical,
plumbing, heating, ventilating and air cooling equipment and work.
Lessor may require that Lessee remove any or all Modifications at the
expiration of the Term, and restore the Premises to the same condition
as at the Commencement Date. Lessor may require Lessee to provide to
Lessor, at Lessee's sole cost and expense, a payment and performance
bond in an amount equal to one and one-half times the estimated cost of
any Modifications which Lessor may approve. Should Lessee make any
Modifications without the prior written approval of Lessor, Lessor may
require that Lessee remove any or all of the same at any time.
(b) Detailed plans and drawings of any proposed Modifications in or
about the Premises that Lessee shall desire to make shall be presented
to Lessor. If Lessor approves, such approval shall be deemed
conditioned on Lessee acquiring all pen-nits from appropriate
governmental agencies, the furnishing of a copy thereof to Lessor prior
to the comrnencement of the work, and the compliance by Lessee with all
conditions of said permits in a prompt and expeditious manner. At
Lessor's request,
3
Lessee shall furnish to Lessor three (3) full sets of as-built plans
detailing such Modifications.
(c) Lessee shall pay, when due, all claims for labor and materials
furnished or alleged to have been furnished to or for use 'in, on or
about the Premises, which claims are or may be secured by any mechanics
or materialmen's lien against the Premises or any interest therein.
Lessee shall give Lessor not less than ten (10) days' Notice prior to
the commencement of any Modifications work, and Lessor shall have the
right to post statements of non-responsibility in or on the Premises.
If Lessee desires to contest the validity of any lien, claim or demand,
then Lessee shall, at its sole expense, defend and indemnify Lessor
against the same and shall pay and satisfy any adverse judgment that
may be rendered thereon before the enforcement thereof against Lessor
or the Premises. If Lessor shall require, Lessee shall furnish to
Lessor a surety bond satisfactory to Lessor indemnifying Lessor against
liability for, and holding the Premises free from the effect of, any
judgment, lien or claim.
(d) Unless Lessor requires their removal, as provided in ss.6.5(a), all
Modifications, which may be made in, on or about the Premises, shall
become the property of Lessor and remain on and be surrendered with the
Premises at the end of the Term.
6.6 Lessee's Trade Fixtures. Lessee's trade fixtures, furnishings and
equipment, other than items affixed to the Premises so that they cannot
be removed without material damage to the Premises, shall remain the
property of Lessee and may be removed by Lessee, subject to the
provisions of ss.6.2. Any of Lessee's trade fixtures, furnishings or
equipment which remain at the Premises after the end of the Term may be
removed and disposed of by Lessor (at Lessee's cost and expense)
without liability or Notice to Lessee.
7. Insurance and Indemnification.
7.1 Insuring Party; Lessee's Obligation for Cost of All Insurance.
(a) "Insuring Party" means the party who has the obligation to obtain
and keep in force insurance required by this Lease. The Insuring Party
is designated in ss. 15-25 hereof. Whether the Insuring Party is the
Lessor or the Lessee, the Lessee shall, as additional rent for the
Premises, pay the cost of all insurance. If Lessor is the Insuring
Party, then Lessee shall reimburse Lessor for the cost of all insurance
within ten (10) days following Lessor's Notice thereof If the Insuring
Party shall fail to obtain and keep in force any insurance required by
this Lease, the other party may, but shall not be required to obtain
such insurance and keep the same in force, at the cost and expense of
Lessee. If any such insurance has a deductible or co-payment provision,
Lessee shall be liable for the deductible or co-payment amount.
4
(b) If the Premises constitute a part of a larger property, then Lessee
shall pay for any increase in the cost of insurance applicable to such
larger property if said increase is attributable to Lessee's acts,
omissions, use or occupancy of the Premises.
7.2 Liability Insurance.
(a) During the Term, the Insuring Party -shall obtain and keep in force
a policy or policies of Combined Single Limit, Bodily Injury and
Property Damage Insurance insuring Lessor and Lessee against liability
arising out of the ownership, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Subject to ss.7.2(b), such
insurance shall be a combined single limit policy 'in an amount not
less than $1,000,000.00. The policy shall contain cross liability
endorsements and shall insure performance by Lessee of the provisions
of ss.ss.7.6 and 7.7. The limits of said insurance shall not, however,
limit the liability of Lessee. If the Premises constitute a part of a
larger property said insurance shall 'include a Lessor's Protective
Liability endorsement.
(b) In the reasonable opinion of Lessor, if the minimum amount of
liability insurance stated in ss.7.2(a) is not adequate, the amount of
insurance coverage shall be increased as requested by Lessor, provided,
however that in no event shall the amount of the liability insurance
increase be more than fifty percent (50%) greater than the amount
thereof during the preceding year. Failure of Lessor to require
additional insurance coverage shall not be deemed to relieve Lessee
from any of its obligations and shall not limit Lessee's liability
under any provision of this Lease.
7.3 Property Insurance.
(a) During the Term, the Insuring Party shall obtain and keep in force
a policy or policies of insurance covering loss or damage to the
Premises, in the amount of the full replacement value thereof, as the
same may exist from time to time, but in no event less than the total
amount of promissory notes secured by liens on the Premises, against
all perils included within the classification of fire, extended
coverage, vandalism, earthquake, malicious mischief, boiler, special
extended perils (all risk) and sprinkler leakage. Said insurance shall
provide for payment of loss thereunder to Lessor or to the holders of
mortgages or deeds of trust on the Premises, as Lessor may from time to
time direct by Notice to Lessee. The Insuring Party shall, in addition,
obtain and keep in force during g the Term a policy of rental income
insurance covering a period of six (6) months, with loss payable to
Lessor, which insurance shall also cover all real estate taxes and
insurance costs for said period.
(b) If Lessor is the Insuring Party, Lessor will not insure Lessee's
trade fixtures, furnishings or equipment. If Lessee is the Insuring
Party, Lessee shall *insure its trade fixtures, furnishings and
equipment.
5
7.4 Insurance Policies. Insurance required by this Lease shall be provided
by carriers reasonably satisfactory to Lessor. The Insuring Party shall
deliver to the other party copies of policies of such insurance or
certificates evidencing the existence and amounts of such insurance
with loss payable clauses satisfactory to Lessor or Lessor's mortgagee,
if so required. No such policy shall be cancelable or subject to
reduction of coverage or other modification except after twenty (20)
days' prior written Notice to Lessor. All insurance policies shall name
both Lessor and Lessee, and Lessor's mortgagee if so required, as named
additional insureds. The Insuring Party shall, within twenty (20) days
prior to the expiration of such policies, furnish the other party with
renewals or "binders" thereof The InsUn g Party shall not do or omit
doing anything which shall 'invalidate the 'insurance. Lessee shall pay
any additional insurance costs attributable to Lessee's acts,
omissions, use or occupancy of the Premises. If Lessor is the Insuring
Party, and if the insurance policies maintained hereunder cover other
properties 'in addition to the Premises, Lessor shall deliver to Lessee
a written statement showinc, in reasonable detail the manner in which
the cost of insurance payable by Lessee has been calculated.
7.5 Waiver of Subrogation. Lessee and Lessor each hereby waive any and all
rights of recovery against the other, or against the officers,
employees, agents and representatives of the other, for loss of or dama
e to such waiving party or its property or the property of others under
its control to the extent that such loss or damage is insured against
under any insurance policy in force at the time of such loss or damage.
The Insuring Party shall notify the insurance carrier or carriers of
the existence of this mutual waiver of subrogation.
7.6 Indemnity. Lessee shall defend, protect, release and indemnify Lessor
and hold Lessor harmless from and against any and all claims arising
(directly or indirectly) from Lessee's acts, omissions, use or
occupancy of the Premises and from the conduct of Lessee's business,
and from any act, omission, work or thing done, permitted or suffered
by Lessee in or about the Premises or elsewhere, and shall further
defend, protect, release, indemnify and hold harmless Lessor from and
against any and all claims arising from any default in the performance
of any obligation on Lessee's part to be performed, or arising from any
negligence of Lessee, or any of Lessee' agents, contractors, or
employees, and from and against all costs, attorneys' fees, expenses
and liabilities incurred in the defense of any such claim or any action
or proceeding brought thereon; and in case any action or proceeding be
brought against Lessor by reason of any such claim, Lessee (on Notice
from Lessor) shall defend the same at Lessee's expense by counsel
satisfactory to Lessor. Lessee shall pay Lessors attorneys' fees and
costs in participating in any action in respect of which Lessee is
required to defend or indemnify Lessor if Lessor shall decide it is to
its best interest to so participate.
7.7 Exemption of Lessor from Liability. Lessor shall not be liable for
injury to the person, or for any direct, indirect or consequential
damage or loss to the property or business or Lessee, Lessee's
employees, agents, contractors, invitees, customers, or
6
other persons in, on or about the Premises, howsoever caused including,
but not limited to damage or injury caused by or resulting from fire,
steam, electricity, gas, hazardous or toxic substances, water or rain,
or from breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures, or from any other cause, whether resulting from conditions
arising on the Premises or on other portions of any larger property of
which the Prernises are a part, or from other sources or places, and
regardless of whether the cause of such injury or damage or the means
of repairing the same is inaccessible to Lessee. Lessor shall not be
liable for any act or omission of any other occupant, if any, of the
property of which the Premises are a part, if so.
Lessee hereby assunies all risk of and responsibility for loss and
damage to property of Lessee and others or injury or death to persons
in, on or about the Premises from any cause, and Lessee hereby waives
all claims in respect thereof against Lessor. The exemption of Lessor
from liability, and the assumptions and waivers, all as set forth in
this ss.7.7, are for the benefit of Lessor and Lessee only, shall at no
time inure to the benefit of third parties, and shall not in any way
affect or hinder any rights or claims that either Lessor or Lessee may
have against any third parties.
8. Damage or Destruction.
8.1 Partial Damage - Insured. Subject to the provisions of ss.ss.8.2, 8.3)
and 8.4, if the Premises are damacred by a casualty covered by
insurance, subject to the rights of any mortgagee of Lessor in and to
such insurance proceeds, to the extent of insurance proceeds received
by Lessor, the Lessor shall repair such damage (but not Lessee's
modifications, trade fixtures, furnishings or equipment) as soon as
reasonably possible, and the Term of this Lease shall continue in full
force and effect. If the insurance proceeds received by Lessor are not
sufficient to effect such repair, Lessor shall give Notice to Lessee of
the amount required in addition to the insurance proceeds to effect
such repair. Lessee shall contribute the required amount to Lessor
within ten (10) days after Notice from Lessor of the shortage in the
insurance. When Lessee shall contribute such amount to Lessor, Lessor
shall make such repairs as soon as reasonably possible and the Term of
this Lease shall continue in full force and effect. Lessee shall in no
event have any right to reimbursement for any such amount so
contributed.
8.2 Partial Damage - Uninsured: Insured with Proceeds Retained by
Mortgagee. Subject to the provisions of ss.ss.8.3 and 8.4, if the
Premises are damaged (except by an act or omission of Lessee in which
event Lessee shall make the repairs, at its expense) by a casualty not
covered under an insurance policy required to be maintained pursuant to
this Lease, or if such casualty is insured against under an insurance
policy but the proceeds of the insurance are retained by a mortgagee of
Lessor, Lessor may, at Lessor's option, either (i) repair such damage
as soon as reasonably possible at Lessor's expense, in which event the
Term of this Lease shall continue in full force and effect, or (ii)
give Notice to Lessee within thirty (30) days
7
after the date of the occurrence of such damage of Lessor's intention
to terminate the Term of this Lease, which termination Notice shall
state the intended date of termination which shall be not less than
fifteen (15) days and not more than thirty (30) days after the date of
such Notice. If Lessor gives such termination Notice, Lessee shall have
the right within ten (10) days after the date of such termination
Notice to give its repair Notice to Lessor or Lessee's intention to
repair such damage at Lessee's expense, without reimbursement from
Lessor, in which event the Term of this Lease shall continue in full
force and effect, and Lessee shall proceed to make such repairs as soon
as reasonably possible. If Lessee does not give its repair Notice
within such ten (10) days period, the Term of this Lease shall
terminate as of the date of termination stated in Lessor's termination
Notice.
8.3 Total Destruction. If, in the reasonable opinion of Lessor, there is
total destruction of the Premises from any cause, whether or not
covered by 'insurance, (Including any total destruction required by any
public authority), then at the election of Lessor and on Notice to
Lessee the Term of this Lease shall terminate as of the date of such
total destruction which shall be the date of termination. For purposes
of this Lease, "total destruction" includes but is not limited to
damage or injury so extensive either (i) that the estimated cost of
repair and replacement exceeds 60% of the full replacement value of the
improvements constituting part of the Premises, or (ii) that the
estimated time to effect repair and replacement exceeds six (6) months.
8.4 Damage Near End of Term. If the Premises are damaged during the last
six (6) months of the then current Term of this Lease, Lessor may, at
Lessor's option, terminate the Tenn of this Lease by giving termination
Notice to Lessee within thirty (30) days after the date of occurrence
of such damage. In such case, the date of termination shall be stated
in Lessor's termination Notice and such date of termination shall not
be less than fifteen (15) days and not more than thirty (3 ) 0) days
after the date of such Notice.
8.5 Abatement of Rent; Lessee's Remedies.
(a) If the Premises are damaged, and Lessor or Lessee repairs the
Premises pursuant to the provisions of this Lease, rent for the period
in excess of six (6) months during which such damage or repair
continues shall be abated in proportion to the degree to which Lessee's
use of the Premises is impaired; provided, however, that the aggregate
amount of abatement hereunder shall not exceed the total rent payable
for a period of four (4) months. Except for abatement of rent, if any,
Lessee shall have no claim against Lessor for any loss which Lessee may
suffer by reason of any such damage or repair. There shall be no
abatement of rent for the initial six (6) months period of such damage
or repair which is covered by the rental insurance provided for in
ss.7-31(a) of this Lease.
(b) If Lessor shall be obligated to repair the Premises under the
provisions of this Lease and shall not commence such repair within
ninety (90) days after such obligation shall accrue, Lessee may, at
Lessee's option, terminate the Term of this
8
Lease by giving Lessor Notice of Lessee's election to do so at any time
prior to the commencement of such repair. In such event, the Term of
this Lease shall terminate as of the date of such Notice.
8.6 Termination - Advance Payments. On termination of the Term of this
Lease pursuant to this ss.8, an equitable adjustment shall be made
concerning advance rent payments, if any, made by Lessee to Lessor.
8.7 Waiver. Lessee waives the provisions of all applicable laws and
judicial decisions which relate to termination of leases when the
property leased is damaged or destroyed, and agrees that such event
shall be governed by the provisions of this Lease.
9. Property Taxes.
9.1 Real Property Taxes. Lessee shall pay all Real Property Taxes (as
hereinafter defined) applicable to the Premises during the Terms of
this Lease. All such payments shall be made at least ten (10) days
prior to the applicable delinquency date. Lessee shall promptly furnish
Lessor with satisfactory evidence that such taxes have been paid. If
any such taxes paid by Lessee cover any period of time prior to or
after expiration of the Term, Lessee's share of such taxes shall be
equitably prorated to cover only the period of time within the tax
fiscal year during the Term. of this Lease, and Lessor shall reimburse
Lessee to the extent required. If Lessee shall fail to pay any such
taxes, Lessor shall have the right to pay the same, in which case
Lessee shall repay such amount ('including any late or delinquency
charges) to Lessor with Lessee's next rent installment together with
interest at the rate stated in ss. 14.
9.2 Definition of "Real Property Taxes". As used in this Lease, "Real
Property Taxes" shall include any form of assessment, license fee,
commercial rental tax, ad valorem tax, gross receipts, tax, levy,
penalty, or tax (other than net income, inheritance or estate taxes),
imposed by any public or private authority against any legal or
equitable interest of Lessor in the Premises or in the larger property
of which the Premises are a part, if so, or against Lessor's right to
rent or other income therefrom, or against Lessor's business of leasing
the Premises, or any tax or assessment imposed in substitution,
partially or totally, of any tax or assessment previously included
within the definition of Real Property Taxes, or any additional tax or
assessment the nature of which was previously included within the
definition of Real Property Taxes.
9.3 Joint Assessment. If the Premises are not separately assessed, Lessee's
liability shall be an equitable portion of the Real Property Taxes for
all of the property included within the tax parcel assessed, such
portion to be determined by Lessor from the respective valuations
assigned in the assessor's work sheets or such other information as may
be reasonably available. Lessor's reasonable determination thereof, in
good faith, shall be conclusive.
9
9.4 Personal Property Taxes.
(a) Lessee shall pay prior to delinquency all taxes assessed against
and levied on trade fixtures, furnishings, equipment and all other
personal property of Lessee in, on or about the Premises. When
possible, Lessee shall cause said trade fixtures, furnishings,
equipment and all other personal property to be assessed and billed
separately from the property of Lessor.
(b) If any of Lessee's personal property shall be assessed with
Lessor's real property, Lessee shall pay to Lessor or to the taxing
authority the taxes attributable to Lessee within ten (10) days after
receipt of a written statement setting forth the taxes applicable to
Lessee's personal property.
10. Utilities.
Lessee shall pay for all water, gas, heat, light, power, telephone and other
utilities and services supplied to the Premises, together with any taxes
thereon. If any such services are not separately metered to Lessee, Lessee
shall pay a reasonable portion to be deterrIn ed by Lessor of all jointly
metered charges.
11. Assignment and Subletting.
11.1 Lessor's Consent Required. Subject to the provisions of ss. 11.2 ,
Lessee shall not voluntarily or by operation of law assign, transfer,
mortgage, sublet, or encumber all or any part of Lessee's interest in
this Lease or in the Premises, without Lessor's prior written consent.
11.2 Named Lessee Affiliate. Notwithstanding the provisions of ss. 11.1
hereof, the Named Lessee may assign or sublet the Premises, or any
portion thereof, without Lessor's consent, to any entity which
controls, is controlled by or is under common control with the Named
Lessee, or to any entity resulting from merger or consolidation with
the Named Lessee or to any entity which acquires all the assets, as a
going concern, of the business of the Named Lessee that is being
conducted on the Premises, provided that said assignee or sublessee
assumes, in full, the obligations of Lessee under this Lease.
11.3 No Release of Named Lessee. Any subletting or assignment with Lessor's
consent pursuant to ss. 11.1 or without Lessor's consent pursuant to
ss. 11.2 shall not release the Named Lessee of its obligations or alter
the primary liability of the Named Lessee to pay the rent and to
perform all other obligations to be performed by Lessee hereunder. The
acceptance of rent by Lessor from any person other than the Named
Lessee shall not be deemed to be a waiver by Lessor of any provision
hereof. Consent to one assignment or subletting shall not be deemed
consent to any subsequent assignment or subletting. In the event of
default by any assignee, sublessee, or successor of the Named Lessee,
in the performance of any of the provisions hereof,
10
Lessor may proceed directly against the Named Lessee without the
necessity of exhausting remedies against any assignee, sublessee or
successor or, at Lessor's option, may proceed jointly or severally
against the Named Lessee and any one or more assignees, sublessee or
successors. Lessor may consent to subsequent assignments or sublettings
or amendments to this Lease with direct or remote assignees, sublessee
or successors of the Named Lessee, without notifying the Named Lessee,
or any direct or remote assignee, sublessee or successor of the Named
Lessee, and without obtaining its or their consent thereto, and such
action shall not release the Named Lessee of liability under this
Lease.
11.4 Attorneys' Fees. In the event Lessee shall request the consent of
Lessor to any assignment or subletting, or if Lessee shall request the
approval or consent of Lessor for any act that Lessee proposes to do,
then Lessee shall pay Lessor's reasonable attorneys' fees incurred in
connection with Lessor's decision relative to granting or refusing
approval or consent.
12. Defaults; Remedies.
12.1 Default by Lessee. The occurrence of any one or more of the following
events shall constitute a default of this Lease by Lessee:
(a) Vacating the Premises or ceasing to actively conduct business at
the Premises for more than thirty (30) days, except for reasonable
periods on account of repair or reconstruction of the Premises.
(b) Failure to make any payment of rent or any other payment required
to be made by Lessee hereunder, as and when due, where such failure
shall continue for a period of five (5) days after notice thereof from
Lessor to Lessee.
(c) Failure by Lessee to observe or perform any of the provisions of
this Lease to be observed or performed by Lessee, other than described
in ss. 12. 1 (b), where such failure shall continue for a period of
thirty (30) days after Notice thereof from Lessor to Lessee; provided,
however, that if the nature of Lessee's default is such that more than
thirty (30) days are reasonably required for its cure, then Lessee
shall not be deemed to be in default if Lessee commences such cure
within ten (10) days after such Notice and thereafter diligently
pursues such cure to completion.
(d) (i) the making by Lessee of any general assignment, or general
arrangement for the benefit of creditors; (ii) filing by or against
Lessee of either a petition to have Lessee adjudicated a bankrupt or a
petition for reorganization or arrangement under any law relating to
bankruptcy (unless, in the case of a petition filed against Lessee, the
same is dismissed within sixty (60) days); (iii) the appointment of a
trustee or receiver to take possession of substantially all of Lessee's
assets located at the Premises or of Lessee's interest in this Lease,
where possession is not restored to Lessee within thirty (30) days; or
(iv) the attachment, execution or other judicial
11
seizure of substantially all of Lessee's assets located at the Premises
or of Lessee's interest in this Lease, where such seizure is not
discharged within thirty (30) days.
(e) The discovery by Lessor that any financial statement given to
Lessor by Lessee, or by any guarantor of Lessee's obligations
hereunder, was materially inaccurate, whether intentionally so or not.
(f) The failure of Lessee to deliver an Estoppel Certificate pursuant
to ss. 15.1 of this Lease.
12.2 Remedies. In the event of any default by Lessee, the Lessor may, at any
time thereafter, with or without Notice or demand and without limiting
Lessor in the exercise of any other right or remedy, in law of equity,
which Lessor may have by reason of such default:
(a) Terminate Lessee's night to possession of the Premises in which
event Lessee shall immediately surrender possession of the Premises to
Lessor. In such event, Lessor shall be entitled to recover from Lessee
all damages incurred by Lessor by reason of such default including, but
not limited to: the cost of recovering possession of the Premises;
expenses of reletting, including renovation and alteration of the
Premises; reasonable attorneys' fees; any real estate commission paid
or payable with respect to reletting; the worth at the time of award by
the court having jurisdiction thereof of the amount by which the unpaid
rent for the balance of the Term after the time of such award exceeds
the amount of rental loss for the same period that Lessee proves could
be reasonably avoided; and that portion of any leasing commission paid
by Lessor (if so) allocable to the unexpired Term of this Lease.
(b) Maintain Lessee's right to possession of the Premises, in which
case the Term of this Lease shall continue in effect whether or not
Lessee shall have vacated the Premises. In such event, Lessor shall be
entitled to enforce all of Lessor's rights and remedies under this
Lease, including the right to recover the rent as it becomes due
hereunder, without any obligation or duty on the party of Lessor to
mitigate damage or loss. If Lessor elects the remedy provided for in
this ss. 12.2(b), then at any time thereafter, and without Notice to
Lessee, the Lessor may elect to terminate Lessee's possession of the
Premises pursuant to ss. 12.2(a) of this Lease.
(c) Pursue any other remedy now or hereafter available to Lessor under
the law of the State in which the Premises are located.
12.3 Default by Lessor. Lessor shall not be in default unless Lessor fails
to perform obligations required of Lessor within a reasonable time, but
in no event later than thirty (30) days after Notice by Lessee to
Lessor (and to the holder of any mortgage or deed of trust covering the
Premises whose name and address shall have theretofore been furnished
to Lessee by Notice) specifying the default complained of, provided,
however, that if the nature of Lessor's default is such that more than
thirty (30) days
12
are reasonably required for its cure, then Lessor shall not be deemed
to be in default if Lessor commences such cure within said thirty (30)
days period and thereafter diligently pursues such cure to completion.
12.4 Late Charges. Lessee hereby acknowledges that late payment by Lessee to
Lessor of rent and other sums due hereunder will cause Lessor to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not
limited to, processing and accounting charges, and late charges which
may be imposed on Lessor. Accordingly, if any installment of rent or
any other sum due from Lessee shall not be paid by Lessee when due,
Lessee shall pay to Lessor a late charge equal to six percent (6%) of
such overdue amount. Such late charge represents a fair and reasonable
estimate of the costs Lessor may incur by reason of late payment by
Lessee. Acceptance of such late charge by Lessor shall in no event
constitute a waiver of Lessee's default with respect to such overdue
amount, nor prevent Lessor from exercising any other right or remedy.
Any late charge is in addition to and not in lieu of interest on the
amount due at the rate per annum stated in ss.14.
13. Condemnation. If the Premises or any portion thereof be taken under the
power of eminent domain, or be sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), the Term of this
Lease shall terminate as to the part so taken as of the date the condemning
authority takes possession. If more than 10% of the floor area of the
improvements constituting part of the Premises, or more than 25% of the land
area constituting part of the Premises which is not occupied by any
improvements, is taken by condemnation, Lessee may, at Lessee's option, to
be exercised by Notice within ten (10) days after Lessor shall have given
Notice to Lessee of such taking (or in the absence of such Notice, within
ten (10) days after the condemning authority shall have taken possession)
terminate the Term of this Lease as of the date the condemning authority
takes possession. If Lessee does not so terminate the Term of this Lease,
the Term shall continue in full force and effect as to the portion of the
Premises remaining, except that the rent shall be equitably reduced
consistent with the degree to which Lessee's use of the Premises is reduced
by reason of the condemnation. Any award for the condemnation of all of any
part of the Premises shall be the property of Lessor, whether such award
shall be made as compensation for diminution in value of the leasehold or
for the taking of the fee, or as severance damages; provided, however, that
Lessee shall be entitled to any separate award by the condemning authority
for loss of or damage to Lessee's trade fixtures, furnishings, and removable
personal property, or for moving expenses of Lessee.
In the event that the Term of this Lease is not terminated by reason of such
condemnation, Lessor shall, to the extent of severance damages received by
Lessor in connection with such condemnation, repair any damage to the
Premises caused by such condemnation except to the extent that Lessee has
been reimbursed therefor by the condemning authority. Lessee shall pay any
amount in excess of such severance damages required to complete such repair.
13
14. Interest. In addition to and not in lieu of all amounts payable by Lessee
pursuant to the provisions of this Lease, the Lessee shall pay simple
interest on the amount of every delinquent payment at a floating or
adjusting rate per annum. equal to one hundred fifty percent (150%) of the
per annum rate published or declared as "base" or "prime" by the Bank which
is in effect on the first day of the month during which the delinquency
first occurs and on the first day of each succeeding month thereafter until
the delinquency, together with interest thereon, be paid; provided, however,
that if such amount exceeds the highest amount allowed by law, then the
interest rate shall be the highest amount allowed by law. The Bank is such
financial institution doing business in the State in which the Premises are
situate as Lessor may designate from time to time by Notice to Lessee. The
accrual or payment of interest shall not excuse or cure any default by
Lessee.
15. General Provisions.
15.1 Estoppel Certificate; Lessee's Financials
(a) Within ten (10) days after Notice from Lessor, the Lessee shall
execute, acknowledge and deliver to Lessor, or to such other person as
Lessor may designate, a written statement ("Estoppel Certificate") in
form satisfactory to Lessor (i) certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the
nature of such modification and certifying that this Lease, as so
modified, is in full force and effect), (ii) the date to which the rent
and other charges are paid in advance, if any, (iii) acknowledging that
there are not, to Lessee's knowledge, any uncured defaults on the part
of Lessor hereunder, or specifying such defaults if any are claimed and
(iv) providing such other information as Lessor may reasonably request.
Any such statement may be conclusively relied upon by Lessor and by any
prospective purchaser or encumbrances of the Premises.
(b) Lessee's failure to deliver such Estoppel Certificate within ten
(10) days after Notice from Lessor, shall be conclusive on Lessee (i)
that this Lease is in full force and effect, without modification
except as may be represented by Lessor, (ii) that there are no uncured
defaults in Lessor's performance, and (iii) that not more than one
month's rent has been paid in advance, and shall make, constitute and
irrevocably appoint Lessor as Lessee's attorney-in-fact and in-Lessee's
name, place and stead to execute such Estoppel Certificate. Such
failure may also be considered by Lessor as a default by Lessee under
this Lease.
(c) If Lessor desires to utilize the Premises or the obligations of
Lessee under this Lease as security for any borrowing, credit or
financing desired by Lessor, then within ten (10) days after notice
from Lessor, the Lessee shall deliver to any financier designated by
Lessor such financial statements of Lessee as may be reasonably
required by such financier. All such financial statements shall be
received in confidence and shall be used only for the purposes herein
set forth.
14
15.2 Definition of Lessor. "Lessor" means only the owner or owners at the
time in question of the fee title and in the event of any transfer of
such title or interest, the Lessor herein named (and in case of any
subsequent transfers the then grantor) shall be released, from and
after the date of such transfer, of all liability as respects Lessor's
obligations thereafter to be performed. Any funds in the hands of
Lessor (or the then grantor) at the time of such transfer in which
Lessee has an interest, shall be delivered to the transferee. The
obligations contained in this Lease to be performed by Lessor shall be
binding on Lessor's successors and assigns, only during their
respective periods of ownership.
15.3 Definition of Lessee. "Lessee" means (i) the party signing this Lease
as Lessee ("Named Lessee") whether the Premises are at any time
occupied by or 'in the possession of the Named Lessee or any direct or
remote assignee, sublessee or successor of the Named Lessee or any
other person claiming any rights by, through or under the Named Lessee;
and (ii) every direct and remote assignee, sublessee and successor of
the Named Lessee during whatever period such assignee, sublessee or
successor occupies or is in possession of the Premises or asserts or
has any claim or right to occupy or be in possession of the Premises;
and (iii) every other person claiming by, through or under the Named
Lessee any right to occupy or be possession of the Premises during
whatever period such person occupies or is in possession of the
Premises or asserts or has any claim or right to occupy or be in
possession of the Premises.
15.4 Severability. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction, shall in no way affect
the validity of any other provision hereof.
15.5 Time is of the Essence. Time is of the essence.
15.6 Captions. Captions are for convenience only and are not a part of this
Lease.
15.7 Incorporation of Prior Agreements; Amendments. This Lease contains all
agreements of the parties with respect to the subject matter hereof. No
representation, declaration, promise, warranty, agreement or
understanding which is not expressed in this document, or in any
amendment of this document, shall be effective. This Lease may be
amended only in a document signed by the parties.
15.8 Notices. Any Notice required or permitted to be given hereunder shall
be in writing and may be given by personal delivery or by certified
mail, return receipt requested, addressed to Lessee or to Lessor at the
address noted below the signature of the respective parties, as the
case may be. Either party may by Notice to the other specify a
different address for Notice purposes except that on Lessee's taking
possession of the Premises, the Premises shall constitute Lessee's
address for Notice purposes. A copy of all Notices required or
permitted to be given to Lessor hereunder shall be concurrently
transmitted to such party or parties at such addresses as Lessor may
15
from time to time hereafter designate by Notice to Lessee. Notices
given by personal delivery shall be deemed given on the date of
delivery, and Notices given by certified mail shall be deemed given on
the second regular business day after the date of mailing.
15.9 Waivers. No waiver by Lessor of any provision of this Lease shall be
deemed a waiver of any other provision of this Lease or of any
subsequent default by Lessee of the same or any other provision.
Lessor's consent to or approval of any act shall not be deemed to
render unnecessary the obtaining of Lessor's consent to or approval of
any subsequent act by Lessee. The acceptance of rent by Lessor shall
not be a waiver of any preceding default by Lessee of any provision
hereof, other than the failure of Lessee to pay the particular rent so
accepted, regardless of Lessor's knowledge of such preceding default
at the time of acceptance of such rent.
15.10 Recording. Lessee shall not record this Lease without Lessor's prior
written consent, and such recordation shall, at the option of Lessor,
constitute a non-curable default of Lessee. Each party shall, on
request of the other, execute, acknowledge and deliver to the other a
"short form" memorandum of this Lease for recording purposes.
15.11 Holding Over. If Lessee remains in possession of the Premises or any
part thereof after expiration of the Term without the express written
consent of Lessor, such occupancy shall be a tenancy from
month-to-month at a monthly rental in the amount of double the last
monthly rental during the Term, plus all other charges payable
hereunder, and subject to all provisions of this Lease which may be
applicable to a month-to-month tenancy.
15.12 Cumulative Remedies. No remedy or election available to Lessor shall
be deemed exclusive but shall be cumulative with all other remedies at
law and 'in equity available to Lessor.
15.13 Covenants and Conditions. Each provision of this Lease shall be deemed
both a covenant and a condition.
15.14 Binding Effect, Choice of Law. Subject to the provisions of ss.ss.
15.2 and 15.3 ), this Lease shall bind the parties, their personal
representatives, successors and assigns. This Lease shall be governed
by the laws of the State in which the Premises are situate.
15.15 Subordination.
(a) At Lessor's option, this Lease, and the leasehold interests and
rights of Lessee, shall be subordinate to any ground lease, master or
superior lease, mortgage, deed of trust, hypothecation, or security
'interest now or hereafter affecting the Premises or any part of the
Premises, and to any and all renewals, modifications, consolidations,
replacements and extensions thereof. Notwithstanding such
subordination, Lessee's right to quiet possession of the Premises
during the Term shall not be disturbed so
16
long as Lessee shall observe and perform all of the provisions of this
Lease to be observed and performed by Lessee. If any mortgagee,
trustee, lessor or security interest holder shall elect to have this
Lease regarded as being prior and superior to its mortgage, deed of
trust, lease or security interest, and shall give Notice thereof to
Lessee, this Lease shall be deemed prior and superior to such
mortgage, deed of trust, lease or security interest, whether this
Lease is dated before or after the date of said mortgage, deed of
trust, lease or security interest, or the date or recording thereof.
(b) Lessee agrees to execute any documents required to effectuate such
subordination or to make this Lease prior and superior to any
mortgage, deed of trust, lease or security interest, as the case may
be, and failing to do so within ten (10) days after Notice from Lessor
shall make, constitute and irrevocably appoint Lessor as Lessee's
attorney-in-fact and in Lessee's name, place and stead, to execute any
such document.
15.16 Attorney's Fees. If either party brings an action to enforce the
provisions hereof or declare rights hereunder or recover for any loss
or damage on account of the default of the other party, the prevailing
party in any such action shall be entitled to reasonable attorneys'
fees, costs of litigation and court costs to be paid by the losing
party as fixed by the court.
15.17 Lessor's Access. Lessor and Lessor's agents shall have the right to
enter the Premises at reasonable times for the purpose of inspecting
the same, showing the same to prospective purchasers, lenders, or
tenants, and making such alterations, repairs improvements or
additions to the Premises, or to the larger property of which they are
a part, if so, as Lessor may deem necessary or desirable. Lessor may
at any time place on or about the Premises any ordinary "For Sale"
signs, and Lessor may at any time during the last 120 days of the Term
place on or about the Premises any ordinary "For Lease" signs, all
without rebate of rent or liability to Lessee.
15.18 Signs and Auctions. Lessee shall not place any sign on or visible from
the exterior of the Premises, or conduct any auction in, on or about
the Premises without Lessor's prior written consent.
15.19 Merger. The voluntary or other surrender of this Lease by Lessee, or a
mutual cancellation thereof, or a termination of the Term by Lessor,
shall not work a merger, and shall, at the option of Lessor, terminate
all or any existing subtenancies or may, at the option of Lessor,
operate as an assignment to Lessor of any or all of such subtenancies.
15.20 Corporate Authority. If Lessee is a corporation, each individual
executing this Lease on behalf of said corporation represents and
warrants that he is duly authorized to execute and deliver this Lease
on behalf of said corporation, in accordance with a duly adopted
resolution of the Board of Directors of said corporation or in
accordance with the Bylaws of said corporation, and that this Lease is
binding on said
17
corporation. If Lessee is a corporation, Lessee shall, within thirty
(30) days after execution of this Lease, deliver to Lessor a certified
copy of a resolution of the Board of Directors of Lessee authorizing
or ratifying the execution of this Lease.
15.21 Approvals and Consents. If approval or consent of one party is
required to an act of the other party, such approval or consent shall
not be unreasonably withheld.
15.22 Quiet Possession. By observing and performing all of the provisions on
Lessee's part to be observed and performed hereunder, Lessee shall
have quiet possession of the Premises for the entire Term, subject to
all of the provisions of this Lease.
15.23 Options. In the event that Lessee has any option to extend the Term,
or any option to purchase the Premises or any right of first refusal
to purchase the Premises or other property of Lessor, then each of
such options and rights are personal to the Named Lessee and may not
be exercised by any one other than (i) theNamed Lessee or (ii) an
assignee or subtenant described in ss. 11.2 of this Lease. If there
are multiple options to extend the Term of this Lease, a later option
to extend cannot be exercised urdess every prior option has been duly
exercised. Any option night referenced 'in this ss. 15.231 may be
exercised only if Lessee is not in default.
15.24 Multiple Tenant Property Rules and Regulations. In the event that the
Premises are part of a larger property, then Lessee agrees that it
will abide by, keep and observe all reasonable rules and regulations
which Lessor may make from time to time for the management, safety,
care and cleanliness of such larger property, the parking of vehicles
and the preservation of good order therein as well as for the
convenience of other occupants. Lessee will promptly pay its pro rata
share, as reasonably determined by Lessor, of any maintenance or
repair or such portion of the Premises or such portion of the larger
property of which the Premises are a part, which are common areas or
used by Lessee and others. The violation of any such rules and
regulations, or the failure to pay such pro rata share of costs, shall
be deemed a default of this Lease by Lessee.
15.25 Insuring Party. The Insuring Party under this Lease shall be the
Lessee.
15.26 When Lessor is Obligated. The submission of this document by Lessor to
Lessee does not constitute an offer or option of any kind capable of
being accepted by Lessee: Lessor will be obligated if, and only if
Lessor duly executes this document by affixing its signature hereto,
and delivers a signed copy hereof to Lessee.
15.27 Effect of Lease on Existing Tenancies. In the event any existing
leases or tenancies are in effect with respect to the Premises as of
the effective date hereof, Named Lessee nonetheless shall be directly
liable to Lessor pursuant to all terms and provisions of this Lease,
and such lease or tenancy shall effectively be deemed a sublease
between Named Lessee and such lessee or tenant, pursuant to such lease
or tenancy. Named Lessee further agrees to indemnify, defend, release
and hold
18
harmless Lessor from any and all claims of such lessee or tenant,
unless due to a default by Lessor under this Lease.
19