Exhibit 10.16
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into effective this 1st day of
December, 1996, by and between ▇.▇ ▇▇▇▇, ▇▇., hereinafter referred to as
"Lessor", and GuildMaster, Inc., hereinafter referred to as "Lessee".
In consideration of the mutual convenants herein contained and agreed
to be kept, the Lessor does hereby lease to the Lessee and the Lessee does
hereby lease from the Lessor, the Premises on the following terms, conditions,
and agreements:
1. PREMISES. The Premises are land and a commercial structure for
manufacturing and warehouse/distribution use located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ which building has an aggregate of
approximately 41,250 square feet and the land has an aggregate of approximately
164,221 square feet and said Premises being further delineated as Exhibit "A".
2. TERM. The initial term of this Lease shall be for a period of sixty
(60) months beginning on December 1, 1996 and terminating on November 30, 2001,
unless terminated prior thereto as provided herein. The Lessee may extend the
term of this Lease for three (3) sixty (60) month terms by providing written
notice to Lessor at least ninety (90) days prior to expiration of the initial
and each subsequent renewal term, provided the Lessee is in full compliance with
the terms and conditions of this Lease. The term of this Lease shall include the
initial term and any exercised renewal term. If the premises is not ready for
occupancy by December 1, 1996, then the lease term shall not commence until the
premises is ready for occupancy. At that time, rent will be prorated for any
portion of a month, and the commencement date of the lease term will be
automatically changed to the first day of the next calendar month.
3. RENTAL. The rental payments for the initial term hereof shall be the
monthly sum of eight thousand seven hundred sixty-six and no cents ($8,766.00)
from December 1, 1996 through November 30, 2001. If the Lessee exercises their
option for the first five (5) year renewal term from December 1, 2001, through
November 30, 2006, the monthly sum shall be determined by multiplying the rate
eight thousand seven hundred sixty-six and no cents ($8,766.00) by a fraction,
the numerator of which is the "Consumer Price Index", published by the United
States Department of Labor, Bureau of Labor Statistics, All Consumers (CPI-U),
all items, (1982-84=100) (or if that Index is not available then an available
Index published by the Bureau or its successors, or if none, by any other
instrumentality of the United States or the State of Missouri), (hereinafter
"CPI-U") for November, 2001, and the denominator of which is the CPI-U for
December, 1996. If there is no increase in the CPI-U for this period, the
monthly rent payments shall remain the same as the previous period but at no
time shall the maximum increase for the CPI-U be greater than three (3) percent
annually, or a total of fifteen percent (15%) over the five (5) year period. If
the Lessee exercises their option for the second five (5) year renewal term for
the period from December 1, 2006, through November 30, 2011, the monthly sum
shall be determined by multiplying the rate eight thousand seven hundred
sixty-six and no
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cents ($8,766.00) by a fraction, the numerator of which is the CPI-U for
November, 2006, and the denominator of which is the CPI-U for December, 1996. If
there is no increase in the CPI-U for this period, the monthly rent payments
shall remain the same as the previous period but at no time shall the maximum
increase for the CPI-U be greater than three (3) percent annually, or a total of
fifteen percent (15%) over the five (5) year period. If the Lessee exercises
their option for the third five (5) year renewal term for the period from
December 1, 2011, through November 30, 2016, the monthly sum shall be determined
by multiplying the rate eight thousand seven hundred sixty-six and no cents
($8,766.00) by a fraction, the numerator of which is the CPI-U for November,
2011, and the denominator of which is the CPI-U for December, 1996. If there is
no increase in the CPI-U for this period, the monthly rent payments shall remain
the same as the previous period but at no time shall the maximum increase for
the CPI-U be greater than three (3) percent annually, or a total of fifteen
percent (15(degree)/a) over the five (5) year period. All installments of rent
shall be payable in advance on the first day of each month of this Lease and all
payments shall be made to Lessor at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇. Additional rent shall include other charges and expenses to be paid or
reimbursed by Lessee as provided for herein. Any rent or additional rent not
paid within ten (10) days of due date shall bear a late charge equal to ten
percent (10%) of the amount due.
4. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution of
this Lease a sum equal to one thousand and no cents dollars ($1000.00), as
security for Lessee's faithful performance of Lessee's obligations under this
Lease. If Lessee fails to pay the Rent or any other charges due hereunder, or
otherwise defaults under this Lease, Lessor may use, apply or retain all or any
portion of the Security Deposit for the payment of any amount due Lessor or to
reimburse or compensate Lessor for any liability, cost, expense, loss or damage
(including attorneys' fees) which Lessor may suffer or incur by reason thereof.
If Lessor uses or applies all or any portion of the Security Deposit, Lessee
shall within ten (10) days after written request therefor deposit moneys with
Lessor sufficient to restore the Security Deposit to the amount required above.
5. TRIPLE NET LEASE. It is the intent of the parties that this be a
triple net lease with Lessee bearing all costs of occupancy, repair and
maintenance of the Premises, including but not limited to taxes, insurance,
utilities, repairs, maintenance, and structural repairs, excluding only Lessor's
obligation to (i) make payments on Notes payable by Lessor secured by Deeds of
Trust on the Premises, (ii) restore the Premises as provided in ▇▇▇▇▇▇▇▇▇ ▇▇,
(▇▇▇) pay those costs related to a breach by Lessor of its representations and
warranties herein, and (iv) pay for those capital improvements which Lessor
elects at its sole discretion to make to the Premises, subject to full or
partial reimbursement by Lessee as provided in Section 12(c).
6. LESSOR'S REPRESENTATIONS. The Lessor represents and warrants the
following:
(a) Lessor holds absolute and indefeasible title in fee simple
to the Premises;
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(b) Lessor is lawfully seized of the Premises and during all
of the term hereof, Lessee's possession of the Premises shall not be
disturbed by lawful acts of third parties claiming title to or a right
to the possession of the Premises;
(c) The Premises is properly zoned for the operation of
Lessee's current use of the Premises as a manufacturing and storage
facility and has legal access to and from a publicly dedicated street;
and
(d) The Premises has access to adequate utility services for
Lessee's proposed use of the Premises as a manufacturing plant or
warehouse/distribution center.
(e) The final construction of the building will be in adequate
physical condition to allow manufacturing or distribution by the
Lessee.
7. TAXES. Lessee shall pay before delinquency thereof any and all
personal and real property taxes assessed against the Premises and the property
of Lessee contained in or on the Premises. Upon request by Lessee, Lessor shall
provide without unreasonable delay, the necessary information, including signing
any necessary forms, to allow Lessee to qualify for any enterprise zone tax
benefits that the Lessee is entitled to as a result of locating at the Lessor's
premises.
8. UTILITIES. Lessee agrees to promptly pay all gas, electric,
telephone, sewer, trash, water, sprinkler monitoring, and any other utility
charges which may become payable during the continuation of this Lease for such
utilities used in or on the Premises.
9. USE AND OCCUPANCY.
(a) The Premises are to be used in Lessee's business for
sales, manufacturing, warehousing, and shipping of home furnishings or
for any other lawful purpose.
(b) Lessee covenants that no waste or damage shall be
committed upon or to the Premises; that the Premises shall not be used
for any unlawful purpose nor in a manner creating a nuisance for
adjoining tenants; and that no violation of any city, county, state or
federal law, rule or regulation shall be permitted or committed
thereon, including without limitation any Environmental Laws (as
hereinafter defined). Lessee shall not allow any rubbish or refuse to
accumulate or any fire hazard to exist on the Premises. Lessee agrees
to obey and conform to all laws, ordinances, rules, regulations or
orders of the city, county, state and federal governments and all
public utilities.
10. HAZARDOUS SUBSTANCES.
(a) Lessee shall not generate, use or store any substances
designated as, or containing components designated by any governmental
agency as hazardous,
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(b) Lessor is lawfully seized of the Premises and during all
of the term hereof, Lessee's possession of the Premises shall not be
disturbed by lawful acts of third parties claiming title to or a right
to the possession of the Premises;
(c) The Premises is properly zoned for the operation of
Lessee's current use of the Premises as a manufacturing and storage
facility and has legal access to and from a publicly dedicated street;
and
(d) The Premises has access to adequate utility services for
Lessee's proposed use of the Premises as a manufacturing plant or
warehouse/distribution center.
(e) The final construction of the building will be in adequate
physical condition to allow manufacturing or distribution by the
Lessee.
7. TAXES. Lessee shall pay before delinquency thereof any and all
personal and real property taxes assessed against the Premises and the property
of Lessee contained in or on the Premises. Upon request by Lessee, Lessor shall
provide without unreasonable delay, the necessary information, including signing
any necessary forms, to allow Lessee to qualify for any enterprise zone tax
benefits that the Lessee is entitled to as a result of locating at the Lessor's
premises.
8. UTILITIES. Lessee agrees to promptly pay all gas, electric,
telephone, sewer, trash, water, sprinkler monitoring, and any other utility
charges which may become payable during the continuation of this Lease for such
utilities used in or on the Premises.
9. USE AND OCCUPANCY.
(a) The Premises are to be used in Lessee's business for
sales, manufacturing, warehousing, and shipping of home furnishings or
for any other lawful purpose.
(b) Lessee covenants that no waste or damage shall be
committed upon or to the Premises; that the Premises shall not be used
for any unlawful purpose nor in a manner creating a nuisance for
adjoining tenants; and that no violation of any city, county, state or
federal law, rule or regulation shall be permitted or committed
thereon, including without limitation any Environmental Laws (as
hereinafter defined). Lessee shall not allow any rubbish or refuse to
accumulate or any fire hazard to exist on the Premises. Lessee agrees
to obey and conform to all laws, ordinances, rules, regulations or
orders of the city, county, state and federal governments and all
public utilities.
10. HAZARDOUS SUBSTANCES.
(a) Lessee shall not generate, use or store any substances
designated as, or containing components designated by any governmental
agency as hazardous,
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dangerous, toxic or harmful, and/or subject to regulations under
federal, state or local law, regulations or ordinance on or around the
Premises, except to the extent used (i) in normal quantities and (ii)
in compliance with all Environmental Laws. Lessee shall not install any
underground storage tanks on the Premises without prior written consent
of Lessor, which may be withheld in Lessor's sole discretion. Lessee
shall be fully and completely liable to Lessor and shall indemnify,
defend and hold Lessor harmless from any and all cleanup costs and any
and all other charges, fees (including attorneys' and consultants'
fees) or penalties relating to the use, disposal, transportation,
generation or sale by Lessee of hazardous substances on the Premises.
(b) Lessee further agrees to indemnify, defend and hold
harmless Lessor its employees, officers and directors, and Lessor's
successors, assigns and successors in interest to the Premises or any
part thereof, from and against any and all liability, losses, expenses
(including attorneys' and consultants' fees), damages, penalties,
costs, actions, claims, judgments, fines, response costs, cleanup costs
and oversight costs which may be imposed upon, incurred by, or asserted
against Lessor, its employees, officers and directors, and Lessor's
successors, assigns and successors in interest to the Premises or any
part thereof, by any person or entity (including, but not limited to, a
governmental entity), arising out of or in connection with any
Environmental Conditions on or off the Premises, caused or created by
Lessee and/or arising out of or in connection with Lessee's violation
or failure to comply with any Environmental Laws (as hereinafter
defined) at any time throughout Lessee's occupancy of the Premises
whether before or after the date of this Lease, except to the extent
caused by Lessor or relating to an existing condition. Such
indemnification applies whether or not such liability, damages, losses,
expenses (including attorneys' and consultants' fees), penalties,
costs, actions, claims, judgments fines, response costs, cleanup costs
and oversight costs arise under any theory of strict liability, whether
under common law or under any federal, state or local law and whether
arising from the actions of Lessee or any of its employees, agents,
contractors or licensees, except to the extent caused by Lessor or
relating to an existing condition.
(c) "Environmental Conditions" means any and all conditions
in, on, under or resulting from the soil, surface water, air, ground
water and stream sediments on, under or above the Premises that could
require remedial action or result in claims, demands or liabilities by
third parties against the owner or operator of the Premises.
(d) "Environmental Laws" shall mean all federal, state or
local environmental laws, ordinances, rules, regulations, requirements,
licenses, permits, and acts, and all regulations promulgated
thereunder, whether now existing or hereafter enacted, including, but
not limited to: the Federal Water Pollution Control Act, 33 U.S.C.
ss.1251 et seq., as amended ("FWPCA"); the Clean Air Act, 42 U.S.C. ss.
741 et seq., as amended ("CAA"); the Resource Conservation and
Recovery Act, 42 U.S.C. ss. 6901 et seq., as amended ("RCRA"); The
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Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. ss.9601 et seq., as amended ("CERCLA") The Superfund
Amendments and Reauthorization Act, as amended ("▇▇▇▇"); the Clean
Water Act, as mended ("CWA"); the Toxic Substances Control Act, 15
U.S.C. ss.2601 et seq., as amended ("TSCA"); the Occupational Safety
and Health Act, 29 U.S.C. ss.651 et seq., as amended ("OSHA"'); the
Safe Drinking Water Act, 42 U.S.C. s.300(f) et seq., as amended; the
Federal Insecticide, Fungicide and Rodentcide Act, 7 U.S.C. ss.136, et
seq., as amended ("FIFRA"); the Hazardous Material Transportation Act;
and the Marine Protection, Research and Sanctuaries Act.
(e) Lessor represents and warrants that to the best of its
knowledge and belief the Premises have never been used for the
treatment, handling, storage, or disposal of any hazardous waste or
substance or other toxic chemicals or hazardous conditions; and no such
hazardous dangerous conditions, wastes, chemicals or products now exist
on the Premises.
(f) Lessor further represents and warrants that in the event
any of the above are ever discovered to exist on the Premises which
predate closing, that they shall indemnify and hold Lessee and its
successors and assigns harmless and shall correct and cure some as soon
as reasonably possible after written notice, and pursuant to all
governmental agency requirements.
11. ASSIGNMENT AND SUBLETTING. The Lessee shall not assign or sublet
the Premises, or any part thereof, without obtaining the prior written approval
of the Lessor which consent shall not be reasonably withheld; and, should such
consent be given, the Lessee shall remain liable for the performance of the
terms and conditions and agreements under this Lease during the term of this
Lease (including any renewal term) as though such assignment or subletting had
not been made. Lessee shall reimburse Lessor for Lessor's reasonable costs of
approving documents said transfer, not to exceed One Thousand Dollars ($1,000)
per requested assignment or subletting. Lessor may assign this Lease to any
subsequent owner of the Premises without consent of Lessee.
12. CONDITION OF PREMISES, REPAIRS. ALTERATIONS AND CAPITAL
IMPROVEMENTS.
(a) Prior to the term of this Lease as defined in Section 2,
the Lessor shall improve the premises at its own expense in accordance
with the LETTER OF INTENT TO LEASE signed by Lessor on September 9,
1996, a copy of which is attached hereto and made a part thereof as
Exhibit "C". The improvements shall be made in conformance with all the
laws, ordinances, rules and regulations of all public authorities
having jurisdiction over the premises. Lessor shall furnish to Lessee
as soon as possible after preparation, copies of all architectural
drawings and specifications covering said improvement.
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(b) Lessor expenses for the improvements outlined in Exhibit
"B" shall be limited to a total of fifty thousand and no cents dollars
($50,000.00). The improvements can include (i) office area infill, (ii)
compressor airline installation (iii) installation of vents for air
circulation (iv) installation of air handling units (v) extension,
including paving, of parking lot area. Should the expense for the
improvements attached as shown on Exhibit "B" exceed fifty thousand and
no cents dollars ($50,000.00), Lessee will pay the excess amount over
fifty thousand and no cents dollars ($50,000.00).
(c) Lessee reserves the right to request additional items as
defined in Exhibit "B" to be added by the Lessor to the premises prior
to the Lessee taking possession, and because such additional items are
an added capital expense to the Lessor, the Lessee understands and
agrees that the lease rate will increase as a result of these expenses.
Lessee must exercise this right to request any additional items by
October 15, 1996, and the request shall be in writing. Lessor shall not
increase the initial monthly lease rate by an amount greater than
twelve (12) percent of the cost of the additional items divided by
twelve (12) and the increase shall be done as an amendment pursuant to
Section 30 of this Agreement.
(d) Lessee's taking possession shall be conclusive evidence
against it that the Premises were in good order and in satisfactory
condition when Lessee took possession hereunder. Lessee agrees to make
all interior, exterior and structural repairs, other than those
necessitated by fault or default of Lessor, to the buildings and land
comprising the Premises, including without limitation all necessary
repairs to (i) gas, electrical, plumbing, air conditioning, heating,
lighting, ventilating, fire sprinkler, fire alarm, smoke alarm, and
other safety alarm equipment and/or systems as are installed or as may
be installed in or on the Premises, (ii) all connections from existing
utilities to the buildings on the Premises, and (iii) the roof,
ceilings, interior and exterior walls, floors, foundations, windows,
doors, skylights, signs, driveways, parking lots, fences, retaining
walls, sidewalks, and landscaping in, on, about or adjacent to the
Premises. Lessee agrees to replace all broken glass, damaged
or destroyed in any manner whatsoever in the Premises.
(e) Lessee agrees not to make, or cause to have made, any
alterations or improvements upon the Premises in excess often thousand
dollars ($10,000.00) without first having submitted plans and
specifications for such proposed alterations or improvements to Lessor
and having obtained Lessor's prior written approval of same. All
repairs, alterations, additions, and improvements to the leasehold,
except trade fixtures installed by the Lessee which may be removed
without damage to or subsequent restoration of the Premises, shall
become the property of Lessor and shall remain upon and be surrendered
with the Premises at the expiration of this Lease or a sooner
termination thereof, unless otherwise agreed to by the parties in
writing.
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(f) Lessor shall make, in its sole discretion, capital
improvements to the Premises which are both essential to Lessee's
operations and appropriate for the continued use of the Premises as it
is proposed to be operated, such as the installation of a new roof at
the expiration of its useful life (the costs and expenses incurred by
Lessor in connection therewith shall be referred to herein as "Capital
Expenditures"). Promptly after the completion of any such capital
improvements, Lessee shall be responsible for paying to Lessor, within
twenty (20) days after receiving written notice from Lessor, a portion
of the Capital Expenditures equal to the total Capital Expenditures
multiplied by the remaining period of time in the term of this Lease
divided by the useful life of the improvement at issue (using the
Internal Revenue Code guidelines as a basis for determining such useful
life if the parties are not able to agree otherwise). It is agreed that
the useful life of the roof is twenty (20) years and Lessor shall be
responsible for improvements during the twenty (20) year period. The
Lessee shall also pay upon the subsequent exercise of each renewal term
a portion of the Capital Expenditures multiplied by the number of years
in such renewal term divided by the useful life of the improvement.
(g) Lessor represents that upon completion of the new building
and prior to occupancy by the Lessee that the building is in compliance
with all city, county, and state building codes.
13. SIGNS. Lessee shall have the right to erect and maintain customary
and ordinary signs upon the walls of the Premises for advertising, except that
Lessee may not paint signs on walls, roofs, or other area of the Premises
without Lessor's prior written consent. The Lessee shall indemnify and hold
harmless the Lessor from all liability arising to any and all persons
whomsoever, whether for personal injuries or otherwise, by reason of the
erection, maintenance, operation or condition of any sign or signs or any part
thereof, or any device or appliance used in connection therewith, and from any
damage or injury resulting to any persons whomsoever from defects in or
defective condition of that portion of the Premises upon which said signs may be
installed. Any signs placed upon the Premises by Lessee may be removed at the
termination of this Lease and all damage done thereby shall be repaired at
Lessee's expense.
14. LESSOR'S NON-LIABILITY FOR DAMAGE BY FIRE OR WATER, LIABILITY OF
LESSEE AND INSURANCE.
(a) The Lessor shall not be liable or responsible to any
person or persons whomsoever for any damage to person, goods, wares,
merchandise or other property in or about the Premises which is caused
or occasioned by fire or by the breaking, overflowing or leaking of
roofs, pipes or walls of the building, or for any damage suffered by
any acts whatsoever, except for those damages caused by Lessor's
willful acts or gross negligence.
(b) The Lessee agrees to be responsible for any damage to the
property of Lessor which may result from any use of the Premises or any
act done thereon by
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the Lessee, or any person coming or being upon the Premises by the
license of the Lessee, express or implied, and also to save the Lessor
harmless from any liability to any person, for damage to person or
property resulting from such cases, and to protect against such
liability by purchasing and maintaining Public Liability Insurance for
the benefit of Lessee and the Lessor in coverage of not less than
$1,000,000 per occurrence/$3,000,000 aggregate. Lessee agrees to
furnish Lessor a certificate issued by a insurance carrier or carriers
listed in the "Best Guide" with a "B" rating or above, showing such
insurance in force arid to provide Lessor with a copy of said policies.
The policy or policies shall name Lessor as an "additional insured" and
shall include coverage for liability assumed under this Lease as an
"insured contract" for the performance of Lessee's indemnity
obligations under this Lease and, at Lessor's request, shall include
the "Amendment of the Pollution Exception" for damages caused by heat,
smoke or fumes from a hostile fire. The limits of said insurance
required by this Lease or as carried by Lessee shall not, however,
limit the liability of Lessee nor relieve Lessee of any obligation
under this Lease.
(c) Lessee agrees to purchase property and casualty insurance
at replacement cost of the Premises, including extended risk, and
Lessee is further responsible for payment of any deductible associated
with said policies in the event of a claim. Lessee agrees to furnish
Lessor a certificate issued by an insurance carrier or carriers,
acceptable to Lessor, showing such insurance in force and noncancelable
without at least ten (10) days advance written notice to Lessor, and to
provide Lessor with a copy of said policies upon request. The policy or
policies shall name Lessor as an insured party.
15. MUTUAL INDEMNIFICATION. The Lessee agrees to hold the Lessor free
and harmless from any liens, judgments or encumbrances created or suffered by
the Lessee, and from any and all liability, penalties, losses, damages, costs
and expenses, causes of action, claims or judgments arising from injury during
said term to persons or property of any nature occasioned by an act or omission
of the Lessee, or its employees, agents, or servants, subtenants, or
contractors, and growing out of the occupancy of the Premises by Lessee, and
also against all legal costs and charges, including attorney fees, reasonably
incurred in and about such matters, and the defense of any action arising out of
the same, or in discharging the Premises or any part thereof from any and all
liens that may be placed thereon for charges incurred by Lessee. Notwithstanding
any provision contained in this Lease to the contrary, Lessor hereby indemnifies
Lessee and holds Lessee harmless from and against any and all claims,
liabilities, losses and causes of action of whatever kind of nature which are
suffered by or asserted against Lessee by any person and which claims,
liabilities, losses and causes of action arise out of, or in connection with or
are based upon any acts, omissions, or failures of Lessor, its agents,
contractors, employees, servants or invitees under this Lease.
16. LESSOR'S RIGHT TO INSPECT. RESERVED RIGHTS. Lessor expressly
reserves the following rights: (a) to enter the Premises at any reasonable time
during
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business hours to examine the Premises, to observe the manner of Lessee's
operations on the premises; and (b) at least ten (10) days after Lessor gives
Lessee written notice, to enter the Premises to make such repairs, additions or
alterations as the Lessor may deem necessary for the improvement or preservation
of the Premises, as long as Lessor does not unreasonably interfere with the
business operations of the Lessee, but Lessor assumes no obligation to make
examinations or repairs to the Premises; and (c) to enter the Premises and
display a sign, "For Rent", at any time within ninety (90) days before the
expiration of this Lease, or any extension thereof, and to maintain the same as
placed; and (d) during or after the time Lessee abandons or vacates the Premises
for reoccupancy. The exercise of any reserved right herein stated by Lessor,
shall never be deemed an eviction or disturbance of Lessee's use and possession
of the Premises and shall never render Lessor liable in any manner to Lessee or
to any other person.
17. FIRE CLAUSE.
(a) If the Premises are partially damaged by fire or other
casualty, not occurring through Lessee's fault, and such damage can be
repaired within one hundred eighty (180) days after the date of such
occurrence, the Lease shall remain in full force and effect, and the
Lessee shall promptly repair such damage at Lessee's expense, and in
that event there shall be proportionate abatement of rent for so much
of the Premises and may be untenantable during the period of repair or
restoration unless the Premises were damages through Lessee's fault.
(b) If in the opinion of a registered architect or engineer
appointed by the Lessor, the Premises are damaged by fire or other
casualty to such an extent as to make them untenantable for a period of
one hundred eighty (180) days or more from the date of such occurrence,
and such damage cannot be repaired or the Premises restored within said
time, this Lease shall terminate at the option of either the Lessor or
Lessee upon written notice given within thirty (30) days after
receiving said architect's or engineer's opinion. If damage is caused
by Lessee's fault, then Lessee shall be responsible for all repairs and
rent for the remaining term of the Lease.
18. DAMAGE NEAR END OF TERM. Notwithstanding Paragraph 17(a), if at any
time during the last six (6) months of the initial term or any renewal term of
this Lease there is damage to the Premises for which the cost to repair exceeds
six (6) months' rent, whether or not an insured loss, either Lessor or Lessee
may option, terminate this Lease effective sixty (60) days following the
occurrence of such damage by giving written notice to the other party within ten
(10) days after the date of the occurrence of such damages unless Lessee has
prior thereto exercised any option Lessee may have to extend this Lease.
19. CONDEMNATION. It is mutually agreed by the parties that in case the
whole or any part of the Premises shall be taken by the City, State or other
public authority for any public use and which renders the Premises reasonably
unusable by Lessee, then this Lease shall terminate from the time when
possession of the whole or of
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the part so taken shall be required for such public use, and Lessee shall pay
all rents prorated to the date when possession is taken; and, the Lessee shall
not claim or be entitled to any part of the award to be made for damages for
such taking for public use; and, such taking shall not be deemed a breach of any
covenant for quiet enjoyment by Lessor herein; provided, further, that if only a
portion of the Premises is taken which does not materially interfere with
Lessee's use of the Premises, then the Lease shall continue as to the remaining
portion of the Premises not so taken, in which case the obligations and
liabilities of the Lease shall continue in all respects notwithstanding such
partial taking for public use.
20. ABANDONMENT AND SURRENDER OF PREMISES. If Lessee shall abandon or
vacate the Premises before the end of the term without an intent to return, or
any other event shall happen entitling Lessor to take possession thereof, Lessor
may take possession of the Premises and relet the same without any action being
deemed an acceptance of a surrender of this Lease, or in any way terminating the
Lessee's liability hereunder and the Lessee shall remain liable for payment of
the rent herein reserved, less the net amount received by the Lessor from
reletting (after the deduction of any expenses incident to such possession and
reletting). The Lessee shall, upon the expiration or termination of this Lease
for any reason whatsoever, surrender to the Lessor the building and building
equipment then upon the Premises, together with all alterations and replacements
thereof then on the Premise, in good order, condition and repair, except for
damage due to reasonable wear and tear, casualty other than a casualty caused by
Lessee's negligence, or condemnation. Except as provided in Paragraph 12, title
to all of the Lessee's trade fixtures, furniture and equipment shall remain in
the Lessee, and, upon expiration on other termination of this Lease, the same
shall be removed and any resultant damage to the Premises shall be repaired by
and at the expense of the Lessee; provided, however, that if, upon any
expiration or termination of this Lease, the Lessee shall be delinquent or in
default under any provisions hereof, the Lessee shall not, without the Lessor's
consent expressly given in writing, be entitled to remove any such trade,
fixtures, furniture or equipment unless and until such delinquency or default
shall have been cured, and if such delinquency or default shall have been cured,
and if such delinquency or default shall not have been cured by the Lessee in
thirty (30) days after the date of such expiration or termination, all such
trade fixtures, furniture and equipment of the Lessee shall, at the Lessor's
option be and become the absolute property of the Lessor. Lessor shall, upon
Lessee's request and subject to Lessee being in full compliance with all terms,
conditions and agreements in this Lease, execute such landlord waivers as Lessee
may reasonably request regarding Lessee's trade fixtures and personal property
which are consistent with the terms of this Lease.
21. TENURE AT EXPIRATION. If the Lessee shall occupy Premises with the
consent of the Lessor after the expiration of the Lease, or any extension
thereof, and the rent is accepted from said Lessee, such occupancy and payment
shall be construed as an extension of this Lease for the term of one (1) month
only from the date of such expiration, and occupation thereafter shall operate
to extend the term of this Lease for one (1) month at a time, unless other terms
of such extension are endorsed hereon in writing and signed by the parties
hereto. If such occupancy continues without the consent of the
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Lessor, Lessee shall pay to Lessor as liquidated damages one hundred fifty
percent (150%) of the amount of rent specified in this Lease for the first sixty
(60) days which Lessee retains possession of the Premises, or any part thereof,
after termination of the term by lapse of time or otherwise, and thereafter the
liquidated damages shall be double of the rent specified in the Lease. Lessor's
receipt of such liquidated damages shall not be construed as a consent to
Lessee's holdover.
22. LESSOR'S REMEDIES. SECURITY AND COSTS IN ACTION. Upon Lessee's
failure to pay any installment of rent or other charges when due or if Lessee
shall fail to observe and perform any of the other conditions, agreements, or
provisions of this Lease, it shall be lawful, upon compliance with the
applicable notice requirements (which shall be 10 days for monetary defaults and
30 days for nonmonetary defaults) and without legal process, for Lessor to
accelerate Lessee's obligations under the Lease, re-enter and repossess
Premises, to remove all persons therefrom and to take exclusive possession of
and remove all property therefrom, and any and all rights of Lessee as a tenant
shall immediately cease and terminate. All property of Lessee which may be at
any time during the term of this Lease in or upon Premises, whether exempt from
execution or not, shall be bound by and subject to a lien for the payment of the
rent herein reserved and for any damages arising from any breach by Lessee of
any of the covenants or agreements of this Lease to be performed by Lessee. In
case default be made in the payment of any installment of rent or other charges,
or any part or parts thereof, when the same becomes due, and if said default
continues for ten (10) days after written notice thereof be given by Lessor to
Lessee, Lessor may take possession of said property or any parts or parts
thereof and sell or cause the same to be sold at public or private sale, with or
without notice, to the highest bidder for cash, and apply the proceeds of said
sale toward the costs thereof and then toward the debt and/or damages as
aforesaid. The remedies set forth in this article shall be in addition to any
and all other rights and remedies of Lessor, either under the terms of this
Lease or otherwise. The provisions hereof shall not, however, be construed so as
to prevent Lessee from conducting his business in a normal way prior to default
hereunder. The failure on the part of the Lessor to reenter or repossess the
Premises or to exercise any of his rights hereunder upon any default, shall not
be deem a waiver of any of the terms and conditions of this Lease and shall not
preclude the Lessor from exercise of any such rights upon any subsequent
occurring default or defaults. Lessor shall be entitled to all rights at law or
in equity, including rights of sale under the Missouri Uniform Commercial Code,
and to recover damages for failure to pay on any breach of this Agreement,
including court costs and reasonable attorneys' fees. Lessee expressly waives
any common law requirements of notices and procedures as to forfeitures of
leasehold interests, and agrees that the terms of this agreement shall govern.
23. DECLARATION OF FORFEITURE. Any failure to pay each month's rent or
other charges when due, or to keep and perform any of the covenants or
agreements herein by Lessee shall produce a forfeiture of this Lease, provided
Lessor must give Lessee at least ten (10) days' prior written notice of a
monetary default or thirty (30) days' prior written notice of a nonmonetary
default and opportunity to cure, unless the nature of the alleged nonmonetary
default requires more than thirty (30) days to cure, in which case Lessee shall
be granted such reasonable time as is necessary to cure as long as
11
Lessee has undertaken and diligently proceeded to cure the default. If at the
expiration of said time Lessee is still in default, said forfeiture shall be in
full force and effect. No waiver of any forfeiture by acceptance of rent or
otherwise shall waive any subsequent cause of forfeiture or breach of the terms
and conditions of this Lease, nor shall any consent by said Lessor to any
assignment of the Premises, or any part thereof, or if Lessee shall sublet
Premises or any part thereof, be held waived or release said Lessee or any
assignee or sublessee from any of the foregoing conditions or convenants as
against it or them, but said Lessee or any assignee or sublessee shall be
expressly subject thereto. Before Lessee may declare Lessor in default in its
obligations hereunder, it must give Lessor thirty (30) days' prior written
notice and opportunity to cure, unless the nature of the alleged default
requires more than thirty (30) days to cure, in which case Lessor shall be
granted such reasonable time as is necessary to cure as long as Lessor has
undertaken and diligently proceeded to cure the default.
24. WAIVER OF BREACH NOT WAIVER OF SUBSEQUENT BREACHES. To be valid a
waiver must be in writing and executed by the party making the waiver. Any
waiver by the Lessor or the Lessee of any breach of this Lease or any terms,
conditions or promises herein contained shall not be or be construed to be a
waiver of any subsequent breach of the same or any other term, condition or
promise herein, and the payment of rent hereunder by the Lessee and acceptance
by the Lessor shall not be or be construed to be a waiver of any breach of the
terms, conditions or promises herein, except as to the particular installment of
rent so paid and accepted.
25. BANKRUPTCY AND FORFEITURE. To more effectually secure the Lessor
against loss of the rent and other payment herein provided to be made by Lessee,
it is agreed as a further condition of this Lease that the filing of any
petition in bankruptcy or insolvency by or against the Lessee, or the
adjudication in bankruptcy of the Lessee or the appointment of a receiver for
Lessee by any court shall be deemed a breach of this Lease, and thereupon,
without entry or other action by the Lessor, this Lease shall become and be
terminated; and notwithstanding any other provisions of this Lease, the Lessor
shall forthwith upon such termination be entitled to recover the rent reserved
in this Lease for the term hereof, less the fair rental value of the Premises
for the remainder of the term.
26. NON-LIABILITY OF LESSOR. It is agreed that Lessor shall not be
liable to Lessee or any other person on the Premises for any damage either to
person or property, except for Lessor's willful conduct or gross negligence.
Lessor shall not be under any responsibility or liability in any way whatsoever
for the quality, quantity, impairment, interruption, stoppage, or other
interference with the services involving water, heat, gas, electric current,
sewer telephone or other services by any public utility.
27. SUBORDINATION, ATTORNMENT, NON-DISTURBANCE. This Lease shall be
subject and subordinate to any mortgage, deed of trust or other security devise
now or hereafter placed by Lessor upon the real property of which the Premises
are a part and to all renewals, modification, consolidations, replacements and
extensions thereof ("Security Devises"), provided that Lessee obtains from the
holder and beneficiary of any such Security Devise a Non-Disturbance Agreement
in form and substance reasonably
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satisfactory to Lessee. Upon Lessor's written request, Lessee shall within five
(5) days, execute, acknowledge and deliver to Lessor a written statement
certifying that the Lease is unmodified (or if modified, describing same) and in
full force and effect, the date to which rents are paid and setting forth any
alleged defaults of Lessor. Said statement may be relied upon by Lessor, its
agents, lenders and purchasers. Upon Lessee's written request, Lessor shall
within five (5) days, execute, acknowledge and deliver to Lessee a written
statement certifying that the Lease is unmodified (or if modified, describing
same) and in full force and effect, the date to which rents are paid and setting
forth any alleged defaults of Lessee. Said statement may be relied upon by
Lessee, its agents, lenders and purchasers. Subject to Lessee's receipt of a
Non-Disturbance Agreement, Lessee agrees to attorn to Lender or any other party
who acquires ownership of the Premises by reason of a foreclosure of a Security
Device, and that in the event of such foreclosure, such new owner shall not be
liable for any act of omission of any prior lessor or with respect to events
occurring prior to acquisition of ownership, or be subject to any offsets or
defenses which Lessee might have against any prior lessor.
28. NOTICE. All notices for which provision is made under the Lease
shall be in writing. Any notice from the Lessor to the Lessee shall be deemed to
have been given in a proper manner if such notice is in writing addressed to the
Lessee at the Premises, deposited in the United States mail, with postage
prepaid, and sent by Registered or Certified mail, return receipt requested. Any
notice from the Lessee to the Lessor shall be deemed to have been given in
proper manner if such notice is in writing addressed to the Lessor at the
address of Lessor to which rent is paid, or at such other address as Lessor may
have designated by written notice to the Lessee, with postage prepaid, deposited
in the United States mail, and sent by Registered or Certified mail, return
receipt requested. The addresses of the parties are as follows:
Lessor:
▇.▇. ▇▇▇▇, ▇▇.
Wehr, Wehr, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lessee:
GuildMaster, Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
29. HEIRS AND ASSIGNS. The words "Lessor" and "Lessee" as used herein,
include, apply to and bind and benefit the heirs, executors, administrators,
successors and assigns of the Lessor and Lessee, subject to the provisions of
Paragraph 11.
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30. AMENDMENTS. This Agreement may be amended only by written
instrument by all of the parties hereto.
31. ATTORNEYS' FEES. In the event that litigation or arbitration arises
involving this Lease, the prevailing party shall be entitled to recover
reasonable attorneys' fees and expenses. In addition, if the Lessee breaches a
term, condition or agreement under this Lease, Lessor shall be entitled to
attorneys' fees and expenses incurred in the preparation and service of notices
of breach and consultation with Lessor regarding the breach, whether or not a
legal action is subsequently commenced in connection with such breach.
32. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the state in which the Premises are located.
33. HEADINGS. The headings used herein are for reference purposes only
and shall not be used to construe or interpret the meaning of this Lease.
34. SURVIVAL OF INDEMNIFICATION. The obligations of either party to
indemnify the other party as provided in this Lease shall survive the
termination or expiration of this Lease.
THIS LEASE CONSISTS OF FIFTEEN (15) PAGES, INCLUDING THE PAGE ON WHICH
THESE SIGNATURE APPEAR THREE (3) EXHIBITS DESIGNATED AS A, B AND C, ATTACHED
HERETO.
IN WITNESS WHEREOF, the parties have hereunto affixed their respective
names intending to be legally bound.
LESSOR:
▇.▇. ▇▇▇▇, ▇▇.
/s/ ▇.▇. ▇▇▇▇, ▇▇.
-------------------------
LESSEE:
ATTEST: Guildmaster, Incorporated
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------- -----------------------------
Secretary Title: President
14
STATE OF MISSOURI )
)ss.
COUNTY OF ▇▇▇▇▇▇ )
BEFORE ME, the undersigned, a notary public in and for the aforesaid
county and state, personally appeared ▇.▇. ▇▇▇▇, ▇▇., known to be the Lessor and
the same person who executed the foregoing Lease Agreement as her free act and
deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial
seal this 27th day of September 1996.
/s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
-------------------------
NOTARY PUBLIC
My appointment expires:
11/15/96 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Notary Public
▇▇▇▇▇▇ County State of Missouri
My commission Expires Nov. 16, 1996
STATE OF MISSOURI )
)ss.
COUNTY OF ▇▇▇▇▇▇ )
BEFORE ME, the undersigned, a notary public in and for the aforesaid
county and state, personally appeared ▇▇▇ ▇▇▇▇▇▇▇, known to me to be the
President, of Guildmaster, Inc. and the same person who executed the foregoing
Lease Agreement as his free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial
seal this 27th day of September 1996.
/s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
-------------------------
NOTARY PUBLIC
My appointment expires:
11/15/96 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Notary Public
▇▇▇▇▇▇ County State of Missouri
My commission Expires Nov. 16, 1996
15