STANDARD
COMMERCIAL LEASE
This
LEASE is made this day of , 2001, by and between , a Missouri corporation
(hereinafter "LESSOR"),
and ,
a corporation
(hereinafter "LESSEE").
WITNESSETH:
WHEREAS, LESSOR is the fee simple
owner of certain real property located in Kansas City, Jackson County,
Missouri, legally described in Exhibit "A" attached hereto and made a
part hereof and commonly known and numbered as , together
with the building constructed thereon consisting of square feet and the other improvements
located thereon and the appurtenances thereunto belonging (collectively the "Premises"; and
WHEREAS, LESSOR has agreed to lease
the Premises to LESSEE and LESSEE has agreed to lease the Premises from LESSOR
on the terms stated herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, LESSOR and LESSEE hereby covenant and agree as follows:
1. PREMISES: LESSOR leases the Premises
to LESSEE, and LESSEE leases the Premises from LESSOR. The Premises shall be used only for , and for no other
purpose, without LESSOR'S prior written consent, which shall not be
unreasonably withheld.
2. RENT: LESSEE agrees to pay as rent
for the Premises, Dollars ($ ) per year ($ per square foot), payable in equal monthly installments of Dollars ($ ) each, payable in advance on the
first day of each calendar month during the term of this Lease. Any rent payments received by LESSOR more
than ten (10) days late shall bear interest from the dates they are due until
the dates they are paid, at a rate of ten percent (10%) per annum.
3. TERM: This Lease shall be for a
term commencing on , _______________and
ending at midnight on .
4. DELIVERY AND ACCEPTANCE OF PREMISES: LESSEE has inspected and knows the condition of the
Premises, and accepts the same in their present condition. LESSEE acknowledges that LESSOR has made no
warranties or representations concerning the Premises.
5. UTILITIES: LESSEE agrees to furnish all
utilities and pay all electric, gas, water, fuel and sewer company charges, as
well as all charges for any additional services or other utilities used on or
assessed against the Premises.
6. LICENSING AND FEES:
LESSEE
shall obtain all necessary licensing and registrations for the use and
operation of the Premises, and shall pay when due all license and registration
fees.
7. TAXES: The following provisions
shall apply:
7.1. State and county real
estate taxes for the Property during the calendar year [ ] ("Base Year") were
$ , and city
real estate taxes for the Property during the Base Year were $ . LESSEE agrees to pay as additional rent all
amounts by which the real estate taxes may exceed these amounts in future years
during the term of this Lease. If
LESSOR receives a real estate tax bill for amounts exceeding the amounts stated
above, LESSOR shall forward a copy of the bill to LESSEE, together with a
letter stating the amount of the excess, and within ten (10) days of its
receipt of the bill and letter, LESSEE shall pay the excess amount to LESSOR.
7.2. LESSEE shall timely pay or cause to be paid when due
all personal property, sales, use and other taxes or assessments, general or
special, now or hereafter imposed by any federal, state, or local government on
the Premises or on the ownership, lease, sale, possession or use of the
Premises, whether the same are assessed against LESSOR or LESSEE. If any such
tax is assessed against LESSOR, LESSOR shall provide LESSEE with written notice
of the assessment. Upon reasonable demand, LESSEE shall provide LESSOR with
proof of all required payments.
8. INSURANCE: The following provisions
shall apply:
8.1. LESSOR shall obtain "All Risk" Property
Insurance on the Property, including fixtures and non-removable tenant
improvements in such amount as LESSOR deems sufficient. LESSEE shall cooperate with LESSOR so that the
lowest insurance rating can be obtained.
Accordingly, LESSEE shall fully cooperate with the insurance carrier in
implementing any measures of complying with any requirements the carrier may
have. All costs of such measures or
compliance shall be borne by LESSEE. If
the insurance rates published by the Insurance Service Office of the State of
Missouri are increased as the result of any activities or hazards introduced by
LESSEE, then LESSEE shall pay the amount by which the insurance premiums are
increased because of such activities or hazards.
8.2. The "All Risk" Property Insurance premiums
on the Property during the calendar year [ ] ("Base Year") will total $ . LESSEE agrees to pay as additional rent all
amounts by which the insurance premiums may exceed, for whatever reason, this
amount in future years during the term of this Lease. If LESSOR receives an
insurance premium bill for an amount exceeding the amount stated above, LESSOR
shall forward a copy of the bill to LESSEE, together with a letter stating the
amount of the excess, and within ten (10) days of its receipt of the bill and
letter, LESSEE shall pay the applicable excess amount to LESSOR.
8.3. At its sole cost and expense, LESSEE shall purchase
and maintain commercial general liability insurance on the Premises, including
a property damage provision, insuring against liability for injury to persons
or property occurring on or about the Premises or arising out of the ownership,
maintenance, use or occupancy of the Premises.
The insurance shall be in an amount not less than Dollars ($ ) combined single limit per occurrence,
and a general policy aggregate of not less than Dollars ($
) if such aggregate applies to this policy.
8.4. All policies of liability insurance obtained now or
at any future time by LESSEE, must insure the interest of LESSOR as Additional
Insured under the from of endorsement which makes the coverage thereunder
primary insurance as regards LESSOR, and non-contributory with any other
insurance carried by LESSOR, shall include a long form non-contributory clause
naming LESSOR, as well as LESSEE, as an insured. The policies shall also
provide that LESSOR be given at least thirty (30) days notice before any
cancellation or material modification of the policy.
8.5. Upon request, LESSEE shall furnish to LESSOR Certificates of
Insurance evidencing the insurance coverage required by these provisions, and
providing that LESSOR shall receive 30 days' notice of cancellation or material
change in coverage. Upon reasonable request, LESSEE shall furnish LESSOR with a
copy of the premium bill and evidence of payment.
8.6. In the event of casualty damage to the Premises, and
if LESSOR is carrying the "All Risk" Property Insurance, LESSEE shall
promptly report the damage to LESSOR and LESSOR shall make whatever claim
against the insurance company that LESSOR deems advisable. LESSEE shall
cooperate in connection with the claim.
In the event of either damage to the Premises by casualty or an
assertion of liability, and if LESSEE is carrying the applicable insurance
policy, LESSEE shall promptly report the same to the applicable insurance
company and make a claim for insurance proceeds, delivering to LESSOR a copy of
the claim. Any insurance proceeds shall be applied to the rebuilding or repair
of the property, with any excess paid to LESSOR or disbursed as LESSOR deems
appropriate.
9. LIENS AND ENCUMBRANCES: This
Lease shall be subject and subordinate to any present or future mortgages,
deeds of trust, and other liens or encumbrances executed or consented to by
LESSOR, which do not materially adversely affect LESSEE'S use of the Premises.
The holder of any such mortgage, deed of trust, lien or encumbrance may notify
LESSEE in writing of its interest, and in such event LESSEE shall send copies
of all notices or communications regarding this Lease to the holder of the
mortgage, deed of trust, lien or encumbrance. Such holder shall be entitled to
take any action or exercise any rights reserved to LESSOR under this
Lease. LESSEE shall, within ten (10)
days after receipt of a request therefor, execute and deliver to LESSOR and the
holder of such a mortgage, deed of trust, lien or other encumbrance, an
estoppel certificate and/or agreement evidencing the subordination of this
Lease as described above, which estoppel certificate and/or agreement shall be
in form satisfactory to LESSOR and such holder.
9.1. LESSEE shall not encumber or permit the encumbrance
of the Premises or this leasehold estate by any mortgage, deed of trust,
assignment, security interest, lien or other charge, without LESSOR'S prior
written consent, which consent shall not be unreasonably withheld.
9.2. This Lease does not require LESSEE to improve the
Premises or construct any improvements or additions on the Premises. Any
improvements or additions to the
Premises which LESSEE might make or permit are for the sole use of
LESSEE and will not benefit LESSOR'S reversion. LESSEE is not, and shall not be deemed to be, the agent of LESSOR
in contracting or arranging for any improvements to the Premises or any
construction on the Premises. Additional provisions relating to alterations and
improvements are contained in Section 13 of this Lease.
9.3. LESSEE shall promptly pay all bills for labor done
or material or equipment supplied for any construction or repair work done on
the Premises. Failure to promptly pay any such bills shall be a default under
this Lease. LESSEE shall defend and indemnify LESSOR from all liability,
damages or expense resulting from any mechanic's lien claims affecting the
Premises.
10. MAINTENANCE AND REPAIR: LESSOR
shall repair and maintain the roof, exterior walls and foundation of any
structures located on the Premises.
10.1. LESSEE shall have the obligation of maintaining all
portions of the Premises which LESSOR is not specifically obligated to maintain
under the above section. LESSEE shall maintain and keep in good working order
all equipment, fixtures, and systems on the Premises, and shall perform routine
repair and maintenance on the same, including without limitation all heating
and air conditioning systems and equipment. In addition and without limitation,
LESSEE shall protect water pipes, heating and air conditioning equipment,
plumbing, fixtures, appliances, and sprinkler systems from becoming
frozen. LESSEE shall keep the Premises
and all approaches, sidewalks, parking areas, truck pads, and adjacent alleys
clean, sightly, and free of snow and rubbish, and shall keep and maintain the
same in good condition repairing cracks and potholes and repairing the same
when needed.
10.2. LESSEE shall be responsible for all window glass replacement, for
maintenance of light fixtures and lamps throughout the Premises, for repair and
routine maintenance of gas heaters, boilers, water pipes, plumbing apparatus
and fixtures, gutters, downspouts, and all other portions of or equipment upon
the Premises, including without limitation all mechanical systems which are a
part of the Premises. LESSEE shall replace any worn or outdated equipment with
new equipment of like quality and durability.
10.3. In particular, LESSEE shall maintain in good working
condition the water sprinkler monitoring system which is a part of the
Premises, pay the monthly charge for such system, and promptly repair any
damage which may be suffered by the system.
11. USE OF PREMISES:
LESSEE
may use the Premises for any purpose set forth in Section 1 of this Lease,
which is not destructive of the Premises. LESSEE shall not, however, commit or
allow any waste, nuisance, or other such act or omission to occur on the
Premises, and shall not do any act or allow on the Premises any condition which
may disturb the quiet enjoyment of those occupying surrounding properties,
including without limitation any other tenants or occupants in the Building or
on the Premises. LESSEE shall advise LESSOR in writing of any change in the
nature of LESSEE'S use of the Premises.
11.1. LESSEE shall fully comply with all federal, state
and local laws and regulations applicable to air emissions, water pollution,
hazardous waste, hazardous materials, toxic materials, and underground storage
tanks. LESSEE shall secure all permits, licenses and approvals necessary for
its operations and shall remain in compliance with such permits. LESSEE shall notify LESSOR within two (2)
days if LESSEE learns of any allegation that LESSEE'S operations are in
violation of any requirement of any permit or any requirement to have a permit.
11.2. LESSEE shall not allow on the Premises any leakage,
spillage or release of any hazardous substance, hazardous waste, petroleum, or
toxic material as those terms are defined by federal or state law or
regulation. If such a release should occur, LESSEE shall notify LESSOR of such
fact within two (2) days. Furthermore,
in such event, LESSEE shall promptly remove and clean up any such leakage,
spillage or release, at its own cost, and LESSEE shall accomplish such removal
and clean-up in strict compliance with all applicable laws, codes and
regulations. LESSEE shall notify LESSOR
within two (2) days if LESSEE receives notice of intent to sue, notice of
violation, citation, warning or similar notification arising out of operations
on the Premises. LESSEE shall notify LESSOR within two (2) days if LESSEE
learns of any federal, state, or local agency investigation or inquiry
concerning the Premises or LESSEE'S operations.
11.3. LESSEE shall not use all or any part of the Premises
for the purpose of refining, producing, storing, handling, transferring,
processing, or transporting any pollutants or contaminates or any Hazardous
Substances or petroleum products in any manner which would result in a release
or threatened release which could require response under applicable
Environmental Regulations, nor shall LESSEE permit or suffer any other party to
use all or any part of the Premises for any purpose forbidden herein. As used
herein, the term "Hazardous
Substances" shall mean ureaformaldehyde, polychlorinated biphenyls,
asbestos, asbestos-containing materials, radioactive materials or wastes,
petroleum products, or any other waste material or other substance which would
subject the LESSOR as owner of the Property to any response costs, damages,
penalties or liabilities under any applicable Environmental Regulations. The
term "Environmental Regulations"
as used herein means any federal, state or local laws, statutes, codes,
ordinances, regulations, requirements or rules relating to any environmental
matters, including the removal, handling, and disposal of hazardous or toxic
waste materials.
11.4. LESSEE shall defend and indemnify LESSOR from and
against, any and all claims, assertions, demands, judgments, penalties, fines,
liabilities, costs, damages and expenses, including court costs and attorney's
fees and expenses incurred by LESSOR, at any time, in any claim or action
against or involving LESSEE or LESSOR resulting from (i) any breach of the
covenants of LESSEE contained herein, (ii) any act or failure to act by LESSEE,
its employees and assigns which results in a violation of or liability under
any of the Environmental Regulations, or (iii) from the discovery of any
Hazardous Substance in, upon, or over or emanating from the Premises as a
result of acts or failures to act by LESSEE, its agents, employees and assigns.
It is the intent of LESSOR and LESSEE that LESSOR shall have no liability or
responsibility for damage or injury to human health, the environment or natural
resources caused by, for abatement and/or clean-up of, or otherwise with
respect to Hazardous Substances not caused by LESSOR.
12. PUBLIC REQUIREMENTS:
LESSEE
shall comply with all laws, orders, regulations, ordinances and other public
requirements at any time affecting the Premises or the use of the Premises.
13. ALTERATIONS: At its sole expense, LESSEE
may, but is not required to, make improvements, alterations or additions to the
Premises. Any alterations shall be of good workmanship and material and shall
not reduce the size or strength of the then existing improvements or of any
load bearing wall or structural support.
Any improvements, alterations, additions or fixtures placed on the Premises,
whether or not permanently affixed to the Premises, other than trade fixtures,
shall become a part of the realty, shall belong to LESSOR, and shall remain on
and be surrendered with the Premises at the termination of this Lease. No improvements, alterations or additions to
the Premises, other than trade fixtures, shall be removed without LESSOR’s
prior written consent, which consent shall not unreasonably be withheld. LESSEE shall repair all damage caused by any
removal of any trade or other fixtures or additions. Notwithstanding the foregoing or anything else to the contrary,
LESSEE shall not be permitted to place any underground storage tanks on or
under the Premises.
14. ASSIGNMENT OR SUBLEASE: LESSEE
shall not assign this Lease, sublease the Premises, or allow anyone else to use
or occupy any part of the Premises, without LESSOR'S prior written consent,
which consent shall not unreasonably be withheld. LESSOR may assign this Lease
to any subsequent purchaser of the Premises, and upon such assignment shall be
released from all rights and obligations under this Lease.
15. INSPECTION: LESSOR and its agents may
enter the Premises at reasonable hours to examine the same and do anything required
of LESSOR by this Lease. During the last 120 days of the Lease term, LESSOR may
display a "For Rent" sign on the Premises, and show the Premises to
prospective tenants.
16. LESSEE'S PERSONALTY:
LESSOR
shall not be liable for any loss or damage to any of LESSEE'S merchandise,
personalty or other property on or about the Premises, or for any lost profits
of or consequential damage to LESSEE, regardless of the cause of the loss or
damage. LESSEE shall be responsible for any taxes or assessments made against
LESSEE'S personal property, and shall defend and indemnify LESSOR against the
same.
17. EMINENT DOMAIN:
If
any substantial part of the Premises (affecting LESSEE'S operations) is taken
under the power of eminent domain, conveyed in lieu of condemnation, or
acquired for any public or quasi-public use, this Lease may be terminated by
either party. The parties shall make their individual claims for the award,
which shall be distributed according to law.
18. DAMAGE BY CASUALTY:
If a
substantial part of the Premises is so damaged by fire or other casualty that
the Premises are totally untenantable, LESSOR may at its sole option terminate
this Lease. If the Lease is so
cancelled, rent shall be paid only to the date of cancellation and LESSEE shall
promptly surrender the Premises to LESSOR.
18.1. If LESSOR does not elect to terminate this Lease in case of total
untenantability, this Lease shall continue in full force and effect and LESSOR
shall restore the Premises to at least their previous condition within a
reasonable time. For that purpose,
LESSOR and its agents and contractors may enter the Premises. Rent shall abate
during the period of untenantability.
18.2. If the Premises are so damaged by fire or other casualty that tenantability
is only partially disturbed, LESSOR shall restore the same to at least their
previous condition within a reasonable time.
For that purpose, LESSOR and its agents may enter the Premises, and rent
shall abate in proportion and in duration equal to the partial untenantability
of the Premises. No claims shall be
made by or allowed to LESSEE by reason of any inconvenience or annoyance
arising from the repair work.
18.3. In the event the Premises suffer any casualty
damage, LESSEE shall within ten (10) days remove any debris or rubbish, remove
its personal property from the damaged Premises, and clean the damaged Premises
to facilitate repair or restoring operations.
19. DEFAULT BY LESSOR:
LESSEE
shall give LESSOR written notice of any default by LESSOR. If (a) the default is not cured within thirty
(30) days after LESSOR receives the written notice, or (b) LESSOR does not
within that thirty (30) day time period take actions which, if continued with
reasonable diligence, will cure the default, then LESSEE at its election may
declare this Lease terminated after an additional period of thirty (30)
days. If this Lease is rightfully
terminated in accordance with this section, rent shall be paid only to the end
of the second thirty (30) day period.
20. DEFAULT BY LESSEE:
The
following provisions shall govern default by the LESSEE:
20.1. LESSEE will be in default under this Lease upon the
happening of any one or more of the following events:
20.1.1. Failure of LESSEE to make any rent payment when due
or fully and timely perform any obligation contained in this Lease.
20.1.2. Any warranty, representation or statement made or
furnished to LESSOR by or on behalf of LESSEE for the purpose of inducing the
execution of this Lease or any other agreement between the parties proves to
have been false in any material respect when made or furnished.
20.1.3. LESSEE is dissolved or its existence terminated;
LESSEE becomes insolvent, its business fails, or a receiver is appointed for any
of LESSEE'S property; LESSEE is generally not paying its debts as they become
due; or LESSEE makes an assignment for the benefit of its creditors or is the
subject of any voluntary or involuntary bankruptcy or insolvency proceeding.
20.1.4. Any of the occurrences set forth in Section 20.1.3.
of this Lease above occurs with respect to any guarantor or surety of LESSEE'S
obligations.
20.1.5. LESSEE abandons the Premises, or the Premises or
LESSEE'S leasehold interest in the Premises are attached or taken under any
court order or writ of execution.
20.2. If LESSEE defaults, LESSOR may enforce its rights by
an action for rent and possession, unlawful detainer, or other legal remedy.
LESSEE agrees that, notwithstanding LESSOR'S possession of the Premises, LESSEE
shall remain liable for and shall pay LESSOR an amount equal to the entire rent
payable to the end of the then-applicable term of this Lease. This amount may
either (a) be accelerated and become
payable at once, or (b) become due and
be payable monthly, at the sole option of LESSOR. In addition, LESSEE shall be liable for and shall pay to LESSOR
any loss or deficiency sustained by LESSOR because of LESSEE'S default.
20.3. Notwithstanding LESSOR'S re-entry and possession of
the Premises, LESSOR, upon LESSEE'S default, shall have the right, without
notice to LESSEE, and without terminating this Lease, to make alterations and
repairs for the purpose of reletting the Premises. LESSOR may relet or attempt
to relet the Premises or any part of the Premises for the remainder of the
then-applicable Lease term or for any longer or shorter period as opportunity
may offer, to such persons and at such rent as may be obtained. Nothing in this
Lease shall require LESSOR to relet or make any attempt to relet the Premises,
and any reletting shall be done by LESSOR as agent for LESSEE. In case the Premises are relet, LESSEE shall
pay the difference between the amount of rent payable during the remainder of
the term and the net rent actually received by LESSOR during the term after
deducting all expenses for repairs, alterations, recovering possession and
reletting the same, which difference shall either (a) accrue and be payable monthly, or (b) be accelerated and become payable at once, at LESSOR'S sole
option.
20.4. No actions taken by LESSOR after LESSEE'S default shall be
construed as indicating a termination of this Lease. This Lease shall remain in full force and effect and shall not be
terminated unless LESSOR so elects in writing.
20.5. At LESSOR'S election, LESSOR may cure any default of
LESSEE by expending money, contracting for the making of repairs, purchasing
insurance, or by any other actions. If LESSOR takes any such actions, LESSEE
will promptly, upon demand, reimburse LESSOR for all of LESSOR'S expenses. All
such expenses shall bear interest from the dates they are incurred until the
dates they are paid, at a rate of 10 percent (10%) per annum.
20.6. LESSOR shall be entitled to recover from LESSEE all of LESSOR'S
expenses in exercising any of its rights under this Lease, including without
limitation LESSOR'S reasonable attorney's fees.
20.7. All of LESSOR'S remedies are cumulative, and may be
exercised successively or concurrently, at LESSOR'S election.
21. WAIVERS: Any waiver, consent or
approval on the part of LESSOR must be in writing, and shall be effective only
to the extent specifically set forth in the writing. No delay or omission by LESSOR in the exercise of any right or
remedy with respect to any one occasion shall impair LESSOR'S ability to
exercise the right or remedy in the same or on another occasion.
22. NOTICES: All notices or other
communications shall be in writing signed by the sender, and shall either be
(a) personally delivered or (b) mailed by certified mail, at or to the
following addresses:
LESSOR:
LESSEE:
Attention:
22.1. Either party may change the address by written
notice to the other. Notices shall be effective when received (if personally
delivered) or when deposited in the United States Mail (if mailed by certified
mail).
23. RETURN OF PREMISES:
At
the termination of this Lease, LESSEE agrees to deliver to LESSOR the Premises
and all mechanical systems and all equipment and fixtures thereon, in good
working order and condition.
23.1 Should LESSEE fail to vacate the Premises at the
termination of this Lease, LESSEE shall pay for each day of the holdover period
either (a) twice the then-applicable rent, or (b) a current fair market rent
for the Premises (as determined by LESSOR in its sole judgment), whichever is
higher. All the terms and provisions of
this Lease shall continue to apply.
LESSEE will be a tenant at will during the holdover period. Nothing in this section shall be a waiver of
or preclude the exercise of LESSOR'S remedies for LESSEE'S default. Should LESSEE'S holdover prevent LESSOR from
fulfilling the terms of another lease, LESSEE shall defend and indemnify LESSOR
from all direct and consequential damages for which LESSOR may be liable, or
which LESSOR may suffer, as a result thereof.
24. QUIET ENJOYMENT:
Neither
LESSOR nor LESSOR'S successors or assigns will disturb LESSEE in its quiet
enjoyment of the Premises.
25. SIGNS: LESSEE shall not place any
signs or advertisements on the Premises without the written consent of LESSOR,
which consent shall not be unreasonably withheld. Within 120 days prior to the termination of any Lease term,
LESSOR may display signs advertising the rental of the Premises.
26. INDEMNITY: LESSEE shall indemnify,
defend and hold harmless LESSOR from and against any and all damage, expense,
claim, liability or loss, including reasonable attorneys' fees, arising out of
or in any way connected to any condition, occurrence or event occurring on the
Premises or arising out of any use of the Premises during the term of this
Lease. This duty to indemnify and
defend shall include but shall not be limited to damages, costs, liability,
loss and expense including professional consultant, engineering or attorneys'
fees incurred in responding to federal, state, or local laws, strict liability,
or common law.
27. WAIVER OF SUBROGATION:
LESSOR
and LESSEE each respectively waive all rights of recovery against the other and
the other's agents, employees, permitted licensees and assignees, for any loss or
damage to property or injury to or death of persons, to the extent the same is
covered or indemnified by proceeds of any insurance, or for which reimbursement
is otherwise received. This agreement, however, shall apply only so long as the
parties' respective insurance companies expressly concur in this agreement and
waive all subrogation rights. Each
party shall have a continuing obligation to notify the other party if these
waivers are not granted. Nothing in
this section shall impose any greater liability upon the LESSOR than would have
existed in the absence of this section.
28. ATTORNMENT: LESSEE agrees to and does
attorn to any successor to LESSOR'S interest in all or any part of the
Premises, including without limitation any purchaser at any foreclosure sale of
all or any part of the Premises.
29. BANKRUPTCY: The following covenants are
a part of this agreement:
29.1. The parties agree that this Lease has been entered
into partly because of LESSOR'S judgment that LESSEE will be particularly able
to perform the Lease covenants. LESSEE
has substantial duties of performance under this Lease, apart from its mere
financial obligations. This Lease is a
personal contract between the parties which cannot be assumed by any trustee or
other party in bankruptcy.
29.2. In the event any proceedings in bankruptcy are
brought against LESSEE or affect LESSEE, and should an assumption of this Lease
be attempted by the trustee or other party in violation of the above agreement,
LESSOR will not have adequate assurance of performance, within the meaning of
Section 365 of the Bankruptcy Code of 1978, as amended, unless the trustee or
other party can demonstrate that itself or a substitute lessee will have the
particular capacity to fulfill the nonmonetary covenants of this Lease. LESSOR will not have adequate assurance of
performance unless and until (a) LESSOR is allowed access to adequate financial
and other information about the proposed lessee, including without limitation
references from prior lessors, to satisfy itself that the trustee, other party
or proposed lessee is fully able to assume the financial and personal covenants
of LESSEE in this Lease, in full accordance with its terms, and (b) sufficient
bonds or letters of credit are posted by the trustee, other party or proposed
lessee to guarantee performance of the Lease obligations. The parties further agree that the
definition of the term "adequate assurance" as set forth in Section
365(b) (3) of the Bankruptcy Code of 1978, as amended, shall apply to any
determination of adequate assurance in connection with this Lease.
29.3. In the event any proceedings in bankruptcy are
brought against LESSEE or affect LESSEE, the trustee or other party shall not
be permitted to use, sell or lease any of the Premises, whether or not in the
ordinary course of business, without providing adequate protection to
LESSOR. The parties agree that the
language in Section 361 of the Bankruptcy Code of 1978, as amended, shall be
the exclusive definition of the term "adequate protection" in
connection with any use, sale or lease of the Premises. The cash payment referred to in that section
shall mean the full payments required under this Lease, plus payment
representing the value of LESSOR'S lost ability to use or lease the Premises;
and the then "indubitable equivalent" as used in that section shall
mean protection afforded by either grants of administrative expense priority,
grants to LESSOR of ownership interests in a continuing business surviving the
bankruptcy, or grants to LESSOR of protected securities issued by a continuing
business surviving the bankruptcy, which completely compensate LESSOR for the
loss of the present value (computed at the then market rate of interest for
commercial loans) of LESSOR'S ability to use or lease the Premises.
29.4. The parties agree that because of the extreme
financial importance to LESSOR of this transaction, LESSOR will be irreparably
harmed by any stay of its collection efforts or the exercise of its remedies
under this Lease.
30. SUCCESSORS AND ASSIGNS: This
Lease shall inure to the benefit of and be binding upon the heirs, estates,
executors, administrators, receivers, custodians, successors and (in the case
of LESSEE, permitted) assigns of the respective parties.
31. LIGHT: This Lease
does not grant any rights to light, view or air over adjacent properties. Any diminution of elimination of light, view
or air by any structure which may be erected on property adjacent to the
Premises shall not be a breach of, and shall not affect the rights and
obligations of, the parties under this Lease.
32. RIGHT OF FIRST REFUSAL:
[Terms to be negotiated in each instance.]
33. FIRST OPTION TO EXTEND: [Terms to be negotiated in
each instance.]
34. SECOND OPTION TO EXTEND: [Terms to be negotiated in
each instance.]
35. AMENDMENTS: This Lease
contains the entire agreement of the parties.
No amendments may be made to this Lease except by an agreement in
writing executed by all the parties.
36. MISCELLANEOUS: The following provisions are
additional terms of this Lease:
36.1. The captions of the sections of this Lease are
inserted for convenience only and shall not be used in the interpretation or
construction of any provisions of this Lease.
36.2. If any provision of this Lease is held invalid or
unenforceable, the holding shall affect only the provision in question and that
provision in other circumstances, and all other provisions of this Lease, shall
remain in full force and effect.
36.3. The rule that the terms of an agreement are strictly
construed against the drafting party shall have no application to the
construction of interpretation of this Lease.
37. FINANCIAL STATEMENTS:
LESSEE shall furnish to LESSOR during each year of any term hereof, a
complete copy of the LESSEE'S audited financial statements for the immediately
preceding year.
Intending
to be fully bound, the parties have executed this Lease the day and year first
above written.
,
a Missouri Corporation
By:
LESSOR
a Corporation
By: Duly Authorized Officer
LESSEE