LEASE AGREEMENT
This lease made this 15th day of February, 2000, by and between Xxxxxxx
Purina Company hereinafter called Lessor, whose address is:
c/o Xxxxxx X. Xxxxxx
Legal Department - 9T
Xxxxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
and Eveready Battery Company, Inc. hereinafter called Lessee, whose address is:
x/x
Xxxxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
1. The following premises are hereby leased by Lessor to Lessee to have and
to hold for the term, the uses and the rent specified below and subject to the
options, if any, hereinafter provided.
A. PREMISES: Situated in the City of St. Louis, State of Missouri
being more particularly described as:
Per Exhibits A and E attached hereto and made a part hereof, and
also including common areas and common and reserved parking areas
B. USES: Lessee may use the premises for only: Business office
C. TERM: Beginning April 1, 2000, and ending March 31, 2001 or a total
term of one (1) year.
D. OPTIONS: Lessee shall have and is hereby given one option to extend
this lease for up to 5 years in 6 months increments to follow consecutively upon
the initial term of this lease. Such option shall be exercisable by Lessee upon
giving written notice to Lessor of Lessee's intention to exercise the same not
less than sixty (60) days prior to the expiration date of the existing term. If
this lease is extended persuant hereto, all its terms and conditions shall
remain the same, excepting rent, which shall be adjusted on October 1 of each
year.
During the option period, Lessee may terminate this Lease at any time
upon giving Lessor six (6) months written notice.
D. RENT: Per Rent Schedule attached hereto and made a part hereof
Exhibit B, per month payable in advance commencing on the 1st day of April, 2000
and on the same day of each succeeding month for the term of this lease. For
subsequent years, Lessor represents that Lessee shall pay monthly no more than
the prevailing rent being charged all occupants of the building for office space
in the building in which the premises are located. Rent shall be paid to Lessor
at address designated by Lessor.
Lessee shall pay a penalty of $250.00 for all delinquent rent
payments. Rent shall be deemed delinquent if not paid by the fifth working day
of each month. Lessee shall be given written notice of delinquency, and 10 days
to cure.
2. Subject to modifications hereinafter appearing, if any, the parties agree
as follows:
A. COVENANTS OF LESSOR: Lessor hereby covenants that: Lessor has good
and merchantable title in fee simple to the premises and improvements; Lessor is
and shall be in possession on the date this lease commences; Lessor has good
right to make this lease for the full term hereby granted, including any period
for which the Lessee has the right to effect the extension hereunder. Lessee
shall have access to all common areas and adequate rights-of-way from the
premises to all streets and alleys upon, adjacent to or serving the property of
Lessor on which the premises are situated. Lessor, shall maintain, repair and
replace all exterior areas, including but not limited to foundation, exterior
walls, structural members and roof, general building systems including HVAC
equipment, plumbing, sewer, and electrical systems, and also grounds, sidewalks,
driveways, and parking areas. Lessee shall have the duty of notifying Lessor
in writing whenever Lessee becomes aware that such repairs are necessary.
Lessor shall use its best efforts to initiate any repairs within forty-eight
(48) hours after receiving written notice from Lessee. Lessor shall be
responsible for ADA and city code compliance.
B. DAMAGE BY ELEMENTS, ETC.: If by fire, lightning, explosion, wind,
earthquake, water, ice, hail, snow, termites, settling or impact, the premises
are so damaged that their utility for the Lessee's purposes is substantially
impaired, Lessor shall have the option to repair such damage. If Lessor can not
repair such damage within one hundred eighty (180) days of the date of damage,
Lessee may cancel this lease at any time. In case of such damage, the rent
shall xxxxx in a just proportion to the resulting unfitness of the premises so
long as such unfitness shall continue; and if the lease is canceled as
aforesaid, the rent shall be payable ratably to the date of cancellation.
Lessee's rights to abatement of rent shall not be applicable if such damage is
caused by Lessee's negligence.
C. MAINTENANCE, ETC.: Lessee shall not permit the existence of any
nuisance on the said premises and shall keep and maintain the same in a proper,
clean, safe condition in compliance with federal, state, and local regulations,
free and clear of any explosive, inflammable, or combustible material which
would increase or tend to increase the risk of fire or explosion. Lessee shall
commit no waste, damage or injury to the premises or any part thereof and shall
take all reasonable precautions to prevent others from doing so; Lessee shall
keep, observe and comply with all federal, state and municipal regulations,
ordinances and laws, and with the regulations of any duly constituted legal
authority having jurisdiction over the premises, and Lessee at its sole cost
shall make any and all improvements, alterations, repairs and additions and
install all appliances required as a result of Lessee's use of said premises by
or under any such regulations, ordinances or laws; the Lessee shall, at Lessee's
sole cost and expense, keep the premises hereby demised in good condition, and
shall make all repairs, renewals and replacements that from time to time may be
necessary to keep the premises in good condition and ready and fit for
occupancy, and for the operations for which they are intended; and on
termination of said leasehold, either by expiration of the terms hereof or by
cancellation, Lessee shall surrender said premises in the same condition as when
Lessee took possession hereunder, ordinary wear and tear excepted. If Lessee
fails to fulfill these obligations, Lessor may do any work required hereunder,
and Lessee shall reimburse Lessor for the cost and expense thereof.
D. ALTERATION AND RESTORATION BY LESSEE: Lessee shall have the right,
after Lessor's prior written approval, which approval shall not be unreasonably
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withheld, at its own expense, to advertise upon and to paint and decorate the
premises inside and out, and to make such alterations, installations or
improvements in and upon the same as Lessee may desire. Lessor's approval shall
be contingent upon receipt and evaluation of the following:
1) Specifications
2) Contract or estimate of cost
Lessee's failure to obtain Lessor's prior written approval shall be an
act of default. Lessee shall maintain and repair (at Lessee's expense) all said
alterations, installations or improvements.
If, at any time during the term of this Lease, any liens or claims of
mechanics, laborers, or material men shall be filed against the Premises for any
work, labor, or materials furnished or alleged to have been furnished pursuant
to the written agreement by Lessee or any person holding thereunder, Lessee
within thirty (30) days (or lesser time if the Premises are threatened with sale
or foreclosure) after the date Lessee receives actual notice (as distinguished
from constructive notice), the filing or recording of any such lien from Lessor
shall cause the same to be discharged by payment, bond, or otherwise. In the
event Lessee contests any lien or claim, Lessee shall prosecute the contest with
reasonable diligence, and LESSEE shall at all time effectually stay or prevent
any official or judicial sale of the Premises.
E. TERMINATION: Upon the termination of this lease in any manner
herein provided, Lessee shall forthwith surrender to Lessor possession of the
premises and shall remove all improvements added by Lessee after the effective
date hereof and restore the premises to the same state which they were in prior
to the addition of such improvements, ordinary wear and tear excepted, and in
case Lessee shall fail, within sixty (60) days after the date of such
termination to make such removal or restoration, then Lessor may, at its
election, to be exercised within thirty (30) days thereafter, either take and
hold such improvements as its sole property; or remove such improvements and
restore the premises for the account of Lessee, and in such latter event Lessee
shall, within thirty (30) days after the rendition of a xxxx therefor, reimburse
Lessor for the cost so incurred. If Lessee defaults in any of the covenants and
agreements to be performed by Lessee as required herein, Lessor, at Lessor's
option, may take and hold such improvements as its sole property, or require
removal as provided above.
F. INSURANCE: Lessee shall maintain and pay for the following
insurance with an insurer satisfactory to the Lessor and shall furnish Lessor
with a certificate from each such insurer which shall reflect the coverage set
forth herein and in which the insurer shall agree that there shall be no
cancellation or change in the policy until Lessor shall have been given ten (10)
days' written notice thereof:
1) Workers' Compensation Insurance
2) Comprehensive General Liability Insurance including contractual
coverage and Automobile Liability Insurance, each with minimum coverage of
$1,000,000 for bodily injury and $1,000,000 for property damage.
Lessee shall not be entitled to possession of the premises herein
until the above insurance certificates as specified are obtained and are
furnished to Lessor.
X. XXXXXX shall maintain and pay for standard form fire and extended
coverage insurance on the premises (including replacements and improvements) for
the full replacement value thereof.
H. INDEMNIFICATION AND HOLD HARMLESS AGREEMENT: Lessee agrees to
indemnify, protect, defend and hold Lessor harmless from and against any and all
claims, actions, demands, liabilities and costs, including attorney's fees,
arising from loss, damage or injury, including death, actual or claimed, of
whatsoever kind or character, to any property or persons whatsoever or
whomsoever, occurring or allegedly occurring in, on or about the premises or
arising out of the use of said premises or common areas or resulting from the
negligence of Lessee, during the term of the lease or any extension, or holding
over period hereof, and upon notice from Lessor, Lessee shall defend Lessor in
any action or proceeding brought therein.
Lessor agrees to indemnity, protect, defend, and hold Lessee harmless
from and against any and all claims, actions, demands, liabilities, and costs,
including attorney's fees, arising from loss, damage, or injury, including
death, actual or claimed, of whatsoever kind or character, to any property or
person whatsoever or whomsoever, occurring or allegedly occurring in, on, or
about the Premises or common areas resulting from the negligence of Lessor,
during the term of the Lease, or holding over period hereof, and upon notice
from Lessee, Lessor shall defend Lessee in any action or proceeding brought
therein.
I. TAXES: Lessor shall pay all taxes and special assessments levied
upon the premises or the use thereof.
J. UTILITIES: Lessor shall provide the premises with water, heat, gas,
and electricity. Lessee shall pay Lessor a monthly electric utility surcharge
of $1,606.00 for Lessee's computer room.
K. ASSIGNING, SUBLETTING: Lessee may not assign this lease or sublet
the premises, other than to an affiliate or subsidiary of Lessee or EVEREADY
BATTERY COMPANY, INC. If Lessee assigns or sublets without consent of Lessor,
Lessor may terminate this lease immediately.
L. RE-ENTRY UPON DEFAULT:
Act of Default. The term "act of default" shall mean and include any
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one or more of the following events:
1) A petition in bankruptcy, reorganization, composition,
arrangement or for the appointment of a receiver is filed by or against Lessee
under the federal bankruptcy laws or any other state or federal bankruptcy or
insolvency laws or any laws relating to the relief of debtors, which is not
discharged within thirty (30) days from the date of filing; or
2) Lessee commits an act of bankruptcy; or
3) The making of any assignment for the benefit of creditors by
Lessee or the acquiescence by Lessee to the filing by another of a petition in
bankruptcy against Lessee; or
4) The failure by Lessee to use the premises in the ordinary
course or permitting the premises to remain vacant for a period of sixty (60)
consecutive days during the term hereof; or
5) Lessee's default in any monthly payments or rent or other
payments required to be made by Lessee hereunder when due as herein provided and
such default continues for ten (10) days after notice thereof in writing to
Lessee; or
6) Lessee's default in any of the other covenants and agreements
herein contained to be kept, observed and performed by Lessee, and such default
continues for sixty (60) days after notice thereof in writing to Lessee;
provided, however, if such default cannot with due diligence be cured within a
period of sixty (60) days, and if Lessee prior to the expiration of sixty (60)
days from the giving of such notice, commences to cure such default and proceeds
diligently and with reasonable dispatch to cure such default and does so cure
such default, then Lessor shall not be entitled to exercise its rights as to
such act of default.
Lessor's Remedies: In addition to all other rights and elections
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provided in this lease and all other legal or equitable remedies or damages
provided by law, in the event of an act of default Lessor may elect by thirty
(30) days' prior written notice to Lessee to:
1) Perform any of the covenants and agreements to be performed by
Lessee as required herein, and any sums expended including but not limited to
reasonable attorneys fees shall be due and payable on demand.
2) Terminate this lease and re-enter and retake possession by
summary proceedings and Lessee shall thereupon be obligated to pay to Lessor as
damages, a sum of money equal to the cost of recovering the premises, including
but not limited to attorneys fees.
3) Terminate Lessee's right of possession without terminating this
lease and re-enter and retake possession by summary proceedings, and relet the
premises for the Lessee's account and receive the rent therefrom. Lessor shall
make reasonable efforts to relet the premises at such rent and other terms as
Lessor may deem advisable. Lessor may, on behalf of Lessee, perform any of the
covenants and agreements to be performed by Lessee as required herein, and any
sums so expended shall become due and payable on demand. Lessee shall be
obligated to pay to Lessor all sums due as aforesaid, the costs of reletting
(including but not limited to attorneys fees) and the minimum rental provided
for herein, less any sums received by Lessor upon reletting of the premises.
X. XXXXXX'X EXPENSES: Lessee shall reimburse Lessor for any
out-of-pocket expenses (including but not limited to reasonable attorneys' fees
and court costs) incurred by Lessor in enforcing Lessee's covenants and
agreements under this lease.
LESSEE'S EXPENSES: Lessor shall reimburse Lessee for any expenses
(including but not limited to attorney's fees and court costs) incurred by
Lessee in enforcing Lessor's covenants and agreements under this Lease.
N. CONDEMNATION: If a part of the premises are taken by any public or
quasipublic authority, rent shall xxxxx in proportion to the extent to which
Lessee's utilization of the premises is adversely affected. If the premises are
rendered unusable for the purposes set forth herein as a result of such
condemnation, Lessee shall have the right to terminate this lease, which right
must be exercised within sixty (60) days from the date the property becomes
unusable, but Lessee shall have no other rights or claims to the condemnation
award or against the Lessor due to the termination or abatement of this lease
due to the aforesaid condemnation.
O. HOLDING OVER: If Lessee should continue to occupy the premises
following expiration of the term hereunder or any final term for which this
lease may by express agreement be extended, and rent is thereafter accepted by
Lessor, Lessee shall be deemed a month-to-month tenant, and all the terms hereof
shall be applicable.
P. LANDLORD'S LIEN: Any sum which Lessee is obligated to pay under the
provisions of this agreement shall constitute, when due and unpaid, a lien
enforceable at law by Lessor upon any building, improvements or other property
of Lessee located on the said premises.
Q. RE-ENTRY, WAIVER: Lessor upon twenty-four (24) hours prior notice
shall have the right to re-enter the premises at any reasonable time for the
purpose of showing said premises, such showings to be carried out in a manner
designed not to unreasonably interfere with the use and enjoyment of the
premises by Lessee. A waiver by Lessor of a default under any covenant of this
lease shall not be deemed a waiver of any subsequent default of the Lessee.
R. NOTICES, REPRESENTATIVES: All notices and payments under this lease
shall be directed to the address hereto appearing of the party for whom the same
are intended or of such party's representative, if any, herein named, and any
such representative shall have authority to receive said notices and payments,
except as otherwise provided in this lease or in the written instructions to the
sender. Notices under this lease shall be given by first class mail and shall
be deemed given when properly addressed with sufficient postage affixed, and
deposited in the U.S. mails. Postmark on the envelope transmitting notice shall
determine date of notice.
3. This lease shall bind and inure to the benefit of the respective
permitted assigns and successors of all parties hereto.
4. No party hereto shall be chargeable with any agreement or representation,
either past, present or future, enlarging the obligations or modifying or
annulling the rights of such party as Lessee or Lessor, unless such agreement or
representation be expressed in a subsequent writing signed by the parties
hereto.
5. Lessee shall have access to the following Lessor facilities on the same
basis as the same are available to Lessor and its employees, officers, agents,
affiliates, and subsidiaries:
a. Cafeterias
b. Store
c. Fitness Center
d. Day Care
Lessee shall pay monthly to the Lessor the prevailing assessment per
employee. Rate as of April 1, 2000 is $56.00 per employee per month.
Lessee shall also pay monthly to Lessor the prevailing assessment per
contractor. Rate as of April 1, 2000 is $52.00 per contractor per month.
6. Lessee's visitors may use Lessor's visitor parking spaces and common area
parking spaces. Lessee's employees may put their names on a waiting list for a
reserved parking space. All reserved parking spaces will be numbered and color
coded. Lessee's employees will pay monthly to Lessor the prevailing charge for
reserved parking. Lessor shall provide adequate unreserved parking for 50
employees of Lessee.
7. Lessee shall have access to Lessor's conference rooms, meeting rooms, and
library, on an as-used basis, at prevailing rates.
8. Lessor shall provide mail service. Current rate is $2,761.00 per month.
Lessee shall also pay Lessor monthly postage and surcharge as used.
IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as
of the date above written.
LESSOR: Xxxxxxx Purina Company
By /s/ Xxxxx X. Xxxxxxxx
Title: Vice President, Chief Financial Officer
and Treasurer
LESSEE: Eveready Battery Company, Inc.
By /s/ Xxxxx X. Xxxxxxxx, III
Title: Vice President and General Counsel
