LEASE AGREEMENT

EXHIBIT 10.43

 

 

 

 

 

 

LEASE AGREEMENT BETWEEN

 

CORNERSTONE OPPORTUNITY VENTURES, LLC

 

LANDLORD

 

AND

 

CEJKA SEARCH, INC.

 

TENANT

 

 

 

 

 

LEASE AGREEMENT

 

THIS LEASE AGREEMENT (“Lease”) is made this 2nd day of February, 2007,  by and between Cornerstone Opportunity Ventures, LLC , a Delaware limited liability company (“Landlord”), and Cejka Search, Inc. , a Delaware corporation (“Tenant”).

 

WITNESSETH:

 

1.

DEMISED PREMISES

1.1

For and in consideration of the covenants and agreements hereinafter set forth and the rent hereinafter specifically reserved, Landlord does hereby lease unto Tenant, and Tenant does hereby lease from Landlord, twenty-seven thousand fifty-one (27,051) rentable square feet of space on the third (3 ^rd ) floor of the CityPlace Four building in Creve Coeur, Missouri (the “Building”), which space is designated as Suite #300 outlined on Exhibit A attached hereto and made a part hereof (the “Demised Premises”), and its share of common area at the Building.  The site plan of the Building is shown on Exhibit B and the Building Specifications on the date of this Lease are described on Exhibit C , both being attached hereto and made a part hereof.

1.2

Landlord shall cause the construction of the tenant finish requirements in accordance with the construction provisions set forth in Exhibit D and the tenant finish plans set forth on Exhibit D-1 , attached hereto and made a part hereof (the “Tenant Finish”).  Within ten (10) business days of substantial completion of the Tenant Finish, Landlord and Tenant shall cooperate to execute a mutually agreeable “punch list” identifying any incomplete and unacceptable items in the Tenant Finish.  No later than thirty (30) days after the parties execution of said “punch list”, Landlord shall complete all items identified on said “punch list” to Tenant’s reasonable satisfaction; provided that Landlord shall have such additional time as is reasonably necessary to complete any items, so long as Landlord uses commercially reasonable efforts to promptly complete such item .  Upon completion of all items identified on the “punch list”, Tenant shall execute a form acknowledging completion of the Tenant Finish.

1.3

Landlord and Tenant shall execute the Certificate attached hereto and made a part hereof as Exhibit E on the Lease Commencement Date (as defined below).  

1.4

Notwithstanding any provision of this Lease to the contrary, Tenant rights to occupy the Demised Premises and Landlord’s obligations hereunder shall not arise unless and until Tenant shall have caused the delivery of the guaranty by Cross Country Healthcare, Inc., a _____________ corporation, in the form attached hereto as Exhibit G .  The delivery of said guaranty is a material portion of the consideration for Landlord’s execution of this Lease and Landlord shall not commence construction of the Tenant Finish until such time as Tenant has caused delivery of the signed guaranty to Landlord.

 

 

 

1

 

2.

TERM

This Lease shall continue in force for a term of ten (10) years from the Lease Commencement Date, which shall be the later of (a) June 15, 2007, or (b) the date Tenant receives notice from Landlord that the Tenant Finish work is substantially completed (excluding completion of minor items identified on the “punch list”) and Landlord has received a temporary occupancy permit for the Demised Premises; provided, however, Landlord shall allow Tenant non-exclusive access to the Demised Premises, without a corresponding obligation to pay Base Annual Rent, at least thirty (30) days prior to the Lease Commencement Date for the sole purposes of installing Tenant’s furniture, phones and data cabling.  Tenant shall not be obligated to pay Base Annual Rent during the period prior to the Lease Commencement Date unless it shall open for business at which time the Demised Premises and Tenant Finish shall be deemed accepted, subject only to the punch list, and the Lease Commencement Date, or Occupancy Date (as hereinafter provided), shall coincide with such opening for business.  Further, Tenant’s early access to the Demised Premises shall be subject to Tenant’s compliance with all other provisions of this Lease, including the obligations to provide insurance and indemnify, defend and hold Landlord harmless from all damages, liens, losses, claims and other liabilities that may arise from Tenant’s early non-exclusive access to the Demised Premises.  Notwithstanding the foregoing, should the Lease Commencement Date fall on a date other than the first day of a month, Tenant shall occupy the Demised Premises on the “Occupancy Date” and the Lease Commencement Date shall be deemed to be the first day of the following month and Tenant shall occupy the Demised Premises on the terms and conditions contained herein, except that the Base Annual Rent for the partial first month of occupancy shall be prorated based on the actual number of days of Tenant’s occupancy and the actual number of days in the month during which the Occupancy Date occurs.  The Lease Commencement Date (and the Occupancy Date if different) shall be specified in the Certificate described in Section 1.3 above.

 

3.

RENT AND ADDITIONAL RENT

3.1

Base Annual Rent .  Commencing on the Lease Commencement Date, Tenant shall pay to Landlord the Base Annual Rent as stated below:

 

 

2

 

Said Base Annual Rent shall be paid in twelve equal monthly installments.  Tenant shall pay one full monthly installment of Base Annual Rent upon execution of this Lease and Landlord shall credit it against Tenant’s rent obligations coming due on and after the Lease Commencement Date.  The term "Lease Year" shall mean the twelve (12) month period beginning on the Lease Commencement Date referred to in Section 2 above, and each successive twelve (12) month period thereafter.

3.2

Operating Expenses .

(a)

In addition to the Base Annual Rent, Tenant will pay, as additional rent, its proportionate share of Landlord’s costs of operating the Building over the expenses incurred during the 2007 calendar year (the “Base Year”).  These costs shall consist of (a) real estate taxes and (b) all other costs defined in Section 3.2(c) below, which are actually incurred by the Landlord, and which are projected in Landlord’s reasonable estimation to reflect the greater of (a) the actual occupancy of the Building or (b) ninety-five percent (95%) occupancy of the Building.  Tenant’s proportionate share, subject to adjustment pursuant to Section 1.2 above, shall be twenty-six and 00/100 percent (26.00%).  Tenant’s proportionate share is calculated by dividing Tenant’s total rentable square footage by the building’s total rentable square footage, which is approximately one hundred three thousand thirty-four (103,034) rentable square feet.

(b)

Landlord shall send Tenant a statement showing the fiscal year operating expenses as soon as is practicable after the end of each calendar year; however, Landlord’s failure to provide such operating expense statement as soon as is practicable after the end of each calendar year shall in no way excuse Tenant from its obligation to pay its proportionate share of operating expenses or constitute a waiver of Landlord’s right to bill and collect such proportionate share of operating expenses from Tenant in accordance with this paragraph 3.2(b).

(c)

The costs of operating the Building (the “Operating Expenses”) shall include the following:

(i)

electricity, water, sewer and other utility charges (including surcharges) of every type and nature, but excluding electricity charges billed directly to Tenant by Landlord pursuant to Section 16.3 hereof;

(ii)

premiums and other charges incurred by Landlord with respect to all insurance relating to the Building and the operation and maintenance thereof, including, without limitation, all risk of physical damage or fire and extended coverage insurance, public liability insurance, elevator insurance, workman’s compensation insurance, boiler and machinery insurance, sprinkler leakage insurance, rent insurance, use and occupancy insurance, and health, accident and group life insurance for employees;

(iii)

management fees and personnel costs of the Building, including, but not limited to, salaries, wages, fringe benefits and other direct and indirect costs of engineers, superintendents, watchmen, porters and any other Building personnel;

(iv)

costs of service and maintenance contracts, including, but not limited to, chillers, boilers, controls, elevators, mail room, windows, security services, and management fees;

(v)

all costs, charges, and expenses, incurred by Landlord in connection with any change of any company providing electricity service, including, without limitation, maintenance, repair, installation, and service costs associated herewith;

 

3

 

(vi)

all other maintenance and repair expenses and supplies which are deducted by Landlord in computing its Federal income tax liability;

(vii)

amortization and/or depreciation for capital expenditures incurred by Landlord in connection with additions, replacements or improvements reasonably calculated by Landlord to reduce Operating Expenses (and only to the extent that such additions, replacements or improvements do reduce Operating Expenses), or which are incurred in connection with compliance with governmental orders;

(viii)

the costs of any additional services not provided to the Building at the Lease Commencement Date but thereafter provided by Landlord in the prudent management of the Building;

(ix)

real estate taxes;

(x)

the cost of janitorial service (allocable to the actual space in the Building being serviced);

(xi)

any Business, Professional and Occupational License tax payable by Landlord with respect to the Building;

(xii)

auditing and accounting fees including accounting fees incurred in connection with the preparation and certification of any and all statements required under this Lease;

(xiii)

all miscellaneous taxes (including, without limitation, all sales and excise taxes on the expenditures enumerated in this Section) applicable to the Building and any taxes imposed on personal property in the Building owned by Landlord;

(xiv)

the cost of licenses, permits and similar fees and charges; and any other costs and expenses, including reasonable attorney’s fees, incurred by Landlord in maintaining or operating the Building.

 

Notwithstanding anything to the contrary, Operating Expenses shall not include the following:

(i)

Any ground lease rental;

(ii)

Costs incurred by Landlord for the repair of damage to the Building to the extent that Landlord is reimbursed by insurance or condemnation proceeds or by tenants, warrantors or other third persons;

(iii)

Depreciation, amortization and interest payments, except as specifically permitted elsewhere in the Lease, and except upon materials, tools, supplies and vendor-type equipment purchased by Landlord to enable Landlord to supply services Landlord might otherwise contract for with a third party, where such depreciation, amortization and interest payments would otherwise have been included in the charge for such third party’s services, all as determined in accordance with generally accepted accounting principles, consistently applied, and when depreciation or amortization is permitted or required, the item shall be amortized over its reasonably anticipated useful life;

(iv)

Marketing costs including leasing commissions, attorney’s fees in connection with the negotiation and preparation of letters, deal memos, letters of intent, leases, subleases and/or assignments, space planning costs, and other costs and expenses incurred in connection with lease, sublease and/or assignment negotiations and transactions with present or prospective tenants or other occupants of the Building;

 

4

 

(v)

Except as permitted elsewhere in this Lease, costs of a capital nature, including without limitation, capital improvements, capital replacements, capital repairs, capital equipment and capital tools, all as determined in accordance with generally accepted accounting principles consistently applied or otherwise (“Capital Items”);

(vi)

Interest, principal, points and fees on debt or amortization on any mortgage, deed of trust or other debt encumbering the Building;

(vii)

Costs, including permit, license and inspection costs, incurred with respect to the installation of tenant or other occupants’ improvements made for tenants or other occupants in the Building, or incurred in renovating or otherwise improving, decorating painting or redecorating space used exclusively by tenants or other occupants of the Building, including space planning and interior design costs and fees;

(viii)

Attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants or other occupants of the Building or attorney’s fees and other costs and expenses in, settlement, judgments incurred in connection with potential or actual claims pertaining to Landlord, the Building; provided, however, that Operating Expenses shall include those attorneys’ fees and other costs and expenses incurred in connection with disputes or claims relating to items of Operating Expenses, enforcement of rules and regulations of the Building, and such other matters relating to the maintenance of standards required of Landlord under the Lease Agreement may be included in Operating Expenses;

(ix)

Expenses in connection with services or other benefits which are not offered to Tenant, or for which Tenant is charged for directly but which are provided to another tenant or occupant of the Building;

(x)

Costs incurred by Landlord due to the violation by Landlord of the terms and conditions of any lease of space in the Building;

(xi)

Overhead and profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for goods and/or services provided to the Building to the extent the same exceeds the costs that would generally be charged for such goods and/or services if rendered on a competitive basis, based upon a standard of comparable buildings by unaffiliated third parties capable of providing such services; provided, however, that nothing in this subparagraph (xi) shall restrict Landlord’s right to employ an affiliate of Landlord, including but not limited to The Koman Group, L.L.C., to manage the Building, to pay such affiliate administrative, management fee and other compensation and to include such aggregate amount in Operating Expenses;

(xii)

Costs of Landlord’s general corporate overhead, except to the extent that such overhead is directly attributable to the management, maintenance and repair of the Building;

(xiii)

All items and services for which Tenant or any other tenant in the Building reimburses Landlord (other than through operating expense pass-through provisions);

(xiv)

Electric power costs for which any tenant directly contracts with the local public service company;

(xv)

Costs arising form Landlord’s charitable or political contributions;

 

5

 

(xvi)

Rentals for items (except when needed in connection with normal repairs and maintenance of permanent systems) which if purchased, rather than rented, would constitute a capital improvement which is specifically excluded above, excluding, however, equipment not affixed to the Building which is used in providing janitorial or similar services;

(xvii)

Rentals and other related expenses incurred in leasing HVAC systems, elevators or other equipment ordinarily considered to be Capital Items, except for (1) expenses in connection with making repairs on or keeping project systems in operation while repairs are being made and (2) costs of equipment not affixed to the Building which is used in providing janitorial or similar services;

(xviii)

Advertising and promotional expenditures;

(xix)

Costs incurred in connection with upgrading the common areas of the Building to comply with handicap (including ADA), life, fire and safety codes as such codes are interpreted to apply to the Building by the responsible public officials prior to the Lease Commencement Date;

(xx)

Tax penalties incurred as a result of Landlord’s negligence, inability or unwillingness to make payments and/or to file any income tax or informational returns when due;

(xxi)

Notwithstanding any contrary provision of this Lease, including, without limitation, any provision relating to capital expenditures, any and all costs arising form the presence of hazardous materials or substances in or about the Building including, without limitation, hazardous substances in the ground water or soil;

(xxii)

Costs associated with the operation of the business of the entity which constitutes Landlord as the same are distinguished from the costs of operation of the Building, including entity accounting and legal matters, costs of defending any lawsuits with any deed of trust holder (except as the actions of Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Building, or costs of any disputes between Landlord and its employees (if any) not engaged in Building operation, disputes of Landlord with Building management;

(xxiii)

Costs of signs in or on the Building (other than building directory signs) identifying the owner of the Building or other tenant’s signs;

(xxiv)

Except as expressly provided to the contrary in this Lease Agreement, any other expense that, under generally accepted building operation, consistently applied, would not be considered a normal maintenance or operating expense.

(d)

Tenant shall make monthly payments to Landlord on account of estimated increases in Operating Expenses for each calendar year.  Landlord shall submit to Tenant an estimate as soon as practicable after the end of each calendar year.  Following its receipt of each such estimate, Tenant shall pay to Landlord, monthly, on the first day of each month through and including the month in which Tenant receives Landlord’s next such estimate, an amount equal to one-twelfth (1/12th) of Tenant’s proportionate share of estimated increases in Operating Expenses.  Each year Landlord shall also deliver to Tenant a statement of the Operating Expenses actually incurred during the immediately preceding calendar year.  If Tenant’s total payments on account of estimated increases in Operating Expenses made through December of the immediately preceding calendar year exceed the amount of the increase actually due for the calendar year, Landlord shall at its option, either refund the difference directly to the Tenant or credit Tenant’s rent and/or additional rent obligations coming due thereafter.  If,

 

6

 

on the other hand, such payments were less than the amount of the increase actually due, Tenant shall pay the difference to Landlord with its next rent due provided Landlord has delivered to Tenant the statement of Operating Expenses at least fifteen (15) days prior thereto.  If delivered after such date, Tenant shall pay the difference to Landlord with the next successive payment of rent.  Tenant’s liability for its proportionate share of increases in Operating Expenses for the last calendar year of the term of this Lease shall survive the expiration of the Lease.  Similarly, Landlord’s obligation to refund to Tenant the excess, if any, of the amount of Tenant’s payment on account of estimated increases for such last calendar year over Tenant’s actual liability therefor shall survive the expiration of the term of this Lease.  Landlord may at any time or from time to time furnish to Tenant a revised estimate for any calendar year and in such case Tenant’s payments on account of estimated increases for such calendar year shall be adjusted accordingly.  Within thirty (30) days after receipt of Landlord’s statement, Tenant or its authorized employee shall have the right to inspect the books of Landlord during the business hours of Landlord at Landlord’s office in the Building for the purpose of verifying information in such statement.  Unless Tenant asserts specific error(s) to Landlord in writing within forty-five (45) days after delivery of such statement, the statement shall be deemed to be correct.

(e)

No decrease in Taxes and/or Operating Expenses shall reduce Tenant’s rent below the Base Annual Rent set forth in Section 3.1 hereinabove.

3.3

Rent Payments .  Payments of Base Annual Rent and any additional rent shall be paid in advance on the first (1st) day of each and every month during the term of this Lease, with appropriate proration for the first and last months.  Base Annual Rent and any additional rent shall be paid by electronic funds transfer, per instructions to be provided by Landlord to Tenant, payable to Landlord or to such other person, firm or corporation as Landlord may designate in writing.

3.4

Delinquent Rent Payments .  Any installment of Base Annual Rent, or any additional rent, which is not received by Landlord within five (5) days after the same becomes due and payable, and receipt of written notice of such nonpayment, shall obligate Tenant to pay, as additional rent, a late fee equal to the amount owed with an interest cost of the lesser of prime plus four percent (4%) or the maximum amount permitted by law for each and every month or part thereof that such rent remains unpaid, said additional rent to be payable with the next monthly installment of rent.  In addition, if the Tenant defaults in the making of any payment or the doing of any act herein required to be made or done by Tenant, then the Landlord may, but shall not be required to, make such payment or do such act, and the amount of the expense thereof, if made or done by Landlord, shall be paid by Tenant to Landlord together with a penalty accruing of any outstanding amount owed to Landlord of the lesser of prime plus four percent (4%) or the maximum amount permitted by law as long as such expense remains unpaid, and shall constitute additional rent hereunder due and payable with the next monthly installment of Base Annual Rent.  The provisions of this Section shall not be deemed to affect Landlord’s right to pursue any of its remedies under Section 20 hereof.

 

 

 

7

 

4.

USE OF DEMISED PREMISES

4.1

The Tenant shall use and occupy the Demised Premises for general office purposes and for no other purpose whatsoever.  The Tenant shall not use or permit the Demised Premises or any part thereof to be used for any disorderly, unlawful, or hazardous purpose and will not manufacture any commodity therein.  Tenant shall comply with all present and future laws, ordinances (including zoning ordinances and land use requirements), regulations and orders of all governmental and/or quasi-governmental authorities having jurisdiction over the Demised Premises.

4.2

Tenant shall pay any business, rent or other taxes that are now or hereafter levied upon Tenant’s use or occupancy of the Demised Premises, the conduct of Tenant’s use or occupancy of the Demised Premises, or Tenant’s business in the Demised Premises, or Tenant’s equipment or other personal property, other than taxes relating to Landlord’s income.  In the event that any such taxes are enacted, changed or altered so that any of such taxes are levied against Landlord, or the mode of collection of such taxes is changed so that Landlord is responsible for collection or payment of such taxes, Tenant shall pay any and all such taxes to Landlord upon written demand from Landlord.

4.3

The Tenant will not do, or permit anything to be done in the Demised Premises or the Building of which they form a part or bring or keep anything therein which shall, in any way, be illegal or increase the rate of fire or other insurance on the Building, or on the property kept therein, or obstruct, or interfere with the rights of other tenants, or in any way injure them, or those having business with them or conflict with them, or conflict with the fire laws or regulations, or with any statutes, rules or regulations enacted or established by the City of Creve Coeur or other governmental entity.

 

5.

MAINTENANCE AND REPAIR

5.1

Tenant will keep the Demised Premises and the fixtures and equipment therein  (other than major structural elements of the Building, which are the responsibility of Landlord, as provided in Section 5.3 below) in a clean, safe and sanitary condition, will take good care thereof, will suffer no waste or injury thereto, and will, at the expiration or other termination of the term of this Lease, surrender the same, broom clean, in the same order and condition in which they are on the Lease Commencement Date, except for ordinary wear and tear and damage by the elements, fire and other casualty not due to the negligence of the Tenant.

5.2

If Tenant shall fail to make any repairs or to perform any maintenance which it is obligated to make or perform under this Lease within ten (10) days after written notice from Landlord to do so, or in the event of any emergency, Landlord may make or perform the same for the account of Tenant, without liability to Tenant for any loss or damage that may accrue to Tenant’s fixtures or other property or to Tenant’s business by reason thereof, so long as said damage or loss is not due to Landlord’s negligence and Tenant shall pay, as additional rent, within thirty (30) days after Landlord shall have billed Tenant therefore, Landlord’s reasonable and actual out-of-pocket cost for making such repairs and/or performing such maintenance (such cost may include a reasonable amount for Landlord’s overhead).  Nothing herein contained shall imply any duty on the part of Landlord to do any such work which under any provision of this Lease Tenant may be required to do, nor shall it constitute a waiver of Tenant’s default in failing to do the same.

 

8

 

5.3

Landlord shall keep the Building in a clean, safe and sanitary condition and take good care thereof.  Landlord shall promptly make all necessary repairs to the structure of the Building and the mechanical, electrical, plumbing, heating and air conditioning systems therein, except with respect to any items installed or constructed by Tenant and except where the repair has been made necessary by misuse or neglect by Tenant or Tenant’s agents, servants, visitors or licensees.  This obligation to repair does not impose upon Landlord an obligation to make repairs other than during normal business hours except in emergency situations.  Landlord will use its best efforts to make such repairs in a timely fashion.  If Landlord on its part fails to make any repair after a ten (10) day written notice from Tenant, Tenant may perform the repair and submit an invoice to Landlord.  Tenant is to notify Landlord in writing of the repair and provide Landlord with a copy of the bid to perform such repair before it releases any work, except in the case of an emergency, in which case Tenant shall endeavor to notify the Landlord as soon as practical.

5.4

Within fifteen (15) days of the expiration or termination of this Lease, Tenant, at its sole cost and expense, shall remove from the Demised Premises all cabling and wiring, including but not limited to, telecommunication and data cabling, installed by or for Tenant.  The provisions of this Section 5.4 shall survive the expiration and/or termination of this Lease.

 

6.

UTILITY DEREGULATION

6.1

Landlord hereby advises Tenant that presently Ameren UE (the “Electric Service Provider”) is the utility company selected by Landlord to provide electric service for the Building.  Notwithstanding the foregoing, if permitted by law, Landlord shall have the right at any time and from time to time during the Lease Term to either contract for service from a different company or companies providing electricity service (each such company shall hereinafter be referred to as an “Alternate Service Provider”) or continue for service from the Electric Service Provider.

6.2

Tenant shall cooperate with Landlord, the Electric Service Provider and any Alternate Service Provider at all times and, as reasonably necessary, shall allow Landlord, Electric Service Provider and any Alternate Service Provider reasonable access to the Building’s electric lines, feeders, risers, wiring, and any other machinery within the Demised Premises.

6.3

Unless attributable to Landlord’s negligence, Landlord shall in no way be liable or responsible for any loss, damage, or expense that Tenant may sustain or incur by reason of any change, failure, interference, disruption, or defect in the supply or character of the electric energy furnished to the Demised Premises, or if the quantity or character of the electric energy supplied by the Electric Service Provider or any Alternate Service Provider is no longer available or suitable for Tenant’s requirements, and no such change, failure, defect, unavailability, or unsuitability shall constitute an actual or constructive eviction, in whole or in part, or entitle Tenant to any abatement or diminution of rent, or relieve Tenant from any of its obligations under the Lease.

 

7.

ALTERATIONS

7.1

Tenant will not make or permit anyone to make any alterations, additions or improvements (hereinafter referred to as “Alterations”) in or to the Demised Premises or the Building,

 

9

 

other than cosmetic alterations which will not affect building systems or structure without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed.  As a condition precedent to such written consent of Landlord, Tenant agrees to obtain and deliver to Landlord upon completion, written, unconditional waivers of mechanics’ and material men’s liens against the Building and the land upon which it is situated from all proposed contractors, sub-contractors, laborers and material suppliers for all work, labor and services that were performed and materials furnished in connection with Alterations.  If, notwithstanding the foregoing, any mechanic’s lien is filed against the Demised Premises, the Building, and/or the land on which the Building is located, for work or materials done for, or furnished to, Tenant (other than for work or materials supplied by Landlord), such mechanic’s lien shall be discharged by Tenant the earlier of (a) the date a responsive pleading is due in any such lien action, or (b) ten (10) days thereafter, at Tenant’s sole cost and expense, by the payment thereof or by the filing of any bond required by law.  If Tenant shall fail to discharge any such mechanic’s lien, Landlord may, at its option, discharge the same and treat the cost thereof as additional rent hereunder, payable with the monthly installment of Base Annual Rent next becoming due; and such discharge by Landlord shall not be deemed to waive the default of Tenant in not discharging the same.  Tenant will indemnify and hold Landlord harmless from and against any and all expenses, including reasonable attorney’s fees, liens, claims or damages to any person or property which may or might arise by reason of the making by Tenant of any Alterations.  Landlord will in turn indemnify and hold Tenant harmless from and against any and all expenses (including reasonable attorney’s fees), liens, claims or damages to any person or property which may or might arise by reason of the making of Landlord of any Alterations.

7.2

Alterations may be made only at Tenant’s expense, by contractors or subcontractors approved by Landlord, which approval shall not be unreasonably withheld or delayed, and only after Tenant has obtained all necessary permits from governmental authorities having jurisdiction and has furnished copies of the permits to Landlord.  Landlord shall have the right to have the making of any Alterations supervised by its architects, contractors or workmen.  All Alterations that affect or in any way relate to the mechanical, electrical, plumbing, heating, air conditioning, or structural systems of the Building shall be done only by Landlord or Landlord’s contractor or agent at Tenant’s expense.  Landlord will use its best effort to perform the work at a reasonable cost.

7.3

If any Alterations are made without the prior written consent of Landlord, Landlord may correct or remove the same, and Tenant shall be liable for all reasonable expenses so incurred by Landlord.  All Alterations in or to the Demised Premises or the Building made by either party shall immediately become the property of Landlord and shall remain upon and be surrendered with the Demised Premises as a part thereof at the end of the term hereof; provided however, Tenant shall have the right to remove, prior to the expiration of the term of this Lease, all movable furniture, furnishings or equipment installed in the Demised Premises at the expense of Tenant, and if such property of Tenant is not removed by Tenant prior to the expiration or termination of this Lease, the same shall, at Landlord’s option, become the property of Landlord and shall be surrendered with the Demised Premises as a part thereof.  Should Landlord elect that Alterations installed by Tenant be removed upon the expiration or termination of this Lease, it shall so advise Tenant at the time of its providing consent to such Alterations,

 

10

 

Tenant shall remove the same at Tenant’s sole cost and expense, and if Tenant fails to remove the same, Landlord may remove the same at Tenant’s expense and Tenant shall reimburse Landlord for the cost of such removal together with any and all damages which Landlord may sustain by reason of such default by Tenant.

 

8.

ASSIGNMENT AND SUBLETTING

8.1

Tenant may not assign, transfer, mortgage or encumber this Lease, nor shall any assignment or transfer of this Lease be effectuated by operation of law or otherwise, without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed; provided, however Tenant may automatically and without Landlord’s consent (but providing written notice to Landlord thereof at  least thirty days in advance thereof) assign the Lease to an affiliate or majority owned entity of Tenant which affiliate or majority owned entity shall have a net worth equal to or greater than Tenant on the date hereof.  The withdrawal or change, whether voluntary, involuntary or by operation of law, of persons or entities owning a controlling interest in Tenant, or the sale of Tenant’s business, shall be deemed a voluntary assignment of this Lease and subject to the provisions of this Section.  Tenant’s failure to comply with the foregoing sentence shall be deemed to be a material breach of this Lease by Tenant.

8.2

Tenant shall not sublease the Demised Premises or any part thereof or transfer possession or occupancy thereof to any person, firm or corporation without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed.

8.3

In the event Tenant subleases or assigns all or part of the Demised Premises at a rental per square foot that is higher than the rental being paid by Tenant hereunder or in exchange for Tenant’s receipt of any bonus or lump sum payment, Landlord shall be entitled to receive and Tenant shall promptly pay as additional rent fifty percent (50%) of any excess rental, bonus and/or lump sum payment which may inure to Tenant’s benefit as a result of any such assignment or subletting regardless of Landlord’s consent thereto.  Landlord will receive the excess rental, if any, within ten (10) days of Tenant’s receipt of same.

8.4

In the event Tenant desires to sublease or assign all or any part of the Demised Premises, Tenant shall give written notice thereof to Landlord.  Landlord shall have the right, within ten (10) days after receipt of written notice from Tenant of Tenant’s desire to sublease or assign all or part of the Demised Premises, to retake such Demised Premises from Tenant and to terminate this Lease with respect to any such space so taken.

8.5

Any sublease or assignment shall be subject to the following conditions:

(a)

Tenant’s successor shall be acceptable as a first class user of office space in Landlord’s reasonable opinion.

(b)

At the time of making such assignment or sublease, there is no default under any of the agreements, terms, covenants and conditions on the part of the Tenant to be performed under this Lease.

(c)

Such assignment or sublease shall be in writing, shall certify the amount of rental, bonus and/or lump sum payment paid or to be paid to Tenant, shall contain an agreement on the part of the assignee or subtenant to abide by all of the terms and provisions of this Lease, except for the payment of

 

11

 

Base Annual Rent and additional rent, and shall be duly executed and acknowledged by Tenant and Tenant’s assignee or subtenant.  A copy of the sublease must be supplied to the Landlord within thirty (30) days after full and final execution.

(d)

Such assignment or sublease shall expressly prohibit the assignee or subtenant from removing any of the Landlord’s personal property from the Demised Premises without the Landlord’s express written consent.

(e)

No assignment or sublease shall obligate Landlord to make any Alterations (as that term is defined in Section 8 above) nor to do any finishing or remodeling work in or to all or any part of the Demised Premises, nor shall any such assignment or sublease result in a decrease of any amounts payable to Landlord pursuant to the terms of this Lease.

(f)

No assignment or sublease shall release or discharge, in whole or in part, Tenant’s liability for the full performance of the agreements, terms, covenants and conditions contained in this Lease.

(g)

If all or any part of the Demised Premises shall be subleased or occupied by any person or entity other than the Tenant, the Landlord may, after default by the Tenant, collect Base Annual Rent and any additional rent from any such subtenant(s) or occupant(s), and apply the amount collected to the rent reserved herein, and Tenant hereby assigns to Landlord the Base Annual Rent and any additional rent due from any subtenant or assignee of Tenant and hereby authorizes each such subtenant or assignee to pay said Base Annual Rent and any additional rent directly to Landlord but no such collection shall be deemed a waiver of any agreement, term, covenant or condition hereof nor the acceptance by the Landlord of any subtenant or occupant as Tenant.

(h)

Wherever notice, demand, request, or any other communication of any nature is required to be given by the Landlord or by any mortgagee to the Tenant, no such notice, demand, request, or communication shall, in any event, be required to be given to any such assignee or subtenant, and any notice, demand, request or communication shall be given only to the Tenant herein.

(i)

Any assignment or subletting permitted hereunder shall be for the initial term only, and shall not include any option or renewal rights now existing or hereafter granted by Landlord.

8.6

If Landlord withholds approval to the proposed subletting or assignment, this Lease shall remain in full force and effect.  In the event Landlord does not exercise any of its rights specified in this Section 8, or does not respond to Tenant’s request for Landlord’s consent to an assignment or sublease, within ten (10) days after Tenant’s request therefore, Landlord shall be deemed to have withheld approval of the sublease or assignment.  If Tenant thereafter completes a sublease or assignment with a third party, such sublease or assignment shall be null and void.

 

9.

INSTALLATIONS AFFECTING BUILDING AND BUILDING SYSTEMS

9.1

Landlord shall have the right to prescribe the weight and method of installation and position of safes, heavy fixtures, shelving, files, library stacks, equipment or machinery and Tenant will not install any such items which would place a load upon any floor exceeding the floor load per square foot which such floor was designed to carry.  The live load for the building is one hundred pounds per square foot, with allowable reductions per BOCA.  All damage done to the Building or any part thereof

 

12

 

by taking in or removing a safe or any other article of Tenant’s office equipment, or due to its being in the Demised Premises, shall be repaired at the reasonable expense of the Tenant.  No freight, furniture, or other bulky matter of any description will be received into the Building or carried in the elevators, except as approved by the Landlord.  All moving of furniture, material, and equipment shall be subject to the supervision of the Landlord, who shall, however, not be responsible for any damage to or charges for moving the same.  Tenant agrees to promptly remove from the public area adjacent to the Building and from any common area within the Building any of Tenant’s merchandise or property there delivered or deposited.

9.2

Except as may be specifically permitted by the terms of this Lease, Tenant shall not install or use any equipment of any kind or nature whatsoever which will or may necessitate any changes, replacements or additions to or require the use of the water, plumbing, heating, air-conditioning, or electrical system of the Demised Premises without the prior written consent of the Landlord, which consent shall not be unreasonably withheld.  In addition, only Landlord or Landlord’s contractor or agent at Tenant’s reasonable expense shall do all of the work described in the foregoing sentence.  Landlord will use its best efforts to secure a competitive price for the work to be performed.  Landlord’s consent shall not be unreasonably withheld or delayed, but may be conditioned upon the payment by the Tenant of additional rent as compensation for such excess consumption of utilities and the payment for other alterations as may be required for such equipment, as and if established by appropriate engineers.

 

10.

ACCESS

Tenant agrees to allow Landlord, its agents or employees to enter the Demised Premises at all reasonable times and upon reasonable notice (except in case of emergency, in which event Landlord may enter the Demised Premises without notice) to examine, inspect or protect the same or to prevent damage or injury to the same; to make such alterations and repairs as the Landlord may deem necessary; or to exhibit the same to prospective tenants during the last twelve (12) months of the term.

Landlord will provide Tenant with forty (40) access cards at no charge.  Each additional or replacement access card requested by Tenant shall be at a charge to Tenant of Fifteen Dollars ($15.00) per card.

 

11.

COVENANTS OF LANDLORD

11.1

Landlord covenants that it has the right to make this Lease for the term aforesaid, and that if Tenant shall pay all rent when due and punctually perform all of the covenants, terms, conditions and agreements of this Lease to be performed by Tenant, Tenant shall, during the term hereby created, freely, peaceably and quietly occupy and enjoy the full possession of the Demised Premises without molestation or hindrance by Landlord or any party claiming through or under Landlord, subject, however, to the provisions of this Lease, including but not limited to the Rules and Regulations and the provisions of Section 11.2 below.

11.2

Landlord hereby reserves to itself and its successors and assigns the following rights (all of which are hereby consented to by Tenant): (1) to change the platting, street address and/or name of the Building and/or the arrangement and/or location of entrances passageways, atria, doors doorways,

 

13

 

corridors, elevators, stairs, toilets, or other public parts of the Building; (2) to erect, use and maintain pipes and conduits in and through the Demised Premises; (3) to grant to anyone the exclusive right to conduct any particular business or undertaking in the Building not inconsistent with Tenant’s permitted use of the Demised Premises; and (4) the exclusive right to use and/or lease the roof areas, and the sidewalks and other exterior areas; provided such acts do not impair Tenant’s ability to conduct business in the normal course.  Landlord may exercise any or all of the foregoing rights without being deemed to be guilty of an eviction, actual or constructive, or a disturbance or interruption of the business of Tenant or of Tenant’s use or occupancy of the Demised Premises.

 

12.

RULES AND REGULATIONS

Tenant, its agents, employees and invitees shall abide by and observe the rules and regulations attached hereto as Exhibit F .  Tenant, its agents, employees and invitees shall abide by and observe such other reasonable rules or reasonable regulations which will be enforced in a uniform and non-discriminating manner by Landlord as may be promulgated from time to time by Landlord for the operation and maintenance of the Building provided that the same are not inconsistent with the provisions of this Lease, do not materially impair Tenant’s permitted use of the Demised Premises, and a copy thereof is sent to Tenant.  Nothing contained in this Lease shall be construed to impose upon Landlord any duty or obligation to enforce such rules and regulations, or the terms, conditions or covenants contained in any other Lease, as against any other tenant, and Landlord shall not be liable to Tenant for violation of the same by any other tenant, or such other tenant’s employees, agents or invitees.

 

13.

SIGNS

No sign, advertisement or notice shall be inscribed, painted, affixed or displayed by Tenant on any part of the outside or the inside of the Building except (i) one building standard identification sign at the entry to the Demised Premises, (ii) one panel on the monument sign servicing the Building, and (iii) identification on the Building’s directory.  The foregoing shall be only in such place, number, size, color and style as is approved by Landlord, which approval shall not be unreasonably withheld.  If any such sign, advertisement or notice is exhibited, without Landlord’s approval, which approval shall not be unreasonably withheld, Landlord shall have the right to remove the same and Tenant shall be liable for any and all expenses incurred by Landlord for such removal.  All such signs, directories and nameplates shall be at the sole expense of Tenant and shall comply with all applicable statutes, ordinances, codes, regulations and other laws.  In the event Tenant, by exercising its rights of expansion provided herein or otherwise, expands its occupancy of the Building to not less than Thirty Two Thousand (32,000) rentable square feet, Tenant shall have the right, at its sole expense, to install exterior signage on the eastern façade of the Building.  Such exterior signage shall be only in such place, number, size, color and style as is approved by Landlord, which approval shall not be unreasonably withheld, and Tenant shall be solely responsible for the approval of all applicable governmental authorities including, without limitation, the City of Creve Coeur.  Tenant shall also be responsible for all costs associated with removal of the sign, which shall occur on or before the termination of this Lease.  Failure to remove the exterior sign shall

 

14

 

result in Tenant’s holdover of the Demised Premises and Tenant shall be subject to the obligations set forth in Section 21 of this Lease.

 

14.

INSURANCE

14.1

Tenant shall procure and keep in force at its own expense during the term of this Lease, public liability and property damage insurance in a company acceptable to Landlord, naming Landlord, Landlord’s Agent, and any mortgagee of the Building as additional insured’s, with a minimum combined single limit coverage of two million dollars ($2,000,000) and including “independent contractors” coverage, broad form “contractual” liability, “personal injury” liability and a broad form CGL endorsement.  Landlord will accept a certificate showing evidence of coverage under Tenant’s umbrella insurance policy.  If at any time Tenant does not comply with the foregoing provisions of this Section, Landlord may, at its option cause such insurance to be issued and in such event Tenant shall pay the premium(s) for such insurance promptly upon Landlord’s demand.  Tenant shall, in any event, defend, indemnify, defend and save Landlord harmless from and against any and all claims, actions, damages, liability, and expenses, including reasonable attorney’s fees, for injury to persons or property, arising in whole or in part from any act or omission of Tenant, its employees, agents, contractors, customers or other visitors, except for negligence on the part of Landlord or its employees.  

14.2

In addition to the above, Tenant shall maintain insurance covering all of Tenant’s leasehold improvements, trade fixtures and personal property from time to time in, on or upon the Demised Premises and any alterations, improvements, additions or changes made by Tenant thereto in an amount not less than one hundred percent (100%) of their full replacement cost from time to time during the Term of this Lease, providing protection against perils included within the standard form of fire and extended coverage insurance policy, together with insurance against sprinkler leakage or other sprinkler damage, vandalism and malicious mischief.  Any policy proceeds from such insurance, so long as this Lease shall remain in effect, shall be applied first for the repair, reconstruction, restoration or replacement of the property damaged or destroyed.

14.3

All insurance policies required to be obtained and maintained by Tenant under this Lease: (1) must be issued by insurance companies with a minimum Best rating of XIII except that Tenant may obtain insurance from or through its parent corporation, Cross Country Healthcare, Inc., provided Tenant continues to be a wholly-owned subsidiary of said parent and provided Cross Country Healthcare, Inc. maintains a tangible net worth of not less than ninety percent (90%) of its aggregate net worth on the date hereof; (2) must be written as primary policy coverage and not contributing with or in excess of any coverage which Landlord may carry; (3) must contain an express waiver of any right of subrogation by the insurance company against Landlord and its agents; (4) must provide that the policy may not be canceled unless Landlord shall have received thirty (30) days prior written notice of cancellation; and (5) shall contain a provision that Landlord and any other parties in interest, although named as insured, shall nevertheless be entitled to recover under said policies for any loss occasioned to them, their servants, agents and employees by reason of the negligence of Tenant (or any other named insured).  Tenant shall either: a) provide a Certificate of Insurance within thirty (30) days of occupancy or b) deliver to Landlord certified copies, or duplicate originals, of each such policy or renewal policy, together with evidence of

 

15

 

payment of all applicable premiums prior to its early, non-exclusive occupancy of the Demised Premises pursuant to Section 2 of this Lease, and at least thirty (30) days before the expiration of the expiring policies previously furnished.  Any insurance required of Tenant under this Section 14 may be carried under a blanket policy covering the Demised Premises and other locations of Tenant, provided that Tenant shall deliver to Landlord: a) a Certificate of Insurance or b) a duplicate original or certified copy of each blanket policy, or other evidence satisfactory to Landlord of blanket coverage.  Neither the issuance of any such insurance policy nor the minimum limits specified in this Section 14 with respect to Tenant’s insurance coverage shall be deemed to limit or restrict in any way Tenant’s liability arising under or out of this Lease.

14.4

Insurance Cost Increases Due to Tenant’s Activity .  In the event of increases in the insurance rates for fire insurance or other insurance carried by Landlord due to Tenant’s activity or property in or about the Demised Premises of the Building, or for improvements to the Demised Premises for which Tenant is responsible, Tenant shall be liable for such increases and shall reimburse Landlord immediately upon demand therefore.  Statements by an insurance company or by the applicable insurance rating bureau that such increases are due to such activity, property or improvements shall be conclusive evidence for determining the liability of Tenant hereunder.

14.5

Procurement of Certain Policies by Landlord .  Landlord shall procure and keep in force at its own expense during the term of this Lease public liability and property damage insurance policies with respect to building operations exclusive of the Demised Premises with not less than a combined single limit of one million dollars ($1,000,000) and general annual aggregate limit coverage of two million dollars ($2,000,000).  Such policy shall be full general liability coverage with no unusual exclusions.

14.6

Insurance on Landlord’s Building and Improvements .  In addition to the insurance described in Section 14.5 above, Landlord shall maintain insurance covering the entire Building and Landlord’s improvements and personal property from time to time in, on or upon the Building and any alterations, improvements, additions or changes made by Landlord thereto in an amount not less than ninety percent (90%) of their full replacement cost from time to time during the entire term of this Lease, providing protection against perils included within the standard form of fire and extended coverage insurance policy, together with insurance against sprinkler leakage or other sprinkler damage, vandalism and malicious mischief.  Landlord shall apply the claim payment proceeds of such insurance, subject and subordinate to the mortgagor, directly to the repair or restoration of the loss or damage to the Building that was the basis of such claim.

14.7

General Provisions Relating to Landlord’s Insurance .  All insurance policies required to be obtained and maintained by Landlord under this Lease (i) must be issued by insurance companies with a minimum Best rating of XIII; (ii) must be written as primary policy coverage and not contributing with or in excess of any coverage which Tenant may carry; (iii) must provide for a waiver of any right of subrogation by the insurance company against Tenant and its agents.

14.8

Insurance Does Not Limit Liability .  Landlord and Tenant hereby expressly agree that the insurance provisions of this Lease, including the required minimum limits set forth in Sections 14.1, 14.2, 14.5, and 14.6 of this Lease, are intended to assure that certain minimum standards of insurance

 

16

 

protection are afforded by or on behalf of the parties.  No specification as to type, scope, amount or amounts of such insurance shall in any way be construed as a limitation or measurement of the liabilities of Tenant or Landlord arising under or out of this Lease.

 

15.

INDEMNITY

15.1

General Release of Landlord Liability .  Except due to Landlord’s negligence and that of its employees and agents, Tenant does hereby release, indemnify and hold Landlord harmless from and against any injury, loss, compensation or claim by Tenant, including, but not limited to, claims for the interruption of or loss to Tenant’s business, based on, arising out of or resulting from any cause whatsoever (except as otherwise provided in this Section 15) including, but not limited to, the following: repairs to any portion of the Demised Premises; interruption in the use of the Demised Premises or any equipment therein; any fire, robbery, theft, vandalism, mysterious disappearance in or on the Demised Premises; and any leakage in any part or portion of the Demised Premises or the Building, or from water, rain, ice or snow that may leak into or flow from, any part of the Demised Premises or the Building, or from drains, pipes or plumbing fixtures in the Building.  Any goods, property or personal effects stored or placed by Tenant, its employees or agents in or about the Demised Premises shall be at the sole risk of Tenant and Landlord shall not in any manner be held responsible therefore.  Notwithstanding the foregoing provisions of this Section 15.1, Landlord shall not be released from liability to Tenant or any other person or entity for any injury to any natural person or to any property of Tenant caused by the negligence of Landlord or its employees.

15.2

Landlord assumes no liability or responsibility whatsoever with respect to the conduct and operation of the business to be conducted by Tenant in the Demised Premises.  Landlord shall not be liable for any accident to or injury to any person or persons or property in or about the Demised Premises which are caused by the conduct or operation of said business or by virtue of equipment or property of Tenant in said Demised Premises, and Tenant agrees to hold the Landlord harmless against all such claims.

15.3

Tenant will indemnify Landlord and hold Landlord harmless from and against any loss, damage or liability, including reasonable attorney’s fees, occasioned by or resulting from any default hereunder or any wrongful or negligent act on the part of the Tenant, its agents, servants, employees, invitees, clients or persons authorized on the Demised Premises by Tenant.  Landlord will indemnify Tenant and hold Tenant harmless from and against any loss, damage or liability, including reasonable attorney’s fees, occasioned by or resulting from any default hereunder or any wrongful or negligent act on the part of the Landlord, its agents, servants, employees, authorized on the Demised Premises by Landlord.

15.4

In the event that at any time during the term of this Lease Tenant shall have a claim against Landlord, Tenant shall not have the right to set off or deduct the amount allegedly owed to Tenant from any rent or other sums payable to Landlord hereunder.

 

16.

SERVICES

16.1

Landlord will provide the following services:

 

17

 

a.

Automatically operated elevator service twenty-four (24) hours per day, seven (7) days a week.  Access to the Building after Normal Business Hours, which are 7:00 a.m. to 6:00 p.m., Monday through Friday and 8:00 a.m. to 12:00 p.m., Saturday shall be via the Building card access system.

b.

Heat, ventilation and air conditioning (“HVAC”) when necessary to provide a seasonable temperature (subject to governmental regulations) for normal occupancy and use of the Demised Premises during Normal Building Hours.  No regular HVAC service will be provided on Sunday or recognized legal holidays. In the event Tenant requests the use of Building HVAC after Normal Business Hours, Tenant shall pay for such use at an hourly rate of Eighteen and 50/100 Dollars ($18.50) per hour with a two (2) hour minimum.

c.

Electricity for building standard lighting during Normal Building Hours.  If Tenant regularly utilizes the Demised Premises beyond Normal Building Hours, electricity for building standard lighting used beyond Normal Building Hours shall be considered excess electric and Tenant agrees to pay Landlord, promptly upon demand, as additional rent hereunder for all electric consumed for the use of said after-hours lighting at the average rate per unit of energy then in effect.

d.

Electricity allowance for 120/208-volt powe