1
EXHIBIT 6.4
LEASE
2
TABLE OF CONTENTS
SECTION PAGE
I. BASIC LEASE PROVISIONS................................... 1
II. LEASE OF PREMISES........................................ 2
III. RIGHT OF FIRST REFUSAL................................... 4
IV. PARTIAL SURRENDER........................................ 4
V. RENT..................................................... 4
VI. UTILITIES AND SERVICES................................... 8
VII. USE...................................................... 9
VIII. INSURANCE................................................ 9
IX. REPAIRS AND MAINTENANCE; ALTERATIONS.....................10
X. MECHANICS LIENS..........................................11
XI. OPTION TO EXTEND.........................................12
XII. DEFAULTS OF TENANT.......................................14
XIII. DESTRUCTION AND RESTORATION..............................15
XIV. CONDEMNATION.............................................16
XV. ASSIGNMENT AND SUBLETTING................................16
XVI. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT............17
XVII. LANDLORD'S ACCESS........................................18
XVIII. SURRENDER AND HOLDING-OVER...............................18
XIX. HAZARDOUS AND TOXIC MATERIALS............................18
XX. DEFAULTS BY LANDLORD.....................................20
XXI. ATTORNEYS' FEES .........................................20
XXII. FORCE MAJEURE ...........................................20
XXIII. MISCELLANEOUS PROVISIONS.................................20
3
LEASE
I. BASIC LEASE PROVISIONS
A. DATE OF LEASE:_______,19_____.
B. LANDLORD (hereafter referred to as "LANDLORD"):
EBS Building, L.L.C.
--------------------------
--------------------------
C. TENANT (hereafter referred to as "TENANT"):
Edison Brothers Stores, Inc.
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
D. BUILDING:
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
E. PREMISES: 260,060 square feet (hereinafter referred to as the
"RENTABLE AREA OF THE PREMISES") located on Floors 1 through 7
of the Building (more particularly shown on Exhibit "A"
attached hereto); plus a 1st Floor mezzanine area containing
approximately 9,421 square feet and a 2nd Floor mezzanine area
containing approximately 3,587 square feet, which areas will
be included as part of the Premises but not included in the
Rentable Area of the Premises. The "PREMISES" contain
approximately 273,068 square feet located as follows:
Floor 1 34,065 square feet
Floor 1(mezzanine) 9,421 square feet
Floor 2 25,187 square feet
Floor 2(mezzanine) 3,587 square feet
Floor 3 46,008 square feet
Floor 4 46,008 square feet
Floor 5 46,008 square feet
Floor 6 31,392 square feet
Floor 7 31,392 square feet
------
273,068 square feet
F. COMMENCEMENT DATE: The date (hereinafter referred to as the
"COMMENCEMENT DATE") on which Landlord first holds fee simple
title to the Building.
G. LEASE YEAR: A period of twelve consecutive calendar months,
the first Lease Year beginning on the Commencement Date and
extending through the last day of the twelfth (12th) full
calendar month following the Commencement Date. Subsequent
Lease Years will expire on the anniversary date of the first
Lease Year. If the Commencement Date occurs on the first day
of a month, the month in which such Commencement Date occurs
will be the first full calendar month of the first Lease Year.
If the Commencement Date occurs on other than the first day of
a month, the month following the month in which the
Commencement Date occurs will be the first full calendar month
of the first Lease Year.
H. LEASE TERM: The term of this Lease (hereinafter referred to as
the "LEASE TERM") will commence on the Commencement Date and
will expire at midnight on the last day of the third (3rd)
Lease Year (hereinafter referred to as the "EXPIRATION DATE").
4
I. ANNUAL BASE RENT: $9.00 per square foot of Rentable Area of
the Premises per year during Lease Years 1-3 of the Lease
Term.
J. TENANTS PRO RATA SHARE: "TENANT'S PRO RATA SHARE" as used in
this Lease shall mean fifty-nine and eight-tenths percent
(59.8%), which is the quotient (expressed as a percentage)
derived by dividing the Rentable Area of the Premises (260,060
square feet) by the Rentable Area of the Building (434,136
square feet).
K. COMMON AREAS: Those portions of the Building intended for use
in common by Landlord, Tenant, the other tenants of the
Building and the employees, agents, concessionaires, vendors,
customers and invitees of each of them, such Common Areas to
include the portions of Floors 1 and 2 shown outlined in red
on Exhibit "B" attached hereto and, with respect to the other
Floors of the Building that are not occupied entirely by one
(1) tenant, the elevator lobby, toilet rooms, mechanical
rooms, common stairwells and common hallways on each such
Floor.
L. EXHIBITS:
1. EXHIBIT A: Floor plans depicting Floors 1 through 7 of
the Building and indicating the Rentable
Floor Area on each Floor.
2. EXHIBIT B: Floor plans depicting Floors 1 and 2 of the
Building and showing the "Common Areas" on
each Floor outlined in red, the "Meeting
and Media Areas" crosshatched in green and
the "Atrium" cross-hatched in blue.
3. EXHIBIT C: A plan showing the "St. Louis Centre Access
Area" outlined in red.
4. EXHIBIT D: Floor plans depicting levels B-1 and B-2 of
the Building's parking garage.
5. EXHIBIT E: Building Rules and Regulations.
6. EXHIBIT F: A plan showing the 11th Floor conference
area.
II. LEASE OF PREMISES
For and in consideration of the rental and of the covenants and
agreements hereinafter set forth to be kept and performed by Landlord and
Tenant, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the premises as described in Section I.E. (referred to herein as the "PREMISES")
which are contained in the building (which, together with the land on which such
building is located and an appurtenances thereto, is referred to herein as the
"BUILDING") located at 000 Xxxxx Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx, for the term and
upon the conditions provided in this Lease.
Tenant has taken possession of the Premises and is conclusively deemed
to have accepted the Premises in the condition existing on the Commencement Date
and to have waived all claims against Landlord relating to the condition of the
Premises and the Building on the Commencement Date. Landlord hereby waives all
claims against Tenant relating to the condition of the Premises and the Building
on the Commencement Date. No agreement of Landlord or Tenant to alter, remodel,
decorate, clean or improve the Premises or the Building and no representation
regarding the condition of the Premises or the Building has been made by or on
behalf of Landlord or Tenant, except as stated in this Lease.
The Rentable Area of the Premises shall be as stated in Section I.E. In
the event the Rentable Area of the Premises is hereafter expanded or reduced so
as to be more or less than the area described in Section I.E. the Annual Base
Rent shall be proportionately adjusted on the basis of the per square foot
Annual Base Rent as set forth in Section I.I.
The "COMMON AREAS" shown outlined in red on Exhibit "B" hereto, as well
as the Common Areas located on other Floors of the Building, will be provided
and maintained by Landlord during the Lease Term as areas for use by Tenant in
common with Landlord, the other
2
5
tenants or occupants of the Building and the employees, agents, concessionaires,
vendors, customers and invitees of each of them and Tenant is hereby granted the
non-exclusive right to use and enjoy all such Common Areas in and around the
Building during the Lease Term. The Common Areas, including the Meeting and
Media Areas and the Atrium, will continue during the Lease Term to be used for
the same purposes and in the same manner as those areas are being used at the
date of this Lease.
Tenant shall have the exclusive right to conduct "special events", such
as rallies, meetings, fashion shows, special sales and promotions, receptions,
parties and luncheons in the Atrium from time to time as Tenant deems
appropriate. Tenant shall be permitted to decorate the Atrium as Tenant sees fit
for any such special event, but Tenant shall be responsible for removing such
decorations and restoring the Atrium to its customary configuration and
condition immediately following any such special event. No other person or
entity will be permitted to use or control the Atrium to the exclusion of Tenant
and, except for Xxxxxx's special events, the Atrium will be maintained at all
times by Landlord in a manner that will minimize noise or other interruptions of
or distractions from the business being conducted by Tenant in the Premises.
The personal property located in and/or serving the Atrium and the
Meeting and Media Areas will continue to be owned and maintained by Tenant. Such
property includes, without limitation, tables, chairs, benches, plants and other
decorative items, cooking equipment and utensils, electronic and audio-visual
equipment. Tenant may remove or replace any such property or equipment at any
time.
No modification, alteration or addition to the Common Areas of the
Building will be permitted without the advance written consent of Tenant, which
consent will not be unreasonably withheld.
No change in the decor or ambiance of the Atrium or Meeting and Media
Areas will be permitted without the advance written consent of Tenant, which
consent will not be unreasonably withheld.
Scheduling of the use of the Meeting and Media Areas will remain under
the control of Tenant during the Lease Term. Tenant will use reasonable efforts
to accommodate the needs of Landlord and the other tenants of the Building with
regard to their use of the Meeting and Media Areas.
The St. Louis Centre Access Area (the "ACCESS AREA") shown outlined in
red on Exhibit "C" hereto will be considered a Common Area for all purposes
hereunder even though it is not a part of the Building. The Access Area is
presently leased by Tenant from the Land Clearance For Redevelopment Authority
of the City of St. Louis (the "LCRA") pursuant to a lease dated December 22,
1982 (the "ACCESS LEASE"). The Access Lease is for a term of twenty (20) years
plus ten (10) consecutive options to extend the term of five (5) years each (the
"ACCESS Term"). The Access Area will be subleased to Landlord by Tenant for a
term corresponding to the Access Term. Rent payable by Landlord pursuant to such
sublease will be Zero Dollars ($0.00) for so long as Tenant occupies all or any
portion of the Premises. Thereafter, Landlord shall pay directly to the LCRA, as
rent for the Access Area, that portion of the rent and other charges payable
pursuant to the Access Lease that is attributable to the Access Area. The intent
of the parties is that Tenant should have no responsibility whatsoever for the
Access Area if Tenant does not lease or occupy any portion of the Building. The
Access Area will be maintained by Landlord during the Lease Term as a means of
access to and from the Building and the St. Louis Centre and St. Louis Centre
Garage. Security will be provided by Landlord controlling access to the Building
from the St. Louis Centre and St. Louis Centre Garage in substantially the same
manner as is provided at the date of this Lease.
Tenant shall have the right to occupy the 8th Floor of the Building and
a conference area located on the 11th Floor of the Building (more particularly
shown on Exhibit F attached hereto) on a rent-free basis for a period of up to
one (1) year from and after the Commencement Date. Notwithstanding the
foregoing, if (i) Landlord leases all or any part of the 8th Floor to any third
party, Landlord shall promptly notify Tenant in writing and Tenant shall
thereafter vacate the 8th Floor or such portion thereof as has been leased by
Landlord within Sixty (60) days after the date of such notice, and (ii) Landlord
leases the 11th Floor conference area to any third party,
3
6
Landlord shall promptly notify Tenant in writing and Tenant shall thereafter
vacate the 11th Floor conference area within five (5) days after the date of
such notice.
III. RIGHT OF FIRST REFUSAL
If, at any time after the date of this Lease and while this Lease is in
full force and effect, Landlord should receive from a bona fide, arm's-length
prospective tenant a bona fide written offer ("BONA FIDE OFFER") to lease any
space in the Building that is available for lease (the "OFFER SPACE"), and
should Landlord desire to accept the Bona Fide Offer, Landlord shall first make
a written offer (the "TENANT OFFER") to lease the Offer Space to Tenant at the
rent and upon the terms and conditions set forth in the Bona Fide Offer. The
Tenant Offer shall be accompanied by a copy of the Bona Fide Offer. Tenant may
accept the Tenant Offer by service of notice of acceptance on Landlord on or
before the thirtieth (30th) day following delivery of the Tenant Offer to Tenant
(the "ACCEPTANCE PERIOD"). If the Tenant Offer is accepted, Landlord and Tenant
will, within ninety (90) days following the date of Tenant's notice of
acceptance, enter into a lease of the Offer Space in the form of this Lease, but
substituting only the terms of the Bona Fide Offer to the extent such terms are
inconsistent with the terms of this Lease. If Tenant fails to fully and timely
accept the Tenant Offer as herein provided, Landlord may lease the Offer Space
to the bona fide prospective tenant making the Bona Fide Offer in accordance
with the terms thereof; provided, however, that if Landlord fails to consummate
the lease of the Offer Space on the same terms and conditions as are set forth
in the Bona Fide Offer within ninety (90) days following the expiration of the
Acceptance Period, the Offer Space shall again be subject to Tenant's right of
first refusal.
IV. PARTIAL SURRENDER
Tenant shall have the right, upon at least nine (9) months written
notice to Landlord, to surrender the sixth (6th) floor of the Building to
Landlord. Tenant shall also have the right, independent of the right granted in
the previous sentence, upon at least nine (9) months written notice to Landlord,
to surrender the seventh (7th) floor of the Building to Landlord. Tenant will
vacate any space thus surrendered in accordance with Section XVIII below,
whereupon this Lease will be deemed automatically amended so as to remove the
surrendered space from the Premises and the Rentable Area of the Premises for
all purposes, including the payment of Annual Base Rent and Additional Base
Rent.
VI. RENT
Commencing with the Commencement Date Tenant agrees to pay as Rent for
the Premises, at the times and in the manner hereinafter provided and without
offset or reduction of any kind whatsoever, the following sums of money.
A. ANNUAL BASE RENT: The Annual Base Rent set forth in Section I.I
shall be payable in twelve (12) equal monthly installments during each Lease
Year in advance, on the-first day of each calendar month. Should the
Commencement Date occur on a day of the month other than the first day of such
month, then the rental for the first fractional month shall be prorated based
upon a thirty (30) day month.
B. ADDITIONAL BASE RENT: During each Lease Year of the Extension Period
(as defined in Section XI below), Tenant shall pay to Landlord, as Additional
Base Rent hereunder, Tenant's Pro Rata Share of the amount, if any, by which
Basic Costs (hereinafter defined) for the applicable Lease Year exceed Basic
Costs for the Base Year. "BASE YEAR" shall mean the third (3rd) Lease Year of
the Lease Term. Tenant's Pro Rata Share of such excess, if any, for any such
Lease Year is hereinafter referred to as the "EXCESS". In the event that Basic
Costs in any such Lease Year decrease below the amount of Basic Costs for the
Base Year, Tenant's Pro Rata Share of Basic Costs for such Lease Year shall be
deemed to be $0.
Tenant shall pay to Landlord, on the first day of each month during the
Extension Period, an estimated payment on account of Additional Base Rent for
the current Lease Year in the amount Landlord shall reasonably specify from time
to time by written notice to Tenant.
Within sixty (60) days following the end of each Lease Year during the
Extension Period, Landlord shall provide to Tenant a statement (a "STATEMENT")
of the actual Basic Costs
4
7
associated with the Building during the Lease Year just concluded and the amount
of the Excess, if any, for such Lease Year. On or before thirty (30) days after
delivery of such Statements, Tenant will pay to Landlord the Excess, if any,
attributable to such Lease Year, minus any monthly installments of Additional
Base Rent previously paid by Tenant to Landlord for such Lease Year.
If the monthly installments of Additional Base Rent actually paid by
Tenant for any Lease Year prove to be in excess of the actual Excess for such
Lease Year, then Landlord shall apply any such excess amount as a credit against
Xxxxxx's estimated Additional Base Rent or Base Rent next becoming due and
payable hereunder, or if no further Additional Base Rent or Base Rent will be
due hereunder and Tenant is not in default hereunder, promptly refund such
overpayment to Tenant. Failure or delay in delivering any Statement, or failure
or delay in computing the Excess, shall not be deemed a waiver by Landlord of
its right to deliver such items nor shall any such failure or delay be deemed a
release of Tenant's obligations with respect to any Statement, or constitute a
default hereunder. The provisions of this paragraph shall survive the expiration
of the Lease Term or the termination of this Lease.
Notwithstanding the above, Tenant will in no event be responsible to
pay any portion of any Excess for any Lease Year that is more than three percent
(3%) of the Basic Costs actually paid by Landlord during the immediately
preceding Lease Year.
"BASIC COSTS" shall mean all costs and expenses paid or incurred in
each Lease Year in connection with owning, operating, managing, maintaining and
repairing the Building, including, but not limited to, the following:
1. All labor costs for all persons performing services
required or utilized in connection with the operation, management,
repair, maintenance and control of access to the Building, including
but not limited to amounts incurred for wages, salaries and other
compensation for services, payroll, social security, unemployment and
other similar taxes, workers' compensation insurance, uniforms,
training, disability benefits, pensions, hospitalization, retirement
plans, group insurance or any other similar or like expenses or
benefits.
2. All rental and/or purchase costs of materials, supplies,
tools and equipment used in the operation, management, repair,
maintenance and control of access to the Building.
3. All amounts charged to Landlord by contractors and/or
suppliers for services, materials, equipment and supplies furnished in
connection with the operation, repair, maintenance, and control of
access to any part of the Building, including, without limitation, the
heating, air conditioning, ventilating, plumbing, electrical elevator
and other systems and equipment.
4. All insurance premiums and costs paid by Landlord for fire
and extended coverage insurance, earthquake and extended coverage
insurance, liability and extended coverage insurance, rental loss
insurance, elevator insurance, boiler insurance and other insurance
customarily carried from time to time by lessors of comparable office
buildings in downtown St. Louis.
5. Charges for all utilities, including but not limited to
water, electricity, gas and sewer, but excluding those charges for
which Landlord is otherwise reimbursed by Tenant or by other tenants.
6. "TAXES," which, for purposes hereof, shall mean: (a) all
real estate taxes and assessments on the Building or the Premises, and
taxes and assessments levied in substitution or supplementation in
whole or in part of such taxes, (b) all personal property taxes for the
Building's personal property, including license expenses, (c) all other
taxes, fees or assessments now or hereafter levied by any governmental
authority on the Building or its contents or on the operation and use
thereof (except as relate to specific tenants), and (d) all costs and
fees incurred in connection with seeking reductions in or refunds of
Taxes (whether or not successful) including, without limitation, any
costs incurred by Landlord to challenge the tax valuation of the
Building, but excluding income taxes. For
5
8
the purpose of determining real estate taxes and assessments for any
given year, the amount to be included in Taxes for such year shall be
as follows: (1) with respect to any special assessment that is payable
in installments, Taxes for such year shall include the amount of the
installment due and payable during such year; and (2) with respect to
all other real estate taxes, Taxes for such year shall be the amount
due and payable for such year. If a reduction in Taxes is obtained for
any year of the Lease Term, then Basic Costs for such year will be
retroactively adjusted and Landlord shall promptly refund to Tenant its
Pro Rata Share of such reduction.
7. The cost of all maintenance service pursuant to written
agreements, including those for equipment, alarm service, window
cleaning, drapery or venetian blind cleaning, janitorial services, pest
control, uniform supply, plant maintenance and landscaping.
8. The cost of all repairs and general maintenance of the
Building neither specified above nor directly billed to tenants.
9. The amortized cost of capital improvements made to the
Building which are: (a) primarily for the purpose of reducing operating
expense costs or otherwise improving the operating efficiency of the
Building; or (b) required to comply with any laws, rules or regulations
of any governmental authority or a requirement of Landlord's insurance
carrier. The cost of such capital improvements shall be amortized over
the useful life of such improvements consistent with the guidelines
established by the Internal Revenue Service.
10. Legal expenses; provided, however, that legal expenses
shall not include the cost of negotiating leases, collecting rents,
evicting tenants nor shall it include costs incurred in legal
proceedings with or against any tenant or to enforce the provisions of
any lease (other than the Building rules and regulations).
Specifically excluded from "Basic Costs" are the following:
(1) Repairs or other work occasioned by (i) fire, windstorm, or
other casualty to the extent Landlord receives insurance
proceeds therefor (except to the extent that lack of proceeds
is due to Landlord's failure to carry insurance as required
hereunder or Landlord's use of deductibles or self-insurance),
or (ii) the exercise of the right of eminent domain to the
extent Landlord receives a condemnation award therefor;
(2) Leasing commissions, brochures, marketing supplies, attorneys'
fees, costs, and disbursements and other expenses incurred in
connection with seeking tenants for the Building and
negotiation of leases with prospective tenants;
(3) Rental concessions granted to specific tenants and expenses
incurred in renovating or otherwise improving or decorating,
painting, or redecorating space for specific tenants;
(4) Landlord's cost of electricity and other services sold or
provided to tenants in the Building and for which Landlord is
entitled to be reimbursed by such tenants as a separate
additional charge or rental over and above the base rental or
additional base rental payable under the lease with such
tenant;
(5) Overhead and profit increment paid to subsidiaries or other
affiliates of Landlord for services on or to the Building
and/or Premises to the extent only that the costs of such
services exceed the competitive cost for such services;
(6) All items (including repairs) and services for which Tenant or
other tenants pay directly to third parties or for which
Tenant or other tenants reimburse Landlord (other than through
Basic Costs);
(7) Advertising and promotional expenditures;
6
9
(8) Costs incurred in connection with the sale, financing,
refinancing, mortgaging or sale of the Building, including
brokerage commissions, attorneys' and accountants' fees,
closing costs, title insurance premiums, transfer taxes and
interest charges;
(9) Costs, fines, interest, penalties, legal fees or costs of
litigation incurred due to the late payments of taxes,
utilities bills and other costs incurred by Landlord's failure
to make such payments when due unless such failure is due to
Landlord's good faith and reasonable efforts in contesting the
amount of such payments;
(10) Costs incurred by Landlord for trustee's fees, organizationa1
expenses and accounting fees to the extent relating to
Landlord's general corporate overhead and general
administrative expenses;
(11) Costs and fees charged or incurred by Landlord for or
attributable to the management of the Building, however such
costs or fees may be characterized, computed or expressed;
(12) Any penalties or liquidated damages that Landlord pays to
Tenant under this Lease or to any other tenants in the
Building under their respective leases;
(13) Attorneys' fees, costs and disbursements and other expenses
incurred in connection with negotiations or disputes with
tenants or other occupants of the Building or with prospective
tenants (other than attorneys' fees, costs and disbursements
and other expenses incurred by Landlord in seeking to enforce
Building rules and regulations);
(14) Capital expenditures of any kind other than those included in
paragraph 9 of the definition of Basic Costs recited above.
Landlord shall maintain books and records of Basic Costs in accordance
with sound accounting and management practices, which records shall be available
to Tenant for inspection and audit, at Tenant's expense, at the Building during
normal business hours upon reasonable prior notice. Notwithstanding the
foregoing, Tenant shall not be entitled to claim a readjustment in respect of
Tenant's payment of Additional Base Rent for any Lease Year unless a notice to
such effect shall be delivered to Landlord within ninety (90) days after the
delivery of the Statement for such Lease Year.
C. RENT TAX: In addition to Annual Base Rent, Additional Base Rent and
other charges to be paid by Tenant hereunder, Tenant shall reimburse to
Landlord, within 30 days of receipt of a demand therefore, any and all taxes,
charges, and/or surcharges payable by Landlord (other than a tax on net income)
whether or not now customary or within the contemplation of the parties hereto
(a) upon, allocable to, or measured by the Rentable Area of the Premises or on
the rent payable hereunder, including without limitation any gross income tax or
excise tax levied by the State, any political subdivision thereof, City or
Federal Government with respect to the receipt of such rent; or (b) upon or with
respect to the possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises or any portion
thereof; or (c) upon this transaction or any document to which Tenant is a party
creating or transferring an interest or an estate in the Premises.
Xxxxxx also agrees to pay, before delinquency, any and all taxes levied
or assessed and which become payable during the term hereof upon or measured by
the value of Tenant's equipment, furniture, fixtures and personal property
located in the Premises. Tenant shall comply with the provisions of any law,
ordinance or rule of the taxing authorities which requires Tenant to file a
report of Tenant's property located in the Premises.
D. The term "RENT" in this Lease shall be defined to include the Base
Annual Rent, Additional Base Rent and all other charges payable by Tenant to
Landlord under this Lease. If such amounts or charges are not paid at the time
provided in this Lease, they shall bear interest from the date due until paid at
a rate of 1.5% per month or the maximum rate of interest permitted by law on the
date of execution of this Lease, whichever is less, in order to reimburse
Landlord for the loss Tenant agrees Landlord will incur by reason of Xxxxxx's
failure to pay that amount in a timely manner. In addition, Landlord shall have
all of the rights available to it at law
7
10
and equity for the collection of rent to collect such overdue amounts. If no due
date is set forth for any amount payable hereunder, such amount shall be paid
within twenty (20) days from the date Landlord renders statements of account.
VI. UTILITIES AND SERVICES
Landlord and Tenant acknowledge that utilities and services are
presently provided to the Building and the Premises on an "around the clock"
basis. Landlord agrees to operate and maintain the Building as a full service
building throughout the Lease Term. Landlord will continue to provide utilities
and services to or for the benefit of the Premises in substantially the same
fashion, quality and capacity and during substantially the same times as such
utilities and services are provided to or for the benefit of the Premises at the
date of this Lease. Such utilities and services will be provided by Landlord as
part of Basic Costs and will include the following:
A. ELECTRIC: Landlord shall furnish the same total connected load of
electricity during the same days and hours as is being provided to the Premises
at the date of this Lease.
If Tenant shall require electric service in excess of that which is
being provided at the date of this Lease, Tenant shall first procure the consent
of Landlord for the use thereof, which consent Landlord may not unreasonably
refuse to grant. Landlord may require that an electric current meter be
installed in the Premises so as to measure the amount of such excess electric
current consumed and the demand load. The cost of providing the additional
service, the meter and its installation, maintenance and repair shall be paid
for by Tenant. Xxxxxx agrees to pay Landlord promptly upon demand the cost of
all such electric current consumed as reasonably determined by Landlord or as
shown by said meters, at the rates (including any surcharges, taxes, etc.)
charged for such services by the City, agency, private utility or the local
public utility, as the case may be, furnishing the same.
B. HEATING AND AIR CONDITIONING: Landlord shall provide seasonable
heating and air conditioning in the Premises in the same manner, on such days
and during such hours as heating and air conditioning are being provided to the
Premises at the date of this Lease.
C. WATER AND TOILET SERVICE: Landlord shall provide and maintain
drinking water and toilet facilities in their existing locations in the Building
for use by Tenant, its employees and customers.
D. JANITORIAL AND WINDOW WASHING: Landlord shall continue to provide
full service janitorial and window washing services to the Premises consistent
with premier corporate headquarters and/or Class A multi-tenant facilities.
E. ELEVATOR SERVICE: Landlord shall provide passenger and freight
elevator service in the same manner, on such days and during such hours as such
service is being provided at the date of this Lease. Landlord shall dedicate
four (4) of the Building's passenger elevators to serve Floors 1 through 7
exclusively. None of the other passenger elevators will be permitted to stop on
Floors 2 through 7. Tenant shall comply with all reasonable rules and
regulations governing elevator service.
F. PHONE SERVICE: Telephone service and its costs shall be the
responsibility of Tenant.
G. SECURITY: Landlord shall provide access to the Premises and the
Building and security service for the benefit of the Premises and the Building
in the same manner, on such days and during such hours as such service is being
provided at the date of this Lease.
H. PARKING: Landlord will provide and maintain the parking garage
located in the Building throughout the Lease Term for the use of Tenant and
other tenants of the Building. Tenant shall have the right to utilize all of the
80 parking spaces on Level B-1 of the Building's garage and, in addition, spaces
200-223 located on Level B-2 at no cost to Tenant. Such parking areas and spaces
are shown on Exhibit `D" attached hereto as a part of this Lease. All cars shall
be parked at the sole risk of the Tenant and Landlord shall not be liable for
damage or loss to any automobile or the contents thereof. Tenant shall furnish
to Landlord a list of employees entitled to park in the Building's garage and
the license number of all vehicles that will use the Building's
8
11
garage. Tenant and each of its authorized employees shall comply with all
reasonable and non-discriminatory rules and regulations of the parking garage.
L VENDING: Landlord shall provide and maintain vending facilities on
each Floor of the Building in locations existing at the date of this Lease and
providing service substantially identical to that being provided at the date of
this Lease.
J. NON-LIABILITY: Except in cases involving the willful or negligent
act or omission of Landlord, its employees, agents or contractors, Landlord
shall not be liable for, and Tenant shall not be entitled to, any damages,
actual or consequential, by reason of Landlord's failure to furnish any
utilities or services when such failure is caused by accidents, breakage,
repairs, strikes, lockouts or other labor disturbances or labor disputes of any
character, or by any other cause, similar or dissimilar, beyond the reasonable
control of Landlord, nor shall such interruption be construed as a constructive
or other eviction of Tenant.
Notwithstanding the foregoing, if: (i) Landlord ceases to furnish any
service in the Building for a period in excess of two (2) consecutive days, (ii)
such cessation does not arise as a result of an act or omission of Tenant, (iii)
such cessation is not caused by a fire or other casualty, and (iv) as a result
of such cessation, the Premises or a material portion thereof is rendered
untenantable (meaning that Tenant is unable to use the Premises in the normal
course of its business) and Tenant in fact ceases to use the Premises, or a
material portion thereof, then Tenant, as its sole remedy, shall be entitled to
receive an abatement of Base Rent and Additional Base Rent payable hereunder
during the period beginning on the third (3rd) consecutive day of such cessation
and ending on the day when the service in question has been restored. In the
event the entire Premises has not been rendered untenantable by the cessation in
service, the amount of abatement that Tenant is entitled to receive shall be
prorated based upon the percentage of the Premises so rendered untenantable and
not used by Tenant.
K. ADDITIONAL SERVICE: Landlord shall in no event be obligated to
furnish any services or utilities, other than those specified above. If Landlord
elects to furnish services or utilities requested by Tenant in addition to those
specified above, Tenant shall pay Landlord's then prevailing rates for such
services and utilities within ten (10) days after receipt of Landlord's invoices
therefor. If Tenant shall fail to make any such payment, Landlord may, without
notice to Tenant and in addition to Xxxxxxxx's other remedies under this Lease,
discontinue any or all of the additional services.
VII. USE
The Premises may be used for general office purposes only and for no
other purpose without the prior written consent of Landlord.
Tenant will maintain the Premises in a clean and healthful condition,
and comply with all laws, ordinances, orders, rules and regulations of any
governmental entity with reference to the use, condition, configuration or
occupancy of the Premises, including without limitation, the Americans With
Disabilities Act (collectively referred to as "LAWS"). Tenant shall provide
Landlord with copies of any notices its receives with respect to a violation or
alleged violation of any Laws. Tenant will comply with the rules and regulations
of the Building attached hereto as Exhibit E and such other reasonable and
nondiscriminatory rules and regulations as may be adopted by Landlord from time
to time.
Tenant shall not do, permit or suffer any act or thing which is
injurious to the Premises or the Building, which is immoral, a nuisance,
contrary to Laws or in violation of the certificate of occupancy issued for the
Building or which would result in the cancellation of, or any increase in
premiums for, insurance maintained by Landlord with respect to the Premises or
the Building.
VIII. INSURANCE
A. Landlord shall insure the Building against loss or damage by fire
and broad form extended coverage perils, and shall carry public liability
insurance, all in such reasonable amounts with such reasonable deductibles as
would be carried by a prudent owner of a similar building in the downtown St.
Louis area. Landlord may carry any other forms of insurance as it may deem
advisable. Tenant shall have no right to any proceeds from such policies.
Landlord shall not carry
9
12
any insurance on any of Tenant's personal property, and shall not be obligated
to repair or replace any of it.
B. Tenant shall procure and maintain policies of insurance, at its own
cost and expense, insuring:
1. against all claims, demands or actions for injury to or
death of any person in an amount of not less than $1,000,000.00, for
injury to or death of more than one person in any one accident to the
limit of $2,000,000.00, and for damage to property in an amount of not
less than $100,000.00 made by, or on behalf of, any person or persons,
firm or corporation arising from, related to or connected with the
Premises, covering Landlord as an additional insured;
2. personal property of Tenant or the personal property of
others kept, stored or maintained on the Premises against loss or
damage by fire, windstorm or other casualties. (Landlord shall have no
rights to proceeds from such personal property insurance.)
3. such other insurance as Landlord may reasonably require
from time to time.
C. All insurance policies procured by Tenant shall be issued by
responsible insurance companies satisfactory to Landlord and shall name Landlord
as an additional insured (as its interest may appear). Certificates of such
policies, together with receipt evidencing payment of the premiums, shall be
delivered to Landlord prior to the Commencement Date. Not less than thirty (30)
days prior to the expiration date of such policies, certificates of renewal
thereof (bearing notations evidencing the payment of the renewal premiums) shall
be delivered to Landlord. Such policies shall further provide that not less than
thirty (30) days' written notice shall be given to Landlord before any such
policy may be canceled or changed to reduce the insurance coverage provided
thereby.
D. Certificates of insurance policies procured by Landlord, together
with receipt evidencing payment of the premiums, shall be delivered to Tenant
prior to the Commencement Date. Not less than thirty (30) days prior to the
expiration date of such policies, certificates of renewal thereof (bearing
notations evidencing the payment of the renewal premiums) shall be delivered to
Tenant.
Notwithstanding any other provision of this Lease to the contrary, and
without limitation of the provisions of this Section VIII, whenever (a) any
loss, cost, damage or expense resulting from fire, explosion or any other
casualty or occurrence is incurred by either of the parties hereto, or anyone
claiming by, through, or under it in connection with the Building or the
Premises, and (b) such party then is covered in whole or in part by insurance
with respect to such loss, cost, damage or expense or is required under this
Lease to be so insured, then the party so insured (or so required) hereby waives
any claims against and releases the other party from any liability said other
party may have on account of such loss, cost, damage or expense to the extent of
any amount recovered by reason of such insurance (or which could have been
recovered had such insurance been carried as so required). The parties agree to
furnish to each insurance company which has or will issue policies of casualty
insurance on the Building or the leasehold improvements in the Premises, written
notice of said waivers and to have the insurance policies properly endorsed, if
necessary, to acknowledge such subrogation waivers. Such release of liability
and waiver of the right of subrogation shall not be operative in any case where
the effect thereof is to invalidate such insurance coverage or increase the cost
thereof (except that in the case of increased cost, the other party shall have
the right, within thirty (30) days following written notice, to pay such
increased cost, thereby keeping such release and waiver in full force and
effect).
IX. REPAIRS AND MAINTENANCE; ALTERATIONS
Landlord, at its expense, which expense will not be included in Basic
Costs and will not be subject to reimbursement or contribution by Xxxxxx, agrees
to keep, maintain and replace, if necessary, (A) the foundations, exterior
walls, roof, roof membrane and roof covering (including interior ceilings if
damaged by leaking) of the Building, (B) the sprinkler mains, plumbing, electric
and other utility lines serving the Building or connecting the Premises and the
Building, and (C)
10
13
the major components of the heating, ventilating and air conditioning system
serving the Building (the "HVAC") in good condition and repair.
Landlord, at its expense and as a part of Basic Costs, agrees to keep,
maintain and replace, if necessary, the entrance and Common Areas of the
Building, including, but not limited to, the plumbing systems, electrical
systems and toilet facilities, whether by way of janitorial maintenance or
service contracts, or otherwise.
In the event of the failure of Landlord to comply with the terms of
this Section IX within ten (10) days after Landlord has received written notice
from Tenant of such failure or if compliance cannot reasonably be completed
within such ten (10) day period and Landlord shall fail to commence such
compliance within three (3) days after notice and proceed diligently thereafter,
then Tenant may prosecute such compliance itself and Landlord shall be obligated
to reimburse Tenant for the reasonable cost thereof within five (5) days after
receipt of a statement from Tenant accompanied by copies of invoices or other
supporting documentation. Notwithstanding the foregoing, in the case of an
emergency (such as, without limitation, a leaky roof or HVAC breakdown), Tenant
shall have the right to prosecute immediately any and all necessary repairs and
shall deliver contemporaneous notification to Landlord of the emergency and
related repairs; provided, further, that if contemporaneous notice is not
practicable, as determined by Tenant in its reasonable judgment, then Tenant
shall provide such notice as soon thereafter as reasonably practicable. In no
event shall Tenant have the right to offset the cost of any such repairs against
Rent due hereunder.
Notwithstanding anything to the contrary contained herein, Tenant shall
reimburse Landlord for the cost of performing any of said maintenance or repairs
caused by the negligence of Tenant, its employees, agents, subtenants,
contractors or invitees.
Tenant, at Tenant's sole cost and expense, shall maintain the Premises
in good order, condition and repair, including, but not limited to, the interior
surfaces of the ceilings, walls and floors, all doors, interior windows, and
interior glass surfaces, all plumbing pipes, electrical wiring, switches,
fixtures, and items and equipment. Tenant expressly waives the benefits of any
statute now or hereafter in effect which would otherwise afford Tenant the right
to make repairs at Landlord's expense or to terminate this Lease because of
Landlord's failure to keep the Premises in good order, condition and repair.
Tenant shall not make any alterations to the exterior of the Premises
or to any structural portions of the Building for which Landlord has maintenance
responsibility. Tenant shall be permitted to make other interior, nonstructural
alterations, additions and improvements to the Premises without Landlord's prior
consent. All alterations, additions and improvements to the Premises erected by
Tenant which are in the nature of real property shall be and remain the property
of Tenant during the term of this Lease; provided, however, that such
alterations, additions and improvements shall become the property of Landlord as
of the Expiration Date or upon earlier termination of the Lease. With respect to
furniture, fixtures, equipment and improvements erected by Tenant which are in
the nature of personal property, Tenant shall remove all such items and restore
the Premises to its original condition by the Expiration Date or upon earlier
termination of the Lease. All such removals and restoration shall be
accomplished in a good workmanlike manner by contractors approved in writing by
Landlord so as not to damage the primary structure or structural qualities of
the Building. All alterations, additions or improvements proposed by Tenant
shall be constructed in accordance with all governmental laws, ordinances, rules
and regulations.
X. MECHANICS LIENS
Tenant shall not suffer or permit any mechanic's lien or other lien to
be filed against the Building, or any portion thereof, by reason of work, labor,
skill, services, equipment or materials supplied or claimed to have been
supplied to the Building at the request of Tenant, or of anyone holding the
Building, or any portion thereof, by through or under Tenant. If any such
mechanic's lien or other lien at any time shall be filed against the Building or
any portion thereof, Tenant, within thirty (30) days after the date Tenant first
becomes aware of the filing of the same, at Tenant's election, shall cause said
lien either to be discharged of record or to be bonded over in a manner which is
reasonably acceptable to Landlord. If Tenant shall fail to discharge such
mechanic's lien or other lien or to provide security or an indemnity covering
potential liability
11
14
arising out of such lien within such period, then Landlord may, but shall not be
obligated to, discharge the same by paying to the claimant the amount claimed to
be due or discharge such lien in such manner as is now or may in the future be
provided by present or future law for the discharge of such lien as a lien
against the Building. Any amount paid by Landlord, or the value of any deposit
so made by Landlord, together with all costs, fees and expenses in connection
therewith (including reasonable attorneys' fees), shall be repaid by Tenant to
Landlord within thirty (30) days after demand therefor. Tenant shall indemnify,
defend and hold harmless Landlord and the Building from all losses, costs,
damages, expenses, liabilities, suits, penalties, claims, demands and
obligations, including, without limitation, reasonable attorneys' fees,
resulting from the assertion, filing, foreclosure or other legal proceedings
with respect to any such mechanic's lien or other lien.
XI. OPTION TO EXTEND
Subject to the provisions hereinafter set forth in this Section XI, and
provided that Tenant is not in default hereunder at any time from the exercise
of the option until the Expiration Date, Landlord hereby grants Tenant the
option to extend the Lease Term on the same terms, conditions and provisions as
contained in this Lease, except as otherwise expressly provided herein, for one
(1) period of either one (1) year (the "ONE YEAR EXTENSION PERIOD") or seven (7)
years (the "SEVEN YEAR EXTENSION PERIOD"). Such period, regardless of its
duration, may also be referred to herein generally as the "EXTENSION PERIOD").
If exercised in accordance herewith, the Extension Period shall commence on the
first (1st) day after the Expiration Date.
If Tenant delivers an "Extension Notice" as hereinafter provided, the
Lease Term shall be extended on the same terms, conditions and provisions as
contained herein except that the Annual Base Rent during the One Year Extension
Period, if elected by Tenant, shall be $12.00 per square foot of Rentable Area
of the Premises per year, and the Annual Base Rent during the Seven Year
Extension Period, if elected by Tenant, shall reflect the "Prevailing Market"
rate, as determined in accordance with this Section XI.
Not less than twelve (12) months prior to the Expiration Date, Tenant
may request, by written notice to Landlord (the "PRELIMINARY NOTICE"), that
Landlord determine the Prevailing Market rate for the Premises as it would be
during the Seven Year Extension Period if Tenant elected to exercise its option
for such Seven Year Extension Period. Within ten (10) days following Xxxxxxxx's
receipt of the Preliminary Notice, Landlord will notify Tenant of such
Prevailing Market rate as reasonably determined by Landlord. If Tenant does not
agree with Xxxxxxxx's determination of such Prevailing Market rate, Tenant, by
written notice to Landlord (the Arbitration Notice") within five (5) days after
being advised of Landlord's determination of the Prevailing Market rate, shall
have the right to have the Prevailing Market rate determined using the following
procedures:
If Tenant provides Landlord with an Arbitration
Notice, each party shall, at its own expense, select
and retain an appraiser, with the qualifications set
forth below and notify the other party of its
selection within ten (10) days after Xxxxxxxx's
receipt of the Arbitration Notice. Each appraiser so
selected shall be certified as an MAI appraiser or as
an ASA appraiser and shall have had at least three
(3) years experience within the previous ten (10)
years as a real estate appraiser working in the
downtown St. Louis area, with working knowledge of
current rental rates and practices. For purposes of
this Lease, an "MAI" appraiser means an individual
who holds an MAI designation conferred by, and is an
independent member of, the American Institute of Real
Estate Appraisers (or its successor organization, or
in the event there is no successor organization, the
organization and designation most similar), and an
"ASA" appraiser means an individual who holds the
Senior Member designation conferred by, and is an
independent member of, the American Society of
Appraisers (or its successor organization, or, in the
event there is no successor organization, the
organization and designation most similar). Within
thirty (30) days after Xxxxxxxx's receipt of the
Arbitration Notice, each appraiser shall determine
the Prevailing Market rate and shall notify the other
appraiser and both parties of such appraiser's
determination. In the event only one
12
15
party selects an appraiser and notifies the other
party of its selection during the ten (10) day period
specified above, and such party's appraiser gives
such notice within the thirty (30) day period, or in
the event an appraiser duly selected by one party
fails to give such notice within the thirty (30) day
period, then the determination of the Prevailing
Market rate made by the selected appraiser who gave
such notice shall be deemed to be the Prevailing
Market rate. If the determination of the appraisers
are within five percent (5%) of each other, the
Prevailing Market rate shall be the average of the
two (2) determinations. If both appraisers notify
each other and both of the parties of their
respective determination of the Prevailing Market
rate within the thirty (30) day period, and their
determinations do not agree within five percent (5%)
on the Prevailing Market rate, then within fifteen
(15) days after both appraisers notify both parties
of their respective determination of the Prevailing
Market rate, each party will cause the appraiser
selected by it to confer with the other appraiser and
the two (2) appraisers shall select a third appraiser
(the "THIRD APPRAISER") having the qualifications set
forth above. In the event the appraisers selected by
Landlord and Tenant cannot agree upon the Third
Appraiser within such fifteen (15) day period, each
party will, within ten (10) days thereafter, cause
the appraiser selected by it to supply the name of
one (1) appraiser having the qualifications as set
forth above, and a representative of Landlord, with a
representative of Tenant present, shall make a blind
draw of one (1) name of the two (2) provided, who
shall serve at the Third Appraiser. In the event only
one (1) of the appraisers supplies the name of a
prospective third appraiser during such ten (10) day
period, the appraiser named by such appraiser shall
be the Third Appraiser. Within twenty (20) days from
the date of his appointment, the Third Appraiser
shall make his determination of the Prevailing Market
rate and will submit a written determination thereof
to both parties and both appraisers. With a fifteen
(15) day period after delivery of the Third
Appraiser's determination of the Prevailing Market
rate, the three (3) appraisers shall confer and
attempt to reach agreement as to the Prevailing
Market rate. In the event the three (3) appraisers
cannot within the fifteen (15) day conference period
reach a determination of the Prevailing Market rate,
then the determination of any two (2) of the three
(3) appraisers shall be deemed to be the Prevailing
Market rate. If the Third Appraiser fails to make his
determination within the twenty (20) day period, or
if two (2) appraisers cannot agree with the fifteen
(15) day conference period, the parties shall repeat
the selection procedure hereinabove described and
shall thereby choose a new Third Appraiser. If the
Third Appraiser believes that expert advice would
materially assist him, he may retain one or more
qualified persons to provide such expert advise. The
parties shall share equally in the costs of the Third
Appraiser and of any experts retained by the Third
Appraiser. Any fees of any appraiser, counsel or
experts engaged directly by Landlord or Tenant,
however, shall be borne by the party retaining such
appraiser, counsel or expert. In the event that the
Prevailing Market rate has not been determined by the
commencement date of the Extension Period, Tenant
shall pay Annual Base Rent upon the terms and
conditions in effect for the Premises until such time
as the Prevailing Market rate has been determined.
Upon such determination, the Annual Base Rent shall
be retroactively adjusted to the commencement of the
Extension Period. If such adjustment results in an
underpayment of Annual Base Rent by Tenant, Tenant
shall pay Landlord the amount of such underpayment
within thirty (30) days after the determination
thereof. If such adjustment results in an overpayment
of Annual Base Rent by Tenant, Landlord shall credit
such overpayment against the next installment of
Annual Base Rent due under the Lease and, to the
extent necessary, any subsequent installments until
the entire amount of such overpayment has been
credited against Annual Base Rent.
13
16
Not less than eight (8) months prior to the Expiration Date, Tenant, by
written notice to Landlord ("EXTENSION NOTICE"), may exercise Tenant's option to
extend for either the One Year Extension Period or the Seven Year Extension
Period; provided, however, that if Tenant shall fail to give any such Extension
Notice, Tenant's right to exercise such option nevertheless shall continue until
ten (10) days after Landlord shall have given Tenant notice of Xxxxxxxx's
election to terminate such option to extend, and Tenant may exercise such option
at any time until the expiration of said ten (10) day period by the giving of an
Extension Notice, it being the intention of the parties to avoid forfeiture of
Tenant's right to extend the Lease Term through failure to deliver an Extension
Notice within the time limit prescribed. If the option to extend the Lease Term
is not exercised in the aforesaid manner, the Lease Term and Xxxxxx's rights
hereunder and its rights to occupy and possess the Premises shall expire on the
Expiration Date.
XII. DEFAULTS OF TENANT
A. The occurrence of any one or more of the following events shall
constitute an "EVENT OF DEFAULT":
1. If default shall be made in the due and punctual payment of
any Rent or in the payment of any other amount to be paid by Tenant to
Landlord, when and as the same shall become due and payable, and such
default shall continue for a period of thirty (30) days after written
notice thereof to Tenant; or
2. If default shall be made by Tenant in keeping, observing or
performing any of the terms contained in this Lease, other than as
referred to in subsection 1. of this Section XII and such default shall
continue for a period of thirty (30) days after written notice thereof
given by Landlord to Tenant, or such longer period as is reasonable to
cure said default, if said default cannot, in good faith, be cured
within said thirty (30) days, provided that Tenant promptly and in good
faith commences the cure of the same within the thirty (30) day period
and thereafter prosecutes the curing of such default in good faith;
3. If Tenant shall abandon any substantial portion of the
Premises.
B. If an Event of Default occurs, Landlord shall have the rights and
remedies hereinafter set forth, which shall be distinct, separate and
cumulative.
1. Landlord may terminate this Lease by giving Tenant written
notice of its election to do so, in which event the Lease Term shall
end and all right, title and interest of Tenant hereunder shall expire
on the date stated in such notice, and Landlord may immediately recover
the amount by which all current and future rent and all other charges
and monetary obligations due hereunder during the remainder of the
Lease Term exceeds the amount of such rental loss that Tenant proves
could be reasonably avoided, and all other damages to which Landlord is
entitled under law, specifically including, without limitation, all
Landlord's expenses of reletting (including repairs, alterations,
improvements, additions, decorations, legal fees and brokerage
commissions);
2. Landlord may terminate Xxxxxx's right to possess the
Premises without terminating this Lease by giving written notice to
Tenant that Xxxxxx's right of possession shall end on the date stated
in such notice, whereupon Tenant's right to possess the Premises or any
part thereof shall cease on the date stated in such notice; and
3. Landlord may enforce the provisions of this Lease and may
enforce and protect the rights of Landlord hereunder by a suit or suits
in equity or at law for the specific performance of any covenant or
agreement contained herein, and for the enforcement of any other
appropriate legal or equitable remedy, including, without limitation,
injunctive relief, and for recovery of all monies due or to become due
from Tenant under any of the provisions of this Lease.
C. If Landlord exercises either of the remedies provided for in
Sections B.1 and B.2 above, Xxxxxx shall surrender possession of and
vacate the Premises and immediately deliver possession thereof to Landlord, and
Landlord may re-enter and take complete and peaceful possession of the
Premises, with process of law.
14
17
D. If Landlord terminates Tenant's right to possess the Premises
without terminating this Lease, Landlord may, at Landlord's option, enter into
the Premises, remove Xxxxxx's signs and other evidences of tenancy, and take and
hold possession thereof, without such entry and possession terminating the Lease
or releasing Tenant, in whole or in part, from any obligation, including
Tenant's obligation to pay the Rent, including any amounts treated as additional
rent, hereunder for the full Lease Term. In any such case, Tenant shall pay
forthwith to Landlord, if Landlord so elects, a sum equal to the entire amount
of the Rent, including any amounts treated as additional rent hereunder, for the
residue of the stated Lease Term plus any other sums provided herein to be paid
by Tenant for the remainder of the Lease Term. Landlord may, but need not, relet
the Premises or any part thereof for such rent and upon such terms as Landlord,
in its sole discretion, shall determine (including the right to relet the
Premises for a greater or lesser term than that remaining under this Lease, the
right to relet the Premises as a part of a larger area, and the right to change
the character or use made of the Premises). If Landlord decides to relet the
Premises or a duty to relet is imposed upon Landlord by law, Landlord and Tenant
agree that Landlord shall only be required to use the same efforts Landlord then
uses to lease other properties Landlord owns or manages (or if the Premises is
then managed for Landlord, then Landlord will instruct such manager to use the
same efforts such manager then uses to lease other space or properties which it
owns or manages); provided, however, that Landlord (or its manager) shall not be
required to give any preference or priority to the showing or leasing of the
Premises over any other space that Landlord (or its manager) may be leasing or
have available and may place a suitable prospective tenant in any such available
space regardless of when such alternative space becomes available; provided,
further, that Landlord shall not be required to observe any instruction given by
Tenant about such reletting or accept any tenant offered by Tenant unless such
offered tenant has a creditworthiness acceptable to Landlord and agrees to use
the Premises in a manner consistent with the Lease. In any such case, Landlord
may, but shall not be required to, make repairs, alterations and additions in or
to the Premises and redecorate the same to the extent Landlord deems necessary
or desirable, and Tenant shall, upon demand, pay the cost thereof, together with
Xxxxxxxx's expenses of reletting, including, without limitation, any broker's
commission incurred by Landlord. If the consideration collected by Landlord upon
any such reletting plus any sums previously collected from Tenant are not
sufficient to pay the full amount of all Rent, including any amounts treated as
additional rent hereunder and other sums reserved in this Lease for the
remaining Lease Term, together with the costs of repairs, alterations,
additions, redecorating, and Landlord's expenses of reletting and the collection
of the Rent accruing therefrom (including attorneys' fees and broker's
commissions), Tenant shall pay to Landlord the amount of such deficiency upon
demand. Xxxxxx agrees that Landlord may file suit to recover sums falling due
under this Section D from time to time.
XIII. DESTRUCTION AND RESTORATION
A. If the Building or the Premises or a substantial portion of either
are rendered untenantable by fire or other casualty, and if such damage cannot,
in Landlord's reasonable estimation, be materially restored within one hundred
twenty (120) days of such damage, then Landlord may, at its sole option,
terminate this Lease as of the date of such fire or casualty. Landlord shall
exercise its option provided herein by written notice within thirty (30) days of
such fire or other casualty. For purposes hereof, the Building or the Premises
shall be deemed "materially restored" if they are in such condition as would not
prevent or materially interfere with Tenant's use of the Premises for the
purpose for which it was then being used.
B. If this Lease is not terminated pursuant to Section XIII.A, then
Landlord shall proceed with all due diligence to repair and restore the Building
or the Premises, as the case may be (except that either Landlord or Tenant may
elect not to rebuild and may terminate this Lease if such damage occurs during
the last year of the Lease Term exclusive of any option which is unexercised at
the date of such damage).
C. If this Lease shall be terminated pursuant to this Section XIII, the
Lease Term shall end on the date of such damage as if that date had been
originally fixed in this Lease as the Expiration Date. If this Lease shall not
be terminated pursuant to this Section XIII and if the Premises is rendered
untenantable in whole or in part following such damage, the Rent payable during
the period in which the Premises is untenantable shall be reduced in proportion
to that part of the Premises which is rendered untenantable. In the event that
Landlord should fail to complete such repairs and material restoration within
one hundred fifty (150) days after the date
15
18
of such damage, Tenant may at its option and as its sole remedy terminate this
Lease by delivering written notice to Landlord, whereupon this Lease shall end
on the date of such notice as if the date of such notice were the date
originally fixed in this Lease as the Expiration Date; provided however, that if
construction is delayed because of changes, deletions, or additions in
construction requested by Tenant, strikes, lockouts, casualties, acts of God,
war, material or labor shortages, governmental regulation or control or other
causes beyond the reasonable control of Landlord, the period for restoration,
repair or rebuilding shall be extended for the amount of time Landlord is so
delayed.
D. In no event shall Landlord be required to rebuild, repair or replace
any part of the partitions, fixtures, and other personal property which may have
been placed in or about the Premises by Tenant.
XIV. CONDEMNATION
If, during the Lease Term, all or any material portion of the Premises
shall be taken as the result of the exercise of the power of eminent domain or
conveyed under threat thereof (hereinafter referred to as the "PROCEEDINGS"),
this Lease and all right, title and interest of Tenant hereunder shall terminate
on the earlier of taking of possession by the condemning authority or the date
of vesting of title pursuant to such Proceedings. Landlord and Tenant each shall
be entitled to an allocation of the award to be made in such Proceedings
relative to their respective interests in the Premises; provided that Tenant
shall not be entitled to receive any award for Tenant's loss of its leasehold
interest, the right to such award being hereby assigned by Tenant to Landlord.
For purposes hereof, any portion so taken shall be deemed "material" if the
taking would prevent or materially interfere with the use of the Building or the
Premises for the purpose for which it is then being used.
If, during the Lease Term, less than a material portion of the Premises
shall be taken, this Lease, upon the earlier of taking of possession by the
condemning authority or vesting of title in the Proceedings, shall terminate as
to the parts so taken, and the proceeds of the award for such taking shall be
delivered to Landlord to restore that portion of the Premises not so taken to a
complete architectural and mechanical unit and otherwise to make the remaining
Premises appropriate for the use and occupancy of Tenant.
In the event of any termination of this Lease, or any part thereof, as
a result of any such Proceedings, Tenant shall pay to Landlord all Rent and all
other charges payable hereunder with respect to that portion of the Premises so
taken, apportioned to the date of such termination.
In the event of a taking of less than a material portion of the
Premises, the Rent payable hereunder during the period from and after the
earlier of the taking of possession by the condemning authority and the date of
vesting of title in such Proceedings through to the expiration or termination of
this Lease (as the Lease Term may be extended) shall xxxxx and be diminished in
proportion to that part of the Premises which has been taken.
XV. ASSIGNMENT AND SUBLETTING
A. For the first three (3) Lease Years, Tenant shall be prohibited from
assigning or pledging this Lease or subletting the whole or any part of the
Premises, whether voluntarily or by operation of law, or permitting the use or
occupancy of the Premises by anyone other than Tenant. Thereafter, Tenant shall
not have the right to assign or pledge this Lease or to sublet the whole or any
part of the Premises, whether voluntarily or by operation of law, or permit the
use or occupancy of the Premises by anyone other than Tenant, without the prior
written consent of Landlord, and such restrictions shall be binding upon any
assignee or subtenant to which Landlord has consented. Notwithstanding the
foregoing, Tenant, upon at least ten (10) days prior notice to Landlord, shall
be permitted to assign this Lease or to sublet the whole or any part of the
Premises to a wholly owned subsidiary or to an entity with which Tenant may
merge or consolidate (a "TENANT AFFILIATE") without the necessity of obtaining
Landlord's consent.
B. In the event Tenant desires to sublet the Premises, or any portion
thereof, or assign this Lease, Tenant shall give written notice thereof to
Landlord within a reasonable time prior to the proposed commencement date of
such subletting or assignment, which notice shall set forth the name of the
proposed subtenant or assignee, the relevant terms of any sublease and copies of
16
19
financial reports and other relevant financial information of the proposed
subtenant or assignee. Tenant shall pay to Landlord, on demand, a reasonable
service charge for the processing of the application for the consent and for the
preparation of the consent.
C. In the event Landlord consents to any such assignment or subletting,
and as a condition thereto, Tenant shall pay to Landlord fifty percent (50%) of
all profit derived by Tenant from such assignment or subletting. For purposes of
the foregoing, profit shall be deemed to include, but shall not be limited to,
the amount paid or payable to Tenant to effect or to induce Tenant to enter into
any such transaction, and the amount of all rent and other consideration of
whatever nature payable by such assignee or sublessee in excess of the Rent
payable by Tenant under this Lease. If a part of the consideration for such
assignment or subletting shall be payable other than in cash, the payment to
Landlord of its share of such non-cash consideration shall be in such form as is
satisfactory to Landlord. Tenant shall furnish to Landlord upon request from
Landlord a complete statement setting forth in detail the computation of all
profit derived and to be derived from such assignment or subletting, such
computation to be in accordance with generally accepted accounting principles.
Tenant agrees that Landlord or its authorized representatives shall be given
access at all reasonable times to the books, records and papers of Tenant
relating to any such assignment or subletting, and Landlord shall have the right
to make copies thereof. The percentage of Tenant's profit due to Landlord
hereunder shall be paid to Landlord within two (2) days of receipt by Tenant of
any payment made from time to time by such assignee or sublessee to Tenant.
D. Notwithstanding any permitted assignment or subletting, including,
without limitation, an assignment or subletting to a Tenant Affiliate, Tenant
shall at all times remain directly, primarily and fully responsible and liable
for the payment of the Rent herein specified and for compliance with all of its
other obligations under the terms, provisions and covenants of this Lease. Upon
the occurrence of an Event of Default, if the Premises or any part thereof are
then assigned or sublet, Landlord, in addition to any other remedies herein
provided or provided by law, may, at its option, collect directly from such
assignee or subtenant all Rents due and becoming due to Tenant under such
assignment or sublease and apply such Rent against any sums due to Landlord from
Tenant hereunder, and no such collection shall be construed to constitute a
novation or a release of Tenant from the further performance of Xxxxxx's
obligations hereunder.
XVI. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
A. Provided that Tenant has received a reasonable Non-Disturbance
Agreement (as hereinafter defined) from each Mortgagee (as hereinafter defined),
Tenant's rights under this Lease are and shall remain subject and subordinate to
the operation and effect of any mortgage, deed of trust or other security
instrument now or hereafter affecting the Premises or the Building and all
renewals, modifications, replacements, consolidations and extensions thereof or
participations therein, whether the same shall be in existence on the date
hereof or created hereafter (any such lease, mortgage, deed of trust or other
instrument being referred to as a "MORTGAGE" and the person or persons having
the benefit of same being referred to as a "MORTGAGEE"). Tenant's acknowledgment
and agreement of subordination provided for in this Section XVI.A is
self-operative and no further instrument of subordination shall be required;
however, Tenant shall execute such further assurances thereof as may be
requested, from time to time, by Xxxxxxxx and upon Xxxxxx's failure to execute
and deliver to Landlord any such further assurances, Landlord is hereby
authorized to execute the same for and on behalf of Tenant as Xxxxxx's
attorney-in-fact. As used herein, the term "NON-DISTURBANCE AGREEMENT" shall
mean an agreement executed by a Mortgagee providing that, so long as Tenant is
not then in default under the terms of this Lease, (1) such Mortgagee will not
disturb Tenant's right to possess the Premises, (2) such Mortgagee will not name
or join Tenant in any action or proceeding to foreclose the Mortgage unless
required to do so by law or court rules or procedures, and (3) any sale of the
mortgaged property or exercise by such Mortgagee of any of its rights under the
Mortgage shall be subject to all rights of Tenant under this Lease.
B. If and as a Mortgagee may so elect, this Lease and Xxxxxx's rights
hereunder shall be superior and prior in right to any Mortgage, with the same
force and effect as if this Lease had been executed, delivered and recorded
prior to the execution, delivery and recording of such Mortgage.
17
20
C. If any person shall succeed to all or part of Landlord's interest in
the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure,
power of sale, termination of Lease or otherwise, and if and as so requested or
required by such successor-in-interest, Tenant shall, without charge, attorn to
such successor-in-interest.
XVII. LANDLORD'S ACCESS
Tenant agrees to permit Landlord and its authorized representatives to
enter upon the Premises at all reasonable times during ordinary business hours
(or at any time in case of an emergency), upon reasonable prior notice, for the
purpose of inspecting the same and making any necessary repairs or replacements
which are the obligation of Landlord.
Landlord shall also have the right at all reasonable times during
ordinary business hours, upon reasonable prior notice, to enter upon the
Premises and to exhibit the same for the purpose of mortgaging or selling the
same or, during the final twelve (12) months of the Xxxxx Xxxx, leasing the
same.
In exercising its rights hereunder, Landlord shall refrain from any
acts which may interfere with Xxxxxx's use or occupancy of the Premises or
access thereto. Without limiting the generality of the foregoing, Landlord
acknowledges that it is necessary for Tenant to control access to the Premises
in order to avoid unauthorized persons from viewing Tenant's trade secrets,
proprietary products, technology and processes. Accordingly, while within the
Premises, Landlord and its representatives, at Tenant's option, shall be
accompanied by a representative of Tenant and shall comply with reasonable
directions of such representative relative to safety and to the protection of
Xxxxxx's trade secrets and other proprietary information.
XVIII. SURRENDER AND HOLDING-OVER
Upon the termination of this Lease, whether by forfeiture, lapse of
time or otherwise, or upon termination of Tenant's right to possession of the
Premises, Xxxxxx will at once surrender and deliver up the Premises, together
with all improvements thereon (except as hereinafter provided), to Landlord, in
good condition and repair, reasonable wear and tear and damage by casualty and
condemnation excepted. Said improvements shall include all plumbing, lighting,
electrical heating, cooling and ventilating fixtures and equipment, and all
alterations, (excluding trade fixtures and equipment of Tenant). All permanent
alterations, additions and improvements made in or upon the Premises by Tenant
(excluding trade fixtures and equipment of Tenant) shall become Landlord's
property and shall remain upon the Premises on any such termination without
compensation, allowance or credit to Tenant.
Upon the termination of this Lease, Tenant shall remove Xxxxxx's
personal property, trade fixtures and equipment; provided, however, that Tenant
shall repair any injury or damage to the Premises which may result from such
removal. If Tenant does not remove Xxxxxx's personal property, trade fixtures
and equipment from the Premises prior to the expiration or earlier termination
of the Lease Term, Landlord, upon thirty (30) days' notice to Tenant, at its
option, may remove the same (and repair any damage occasioned thereby) and
dispose thereof or deliver the same to any other place of business of Tenant or
warehouse the same, and Tenant shall pay the cost of such removal repair,
delivery and warehousing to Landlord within thirty (30) days of demand therefor.
If Tenant or any party claiming under Xxxxxx remains in possession of
the Premises or any part thereof after any termination or expiration of this
Lease, Landlord may treat such holdover as an automatic renewal of this Lease
for a month-to-month tenancy at the rate of Rent last payable under this Lease,
subject to all the terms and conditions provided herein, or as a tenant at
sufferance, as Xxxxxxxx's sole remedies.
XIX. HAZARDOUS AND TOXIC MATERIALS
As used herein:
(a) "CLAIM" shall mean and include any demand, cause of action,
proceeding or suit (i) for damages, losses, injuries to person
or property, damages to natural resources, fines, penalties,
interest, or contribution; (ii) for the costs of site
investigations,
18
21
feasibility studies, information requests, health or risk
assessments or Response actions; or (iii) for enforcing this
Section XIX.
(b) "ENVIRONMENTAL LAW" shall mean and include all federal, state
and local statutes, ordinances, regulations and rules relating
to environmental quality, health, safety, contamination and
clean-up, including, without limitation, the Clean Air Act, 42
U.S.C. Section 7401 et seq.; the Clean Water Act, 33 U.S.C.
Section 1251 et seq.; and the Water Quality Act of 1987; the
Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"),
7 U.S.C Section 136 et seq.; the Marine Protection, Research,
and Sanctuaries Act, 33 U.S.C. Section 1401 et seq.; the
National Environmental Policy Act, 42 U.S.C. Section 4321 et
seq.; the Noise Control Act, 42 U.S.C Section 4901 et seq.;
the Occupational Safety and Health Act, 29 U.S.C Section 651
et seq.; the Resource Conservation and Recovery Act ("RCRA"),
42 U.S.C. Section 6901 et seq.; as amended by the Hazardous
and Solid Waste Amendments of 1984; the Safe Drinking Water
Act, 42 U.S.C. Section 300f et seq.; the Comprehensive
Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. Section 9601 et seq., as amended by the
Superfund Amendments and Reauthorization Act, the Emergency
Planning and Community Right-to-Know Act., and Radon Gas and
Indoor Air Quality Research Act; the Toxic Substances Control
Act ("TSCA"), 15 U.S.C. Section 2601 et seq.; the Atomic
Energy Act, 42 U.S.C. Section 2011 et seq.; and the Nuclear
Waste Policy Act of 1982, 42 U.S.C. Section 10101 et seq.; and
any state lien and superlien and environmental clean-up
statutes, with implementing regulations and guidelines.
Environmental Laws shall also include all state, regional,
county, municipal and other local laws, regulations and
ordinances insofar as they are equivalent or similar to the
federal laws recited above or purport to regulate Hazardous
Materials.
(c) "HAZARDOUS MATERIALS" shall mean and include the following,
including mixtures thereof: any hazardous substance,
pollutant, contaminant, waste, by-product or constituent
regulated under CERCLA; oil and petroleum products and natural
gas, natural gas liquids, liquefied natural gas and synthetic
gas usable for fuel; pesticides regulated under the FIFRA;
asbestos and asbestos-containing materials, PCBs and other
substances regulated under TSCA; source material, special
nuclear material, byproduct material and any other radioactive
materials or radioactive wastes, however produced, regulated
under the Atomic Energy Act or the Nuclear Waste Policy Act.;
chemicals subject to the OSHA Hazard Communication Standard,
29 C.F.R.ss.1910.1200 et seq.
(d) "MANAGE" or "MANAGEMENT" means to generate, manufacture,
process, treat, store, use, re-use, refine, recycle, reclaim,
blend or burn for energy recovery, incinerate, accumulate
speculatively, transport, transfer, dispose of or abandon
Hazardous Materials.
(e) "RELEASE" or "RELEASED" shall mean any actual or threatened
spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping or
disposing of Hazardous Materials into the environment, as
"environment" is defined in CERCLA.
(f) "RESPONSE" or "RESPOND" shall mean action taken in compliance
with Environmental Laws to correct, remove, remediate,
cleanup, prevent, mitigate, monitor, evaluate, investigate,
assess or xxxxx the Release of a Hazardous Material.
During the Lease Term, Tenant, at its sole cost and expense, shall (a)
comply with all Environmental Laws and permits issued thereunder; (b) secure,
maintain and comply with all permits required by Environmental Laws, and (c) not
cause or allow the Release of any Hazardous Materials on, to or from the
Premises.
If Tenant's Management of Hazardous Materials at the Premises (a)
results in or causes a Release which is not in compliance with Environmental
Laws or permits issued thereunder;
19
22
(b) gives rise to liability or a Claim or requires a Response under common law
or any Environmental Law or permit issued thereunder; or (c) causes a
significant public health effect; then, in any and all such occurrences, Tenant
shall, at its sole cost and expense, promptly take all applicable action in
Response.
Tenant agrees to indemnify, defend and hold Landlord and its officers,
partners, directors, shareholders, employees and agents harmless from any Claims
which arise from or are attributable to Tenant's breach of any of its
obligations in this Section XIX or Claims which arise during or after the Lease
Term, or in connection with the presence or suspected presence or Release of
Hazardous Materials in, on or under the Premises, provided such Claims arise or
such Hazardous Materials are present as the result of the acts of Tenant, its
officers, employees or agents. Without limiting the generality of the foregoing,
this indemnification shall survive the expiration of this Lease for a period of
three (3) years and does specifically cover costs incurred in connection with
any investigation of site conditions or any Response because of the presence or
suspected presence or Release of Hazardous Materials in, on or under the
Premises, provided the Hazardous Materials are present as the result of the acts
of Tenant, its officers, agents or employees.
XX. DEFAULTS BY LANDLORD
If Landlord should be in default in the performance of any of its
obligations under this Lease, which default continues for a period of more than
thirty (30) days after receipt of written notice from Tenant specifying such
default, or if such default is of a nature that requires more than thirty (30)
days for remedy and continues beyond the time reasonably necessary to cure (and
Landlord has not undertaken procedures to cure the default within such thirty
(30) day period and diligently pursued such efforts to complete such cure),
Tenant may, in addition to its other remedies at law, in equity or as set forth
in this Lease, seek to recover any and all direct damages (but not consequential
or speculative damages) sustained by Tenant as a result of Xxxxxxxx's breach.
XXI. ATTORNEYS' FEES
In the event that at any time during the Lease Term either Landlord or
Tenant shall institute any action or proceeding against the other relating to
the provisions of this Lease or any default hereunder, the unsuccessful party in
such action or proceeding agrees to reimburse the successful party for the
reasonable expenses of attorneys' fees and paralegal fees and disbursements
incurred therein by the successful party. Such reimbursement shall include all
legal expenses incurred prior to trial, at trial and at all levels of appeal and
post-judgment proceedings.
XXII. FORCE MAJEURE
In the event that either party hereto shall be delayed or hindered in
or prevented from the performance required hereunder by reason of strikes,
lockouts, labor troubles, failure of power, riots, insurrection, war, acts of
God, or other reason of like nature not the fault of the party delayed in
performing work or doing acts (hereinafter, "PERMITTED DELAY" or "PERMITTED
DELAYS"), such party shall be excused for the period of time equivalent to the
delay caused by such Permitted Delay. Notwithstanding the foregoing, any
extension of time for a Permitted Delay shall be conditioned upon the party
seeking an extension of time delivering written notice of such Permitted Delay
to the other party within ten (10) days of the event causing the Permitted
Delay.
XXIII. MISCELLANEOUS PROVISIONS
A. Indemnity.
1. To the extent not expressly prohibited by law, Landlord and
Tenant each (in either case, the "INDEMNITOR") agrees to hold harmless
and indemnify the other and the other's respective agents, partners,
shareholders, officers, directors and employees (collectively, the
"INDEMNITEES") from any losses, damages, judgments, claims, expenses,
costs and liabilities imposed upon or incurred by or asserted against
the Indemnitees, including reasonable attorney's fees and expenses, for
death or injury that may arise from or be caused directly or indirectly
by any negligent act or omission or any willful misconduct of
Indemnitor or any of Indemnitor' s respective agents, partners, or
20
23
employees. Such third parties shall not be deemed third party
beneficiaries of this Lease. In case any action, suit or proceeding is
brought against any of Indemnitees by reason of any such act of
Indemnitor or any of Indemnitor respective agents, partners or
employees, then Indemnitor will, at Indemnitor's expense and at the
option of said Xxxxxxxxxxx, by counsel approved or selected by said
Xxxxxxxxxxx, resist and defend such action, suit or proceeding.
2. In addition to the indemnification set forth above, Tenant
shall indemnify, defend and hold Landlord, its principals, agents,
employees and any Mortgagee(s) harmless against and from all
liabilities, obligations, damages, penalties, claims, costs, charges
and expenses, including, without limitation, reasonable architects' and
attorneys' fees, which may be imposed upon, incurred by or asserted
against Landlord and arising, directly or indirectly out of or in
connection with the use or occupancy of the Premises by, through or
under Tenant and (without limiting the generality of the foregoing) any
of the following occurring during the Term: (i) any work or thing done
in, on or about the Premises or any part thereof by Tenant or any of
its assignees, concessionaires, agents, contractors, employees or
invitees; (ii) any use, non-use, possession, occupation, condition,
operation, maintenance or management of the Premises or any part
thereof; (iii) any act or omission of Tenant or any of its assignees,
concessionaires, agents, contractors, employees or invitees; (iv) any
injury or damage to any person or property occurring in on or about the
Premises or any part thereof; or (v) any failure on the part of Tenant
to perform or comply with any of the covenants, agreements, terms or
conditions contained in this Lease with which Tenant, on its part must
comply or perform. In case any action or proceeding is brought against
Landlord by reason of any of the foregoing, Tenant shall, at Tenant's
sole cost and expense, resist or defend such action or proceeding by
counsel approved by Landlord.
B. Notices. All notices, demands and requests which may be or are
required to be given, demanded or requested by either party to the other shall
be in writing. All notices, demands and requests by Xxxxxxxx to Tenant shall be
sent by United States registered or certified mail postage prepaid, or by
commercial overnight delivery service or other personal service (with evidence
of receipt), addressed to Tenant as follows:
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Legal Department
or at such other place as Tenant may from time to time designate by written
notice to Landlord. All notices, demands and requests by Tenant to Landlord
shall be sent by United States registered or certified mail, postage prepaid, or
by commercial overnight delivery service or other personal service (with
evidence of receipt), addressed to Landlord as follows:
____________________
____________________
Attention:__________
or at such other place as Landlord from time to time may designate by written
notice to Xxxxxx. Notices, demands and requests which shall be served upon
Landlord by Tenant, or upon Tenant by Landlord, by mail in the manner aforesaid,
shall be deemed to be sufficiently served or given for all purposes hereunder on
the second (2nd) business day after mailing, and notices served by overnight
delivery service shall be deemed served or given on the first (1st) business day
after delivery to such service.
C. Quiet Possession. Landlord covenants and agrees that Tenant upon
paying the Rent, and upon observing and keeping the covenants, agreements and
conditions of this Lease on its part to be kept, observed and performed, shall
lawfully and quietly hold, occupy and enjoy the Premises (subject to the
provisions of this Lease) during the Lease Term (as it may be extended from time
to time as expressly provided herein) without hindrance or molestation by
Landlord or by any person or persons claiming under Landlord.
X. Xxxxxxxxx. Tenant, without charge, at any time and from time to
time, within twenty (20) days after written request by Xxxxxxxx, shall certify
by written instrument, duly
21
24
executed, acknowledged and delivered to any Mortgagee, assignee of a Mortgagee,
proposed Mortgagee, or to any purchaser or proposed purchaser or transferee of
the Landlord, the Building or the Premises or any interest therein:
1. That this Lease is unmodified and in full force and effect
(or, if there have been modifications, that the same is in full force
and effect, as modified, and stating the modifications);
2. The dates to which the Rent has been paid in advance;
3. Whether or not there are then existing any breaches or
defaults by Tenant or by Landlord and known by Tenant under any of the
covenants, conditions, provisions, terms or agreements of this Lease,
and specifying such breach or default, if any, or any set-offs or
defenses against the enforcement of any covenant, condition, provision,
term or agreement of this Lease upon the part of Tenant to be performed
or complied with (and, if so, specifying the same and the steps being
taken to remedy the same);
4. That Tenant has made no advancements to or on behalf of
Landlord for which it has the right to deduct from, or offset against,
future Rent payments;
5. Xxxxxx has accepted the Premises and is in full and
complete possession thereof; and
6. Such other statements or certificates as Landlord or any
Mortgagee may reasonably request.
E. No Waiver. Landlord shall not be deemed to have waived any breach of
any term, covenant, or condition herein contained unless the same has been
specifically waived by Landlord in writing. Any such waiver shall not be deemed
to be a waiver of any subsequent breach of the same or any other term, covenant
or condition herein contained.
F. Partial Invalidity. If any covenant, condition, provision, term or
agreement of this Lease shall, to any extent, be held invalid or unenforceable,
the remaining covenants, conditions, provisions, terms and agreements of this
Lease shall not be affected thereby, but each covenant, condition, provision,
term or agreement of this Lease shall be valid and in force to the fullest
extent permitted by law. This Lease shall be construed and be enforceable in
accordance with the laws of the State of Missouri.
X. Xxxxxxx on Successors. The covenants and agreements herein contained
shall bind and inure to the benefit of Landlord and its successors and assigns,
and Xxxxxx and its successors and assigns. Upon any sale or other transfer by
Landlord of its interest in the Building, Landlord shall be relieved of any
obligations under this Lease occurring subsequent to such sale or other
transfer.
H. Captions. The caption of each section of this Lease is for
convenience and reference only and in no way defines, limits or describes the
scope or intent of such section or of this Lease.
I. No Partnership. This Lease does not create the relationship of
principal and agent, or of partnership, joint venture, or of any association or
relationship between Landlord and Tenant, the sole relationship between Landlord
and Tenant established by this Lease being that of landlord and tenant.
J. Complete Agreement. All preliminary and contemporaneous negotiations
are merged into and incorporated in this Lease. This Lease contains the entire
agreement between the parties and shall not be modified or amended in any manner
except by an instrument in writing executed by the parties hereto.
K. Time of the Essence. Time is of the essence of this Lease, and all
provisions herein relating thereto shall be strictly construed.
L. No Brokers. Each party represents and warrants to the other that it
has not dealt with any broker in connection with this Lease and agrees to
indemnity and hold the other party
22
25
and its agents, officers, directors and employees harmless from all losses,
damages, liabilities, claims, liens, costs and expenses, including, without
limitation, attorneys' fees, arising from any claims or demands of any broker or
brokers, salespersons or finders for any commission or fee alleged to be due
such broker or brokers, salespersons or finders based upon such broker or
brokers, salespersons or finders having dealt with the indemnifying party in
connection with this Lease.
M. Consents. Subject to specific conditions as to consents and
approvals provided for in other sections of this Lease, no consent or approval
required under this Lease shall be unreasonably withheld or delayed.
N. Counterparts. This Lease may be executed in counterparts, each of
which when taken together shall constitute one instrument.
O. Jointly Drafted. This Lease represents the product of the joint
negotiation, preparation and agreement of and between the parties hereto and is
not to be construed against one party or the other as the principal drafter.
P. Authority. Landlord has full power, right and authority to enter
into this Lease and to perform each and all of the terms, provisions, covenants,
agreements, matters and things herein provided to be performed by Xxxxxxxx, and
to execute and deliver all documents provided hereunder to be executed and
delivered by Landlord; and this Lease does not, nor does or will the performance
by Landlord of its obligations hereunder, contravene any provision of law or any
covenant, indenture or agreement binding upon Landlord. Tenant has full power,
right and authority to enter into this Lease and to perform each and all of the
terms, provisions, covenants, agreements, matters and things herein provided to
be performed by Xxxxxx, and to execute and deliver all documents provided
hereunder to be executed and delivered by Xxxxxx; and this Lease does not, nor
does or will the performance by Tenant of its obligations hereunder, contravene
any provision of law or any covenant, indenture or agreement binding upon
Tenant.
Q. Remedies Cumulative. No reference to any specific right or remedy in
this Lease shall preclude Landlord from exercising any other right, from having
any other remedy, or from maintaining any action to which it may otherwise be
entitled under this Lease, at law or in equity. Without limiting the generality
of the foregoing sentence, the maintenance of any action or proceeding to
recover possession of the Premises or any installment or installments of Rent or
any other monies that may be due or become due from Tenant to Landlord shall not
preclude Landlord from thereafter instituting and maintaining subsequent actions
or proceedings for the recovery of possession of the Premises or of any other
monies that may be due or become due from Tenant. Any entry or reentry into the
Premises by Landlord shall not be deemed to absolve or discharge Tenant from
liability under this Lease.
R. Building Name. So long as Tenant remains in possession of fifty
percent (50%) or more of the Rentable Area of the Building, the Building will
continue to be called The Edison Building, references to or identification of
portions of the Building by reference to members of the founding Edison family,
by name or collectively as the "Founders" and the street or mailing address of
Tenant will not be changed without the consent of Tenant, which consent Tenant
may withhold at its sole discretion. In addition, no other person or entity will
be permitted to use the street or mailing address of Tenant.
S. Limitation on Right of Recovery against Landlord. It is specifically
understood and agreed that there shall be no personal liability of Landlord (nor
Landlord's agent) in respect to any of the covenants, conditions or provisions
of this Lease. In the event of a breach or default by Landlord of any of its
obligations under this Lease, Tenant shall look solely to the equity of the
Landlord in the Building for the satisfaction of Xxxxxx's remedies.
T. Survival. Notwithstanding anything to the contrary contained in this
Lease, the expiration of the Term of the Lease, whether by lapse of time or
otherwise, shall not relieve Tenant from Tenant's obligations accruing prior to
the expiration of the term.
U. Certain Rights Reserved To Landlord. Landlord reserves and may
exercise any of the following rights without affecting Tenant's obligations
hereunder:
23
26
1. to change the name or street address of the Building
(except as restricted in Section XXIII.R above);
2. to install and maintain a sign or signs on the exterior of
the Building;
3. to have access for Landlord and the other tenants of the
Building to any mail chutes located on the Premises according to the
rules of the United States Post Office;
4. to designate all sources furnishing sign painting and
lettering, ice, drinking water, towels, coffee cart service and toilet
supplies, lamps and bulbs used on the Premises; and
5. to close the Building after regular working hours and on
the legal holidays subject, however, to Xxxxxx's right to admittance,
under such reasonable regulations as Landlord may prescribe from time
to time, which may include by way of example but not of limitation,
that persons entering or leaving the Building identify themselves to a
watchman by registration or otherwise and that said persons establish
their right to enter or leave the Building.
The Landlord may enter upon the Premises and may exercise any or all of the
foregoing rights hereby reserved without being deemed guilty of an eviction or
disturbance of the Tenant's use or possession and without being liable in any
manner to the Tenant and without abatement of Rent or affecting any of the
Tenant's obligations hereunder.
IN WITNESS WHEREOF, each of the parties has caused this Lease to be
duly executed as of the day and year first above written.
TENANT: LANDLORD:
EDISON BROTHERS STORES, INC., EBS BUILDING, L.L.C., a Delaware
a Delaware corporation limited liability company
By: Price Waterhouse LLP,
Manager EBS Building, L.L.C.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
--------------------------------- ------------------------------
Xxxxx X. Xxxxx Xxxxx X. Xxxxxx
Its: Executive Vice President Its:Partner
--------------------------------- ------------------------------
24
27
1ST FLOOR - 34,065 RENTABLE SQUARE FEET
EXHIBIT "A" - PAGE 1 OF 7
28
2ND FLOOR - 25,187 RENTABLE SQUARE FEET
EXHIBIT "A" - PAGE 2 OF 7
29
3RD FLOOR - 46,008 RENTABLE SQUARE FEET
EXHIBIT "A" - PAGE 3 OF 7
30
4TH FLOOR - 46,008 RENTABLE SQUARE FEET
EXHIBIT "A" - PAGE 4 OF 7
31
5TH FLOOR - 46,008 RENTABLE SQUARE FEET
EXHIBIT "A" - PAGE 5 OF 7
32
6TH FLOOR - 31,392 RENTABLE SQUARE FEET
EXHIBIT "A" - PAGE 6 OF 7
33
7TH FLOOR - 31,392 RENTABLE SQUARE FEET
EXHIBIT "A" - PAGE 7 OF 7
34
1ST FLOOR - 34,065 RENTABLE SQUARE FEET
EXHIBIT "B" - PAGE 1 OF 2
35
2ND FLOOR - 25,187 RENTABLE SQUARE FEET
EXHIBIT "B" - PAGE 2 OF 2
36
THE EDISON BUILDING
2ND FLOOR
EXHIBIT "C"
37
B1
EXHIBIT "D" - 1 OF 2
38
B2
EXHIBIT "D" - 2 OF 2
39
EXHIBIT E
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to
the Premises, the Building, the parking garage associated therewith and the
appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways and other
similar areas shall not be obstructed by Tenant or used by
Tenant for any purpose other than ingress and egress to and
from the Premises. No rubbish, litter, trash, or material of
any nature shall be placed, emptied, or thrown in those areas.
At no time shall Tenant permit Tenant's employees to loiter in
common areas or elsewhere in or about the Building.
2. Plumbing fixtures and appliances shall be used only for the
purposes for which designed, and no sweepings, rubbish, rags
or other unsuitable material shall be thrown or placed
therein. Damage resulting to any such fixtures or appliances
as a result of misuse by Tenant or its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not
in any case be responsible therefor.
3. No signs, advertisements or notices shall be painted or
affixed on or to any windows, doors or other parts of the
Building, except those of such color, size, style and in such
places as shall be first approved in writing by Landlord. No
nails, hooks or screws shall be driven or inserted into any
part of the Premises or Building except by the Building
maintenance personnel, nor shall any part of the Building be
defaced by Tenant.
4. Landlord may provide and maintain alphabetical directory
boards listing all tenants, and no other directory shall be
permitted unless previously consented to by Landlord in
writing.
5. Landlord shall have the power to prescribe the weight and
position of safes and other heavy equipment or items, which in
all cases shall not in the opinion of Landlord exceed
acceptable floor loading and weight distribution requirements.
All damage done to the Building by the installation,
maintenance, operation, existence or removal of any property
of Tenant shall be repaired at the expense of Tenant.
6. Tenant shall not: (1) make or permit any improper,
objectionable or unpleasant noises or odors in the Building,
or otherwise interfere in any way with other tenants or
persons having business with them; (2) solicit business or
distribute or cause to be distributed, in any portion of the
Building any handbills, promotional materials or other
advertising; or (3) conduct or permit any other activities in
the Building that might constitute a nuisance.
7. No animals, except seeing eye dogs, shall be brought into or
kept in, or about the Premises.
8. No inflammable, explosive or dangerous fluid or substance
shall be used or kept by Tenant in the Premises or Building.
Tenant shall not, without Xxxxxxxx's prior written consent,
use, store, install, spill, remove, release or dispose of
within or about the Premises or any other portion of the
Building, any asbestos-containing materials or any solid,
liquid or gaseous material now or hereafter considered toxic
or hazardous under the provisions of 42 U.S.C. Section 9601 et
seq. or any other applicable environmental law which may now
or hereafter be in effect. If Landlord does give written
consent to Tenant pursuant to the foregoing sentence, Tenant
shall comply with all applicable laws, rules and regulations
pertaining to and governing such use by Tenant, and shall
remain liable for all costs of cleanup or removal in
connection therewith.
9. Tenant shall not use or occupy the Premises in any manner or
for any purpose which would injure the reputation or impair
the present or future value of the
1
40
Premises or the Building; without limiting the foregoing,
Tenant shall not use or permit the Premise or any portion
thereof to be used for lodging, sleeping or for any illegal
purpose.
10. Tenant shall not take any action which would violate
Landlord's labor contracts affecting the Building or which
would cause any work stoppage, picketing, labor disruption or
dispute, or any interference with the business of Landlord or
any other tenant or occupant of the Building or with the
rights and privileges of any person lawfully in the Building.
Tenant shall take any actions necessary to resolve any such
work stoppage, picketing, labor disruption, dispute or
interference and shall have pickets removed and, at the
request of Landlord, immediately terminate at any time any
construction work being performed in the Premises giving rise
to such labor problems, until such time as Landlord shall have
given its written consent for such work to resume. Tenant
shall have no claim for damages of any nature against
Landlord, its agents, employees, contractors, officers or
directors in connection therewith.
11. Tenant shall utilize the termite and pest extermination
service designated by Landlord to control termites and pests
in the Premises except as included in Basic Costs. Tenant
shall bear the cost and expense of such extermination
services.
12. Tenant shall not install, operate or maintain in the Premises
or in any other area of the Building, any electrical equipment
which does not bear the U/L (Underwriters Laboratories) seal
of approval, or which would overload the electrical system or
any part thereof beyond its capacity for proper, efficient and
safe operation as determined by Landlord, taking into
consideration the overall electrical system and the present
and future requirements therefor in the Building. Tenant shall
not furnish any cooling or heating to the Premises, including,
without limitation, the use of any electronic or gas heating
devices, without Landlord's prior written consent.
13. Tenant shall not operate or permit to be operated on the
Premises any coin or token operated vending machine or similar
device (including, without limitation, telephones, lockers,
toilets, scales, amusement devices and machines for sale of
beverages, goods, candy, cigarettes or other goods), except
for those vending machines or similar devices which are for
the sole and exclusive use of Tenant's employees, and only if
such operation does not violate the lease of any other tenant
of the Building.
14. Bicycles and other vehicles are not permitted inside or on the
walkways outside the Building, except in those areas
specifically designated by Landlord for such purpose.
15. Landlord may from time to time adopt appropriate systems and
procedures for the security or safety of the Building, its
occupants, entry and use, or its contents. Tenant, Tenant's
agents, employees, contractors, guests and invitees shall
comply with Landlord's reasonable requirements relative
thereto.
16. Canvassing, soliciting, and peddling in or about the Building
is prohibited. Tenant shall cooperate and use its best efforts
to prevent the same.
17. At no time shall Tenant permit any person, including but not
limited to Tenant's agents, employees, contractors, guests, or
invitees to smoke in the Building.
18. The work of cleaning personnel shall not be hindered by Tenant
after 5:30 p.m., and such cleaning work may be done at any
time when the offices are vacant. Windows, doors and fixtures
may be cleaned at any time. Tenant shall provide adequate
waste and rubbish receptacles necessary to prevent
unreasonable hardship to Landlord regarding cleaning service.
2
41
FLOOR CONFERENCE AREA
EXHIBIT "F"
