EXHIBIT 10.8
LEASE
THIS LEASE AGREEMENT (this "Lease") is entered into as
of APRIL 16, 1998, between CHARTER COMMUNICATIONS
ENTERTAINMENT I, L.P. a Delaware limited partnership
("Landlord"), and DIGITAL BROADCAST NETWORK
CORPORATION, a Missouri corporation ("Tenant").
DEFINITIONS 1. The definitions and basic provisions set forth
AND BASIC in the Basic Lease Information (the "Basic Lease
PROVISIONS Information") executed by Landlord and Tenant
contemporaneously herewith are incorporated herein by
reference for all purposes.
LEASE GRANT 2. Subject to the terms of this Lease, Landlord
leases to Tenant, and Tenant leases from Landlord, the
Premises.
TERM 3. If the Commencement Date is not the first day
of a calendar month, then the Term shall be extended by
the time between the Commencement Date and the first
day of the next month. If this Lease is executed before
the Premises become vacant or otherwise available and
ready for occupancy by Tenant, or if any present
occupant of the Premises holds over and Landlord cannot
acquire possession of the Premises before the
Commencement Date, then (a) Tenant's obligation to pay
Rent hereunder shall, unless any delay is caused by
Tenant, be waived until the date Landlord tenders
possession of the Premises to Tenant, (b) the Term
shall be extended by the time between the scheduled
Commencement Date and the date on which Landlord
tenders possession of the Premises to Tenant, (c)
Landlord shall not be in default hereunder or be liable
for damages therefor, and (d) Tenant shall accept
possession of the Premises when Landlord tenders
possession thereof to Tenant. By occupying the
Premises, Tenant shall be deemed to have accepted the
Premises when Landlord tenders possession thereof to
Tenant. By occupying the Premises, Tenant shall be
deemed to have accepted the Premises in their condition
as of the date of such occupancy, subject to the
performance of punch-list items or other obligations
that remain to be performed by Landlord, if any. Tenant
shall execute and deliver to Landlord, within ten days
after Landlord has requested same, a letter confirming
(i) the Commencement Date, (ii) that Tenant has
accepted the Premises, and (iii) that Landlord has
performed all of its obligations with respect to the
Premises (except for punch-list items specified in such
letter).
RENT 4. a. Payment. Tenant shall timely pay to Landlord
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the Basic Rental and all additional sums to be paid by
Tenant to Landlord under this Lease, including the
amounts set forth in Section 4.b., without deduction or
set off, at Landlord's Address (or such other address
as Landlord may from time to time designate in writing
to Tenant). Basic Rental shall be payable monthly in
advance. The first monthly installment of Basic Rental
shall be payable contemporaneously with the execution
of this Lease; thereafter, monthly installments of
Basic Rental shall be due on the first day of the
second full calendar month after the Commencement Date
and continuing on the first day of each succeeding
calendar month during the Term. Basic Rental for
any fractional month at the beginning of the Term
shall be prorated based on 1/365 of the current annual
Basic Rental for each day of the partial month this
Lease is in effect, and shall be due on the
Commencement Date.
b. Excess. Tenant shall pay an amount (per each
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rentable square foot in the Premises) equal to the
excess ("Excess") from time to time of actual Basic
Cost per rentable square foot in the Building over the
actual Basic Cost per rentable square foot in the
Building incurred during the 1998 calendar year (the
"Base Year"). Landlord may collect such amount in a
lump sum, to be due within 15 days after Landlord
furnishes to Tenant the Annual Cost Statement (defined
below); provided, however that no Excess over Basic
Cost shall be due from Tenant for calendar year 1998.
Alternatively, Landlord may make a good faith estimate
of the Excess to be due by Tenant for any calendar year
or part thereof during the Term, and, unless Landlord
delivers to Tenant a revision of the estimated Excess,
Tenant shall pay to Landlord, on January 1, 1999 and on
the first day of each calendar month thereafter, an
amount equal to the estimated Excess for such calendar
year or part thereof divided by the number of months in
such calendar year during the Term. From time to time
during any calendar year, Landlord may estimate and re-
estimate the Excess to be due by Tenant for that
calendar year and deliver a copy of the estimate or re-
estimate to Tenant. Thereafter, the monthly
installments of Excess payable by Tenant shall be
appropriately adjusted in accordance with the
estimations so that, by the end of the calendar year in
question, Tenant shall have paid all of the Excess as
estimated by Landlord. Any amounts paid based on such
an estimate shall be subject to adjustment pursuant to
Section 4.e. when actual Basic Cost is available for
each calendar year.
c. Basic Cost Definition. For the purposes of this
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Lease, the term "Basic Cost" shall mean all expenses
and disbursements of every kind (subject to the
limitations set forth below) which Landlord incurs,
pays or becomes obligated to pay in connection with the
ownership, operation, and maintenance of the Building
(including the associated parking facilities),
determined in accordance with generally accepted
accounting principles consistently applied, including
but not limited to the following:
(i) Wages and salaries (inc1uding management
fees) of all employees engaged in the operation,
repair, replacement, maintenance, and security of
the Building, including taxes, insurance and
benefits relating thereto;
(ii) All supplies and materials used in the
operation, maintenance, repair, replacement, and
security of the Building;
(iii) The amortized yearly cost of all capital
improvements made to the Building which although
capital in nature can reasonably be expected to
reduce the normal operating costs of the Building,
as well as the amortized yearly capital
improvements made in order to comply with any law
promulgated by any governmental authority, as
amortized over the useful economic life of
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such improvements in accordance with generally
accepted accounting principles, consistently
applied.
(iv) Cost of all electricity, water and other
utilities, other than the cost of utilities
directly reimbursed to Landlord (i.e., through
submeters or comparable devices) by the Building's
tenant (including Tenant) provided, however, that
in the event Tenant's electric usage can be
separately metered, Tenant agrees to promptly
arrange for the installation of such separate
meter at Tenant's sole cost and expense. After
Tenant's separate meter is installed, Landlord
shall credit Tenant Eighty Cents ($0.80) per
square foot which is the cost of non-Excess
electric usage which is built into the Base Rent.
Landlord acknowledges that Tenant requires
continuous electrical usage and other utility
services seven days per week. Tenant shall be
permitted to install outside generators and
batteries (collectively, "Tenant Generators") at
Tenant's sole cost and expense; provided, however
that installation of Tenant Generators shall
require Landlord's prior written consent for the
size, location and construction thereof and
landscaping of the surrounding area of the Tenant
Generators. Tenant agrees to comply with all
federal, state and local laws and to obtain all
governmental approvals and appropriate permits
with respect to the installation and maintenance
of the Tenant Generators. Tenant further agrees to
pay all cost and expense in maintaining Tenant
Generators and shall maintain Tenant Generators in
compliance with all laws. Upon termination of this
Lease or any extension thereof, Tenant shall
remove Tenant Generators from the Premises in
compliance with all applicable laws and restore
the Premises as nearly as practicable to the
surrounding area as determined by Landlord.
(v) Cost of any insurance or insurance
related expense applicable to the Building and
Landlord's personal property used in connection
therewith;
(vi) All taxes and assessments and
governmental charges whether federal, state,
county or municipal, and whether they be by taxing
or management districts or authorities presently
taxing or by others, subsequently created
otherwise, and any other taxes and assessments
attributable to the Building (or its operation),
and the grounds, parking areas, driveways, and
alleys around the Building, excluding, however,
federal and state taxes on income (collectively,
"Taxes"); if the present method of taxation
changes so that in lieu of the whole or any part
of any Taxes levied on the Land or Building, there
is levied on Landlord a capital tax directly on
the rents received therefrom or a franchise tax,
assessment, or charge based, in whole or in part,
upon such rents for the Building, then all such
taxes, assessment, or charges, or the part thereof
so based, shall be deemed to be included within
the term "Taxes" for the purposes hereof;
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(vii) Cost of repairs, replacements, and
general maintenance of the Building, other than
repair, replacement, and general maintenance of
the roof, foundation and exterior walls of the
Building;
(viii) Cost of service or maintenance
contracts with independent contractors for the
operation, maintenance, repair, replacement, or
security of the Building (including, without
limitation, alarm service, window cleaning, and
elevator maintenance); and
There are specifically excluded from the definition of
the term "Basic Cost" costs (1) for capital
improvements made to the Building, other than capital
improvements described in subparagraph (iii) above, and
except for items which, though capital for accounting
purposes, are properly considered maintenance and
repair items, such as painting of common areas,
replacement of carpet in elevator lobbies, and the
like; (2) for repair, replacements and general
maintenance paid by proceeds of insurance or by Tenant
or other third parties, and alterations attributable
solely to tenants of the Building other than Tenant;
(3) for interest, amortization or other payments on
loans to Landlord; (4) for depreciation of the
Building; (5) for leasing commissions; (6) for legal
expenses, other than those incurred for the general
benefit of the Building's tenants (e.g., tax disputes);
(7) for renovating or otherwise improving space for
occupants of the Building or vacant space in the
Building; and (8) for federal income taxes imposed on
or measured by the income of Landlord from the
operation of the Building.
d. Annual Cost Statement. By April 1 of each
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calendar year, or as soon thereafter as practicable,
Landlord shall furnish to Tenant a statement of
Landlord's actual Basic Cost (the "Annual Cost
Statement") for the previous year adjusted as provided
in Section 4.c. If the Annual Cost Statement reveals
that Tenant paid more for Basic Cost than the actual
Excess in the year for which such statement was
prepared, then Landlord shall promptly credit or
reimburse Tenant such excess; likewise, if Tenant paid
less than the actual Excess, then Tenant shall promptly
pay Landlord such deficiency.
e. Adjustments to Basic Cost. With respect to any
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calendar year or partial calendar year in which the
Building is not occupied to the extent of one hundred
percent (100%) of the rentable area thereof, the Basic
Cost for such period shall, for the purposes hereof, be
increased to the amount which would have been incurred
had the Building been occupied to the extent of one
hundred percent (100%) of the rentable area thereof.
DELINQUENT 5. All payments required of Tenant hereunder shall
PAYMENT; bear interest from the date due until paid at the maximum
HANDLING lawful rate. Alternatively, Landlord may charge Tenant a fee
equal to 1.5% of the delinquent payment to reimburse
Landlord for its cost and inconvenience incurred as a
consequence of Tenants delinquency. In no event, however,
shall the charges permitted under this Section 5 or
elsewhere in this Lease, to the extent
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the same are considered to be interest under applicable
law, exceed the maximum lawful rate of interest.
S E C U R I T Y 6. Letter of Credit Security Deposit. Tenant
DEPOSIT ---------------------------------
shall, upon its execution of this Lease, deliver to
Landlord an irrevocable letter of credit in the amount
of One Hundred Eighty Thousand Dollars ($180,000)
("Letter of Credit Security Deposit") issued in favor
of Landlord by a financial institution acceptable to
Landlord and in form and content acceptable to
Landlord. Subject to Reduction (as hereafter defined),
Tenant shall cause the Letter of Credit Security
Deposit to continuously remain in full force and effect
(by virtue of extension, renewal or replacement) in
accordance with this Lease for the Term of this Lease,
and in the event that the Letter of Credit Security
Deposit will expire prior to expiration of the term of
this Lease, Tenant shall deliver an extension, renewal
or replacement thereof to Landlord not less than thirty
(30) days prior to the expiration date of the Letter of
Credit Security Deposit. Any failure of Tenant to
provide the Letter of Credit Security Deposit or to
cause the Letter of Credit Security Deposit to
continuously remain in full force and effect shall be
an Event of Default and shall entitle Landlord to
immediately draw on the Letter of Credit up to the full
amount and to add the proceeds thereof to the Cash
Security Deposit. This Letter of Credit Security
Deposit is not an advance payment of Rent or a measure
or limit of Landlord's damages upon an Event of Default
(defined below). Effective as of the first (lst)
anniversary of the Rental Commencement Date and for
each of the next four (4) anniversary dates thereafter,
the Letter of Credit Security Deposit may be reduced by
$36,000 (the "Reduction"). Notwithstanding anything to
the contrary, this Reduction shall not be permitted if
there is an Event of Default (defined below) under any
provision of this Lease. Immediately upon, and at any
time or from time to time after, the occurrence of a
Event of Default, Landlord shall have the unconditional
right to draw on the Letter of Credit in the full
amount thereof or in any lesser amount or amounts as
Landlord may determine, it its sole and absolute
discretion and to use all or a part thereof (without
prejudice to any other remedy) to pay or perform any
obligation which Tenant was obligated, but failed, to
perform hereunder. Upon demand by Landlord, Tenant
shall caused the Letter of Credit Security Deposit to
be restored to such amount immediately before any draw
by Landlord. Notwithstanding the foregoing, Landlord
agrees to determine, in its sole and absolute
discretion, on an annual basis whether the Letter of
Credit shall be required at the request of Tenant and a
review of Tenant's financial records.
LANDLORD'S 7. a. Services. Provided no Event of Default
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OBLIGATIONS exists, Landlord shall use all reasonable efforts to
furnish to Tenant (i) water (hot and cold) at those
points of supply provided for general use of tenants of
the Building seven (7) days per week; (ii) heated and
refrigerated air conditioning as appropriate, seven (7)
days per week and at such temperatures and in such
amounts as are reasonably considered by Landlord to be
standard, but in no event shall the Landlord provide
heat and air conditioning below the current ASHRAE and
BOCA Mechanical Code; (iii) Janitorial service to the
Premises five (5)
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days per week other than holidays for Building-standard
installations (Landlord reserves the right to xxxx
Tenant separately for extra janitorial service required
for non-standard installations) and such window washing
as may from time to time in Landlord's judgment be
reasonably required; (iv) replacement of Building-
standard light bulbs and fluorescent tubes, provided
that Landlord's standard charge for such bulbs and
tubes shall be paid by Tenant; and (v) if not
separately metered, electricity to the Premises for
building standard lay-in lighting, initially calculated
at 1.4 xxxxx per leased square foot, plus service of
electricity through floor and wall outlets at the
allowance of one (1) watt of power, per leased square
foot, per hour, during "normal business hours" defined
as Monday thru Friday from 8:00 a.m. to 6:00 p.m.,
Saturdays from 8:00 a.m. to 12:00 noon, Sundays and
holidays excepted. Landlord shall maintain the common
areas of the Building in reasonably good order and
condition, except for damage occasioned by Tenant, or
its employees, agents or invitees. Tenant agrees to pay
$2.40 per hour for wear and tear on the HVAC system for
Tenant's use of air conditioning end heat for the
period in excess of "normal business hours".
b. Excess Utility Use. (i) In the event Tenant
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installs lighting in excess of building standards or in
the event the total electric energy usage through floor
outlets for the Premises exceeds the aforesaid
allowance, Landlord may determine the amount of such
additional consumption and potential consumption by
either or both; a survey of standard or average tenant
usage of electricity in the Building performed by a
reputable consultant selected by Landlord and paid for
by Tenant; or a separate meter in the Premises
installed, maintained, and read by Landlord, at
Tenant's expense. (ii) Landlord shall provide heat and
air conditioning to the Premises and to the common
areas of the Property at temperatures for normal
occupancy and general office use during normal business
hours. In the event Tenant requests heating or air
conditioning at times other than during normal business
hours, Tenant shall pay for such usage, as Additional
Rent, at rates to be determined by Landlord from time
to time. In the event Tenant utilizes any heat
generating machines or equipment with the Premises, or
in the event Tenant installs lighting in excess of
building standards, Landlord reserves the right to
invoice Tenant for any additional air conditioning
usage, or install supplementary air conditioning units
to the Premises; and the cost of installation,
operation and maintenance thereof shall be payable by
Tenant as Additional Rent. In the event the premises
contain or are serviced by any heating or air
conditioned equipment which is above building standard,
and which Landlord allows Tenant to use, Tenant shall
accept equipment in its present "AS IS" condition, and
thereafter be wholly liable for all costs in connection
with the operation, maintenance, repair and replacement
of such equipment. (iii) Tenant shall not install any
electrical equipment requiring special wiring or
requiring voltage in excess of 110 volts or otherwise
exceeding Building capacity unless approved in advance
by Landlord. The use of electricity in the Premises
shall not exceed the capacity of existing feeders and
risers to or wiring in the Premises. Any risers or
wiring required to meet Tenant's excess electrical
requirements shall, upon Tenant's
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written request, be installed by Landlord, at Tenant's
cost, if, in Landlord's sole and absolute judgment, the
same are necessary and shall not cause permanent damage
or injury to the Building or the Premises, cause or
create a dangerous or hazardous condition, entail
excessive or unreasonable alterations, repairs, or
expenses, or interfere with or disturb other tenants of
the Building. If Tenant uses machines or equipment
(other than general office machines, excluding
computers and electronic data processing equipment) in
the Premises which affect the temperature otherwise
maintained by the air conditioning system or otherwise
overload any utility, Landlord may install supplemental
air conditioning units or other supplemental equipment
in the Premises, and the cost thereof, including the
cost of installation, operation, use, and maintenance,
shall be paid by Tenant to Landlord within ten days
after Landlord has delivered to Tenant an invoice
therefor. In the event any of Tenant's utility use is
separately metered, the respective provisions of this
subsection shall not apply.
c. Discontinuance. Landlord's obligation to
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furnish services under Section 7.a. shall be subject to
the rules and regulations of the supplier of such
services and governmental rules and regulations.
Landlord may, upon not less than 5-days' prior written
notice to Tenant, discontinue any such service to the
Premises, provided Landlord first arranges for a direct
connection thereof through the supplier of such
service. Tenant shall, however, be responsible for
contracting with the supplier of such service and for
paying all deposits for, and costs relating to, such
service.
d. Restoration of Services; Abatement. Landlord
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shall use reasonable efforts to restore any service
that becomes unavailable; however, such unavailability
shall not render Landlord liable for any damages
caused thereby, be a constructive eviction of Tenant,
constitute a breach of any implied warranty, or, except
as provided in the next sentence, entitle Tenant to any
abatement of Tenant's obligations hereunder. However,
if Tenant is prevented from making reasonable use of
the Premises for more than 30 consecutive days because
of the unavailability of any such service, Tenant
shall, as its exclusive remedy therefor, be entitled_
to a reasonable abatement of Rent for each consecutive
day (after such 30-day period) that Tenant is so
prevented from making reasonable use of the Premises.
IMPROVE- 8. a. Improvements; Alterations. Tenant's final
MENTS; -------------------------
ALTERATIONS; improvements as depicted in the plans (the "Final
REPAIRS; Plans") to be approved by Landlord and Tenant, such
MAINTENANCE approval not to be unreasonably withheld, shall be
completed by Tenant; provided, however, that the Fixed
Construction allowance shall be paid to Tenant upon
completion of its leasehold improvements as provided in
Exhibit D attached hereto. Improvements to the Premises
shall be installed at the expense of Tenant only in
accordance with plans and specifications which have
been previously submitted to and approved in writing by
Landlord. After the initial Tenant improvements are
made, no material alterations or physical additions in
or to the Premises may be made without Landlord's prior
written consent. Tenant shall not install signs, window
or door lettering, or advertising media
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of any type on or about the Premises without the prior
written consent of Landlord. All alterations,
additions, or improvements (whether temporary or
permanent in character, and including without
limitation all air-conditioning equipment and all other
equipment that is in any manner connected to the
Building's plumbing system) made in or upon the
Premises, either by Landlord or Tenant, shall be
Landlord's property at the end of the Term and shall
remain on the Premises without compensation to Tenant
unless Landlord has given prior written consent for
removal in the Final Plans. Approval by Landlord of any
of Tenant's drawings and plans and specifications
prepared in connection with any improvements in the
Premises shall not constitute a representation or
warranty of Landlord as to the adequacy or sufficiency
of such drawings, plans and specifications, or the
improvements to which they relate, for any use,
purpose, or condition, but such approval shall merely
be the consent of Landlord as required hereunder.
Notwithstanding anything in this Lease to the contrary,
Tenant shall be responsible for the cost of all work
required to bring the interior of the Premises into
compliance with the retrofit requirements of the
Americans with Disabilities Act of 1990, and all rules,
regulations, and guidelines promulgated thereunder, as
the same may be amended from time to time, necessitated
by any installations, additions, or alterations made in
or to the Premises at the request of or by Tenant or by
Tenant's use of the Premises (other than retrofit work
whose cost has been particularly identified as being
payable by Landlord in an instrument signed by Landlord
and Tenant), regardless of whether such cost is
incurred in connection with retrofit work required in
the Premises (including the Work described in Exhibit
D) or in other areas of the Building.
b. Repairs: Maintenance. Tenant shall maintain the
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Premises in a clean, safe, operable, attractive
condition, and shall not permit or allow to remain any
waste or damage to any portion of the Premises. Tenant
shall repair or replace, subject to Landlord's
direction and supervision, any damage to the Building
caused by Tenant or Tenant's agents, contractors, or
invitees. If Tenant fails to make such repairs or
replacements within 15 days after the occurrence of
such damage, then Landlord may make the same at
Tenant's cost. In lieu of having Tenant repair any such
damage outside of the Premises, Landlord may repair
such damage at Tenant's cost. The cost of any repair or
replacement work performed by Landlord under this
Section 8 shall be paid by Tenant to Landlord within
ten days after Landlord has delivered to Tenant an
invoice therefor.
c. Performance of Work. All work described in this
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Section 8 shall be performed by contractors and
subcontractors subject to the prior reasonable approval
by Landlord in writing. Tenant shall cause all
contractors and subcontractors to procure and maintain
insurance coverage against such risks, in such amounts,
and with such companies as Landlord may reasonably
require, and to procure payment and performance bonds
reasonably satisfactory to Landlord covering the cost
of the work. All such work shall be performed in
accordance with all legal requirements and in a good
and workmanlike manner so as not to damage the
Premises, the primary structure or
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structural qualities of the Building, or
plumbing, electrical lines, or other utility
transmission facility. All such work which
may affect the HVAC, electrical system, or
plumbing must be approved by the Building's
engineer of record. Tenant agrees to the
exclusive use of Landlord's HVAC contractor
for all maintenance, repair, additions to or
substitutions of the HVAC system.
d. Mechanic's Liens. Tenant shall not
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permit any mechanic's liens to be filed
against the Premises or the Building for any
work performed, materials furnished, or
obligation incurred by or at the request of
Tenant. If such a lien is filed, then Tenant
shall, within ten days after Landlord has
delivered notice of the filing to Tenant,
either pay the amount of the lien or
diligently contest such lien and deliver to
Landlord a bond or other security reasonably
satisfactory to Landlord. If Tenant fails to
timely take either such action, then Landlord
may in good faith pay the lien claim and any
amounts so paid; including expenses and
interest, shall be paid by Tenant to Landlord
within ten days after Landlord has delivered
to Tenant an invoice therefor.
USE 9. Tenant shall continuously occupy and
use the Premises only for the Permitted Use
and shall comply with all laws, orders,
rules, and regulations relating to the use,
condition, and occupancy of the Premises. The
Premises shall not be used for any use which
is disreputable or creates extraordinary fire
hazards or results in an increased rate of
insurance on the Building or its contents or
the storage of any hazardous materials or
substances. If, because of Tenant's acts, the
rate of insurance on the Building or its
contents increases, then such acts shall be
an Event of Default, Tenant shall pay to
Landlord the amount of such increase on
demand, and acceptance of such payment shall
not constitute a waiver of any of Landlord's
other rights. Tenant shall conduct its
business and control its agents, employees,
and invitees in such a manner as not to
create any nuisance or interfere with other
tenants or Landlord in its management of the
Building.
ASSIGNMENT 10. a. Transfers: Consent. Tenant shall
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AND not, without the prior written consent of
SUBLETING Landlord (which shall not be unreasonably
withheld) (i) advertise that any portion of
the Premises is available for lease, (ii)
assign, transfer, or encumber this Lease or
any estate or interest herein, whether
directly or by operation of law, (iii) permit
any other entity to become Tenant hereunder
by merger, consolidation, or other
reorganization, (iv) if Tenant is an entity
other than a corporation whose stock is
publicly traded, permit the transfer of an
ownership interest in Tenant so as to result
in a change in the current control of Tenant,
(v) sublet any portion of the Premises, (vi)
grant any license, concession, or other right
of occupancy of any portion of the Premises,
or (vii) permit the use of the Premises by
any parties other than Tenant (any of the
events listed in clauses (i) through (vii)
being a "Transfer"). If Tenant requests
Landlord's consent to a Transfer, then Tenant
shall provide Landlord with a written
description of all terms and conditions of
the proposed Transfer, copies of the proposed
documentation, and the following information
about the proposed transferee: name and
address; reasonably
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satisfactory information about its business
and business history; its proposed use of the
Premises; banking, financial, and other
credit information; and general references
sufficient to enable Landlord to determine
the proposed transferee's credit worthiness
and character. Tenant shall reimburse
Landlord for its reasonable attorneys' fees
and other expenses incurred in connection
with considering any request for its consent
to a Transfer. If Landlord consents to a
proposed Transfer, then the proposed
transferee shall deliver to Landlord a
written agreement whereby it expressly
assumes the Tenant's obligations hereunder;
however, any transferee of less than all of
the space in the Premises shall be liable
only for obligations under this Lease that
are properly allocable to the space subject
to the Transfer, and only to the extent of
the rent it has agreed to pay Tenant
therefor. Landlord's consent to a Transfer
shall not release Tenant from performing its
obligations under this Lease, but rather
Tenant and its transferee shall be jointly
and severally liable therefor. Landlord's
consent to any Transfer shall not waive
Landlord's rights as to any subsequent
Transfers. If an Event of Default occurs
while the Premises or any part thereof are
subject to a Transfer, then Landlord, in
addition to its other remedies, may collect
directly from such transferee all rents
becoming due to Tenant and apply such rents
against Rent. Tenant authorizes its
transferees to make payments of rent directly
to Landlord upon receipt of notice from
Landlord to do so.
b. Additional Compensation. Tenant
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shall pay to Landlord, immediately upon
receipt thereof, fifty percent (50%) of all
compensation received by Tenant for a
Transfer for any portion of the Premises
greater than 2,500 square feet that exceeds
the Basic Rental and Tenant's share of Excess
allocable to the portion of the Premises
covered thereby.
INSURANCE 11. a. Insurance. Tenant shall at its
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expense procure and maintain throughout the
WAIVERS; Term the following insurance policies: (i)
SUBROGATION; comprehensive general liability insurance in
INDEMNITY amounts of not less than a combined single
limit of $ 3,000,000 (the "Initial Liability
Insurance Amount") or such other amounts as
Landlord may from time to time reasonably
require, insuring Tenant, Landlord, and
Landlord's agents against all liability for
injury to or death of a person or persons or
damage to property arising from the use and
occupancy of the Premises, (ii) contractual
liability insurance coverage sufficient to
cover Tenant's indemnity obligations
hereunder, (iii) insurance covering the full
value of Tenant's property and improvements,
and other property (including property of
others), in the Premises, and (iv) business
interruption insurance. Tenant's insurance
shall provide primary coverage to Landlord
when any policy issued to Landlord provides
duplicate or similar coverage, and in such
circumstance Landlord's policy will be excess
over Tenant's policy. Tenant shall furnish
certificates of such insurance and such other
evidence satisfactory to Landlord of the
maintenance of all insurance coverages
required hereunder, and Tenant shall obtain a
written obligation on the part of each
insurance company to notify Landlord at least
30 days before cancellation or a material
change of any such insurance. All such
insurance policies shall be in form, and
issued by companies, reasonably satisfactory
to Landlord.
10
b. Waiver: No Subrogation. Landlord shall
----------------------
not be liable to Tenant or those claiming by,
through, or under Tenant for any injury to or
death of any person or persons or the damage to or
theft, destruction, loss, or loss of use of any
property (a "Loss") caused by casualty, theft,
fire, third parties, or any other matter beyond
the control of Landlord, or for any injury or
damage or inconvenience which may arise through
repair or alteration of any part of the Building,
or failure to make repairs, or from any other
cause, except if such Loss is caused by Landlord's
gross negligence or misconduct. Landlord and
Tenant each waives any claim it might have against
the other for any damage to or theft, destruction,
loss, or loss of use of any property, to the
extent the same is insured against under any
insurance policy that covers the Building, the
Premises, Landlord's or Tenant's fixtures,
personal property, leasehold improvements, or
business, or, in the case of Tenant's waiver, is
required to be insured against under the terms
hereof, regardless of whether the negligence or
fault of the other party caused such loss;
however, Landlord's waiver shall not include any
deductible amounts on insurance policies carried
by Landlord or to any coinsurance penalty which
Landlord might sustain. Each party shall cause its
insurance carrier to endorse all applicable
policies waiving the carrier's rights of recovery
under subrogation or otherwise against the other
party.
c. Indemnity. Subject to Section 11.b.,
---------
Tenant shall defend, indemnify, and hold harmless
Landlord and its agents from and against all
claims, demands, liabilities, causes of action,
suits, judgments, and expenses (including
attorneys' fees) for any Loss arising from any
occurrence on the Premises or from Tenant's
failure to perform its obligations under this
Lease (other than a Loss arising from the sole or
gross negligence of Landlord or its agents), even
though caused or alleged to he caused by the
joint, comparative, or concurrent negligence or
fault of Landlord or its agents, and even though
any such claim, cause of action, or suit is based
upon or alleged to be based upon the strict
liability of Landlord or its agents. This
indemnity provision is intended to indemnify
Landlord and its agents against the consequences
of their own negligence or fault as provided above
when Landlord or its agents are jointly,
comparatively, or concurrently negligent with
Tenant. This indemnity provision shall survive
termination or expiration of this Lease.
XXXXXXXXX- 00. a. Subordination. This Lease shall be
-------------
TION ATTORN- subordinate to any deed of trust, mortgage, or
MENT; NOTICE other security instrument (a "Mortgage"), or any
TO ground lease, master lease, or primary lease (a
LANDLORD'S "Primary Lease"), that now or hereafter covers all
MORTGAGEE or any part of the Premises (the mortgagee under
any Mortgage or the lessor under any Primary Lease
Is referred to herein as "Landlord's Mortgagee").
Landlord's Mortgagee may at any time, without
notice to or consent of Tenant, elect to
subordinate any such Mortgage or Primary Lease to
this Lease; provided, however, any subordination
shall be conditioned upon the non-disturbance of
Tenant's occupancy so long as Tenant is not in
default.
b. Attornment. Tenant shall attorn to any party
----------
succeeding to Landlord's interest in the Premises,
whether by
11
purchase, foreclosure, deed in lieu of
foreclosure, power of sale, termination of lease,
or otherwise, upon such party's request, and shall
execute such agreements confirming such attornment
as such party may reasonably request.
c. Notice to Landlord's Mortgagee. Tenant
------------------------------
shall not seek to enforce any remedy it may have
for any default on the part of the Landlord
without first giving written notice by certified
mail, return receipt requested, specifying the
default in reasonable detail, to any Landlord's
Mortgagee whose address has been given to Tenant,
and affording such Landlord's Mortgagee a
reasonable opportunity to perform Landlord's
obligations hereunder.
RULES AND 13. Tenant shall comply with the rules and
REGULATIONS regulations of the Building which are attached
hereto as Exhibit B. Landlord may, from time to
time, change such rules and regulations for the
safety, care, or cleanliness of the Building and
related facilities, provided that such changes are
applicable to all tenants of the Building and will
not unreasonably interfere with Tenant's use of
the Premises. Tenant shall be responsible for the
compliance with such rules and regulations by its
employees, agents, and invitees.
CONDEM- 14. a. Taking - Landlord's and Tenant's
--------------------------------
NATION Rights. If any part of the Building is taken by
------
right of eminent domain or conveyed in lieu
thereof (a "Taking"), and such Taking prevents
Tenant from conducting its business in the
Premises in a manner reasonably comparable to that
conducted immediately before such Taking, Tenant
may terminate this Lease as of the data of such
Taking by giving written notice to Landlord within
90 days after the Taking, and Rent shall be
apportioned as of the date of such Taking. If
Tenant does not terminate this Lease, then Rent
shall be abated on a reasonable basis as to that
portion of the Premises rendered untenantable by
the Taking.
b. Taking - Landlord's Rights. If any
--------------------------
material portion, but less than all, of the
Building becomes subject to a Taking, or if
Landlord is required to pay any of the proceeds
received for a Taking to Landlord's Mortgagee,
then this Lease, at the option of Landlord,
exercised by written notice to Tenant within 120
days after such Taking, shall terminate and Rent
shall be apportioned as of the date of such
Taking. If Landlord does not so terminate this
Lease then this Lease will continue, but if any
portion of the Premises has been taken, Basic
Rental shall xxxxx as provided in the last
sentence of Section 14.a.
c. Award. If any Taking occurs, then
-----
Landlord shall receive the entire award or other
compensation for the Land, the Building, and other
improvements taken, and Tenant may separately
pursue a claim against the condemnor for the value
of Tenant's personal property which Tenant is
entitled to remove under this Lease, moving costs,
loss of business, and other claims it may have.
F I R E OR 15. a. Repair Estimate. If the Premises or
---------------
OTHER the building are damaged by fire or other
CASUALTY casualty (a Casualty"), Landlord shall, within 100
days after such Casualty, deliver to Tenant a
12
good faith estimate (the "Damage Notice") of the time
needed to repair the damage caused by such Casualty.
b. Landlord's and Tenant's Rights. If a material
------------------------------
portion of the Premises or the Building is damaged by
Casualty such that Tenant is prevented from conducting
its business in the Premises in a manner reasonably
comparable to that conducted immediately before such
Casualty and Landlord estimates that the damage caused
thereby cannot be repaired within 120 days after the
commencement of repair, Tenant may terminate this Lease
by delivering written notice to Landlord of its
election to terminate within 30 days after the Damage
Notice has been delivered to Tenant. If Tenant does not
terminate this Lease, then (subject to Landlord's
rights under Section 15.c.) Landlord shall repair the
Building or the Premises, as the case may be, as
provided below, and Rent for the portion of the
Premises rendered untenantable by the damage shall be
abated on a reasonable basis from the date of damage
until the completion of the repair, unless Tenant
caused such damage, in which case, Tenant shall
continue to pay Rent without abatement.
c. Landlord's Rights. If a Casualty damages a
-----------------
material portion of the Building, and Landlord makes a
good faith determination that restoring the Premises
would be uneconomical, or if Landlord is required to
pay any insurance proceeds arising out of the Casualty
to Landlord's Mortgagee, then Landlord may terminate
this Lease by giving written notice of its election to
terminate within 120 days after the Damage Notice has
been delivered to Tenant, and Basic Rental hereunder
shall be abated as of the date of the Casualty.
d. Repair Obligation. If neither party elects to
-----------------
terminate this Lease following a Casualty, then
Landlord shall, within a reasonable time after such
Casualty, commence to repair the Building and the
Premises and shall proceed with reasonable diligence to
restore the Building and Premises to substantially the
same condition as they existed immediately before such
Casualty; however, Landlord shall not be required to
repair or replace any part of the furniture,
equipment, fixtures, and other improvements which may
have been placed by, or at the request of, Tenant or
other occupants in the Building or the Premises, and
Landlord's obligation to repair or restore the Building
or Premises shall be limited to the extent of the
insurance proceeds actually received by Landlord for
the Casualty in question.
TAXES 16. Tenant shall be liable for all taxes levied or
assessed against personal property, furniture, or
fixtures placed by Tenant in the Premises. If any taxes
for which Tenant is liable are levied or assessed
against Landlord or Landlord's property and Landlord
elects to pay the same, or if the assessed value of
Landlord's property is increased by inclusion of such
personal property, furniture or fixtures and Landlord
elects to pay the taxes based on such increase, then
Tenant shall pay to Landlord, upon demand, that part of
such taxes for which Tenant is primarily liable
hereunder.
EVENT OF 17. Each of the following occurrences shall
DEFAULT constitute an "Event of Default":
13
a. Tenant's failure to pay Rent, or any other sums
due from Tenant to Landlord under the Lease (or any
other lease executed by Tenant for space in the
Building), when due and the continuance of such failure
for a period of fifteen (15) days following the date
of written notice from Landlord, provided that Landlord
shall not be required to deliver nor shall Tenant be
entitled to receive more than two (2) such notices
during any twelve (12) month period or a total of five
(5) such notices during the Term of this Lease;
b. Tenant's failure to perform, comply with, or
observe any other agreement or obligation of Tenant
under this Lease (or any other lease executed by Tenant
for space in the Building) and the continuance of such
failure for a period of thirty (30) days following the
date of written notice from Landlord;
c. The filing of a petition by or against Tenant
(the term "Tenant" shall include, for the purpose of
this Section 17.c., any guarantor of the Tenant's
obligations hereunder) (i) in any bankruptcy or other
insolvency proceeding; (ii) seeking any relief under
any state or federal debtor relief law; (iii) for the
appointment of a liquidator or receiver for all or
substantially all of Tenant's property or for Tenant's
interest in this Lease; or (iv) for the reorganization
or modification of Tenant's capital structure;
d. Tenant shall desert or vacate any portion of
the Premises; and
e. The admission by Tenant that it cannot meet its
obligations as they become due or the making by Tenant
of an assignment for the benefit of its creditors.
REMEDIES 18. Upon any Event of Default, Landlord may, in
addition to all other rights and remedies afforded
Landlord hereunder or by law or equity, take any of the
following actions:
a. Terminate this Lease by giving Tenant written
notice thereof, in which event, Tenant shall pay to
Landlord the sum of (i) all Rent accrued hereunder
through the date of termination, (ii) all amounts due
under Section 19.a., and (iii) an amount equal to (A)
the total Rent that Tenant would have been required
to pay for the remainder of the Term discounted to
present value at a per annum rate equal to the "Prime
Rate" as published on the date this Lease is
terminated by The Wall Street Journal, Midwest
Edition, in its listing of "Money Rates", minus (B)
the then present fair rental value of the Premises
for such period, similarly discounted; or
b. Terminate Tenant's right to possession of the
Premises without terminating this Lease by giving
written notice thereof to Tenant, in which event
Tenant shall pay to Landlord (i) all Rent and other
amounts accrued hereunder to the date of termination
of possession, (ii) all amounts due from time to time
under Section 19.a., and (iii) all Rent and other
sums required hereunder to be paid by Tenant during
14
the remainder of the Term, diminished by any net sums
thereafter received by Landlord through reletting the
Premises during such period. Landlord shall use
reasonable efforts to relet the Premises on such
terms and conditions as Landlord in its sole
discretion may determine (including a term different
from the Term, rental concessions, and alterations
to, and improvement of, the Premises); however,
Landlord shall not be obligated to relet the Premises
before leasing other portions of the Building.
Landlord shall not be liable for, nor shall Tenant's
obligations hereunder be diminished because of,
Landlord's failure to relet the Premises or to
collect rent due for such reletting. Tenant shall not
be entitled to the excess of any consideration
obtained by reletting over the Rent due hereunder.
Reentry by Landlord in the Premises shall not affect
Tenant's obligations hereunder for the unexpired
Term; rather, amounts due by Tenant, without the
necessity of Landlord's waiting until the expiration
of the Term. Unless Landlord delivers written notice
to Tenant expressly stating that it has elected to
terminate this Lease, all actions taken by Landlord
to exclude or dispossess Tenant of the Premises shall
be deemed to be taken under this Section 18.b. If
Landlord elects to proceed under this Section 18.b.,
it may at any time elect to terminate this Lease
under Section 18.a.
c. Additionally, without notice, Landlord may
alter locks or other security devices at the Premises
to deprive Tenant of access thereto, and Landlord
shall not be required to provide a new key or right
of access to Tenant.
PAYMENT BY 19. a. Payment by Tenant. Upon any Event of
-----------------
TENANT; Default, Tenant shall pay to Landlord all costs
NON-WAIVER incurred by Landlord (including court costs and
reasonable attorneys' fees and expenses) in (i)
obtaining possession of the Premises, (ii) removing
and storing Tenant's or any other occupant's
property, (iii) repairing, restoring, altering,
remodeling, or otherwise putting the Premises into
condition acceptable to a new tenant, (iv) if Tenant
is dispossessed of the Premises (including brokerage
commissions, cost of tenant finish work, and other
costs incidental to such reletting), (v) performing
Tenant's obligations which Tenant failed to perform,
and (vi) enforcing, or advising Landlord if, its
rights, remedies, and recourses arising our of the
Event of Default.
b. No Waiver. Landlord's acceptance of Rent
---------
following an Event of Default shall not waive
Landlord's rights regarding such Event of Default. No
waiver by Landlord of any violation or breach of any of
the terms contained herein shall waive Landlord's
rights regarding any future violation of such term or
violation of any other term.
SURRENDER 20. No act by Landlord shall be deemed an
OF PREMISES acceptance of a surrender of the Premises, and no
agreement to accept a surrender of the Premises shall
be valid unless the same is made in writing and signed
by Landlord. At the expiration or termination of this
Lease, Tenant shall deliver to Landlord the Premises
with all improvements located thereon in good repair
and condition, reasonable wear and tear (and
condemnation and fire or other casualty damage not
caused by Tenant, as to
15
which Sections 14 and 15 shall control) excepted, and
shall deliver to Landlord all keys to the Premises.
Provided that Tenant has performed all of its
obligations hereunder, Tenant may remove all unattached
trade fixtures, furniture, the special floor in the
Secured Computer Area and personal property placed in
the Premises by Tenant (but Tenant shall not remove any
such item which was paid for, in whole or in part, by
Landlord) but only as permitted in the Final Plans.
Additionally, Tenant shall remove such alterations,
additions, improvements, trade fixtures, equipment,
wiring and furniture as Landlord may request. Tenant
shall repair all damage caused by such removal and,
with respect to the special floor in the Secured
Computer Area, return such area in good condition and
ready for installation of carpet. All items not so
removed shall be deemed to have been abandoned by
Tenant and may be appropriated, sold, stored,
destroyed, or otherwise disposed of by Landlord without
notice to Tenant and without any obligation to account
for such items. The provisions of this Section 20 shall
survive the end of the Term.
HOLDING 21. If Tenant fails to vacate the Premises at
OVER the end of the Term, then Tenant shall be a
tenant at will and, in addition to all other damages
and remedies to which Landlord may be entitled for such
holding over, Tenant shall pay, in addition to the
other Rent, a daily Basic Rental equal to the greater
of (a) 200% of the daily Basic Rental payable during
the last month of the Term, or (b) the prevailing
rental rate in the Building for similar space.
CERTAIN 22. Provided that the exercise of such rights does
RIGHTS not unreasonably interfere with Tenant's occupancy of
RESERVED BY the Premises, Landlord shall have the following rights:
LANDLORD
a. To decorate and to make inspections, repairs,
alterations, additions, changes, or improvements,
whether structural or otherwise, in and about the
Building, or any part thereof; for such purposes, to
enter upon the Premises and, during the continuance
of any such work, to temporarily close doors,
entryways, public space, and corridors in the
Building; to interrupt or temporarily suspend
Building services and facilities; and to change the
arrangement and location of entrances or passageways,
doors and doorways, corridors, elevators, stairs,
restrooms, or other public parts of the Building;
provided, however, that Landlord shall be permitted
to enter the raised floor secured computer area (the
"Secured Computer Area") only in an emergency.
b. To take such reasonable measures as Landlord
deems advisable for the security of the Building and
its occupants, including without limitation searching
all persons entering or leaving the Building;
evacuating the Building for cause, suspected cause,
or for drill purposes; temporarily denying access to
the Building in emergency situations; subject,
however, to Tenant's right to enter when the Building
is closed after normal business hours 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, whether or not during normal business
hours, identify themselves to a
16
security officer by registration or otherwise and
that such persons establish their right to enter or
leave the Building;
c. To change the name by which the Building is
designated; and
d. Upon 24 hours notice to enter the Premises to
show the Premises to prospective purchasers, lenders,
or tenants
e. Landlord and Tenant acknowledge that Landlord
shall have access to the Secured Computer Area only
in an emergency as determined by Landlord in its sole
discretion. Landlord agrees to designate to Tenant
one on-site maintenance representative and one
supervisor for security screening by Tenant for such
access to the Secured Computer Area. Tenant agrees to
approve such individuals or such substitutes and
successors mutually agreeable to Landlord and Tenant
and provide such individuals with the necessary
security clearances for access.
MISCELLAN- 23. a. Landlord Transfer. Landlord may transfer,
-----------------
EOUS in whole or in part, the Building and any of its rights
under this Lease. If Landlord assigns its rights under
this Lease, then Landlord shall thereby be released
from any further obligations hereunder.
b. Landlord's Liability. The liability of
--------------------
Landlord to Tenant for any default by Landlord under
the terms of this Lease shall be limited to Tenant's
actual direct, but not consequential, damages therefor
and shall be recoverable from the interest of Landlord
in the Building and the Land, and Landlord shall not be
personally liable for any deficiency. This section
shall not be deemed to limit or deny any remedies which
Tenant may have in the event of default by Landlord
hereunder which do not involve the personal liability
of Landlord.
c. Force Majeure. Other than for Tenant's
-------------
monetary obligations under this Lease and obligations
which can be cured by the payment of money (e.g.,
maintaining insurance, whenever a period of time is
herein prescribed for action to be taken by either
party hereto, such party shall not be liable or
responsible for, and there shall be excluded from the
computation for any such period of time, any delays due
to strikes, riots, acts of God, shortages of labor or
materials, war, governmental laws, regulations or
restrictions, or any other causes of any kind
whatsoever which are beyond the control of such party.
d. Brokerage. Landlord and Tenant each warrant
---------
to the other that it has not dealt with any broker or
agent in connection with the negotiation or execution
of this Lease except The Xxxxxxx Group, Inc.
("Broker"). Landlord will pay all commissions due
Broker pursuant to a separate written agreement with
Broker. Tenant and Landlord shall each indemnify the
other against all costs, expenses, attorneys' fees, and
other liability for commissions or other compensation
claimed by any broker or agent claiming the same by,
through, or under the indemnifying party.
17
e. Estoppel Certificates. From time to time,
---------------------
either party shall furnish to any party designated by
the other, within ten days after request therefor, a
certificate confirming and containing such factual
certifications and representations as to this Lease as
reasonably requested.
f. Notices. All notices and other communications
-------
given pursuant to this Lease shall be in writing and
shall be (i) mailed by first class, United States Mail,
postage prepaid, certified, with return receipt
requested, and addressed to the parties hereto at the
address specified in the Basic Lease Information, (ii)
hand delivered to the intended address, or (iii) sent
by prepaid telegram, cable, facsimile transmission, or
telex followed by a confirmatory letter. Notice sent
by certified mail, postage prepaid, shall be effective
three business days after being deposited in the
United States Mail; all other notices shall be
effective upon delivery to the address of the
addressee. The parties hereto may change their
addresses by giving notice thereof to the other in
conformity with this provision.
g. Separability. If any clause or provision of
------------
this Lease is illegal, invalid, or unenforceable under
present or future laws, then the remainder of this
Lease shall not be affected thereby and in lieu of such
clause or provision, there shall be added as a part of
this Lease a clause or provision as similar in terms to
such illegal, invalid, or unenforceable clause or
provision as may be possible and be legal, valid, and
enforceable.
h. Amendments: and Binding Effect. This Lease may
------------------------------
not be amended except by instrument in writing signed
by Landlord and Tenant. No provision of this Lease
shall be deemed to have been waived by Landlord unless
such waiver is in writing signed by Landlord, and no
custom or practice which may evolve between the parties
in the administration of the terms hereof shall waive
or diminish the right of Landlord to insist upon the
performance by Tenant in strict accordance with the
terms hereof. The terms and conditions contained in
this Lease shall inure to the benefit of and be binding
upon the parties hereto, and upon their respective
successors in interest and legal representatives,
except as otherwise herein expressly provided. This
Lease is for the sole benefit of Landlord and Tenant,
and, other than Landlord's Mortgagee, no third party
shall be deemed a third party beneficiary hereof.
i. Quiet Enjoyment. Provided Tenant has performed
---------------
all of the terms and conditions of this Lease to be
performed by Tenant, Tenant shall peaceably and quietly
hold and enjoy the Premises for the Term, without
hindrance from Landlord or any party claiming by,
through, or under Landlord, subject to the terms and
conditions of this Lease.
j. Joint and Several Liability. If there is more
---------------------------
than one Tenant, then the obligations hereunder imposed
upon Tenant shall be joint and several. If there is a
guarantor of Tenant's obligations hereunder, then the
obligations hereunder imposed upon Tenant shall be the
joint and several obligations of Tenant and such
guarantor, and Landlord need not first proceed against
Tenant before proceeding against such guarantor nor
shall any
18
such guarantor be released from its guaranty, for any
reason whatsoever.
k. Captions. The captions in this Lease are for
--------
convenience of reference only, and do not limit or
enlarge the terms and conditions of this Lease.
l. No Merger. There shall he no merger of the
---------
leasehold estate hereby created with the fee estate in
the Premises or any part thereof if the same person
acquires or holds, directly or indirectly, this Lease
or any interest in this Lease and the fee estate in the
leasehold Premises or any interest in such fee estate.
m. No Offer. The submission of this Lease to
--------
Tenant shall not be construed as an offer, nor shall
Tenant have any rights under this Lease unless Landlord
executes a copy of this Lease and delivers it to
Tenant.
n. Exhibits. All exhibits and attachments attached
--------
hereto are incorporated herein by this reference.
Exhibit A - Outline of Premises
Exhibit B - Building Rules and Regulations
Exhibit C - Parking
Exhibit D - Tenant Finish Work: Allowance
Exhibit E - Extension Option
o. Entire Agreement. This Lease constitutes the
----------------
entire agreement between Landlord and Tenant regarding
the subject matter hereof and supersedes all oral
statements and prior writings relating thereto. Except
for those set forth in this Lease, no representations
warranties, or agreements have been made by Landlord or
Tenant to the other with respect to this Lease or the
obligations of Landlord or Tenant in connection
therewith.
p. Consent of Lender. This Lease is contingent
-----------------
upon the written approval of the provisions of this
Lease by the holder of the first deed of trust secured
by the Property, said approval to be given within ten
(10) days of Landlord's execution of this Lease. If the
approval is not given within the ten (10) day period,
then this Lease shall be deemed null and void with
neither party having further obligation hereunder.
LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED
WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S
INTENDED COMMERCIAL PURPOSE, AND TENANT'S OBLIGATION TO
PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE CONDITION
OF THE PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS
OBLIGATIONS HEREUNDER, AND, EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, TENANT SHALL CONTINUE TO PAY
THE RENT, WITHOUT ABATEMENT, SETOFF, DEDUCTION,
NOTWITHSTANDING ANY BREACH BY LANDLORD OF
19
ITS DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR
IMPLIED.
DATED as of the date first above written.
LANDLORD TENANT
Charter Communications DIGITAL BROADCAST NETWORK
Entertainment I, L.P., a Delaware CORPORATION, a Missouri corporation
limited partnership
By: CCA Acquisition Corp.,
general partner
By: /s/ M. Xxxxxxx Xxxxxxxxx
-------------------------------
Printed Name: M. Xxxxxxx Xxxxxxxxx
---------------------
Title: Vice President Sr. Counsel
---------------------------- By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Printed Name: Xxxxxxx X. Xxxxxxx
-------------------
Title: President
--------------------------
20
EXHIBIT "A"
OUTLINE OF PREMISES
[FLOOR PLAN APPEARS HERE]
EXHIBIT B
BUILDING RULES AND REGULATIONS
------------------------------
The following rules and regulations shall apply to the Premises, the
Building, the parking garage associated therewith, the Land and the
appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, and other
similar areas shall not be obstructed by tenants or used by any tenant for
purposes other than ingress and egress to and from their respective leased
premises and for going from one to another part of 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 deposited therein. Damage resulting
to any such fixtures or appliances from misuse by a tenant or its agents,
employees or invitees, shall be paid by such tenant.
3. No signs, advertisements or notices shall be painted or affixed on
or to any windows or doors or other part of the Building without the prior
written consent of Landlord. No nails, hooks or screws shall be driven or
inserted in any part of the Building except by Building maintenance
personnel. No curtains or other window treatments shall be placed between
the glass and the Building standard window treatments.
4. Landlord shall provide all door locks in each tenant's leased
premises, at the cost of such tenant, and no tenant shall place any
additional door locks in its leased premises without Landlord's prior
written consent. Landlord shall furnish to each tenant a reasonable number
of keys to such tenant's leased premises, at such tenant's cost, and no
tenant shall make a duplicate thereof. See Lease Section 22(e).
5. Landlord may prescribe weight limitations and determine the
locations for safes and other heavy equipment or items, which shall in all
cases be placed in the Building so as to distribute weight in a manner
acceptable to Landlord which may include the use of such supporting devices
as Landlord may require. The current floor load limits are 75/lbs. per
square foot. All damages to the Building caused by the installation or
removal of any property of a tenant, or done by a tenant's property while
in the Building, shall be repaired at the expense of such tenant.
6. Corridor doors, when not in use, shall be kept closed. Nothing
shall be swept or thrown into the corridors, halls, elevator shafts or
stairways. No birds or animals shall be brought into or kept in, on or
about any tenant's leased premises. No portion of any tenant's leased
premises shall at any time be used or occupied as sleeping or lodging
quarters.
7. Tenant shall cooperate with Landlord's employees in keeping its
leased premises neat and clean. Tenants shall not employ any person for the
purpose of such cleaning other than the Building's cleaning and maintenance
personnel.
8. To ensure orderly operation of the Building, no ice, mineral or
other water, towels, newspapers, etc. shall be delivered to any leased area
except by persons approved by Landlord.
9. Tenant shall not 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.
10. Other than Tenant Generators as set forth in Lease Section
4(c)(iv), no machinery of any kind (other than normal office equipment)
shall be operated by any
Exhibit B - Page 1 of 2
tenant on its leased area without Landlord's prior written consent, nor
shall any tenant use or keep in the Building any flammable or explosive
fluid or substance.
11. Landlord will not be responsible for lost or stolen personal
property, money or jewelry from tenant's leased premises or public or
common areas regardless of whether such loss occurs when the area is locked
against entry or not.
12. No vending or dispensing machines, of any kind may be maintained
in any leased premises without the prior written permission of Landlord.
13. AR mail chutes located in the Building shall be available for use
by Landlord and all tenants of the Building according to the rules of the
United States Postal Service.
Exhibit B - Page 2 of 2
EXHIBIT C
PARKING
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Tenant be permitted to use 105 undesignated vehicular parking spaces
in the parking lot or other parking facilities associated with the Building
(the "Parking Facility"). The Tenant agrees to comply with the parking
rules and regulations that the Landlord provides to the Tenant. The rules
and regulations are subject to adjustment by the Landlord.
Exhibit C - Page 1 of 1
EXHIBIT D
TENANT FINISH-WORK ALLOWANCE
----------------------------
1. Tenant will have prepared the Working Drawings for the Premises.
Landlord will review and approve the Working Drawings within seven (7) days
following receipt thereof. As used herein, "Working Drawings" shall mean
the final working drawings approved by Landlord, as amended from time to
time by any approved changes thereto, and "Work" shall mean all
improvements to be constructed in accordance with and as indicated on the
Working Drawings. Approval by Landlord of the Working Drawings shall not be
a representation or warranty of Landlord that such drawings are adequate
for any use, purpose, or condition, or that such drawings comply with any
applicable law or code, but shall merely be the consent of Landlord to the
performance of the Work. Tenant and Landlord shall sign the Working
Drawings to evidence their review and approval thereof. All changes in the
Work must receive the prior written approval of Landlord, and in the event
of any such approved change Tenant shall, upon completion of the Work,
furnish Landlord with an accurate, reproducible "as-built" plan (e.g.,
sepia) of the improvements as constructed, which plan shall be incorporated
into this Lease by this reference for all purposes.
2. Tenant will cause the Work to be performed by contractors and
subcontractors approved in writing by Landlord.
3. If a delay in the performance of the Work occurs (a) because Tenant
does not timely approve the Working Drawings; (b) because of any change by
Tenant to the Working Drawings, (c) because of any specification by Tenant
of materials or installations in addition to or other than Landlord's
standard finish-out materials, or (d) if Tenant, any contractor or
subcontractor, or Tenant's agents otherwise delays completion of the Work,
then, notwithstanding any provision to the contrary in this Lease, Tenant's
obligation to pay Basic Rental and Tenant's share of Excess shall commence
on the scheduled Commencement Date.
4. Tenant shall bear the entire cost of performing the Work
(including, without limitation, space planning and construction document
fees, design of the Work and preparation of the Working Drawings, costs of
construction labor and materials, electrical usage during construction,
additional janitorial services, approved signage, related taxes and
insurance costs, all of which costs are herein collectively called the
"Total Construction Costs") in excess of the Construction Allowance
(hereinafter defined). Upon approval of the Working Drawings and selection
of a contractor, Tenant shall promptly (a) execute a work order agreement
prepared by Landlord which identifies such drawings, itemizes the Total
Construction Costs and sets forth the Construction Allowance, and (b) pay
to Landlord 50% of the amount by which the estimated Total Construction
Costs exceed the Construction Allowance. Tenant shall pay to Landlord,
within 10 days after Landlord's delivery to Tenant of an appropriate
invoice, an amount equal to the Total Construction Costs (as adjusted for
any approved changes to the Work), less (i) the amount of the payments
already made by Tenant, (H) the amount of the Construction Allowance, and
(iii) the cost reasonably estimated by Landlord for completing all "punch
list" items; finally, upon completion of the punch list items, Tenant shall
pay to Landlord the costs incurred in completing the same.
5. Landlord shall provide to Tenant a construction allowance (the
"Construction Allowance") equal to $377,100; however, if Tenant or its
agent is managing the performance of the Work, then Tenant shall not become
entitled to full credit for the Construction Allowance until the Work has
been substantially completed and Tenant has caused to be delivered to
Landlord (i) all invoices from contractors, subcontractors, and suppliers
evidencing the cost of performing the Work, together with lien waivers from
such parties, and a consent of the surety to the finished Work (if
applicable) and (if) a certificate of occupancy from the appropriate
governmental authority, if applicable to the Work, or evidence of
governmental inspection and approval of the Work.
Exhibit D - Page 1 of 2
6. Landlord or its affiliate shall supervise the Work, make disbursements
required to be made to the contractor, and act as a liaison between the
contractor and Tenant and coordinate the relationship between the Work, the
Building, and the Building's systems. In consideration for Landlord's
construction supervision services, Tenant shall pay to Landlord a construction
supervision fee equal to three percent (3%) of the Total Construction Casts -
which may be deducted from the Construction Allowance.
7. To the extent not inconsistent with this Exhibit, Section 8a. of this
Lease shall govern the performance of the Work and the Landlord's and Tenant's
respective rights and obligations regarding the improvements installed pursuant
thereto.
8. Notwithstanding anything on this Exhibit to the contrary, the
Construction Allowance shall be made available to the Tenant in two (2) stages,
the first stage shall involve the disbursement of twenty percent (20%) of the
total allowance upon completion of Phase I as defined in the Final Plans, and
the remaining eighty percent (80%) shall be disbursed upon completion of Phase
II as certified by Tenant and upon delivery to Landlord of a detailed breakdown
of the parties to receive such funds and the delivery of appropriate lien
waivers therefor.
Exhibit D - Page 2 of 2
EXHIBIT E
EXTENSION OPTION
----------------
1. Provided no Event of Default exists at the time of such election, Tenant
may renew this Lease for one (1) additional period of five (5) years on the same
terms provided in this Lease (except as set forth below), by delivering written
notice of ("Tenant's Notice") the exercise thereof to Landlord not later than
six (6) months prior to the end of the initial Term. On or before the
commencement date of the extended Term, Landlord and Tenant shall execute an
amendment to this Lease extending the Term on the same terms provided in this
Lease, except as follows:
(a) The Basic Rental payable for each month during each such extended Term
shall be the greater of (a) the prevailing rental rate in the Building and other
comparable buildings in the metropolitan area in which the Building is located
at the commencement of such extended Term, for space of equivalent quality,
size, utility and location, with tile length of the extended Term to be taken
into account, or (b) the Basic Rental which would otherwise be payable hereunder
for the first full calendar month of such extended Term;
(b) Tenant shall have no further renewal options unless expressly granted
by Landlord in writing; and
(c) Landlord shall lease to Tenant the Premises in their then-current
condition, and Landlord shall not provide to Tenant any allowances (e.g., moving
allowance, construction allowance, and the like) or other tenant inducements.
2. Within thirty (30) days following delivery of Tenant's Notice, Landlord
shall deliver to Tenant a written notice ("Landlord's Notice") specifying the
Basic Rental rate per square foot per annum for the applicable additional term
of five (5) years. Tenant shall have fifteen (15) days following delivery of
Landlord's Notice to notify Landlord in writing ("Tenant's Renewal Notice") of
(i) Tenant's exercise of its right to renew the Lease at the Basic Rental rate
proposed by Landlord, or (ii) Tenant's election not to exercise its right to
renew the Lease. Tenant's failure to timely deliver Tenant's Renewal Notice
shall be deemed acceptance by Tenant of the Basic Rental rate proposed by
Landlord.
3. Tenant's rights under this Exhibit shall terminate if (i) this Lease or
Tenant's right to possession of the Premises is terminated, (ii) Tenant assigns
any of its interest in this Lease or sublets any portion of the Premises, or
(iii) Tenant falls to timely exercise its option under this Exhibit, time being
of the essence with respect to Tenant's exercise thereof.
Exhibit E - Page 1 of 1
