EXHIBIT 10.6
LEASE AGREEMENT
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THIS LEASE is executed as of the 24th day of May, 2002 (the "Effective
Date"), by and between DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited
partnership, d/b/a Duke Realty of Indiana Limited Partnership ("Landlord"), and
SAVVIS COMMUNICATIONS CORPORATION, a Missouri corporation ("Tenant").
WITNESSETH:
ARTICLE 1 - LEASE OF LEASED PREMISES
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Section 1.01. Basic Lease Provisions and Definitions. The addresses of
the parties are as set forth in A below, and capitalized terms have the meanings
ascribed to such terms in B through X below or as elsewhere set forth in this
Lease:
A. Address for invoices and notices:
Landlord: Duke Realty Limited Partnership
d/b/a Duke Realty of Indiana Limited Partnership
Attn: Senior Vice President - St. Louis Operations
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, XX 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Tenant: Prior to the Commencement Date:
Savvis Communications Corporation
Attention: Xxxxxxx Xxxxxx
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, XX 00000
Fax: ______________________
After the Commencement Date:
Savvis Communications Corporation
Attention: Xxxxxxx Xxxxxx
#0 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxxx, XX 00000
Fax: ______________________
In all cases with a copy to :
Savvis Communications Corporation
Attention: General Counsel
00000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
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Address for rental and other payments:
Duke Realty Limited Partnership
d/b/a Duke Realty of Indiana Limited Partnership
00 Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
B. Broker(s): Duke Realty Limited Partnership representing Landlord and Xxxx
Xxxxxxx of Greystone Partners, Inc. representing Tenant.
C. Appurtenant Areas: The areas of the Land outside any buildings located on
the Land from time to time, together with all improvements, structures and
facilities located thereon, other than Tenant Facilities (as defined in
Section 2.04) located outside the Building, including, by way of
illustration and not limitation, sidewalks, driveways, curbs, parking
areas, landscaped areas, drainage strips, storm water detention/retention
areas, and utility lines not dedicated to public agencies or utility
companies, and other areas as may be designated from time to time by
Landlord as part of the Appurtenant Areas. As of the Commencement Date, the
Appurtenant Areas shall be deemed to include Lot B and Lot C depicted on
EXHIBIT A attached hereto and made a part hereof.
D. Declaration: That certain Declaration of Trust Indenture for Hawthorn
Office Park recorded in Book 7474 on Page 146 of the records of the St.
Louis County Recorder of Deeds, as amended and as may be amended from time
to time.
E. Delivery Date Condition: The "AS IS" "WHERE IS" condition of the Leased
Premises, the FF&E and the Appurtenant Areas as of the Effective Date,
subject to the performance of Landlord's Work (as defined in Section 2.01),
and provided that the Leased Premises are free and clear of all tenants,
occupants and claims of any right of tenancy or occupancy by third parties.
F. Effective Date: As of May 24, 2002.
G. FF&E: means the furniture, fixtures and equipment in or serving the
Building described on EXHIBIT B attached hereto and made a part hereof, to
the extent the same exist and are located within the Building as of the
Commencement Date.
H. Guarantor(s): None
I. Land: the land upon which the Building and appurtenant improvements are
located as more particularly described on EXHIBIT C attached hereto and
made a part hereof.
J. Lease Term: Fifteen (15) years, subject to extension as provided in Section
15.13.
K. Leased Premises: The building currently and commonly known as of the
Effective Date of this Lease as #0 Xxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx
00000 (the "Building"), but exclusive of the roof.
L. Annual Base Rent:
Years 1-5 $2,301,000.00 per year
Years 6-10 $2,644,200.00 per year
Years 11-15 $3,042,000.00 per year
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M. Monthly Rental Installments:
Months 1-60 $ 191,750.00 per month
Months 61-120 $ 220,350.00 per month
Months 121-180 $ 253,500.00 per month
N. Operating Expenses: the amount of (i) all Taxes; (ii) all of Landlord's
costs and expenses paid or incurred in insuring the Building (subject to
Section 9.03) and (iii) all of Landlord's costs and expenses paid or
incurred in operating, repairing, replacing and maintaining the Appurtenant
Areas in good condition and repair for a particular calendar year including
by way of illustration and not limitation: all insurance premiums and
deductibles; water, sewer, electrical and other utility charges; service
and other charges incurred in the repair, replacement, operation and
maintenance of the Appurtenant Areas; tools and supplies; repair costs;
landscape maintenance costs; license, permit and inspection fees; supplies,
costs, wages and related employee benefits payable for the management,
maintenance and operation of the Appurtenant Areas; maintenance, repair and
replacement of the driveways, parking and sidewalk areas (including snow
and ice removal), landscaped areas, and lighting; maintenance and repair
costs, dues, fees and assessments incurred under (x) any covenants, trust
indenture, reciprocal easement agreements or owners association that are of
record as of the Effective Date, including, without limitation the
Declaration and (y) the Indenture, as defined in Section 15.20,
(collectively the "Covenants") and (iv) a management fee of one percent
(1%) of Minimum Annual Rent and of the Operating Expenses set forth above
and elsewhere in this Lease. Operating Expenses shall include the cost of
capital improvements to the Appurtenant Areas and, if not the
responsibility of Tenant as otherwise provided in this Lease, to the
Building, but only (a) to the extent such capital improvements are made for
the purpose of reducing Operating Expenses and only to the extent of such
savings, if any, or (b) to comply with any law, code, ordinance, rule,
regulation or order not in effect or applicable to the Building or
Appurtenant Areas as of the Commencement Date. The cost of any such capital
improvements shall be amortized over the useful life of such improvement
(as determined in accordance with generally accepted accounting
principles), and only the amortized portion relative to a particular year
shall be included in Operating Expenses for such year. Until the occurrence
of the Phase II Development Completion (as defined in Section 15.20), the
cost per year of the repair and maintenance of the existing storm water
detention/retention pond located upon the Land included in Operating
Expenses for any year shall not exceed Fifteen Thousand Dollars
($15,000.00).
Operating Expenses shall not include the following: (a) capital
improvements, except to the extent permitted above; (b) depreciation on the
FF&E (c) interest payments and financing costs associated with financing of
the Building and/or the Land or any improvements thereon; (d) ground lease
payments; (e) repairs and replacements for which and to the extent that
Landlord has been reimbursed by insurance and /or condemnation proceeds
and/or paid pursuant to warranties; (f) advertising and promotional
expenses; (g) late fees and finance charges in late payments not
attributable to the acts or omissions of Tenant; (h) overhead not properly
allocable to the Building or the Land; (i) costs of environmental
remediation not attributable to the acts or omissions of Tenant or to a
violation of Tenant's obligations under Article 14 of this Lease; (j) costs
representing amounts paid to an affiliate of Landlord for services or
materials which are in excess of the amounts which would have been paid in
the absence of such relationship; (k) in-Building security services unless
expressly requested by Tenant; (l) assessments under any Covenants to the
extent they include costs which, if incurred by Landlord, would, pursuant
to the terms hereof, not be includable in Operating Expenses; (m) special
assessments imposed for capital improvements under the Declaration arising
out of the development of the Phase II Development; (n) any fees or charges
that Landlord is entitled to collect from third parties under or pursuant
to any of the Covenants.
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O. Permitted Use: General office purposes and such lawful uses and purposes as
are accessory thereto and necessary for Tenant or its Permitted Transferees
to conduct its business at the Leased Premises which may include the
operation of a network operations center and/or computer room serving
Tenant's business.
P. Personal Property Taxes: all personal property taxes assessed against and
levied upon the FF&E and/or against the trade fixtures, furnishings,
equipment and all personal property of Tenant located at or contained in
the Leased Premises.
Q. Phase II Property: the real estate depicted as Lot B on EXHIBIT A attached
hereto and made a part hereof, provided that the dimensions, configuration
and location of the Phase II Property, prior to the commencement of the
Phase II Development, as defined in Section 15.20, may be revised.
R. Real Estate Taxes: any form of real estate tax or assessment (but not
including assessments under the Covenants) or service payments in lieu
thereof, and any license fee, commercial rental tax, improvement bond or
other similar charge or tax imposed upon the Land and the Building or upon
Landlord relative to rental or any other charge payable by Tenant to
Landlord under this Lease together with costs and expenses of contesting
the validity or amount of real estate taxes which at Landlord's option may
be calculated as if such contesting work had been performed on a contingent
fee basis (whether charged by Landlord's counsel or representative;
provided, however, that said fees are reasonably comparable to the fees
charged for similar services by others not affiliated with Landlord, but in
no event shall fees exceed the tax savings realized), but not including (i)
any estate, inheritance, succession, transfer, gift, corporate franchise,
excise, or capital stock tax, personal or corporate net income or profits
taxes imposed on Landlord; (ii) any real estate transfer taxes relative to
the sale or refinancing of all or a part of the Land or improvements
thereon (iii) special assessments imposed as a condition to the development
of the Phase II Development. Until such time as the Phase II Property is
subdivided and assessed as a separate tax parcel, Real Estate Taxes for
purposes of inclusion in Operating Expenses shall be all Real Estate Taxes
attributable to the Building and to other improvements on the Land as they
exist on the Effective Date plus capital improvements that Landlord is
permitted to include in Operating Expenses under Section 1.02 N and forty
percent (40%) of the real estate taxes attributable to the Land exclusive
of the Building and other improvements thereon.
S. Rentable Area: 156,000 square feet (which the parties deem to be true and
correct).
T. Security Deposit: Irrevocable Unconditional Letter of Credit in the amount
set forth in Article 4.
U. Surplus Space: that portion of the Leased Premises not initially occupied
by Tenant consisting of floors four and five; provided that at such time as
any portion of the Surplus Space is occupied by Tenant, such portion shall
cease to be Surplus Space for purposes of this Lease.
V. Target Commencement Date: July 1, 2002.
W. Taxes: Real Estate Taxes and that portion of Personal Property Taxes levied
on the FF&E, together with an management fee equal to one percent (1%) of
the amount thereof.
X. Tenant's Proportionate Share: 100%.
Section 1.02. Leased Premises; FF&E Appurtenant Areas. Landlord hereby
leases to Tenant and Tenant leases from Landlord, under the terms and conditions
herein, the Leased Premises, and
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Landlord hereby grants and Tenant hereby accepts (i) a license coupled with an
interest to use the FF&E during the Lease Term at no additional charge which
license is not revocable prior to the expiration or earlier termination of this
Lease, (ii) a right, coupled with an interest, for the non-exclusive right to
park passenger vehicles upon the existing parking lot located upon the Land as
depicted on EXHIBIT A attached hereto and made a part hereof (the "Parking
Area"), which right is not revocable prior to the expiration or earlier
termination of this Lease and (iii) the right coupled with an interest (which
right is not revocable prior to the expiration or earlier termination of this
Lease) to use the Appurtenant Areas for their intended purposes and also those
portions of the Appurtenant Areas immediately adjacent to the Building for the
purpose of performing Tenant's obligations under Section 7.02 (such as
maintaining Building systems located outside of the Building) or exercising its
right to have access to and to use facilities and equipment that are located in
the Appurtenant Areas and are for the exclusive use and benefit of the Leased
Premises and Tenant (which Landlord and Tenant agree include, as of the
Effective Date, the items described and shown on Exhibit A-1, which areas and
facilities as so shown on Exhibit A-1 may not be relocated without the prior
written consent of Tenant and which are sometimes referred to in this Lease as
the "Appurtenant Facilities"). Notwithstanding anything to the contrary set
forth in this Lease, neither Landlord nor any owner of the Land may grant
parking rights as to the Parking Area, greater than or to persons other than as
provided or permitted under the Declaration or, when recorded, the Indenture.
ARTICLE 2 - TERM AND POSSESSION
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Section 2.01. Term. The Lease Term shall be for the period of time set
forth in the Basic Lease Provisions and shall commence on earlier to occur of
the date (the "Commencement Date") that (a) is the later to occur of (i) the
Target Commencement Date and (ii) Substantial Completion (as hereinafter
defined) of Landlord's Work (as hereinafter defined); (b) the date Tenant takes
beneficial occupancy of the Leased Premises. For purposes of this Lease (1)
"Substantial Completion" (or any grammatical variation thereof) shall mean
completion of construction of Landlord's Work to a stage of completion such that
any incomplete items of Landlord's Work will not prevent Tenant from obtaining a
temporary certificate of occupancy for the Leased Premises exclusive of the
fifth (5th) floor (Tenant acknowledging, however, that even if Landlord has
Substantially Completed Landlord's Work, Tenant may not be able to obtain an
occupancy permit for the Leased Premises because of the (a) need for completion
of all or a portion of Tenant's Work, as defined in Section 2.02 or (b) Tenant's
failure to obtain any license required for a certificate of occupancy
(collectively, "Tenant Requirements") (2) "Tenant Delay" shall mean any delay in
the completion of Landlord's Work attributable to Tenant, including, without
limitation, the performance of any other work in the Leased Premises by any
person, firm or corporation employed by or on behalf of Tenant, or any failure
to complete or delay in completion of such work, and any other act or omission
of Tenant. Notwithstanding anything to the contrary contained in this Section
2.01, if Substantial Completion of the Landlord's Work is delayed beyond the
Target Commencement Date as a result of Tenant Delay, then, for purposes of
determining the Commencement Date, Substantial Completion of Landlord's Work
shall be deemed to have occurred on the date that Substantial Completion of
Landlord's Work would have occurred but for such Tenant Delay. Without limiting
the foregoing, Landlord shall use commercially reasonable speed and diligence to
Substantially Complete Landlord's Work on or before the Target Commencement
Date. Promptly following the Commencement Date, Tenant shall execute Landlord's
Letter of Understanding, acknowledging (x) the Commencement Date of this Lease,
and (y) except for any items of Landlord's Work not yet completed, which
Landlord shall complete as soon as reasonably possible thereafter, that Tenant
has accepted the Leased Premises. Subject to Tenant's rights under Section 2.02,
if Tenant takes possession of and occupies the Leased Premises, Tenant shall be
deemed to have accepted the Leased Premises and that the condition of the Leased
Premises and the Building was at the time satisfactory and in conformity with
the provisions of this Lease in all respects, subject to any items of Landlord's
Work not yet completed. Notwithstanding anything contained in this Lease to the
contrary, Tenant's inability to obtain a certificate of occupancy on account of
the condition of the fifth (5th) floor of the Building shall not delay the
Commencement Date.
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Section 2.02. Early Entry. Beginning on the date that Landlord acquires
title to the Land and the Building and continuing until the Commencement Date
("Advance Occupancy Period"), Tenant shall have the right and privilege of going
into the Leased Premises to complete interior decoration work, shelving,
fixturing and fitting and to prepare the Leased Premises for Tenant's occupancy,
including performing the work set forth on EXHIBIT E attached hereto and made a
part hereof and any other work that is not Landlord's Work (collectively,
"Tenant's Work"), all of which work shall be performed in a good and
professional manner and in compliance with all applicable laws, codes and
ordinances, provided, however, that its schedule in so doing shall be
communicated to Landlord and the approval of Landlord secured so as not to
interfere with any work of Landlord being carried on at the time (including
Landlord's Work, as defined in Section 2.03); Tenant's Work if not performed by
DCLP, as defined in Section 7.04 shall be performed only by Approved Contractors
(as defined in Section 7.04) and provided further; however, that Landlord shall
have no responsibility or liability whatsoever for any loss or damage to any of
Tenant's leasehold improvements, fixtures, equipment, inventory or any other
materials installed or left in the Leased Premises. During the Advance Occupancy
Period, all terms and provisions of this Lease shall apply except for the
payment of the Monthly Rental Installment of Annual Base Rent and of Additional
Rent.
Section 2.03. Condition of the Leased Premises; FF&E and the Appurtenant
Areas. Tenant has personally inspected the Leased Premises, the FF&E and the
Appurtenant Areas and accepts the same in the Delivery Date Condition without
representation or warranty by Landlord of any kind, provided that Landlord shall
cause to be performed in a good and workmanlike manner, and in compliance with
all applicable laws, codes and ordinances, the work to the Leased Premises set
forth on EXHIBIT F attached hereto and made a part hereof and such additional
work to the Building or its systems, other than items associated with Tenant's
Work, which are not included on EXHIBIT F as the applicable governmental
authority responsible for issuing a certificate of occupancy requires to be
performed in order, subject to the completion of Tenant's Requirements, for a
temporary and final certificate of occupancy to be issued for the Leased
Premises exclusive of the fifth (5th) floor (collectively, "Landlord's Work").
Landlord shall pay all the Cost of the Work for Landlord's Work up to the sum of
Six Hundred Thirty Nine Thousand Dollars ($639,000.00) ("Landlord's Cost"), and
Tenant shall reimburse Landlord fifty percent of the amount of the Cost of the
Work in excess of Landlord's Cost within thirty (30) days following the receipt
from Landlord of an itemized statement therefor. In the event that Landlord's
Work is completed at a cost less than Landlord's Cost (which difference is
herein referred to as a "Savings"), then any Savings shall be available to
Tenant during the first six (6) months of the Lease Term to apply against the
cost of repairing FF&E, replacing FF&E or completing Tenant's network operations
center. Prior to commencing Landlord's Work, Landlord shall provide to Tenant,
for Tenant's information but not for Tenant's approval, a budget for Landlord's
Work, a project schedule for the performance of Landlord's Work and shall seek
competitive bids for all major subcontract work and disclose to and consult with
Tenant with respect to the bids for Landlord's Work to be performed. For
purposes of this Section 2.03 the "Cost of the Work" means the following costs
and expenses relating to the Landlord's Work, excluding any profit: (1) wages or
salaries, including labor burden, at Contractor's standard fixed rates, of
construction workers, supervisory and project personnel assigned to the Project,
(2) payments made by Contractor to design professionals and subcontractors, (3)
cost of materials, supplies and equipment, including transportation, testing,
inspection, handling and storage, (4) rental charges for temporary facilities,
machinery, equipment, and hand tools not customarily owned by construction
workers, (5) travel expenses, lodging, meals, gasoline, maintenance, plates,
licenses, insurance premiums, depreciation and similar expenses, (6) direct
jobsite expenses for the Work such as trailer and field office, utilities,
telephone service, long-distance, postage, telegrams, expressage, courier,
electronic mail, computers, printers, copier and reproduction expenses,
facsimile transmissions, insurance and bond premiums, sales, use or similar
taxes, fees and assessments for the building permit and other permits, licenses,
approvals and inspections, and fees of laboratories for tests required by the
Contract Documents and (7) costs of
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repairing or correcting the Work, unless caused by the negligence of Contractor
or recoverable by Contractor from insurance; provided that Landlord shall use
its good faith efforts to keep the costs set forth in (4), (5), and (6) as low
as reasonably possible. Tenant shall have the right to prioritize the
performance of Landlord's Work by directing the Contractor to perform items in a
certain order and/or by directing the Contractor not to perform any particular
item, provided, however, that items necessary to obtain a certificate of
occupancy shall have first priority and, if the exercise of such right by Tenant
causes a delay in the Substantial Completion of Landlord's Work, such delay
shall be deemed a Tenant Delay.
Section 2.04. Surrender of the Leased Premises and FF&E. Upon the
expiration or earlier termination of this Lease, Tenant shall immediately
surrender the Leased Premises to Landlord in broom-clean condition and shall
surrender the Leased Premises and FF&E then remaining in good order, condition
and repair and subject to reasonable wear and tear, damage resulting from
casualty or condemnation, or damage or other condition the repair or correction
of which is the responsibility of Landlord under this Lease. Tenant shall not be
obligated to deliver or surrender any of the FF&E identified on EXHIBIT B, or
any replacements therefor, at the end of the Lease Term which has become no
longer useable for its intended purpose and which Tenant has disposed of or
replaced, but Tenant shall not be required to replace any such FF&E or any
replacements therefor. Tenant shall also remove from the Leased Premises, and
from the Land, at its sole cost and expense, alterations that Tenant is required
to remove pursuant to Section 7.03 and Tenant's personal property and any
computer equipment, wiring, cabling and conduit (including above ceiling) within
or upon the Building or upon or under the Land and serving the Building
installed or utilized by Tenant its customers, providers or suppliers (each a
"Tenant Facility" and collectively, "Tenant Facilities") at any time during the
Lease Term; provided however, Tenant shall not be required to remove any wiring,
cabling or conduit which was located in the Leased Premises on the Commencement
Date and which is not or does not become a Tenant Facility and which the
applicable governmental authority does not require to be removed. Prior to the
Commencement Date and throughout the Lease Term, Tenant shall provide to
Landlord plans showing the locations of all Tenant Facilities, whether located
within or upon the Building or upon or under the Land. Tenant shall, at its
expense, promptly repair any damage caused by such removal and restore the
Leased Premises and the Appurtenant Areas to the condition existing upon the
Commencement Date. If Tenant fails to remove such property or fails to effect
repairs necessary as a result of any such removal or restore the Leased Premises
or the Appurtenant Areas, Landlord may effect such removal and/or such repairs
or restoration at Tenant's expense, and Tenant hereby agrees to pay all the
costs and expenses thereby reasonably incurred by Landlord in effecting such
removal, repair and/or restoration. All Tenant property which Tenant is required
to remove as provided above and which Tenant fails to remove within fifteen (15)
days of the expiration or earlier termination of the Lease shall be conclusively
deemed to have been abandoned by Tenant, and Landlord shall be entitled to
dispose of such property at Tenant's cost without thereby incurring any
liability to Tenant. The provisions of this Section 2.04 shall survive the
expiration or other termination of this Lease.
Section 2.05. Holding Over. If Tenant retains possession of the Leased
Premises after the expiration or earlier termination of this Lease, Tenant shall
become a tenant from month to month at 150% the Monthly Rental Installment in
effect at the end of the Lease Term, and otherwise upon the terms, covenants and
conditions herein specified, so far as applicable. Acceptance by Landlord of
Rent in such event shall not result in a renewal of this Lease, and Tenant shall
vacate and surrender the Leased Premises and the FF&E in the condition required
under Section 2.04 to Landlord upon Tenant being given thirty (30) days' prior
written notice from Landlord to vacate whether or not said notice is given on
the rent paying date. This Section 2.05 shall in no way constitute a consent by
Landlord to any holding over by Tenant upon the expiration or earlier
termination of this Lease, nor limit Landlord's remedies in such event.
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ARTICLE 3 - RENT
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Section 3.01. Base Rent. Tenant shall pay to Landlord the Annual Base Rent
in the Monthly Rental Installments, in advance, without deduction or offset,
beginning on the Commencement Date and on or before the first day of each and
every calendar month thereafter during the Lease Term. The Monthly Rental
Installment for partial calendar months shall be prorated. The determination of
the actual Rentable Area shall not affect either the Annual Base Rent or the
Monthly Rental Installment as provided in Section 1.01 above. Annual Base Rent,
and Additional Rent are collectively known as "Rent."
Section 3.02. Additional Rent. In addition to the Annual Base Rent, Tenant
shall pay to Landlord for each calendar year during the Lease Term, as
"Additional Rent," Tenant's Proportionate Share of Operating Expenses.
Section 3.03. Payment of Additional Rent. Landlord shall estimate the total
amount of Additional Rent to be paid by Tenant during each calendar year of the
Lease Term, pro-rated for any partial years. Commencing on the Commencement
Date, Tenant shall pay to Landlord each month, at the same time the Monthly
Rental Installment is due, an amount equal to one-twelfth (1/12) of the
estimated Additional Rent for such year, subject, however, to Section 3.07.
Landlord may, upon giving written notice to Tenant, adjust the estimated
Additional Rent during the calendar year to reflect increases in Operating
Expenses. Within a reasonable time after the end of each calendar year but not
later than one-hundred twenty (120) days after the end of a calendar year,
Landlord shall submit to Tenant a statement of the actual amount of such
Additional Rent, and within thirty (30) days after receipt of such statement,
Tenant shall pay any deficiency between the actual amount owed and the estimates
paid during such calendar year. In the event of overpayment, Landlord shall
credit the amount of such overpayment toward the next Monthly Rental Installment
or if no further Monthly Rental Installments are payable, shall pay such
overpayment to Tenant within thirty (30) days of the delivery of the statement.
Section 3.04. Intentionally omitted.
Section 3.05. Late Charges. Tenant acknowledges that Landlord shall incur
certain additional unanticipated administrative and legal costs and expenses if
Tenant fails to timely pay any payment required hereunder. Therefore, in
addition to the other remedies available to Landlord hereunder, if any payment
required to be paid by Tenant to Landlord hereunder shall become overdue, such
unpaid amount shall bear interest from the due date thereof to the date of
payment at the prime rate (as reported in the Wall Street Journal) of interest
("Prime Rate") plus six percent (6%) per annum. Notwithstanding the foregoing
sentence, Landlord shall provide Tenant with a written courtesy notice of such
default and Tenant shall have an additional five (5) days to cure such default
before Landlord imposes such late charge; provided, however, that Landlord shall
not be required to give such courtesy notice more than one (1) time with respect
to any particular default, nor more than two (2) times in any consecutive twelve
(12) month period with respect to any payment defaults in the aggregate.
Section 3.06. Books and Records; Audit. Tenant or its representatives shall
have the right to audit Landlord's books and records located at Landlord's
offices in St. Louis, Missouri pertaining to Additional Rent for any year within
sixty (60) days after receipt of a reconciliation statement therefor so as to
verify the accuracy of same. Any information obtained by Tenant or its
representatives pursuant to such audit shall be kept confidential by Tenant, and
such audit shall comply with Landlord's reasonable guidelines. If such audit
accurately discloses an error in the calculation of Additional Rent, Landlord
shall credit Tenant for any overcharge or xxxx Tenant for any undercharge.
Section 3.07. Taxes and Insurance. Notwithstanding anything contained
in this Article 3 to the contrary, the portion of Additional Rent consisting of
Taxes and insurance premiums payable by Landlord
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shall be billed directly to Tenant by Landlord, who shall reimburse Landlord
therefor within thirty (30) days of receipt of such billing, and such Taxes and
insurance premiums shall not be paid in installments. Notwithstanding the
foregoing (i) Tenant's liability for Taxes and insurance premiums shall accrue
on a monthly basis, (ii) Tenant's obligation to pay Taxes and insurance premiums
accruing during the Lease Term shall survive the expiration or earlier
termination of this Lease and (iii) in the event Tenant is in Default in the
payment of Rent more than twice during any consecutive twelve (12) month period,
Landlord may thereafter include Taxes and insurance premiums in Additional Rent
and shall adjust the amount of Additional Rent accordingly.
ARTICLE 4 - SECURITY DEPOSIT
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Section 4.01. Letter of Credit. Tenant shall, upon execution hereof,
provide to Landlord as security for the performance by Tenant of all of Tenant's
obligations contained in this Lease an irrevocable unconditional letter of
credit in the form attached hereto as EXHIBIT G (such Letter of Credit shall
also be referred to as the "Security Deposit" herein). The Letter of Credit
shall be issued by a bank having a net worth of not less than One Billion
Dollars ($1,000,000,000.00) and shall be in the amount of Three Million Dollars
($3,000,000.00). Unless the Letter of Credit is reduced to zero dollars pursuant
to Section 4.02, the Letter of Credit shall not expire before the thirtieth
(30th) day following the expiration of the Lease Term In the event of a Default
by Tenant in the payment of money under this Lease or which entitles Landlord to
money damages, Landlord may, at its option, draw upon the Letter of Credit to
the extent of such payment obligations and/or money damages and shall apply such
funds to such payment obligations and/or money damages. In such event, Tenant
shall, upon request, deposit with Landlord the amount so applied or, if
requested by Landlord, deliver a new letter of credit in the amount of the
Letter of Credit prior to Landlord's draw on the Letter of Credit, so that
Landlord will have on hand at all times during the Lease Term the full amount of
the Letter of Credit as set forth hereinabove. In the event of a transfer of
title to the Leased Premises to a transferee who expressly assumes this Lease
and Landlord's obligations hereunder (and Landlord and/or such transferee has
provided Tenant with evidence of such assumption in accordance Section 12.01),
Landlord shall simultaneously transfer any amounts so deposited with Landlord as
required above and the Letter of Credit to such transferee and any fee for such
transfer shall be paid by Tenant. The Letter of Credit shall be renewed on an
annual basis. If Tenant has not renewed the Letter of Credit at least forty-five
(45) days prior to the expiration date thereof, Landlord may draw upon the
Letter of Credit to the full amount thereof if same is not renewed and hold the
cash proceeds in lieu thereof. All sums held by Landlord pursuant to this
Article 4 shall be without interest. If the Letter of Credit is reduced to zero
dollars, the Letter of Credit shall be returned to Tenant or the issuing bank as
appropriate.
Section 4.02. Reduction of Letter of Credit. Provided that Tenant has not
been in Default in the payment of Monthly Rental Installments due hereunder more
than twice during any twelve-month period of the Lease, in which event Tenant
shall not be entitled to the reduction in the Letter of Credit provided
hereunder for a period of three (3) years following such second Default, the
Letter of Credit shall be reduced by the following amounts upon the presentation
to Landlord of annual audited financial statements of Tenant showing that
cumulative annual net income, exclusive of any extraordinary items, has reached
the following levels:
9
Cumulative Annual Net Income Reduction Amount
$20,000,000.00 $1,000,000.00
$40,000,000.00 $1,000,000.00
$60,000,000.00 $1,000,000.00;
provided, however, that the parties acknowledge that the calculation of
cumulative annual net income does not include dividends on any issued and
outstanding convertible preferred stock, but shall take into account annual net
losses shown on any financial statement, so as to reduce the cumulative annual
net income that may have accrued prior to such losses.
ARTICLE 5 - USE
---------------
Section 5.01. Use. The Leased Premises shall be used by Tenant for the
Permitted Use and for no other purposes without the prior written consent of
Landlord.
Section 5.02. Covenants of Tenant Regarding Use. Tenant shall (i) use and
maintain the Leased Premises and conduct its business thereon in a safe,
careful, reputable and lawful manner, (ii) comply with all Covenants and all
laws, rules, regulations, orders, ordinances, directions and requirements of any
governmental authority or agency, now in force or which may hereafter be in
force, including without limitation those which shall impose upon Landlord or
Tenant any duty with respect to or triggered by a change in the use or
occupation of, or any improvement or alteration to, the Leased Premises, and
(iii) comply with and obey all reasonable directions of Landlord, including any
reasonable rules and regulations that may be adopted by Landlord from time to
time, provided Tenant receives written notice of the same, and provided further
that to the extent any direction, rule or regulation conflicts with the terms of
this Lease, the terms of this Lease shall control, and provided that no such
directions, rules or regulations shall materially diminish Tenant's rights or
materially increase Tenant's obligations under this Lease. A copy of the current
rules and regulations for the Building are attached hereto AS EXHIBIT H and made
a part hereof. Tenant shall not do or permit anything to be done in or about the
Leased Premises or the Building which constitutes a nuisance. Tenant shall not
overload the floors of the Leased Premises. All damage to the floor structure or
foundation of the Building due to improper positioning or storage of items or
materials by Tenant, or its employees, agents or contractors shall be repaired
by Tenant at its sole cost and expense. Tenant shall not use the Leased
Premises, or allow the Leased Premises to be used, for any purpose or in any
manner which would invalidate any policy of insurance now or hereafter carried
on the Leased Premises; provided, however, in the event of any activity which
would invalidate any policy of insurance, Tenant shall not be in default under
this Lease if Tenant obtains and pays the extra cost necessary to obtain such
insurance.
Section 5.03. Landlord's Rights Regarding Use. In addition to the rights
specified elsewhere in this Lease, Landlord shall have the following rights
regarding the use of the Leased Premises, each of which may be exercised without
notice (except as expressly provided below) or liability to Tenant but shall be
exercised in such a commercially reasonable manner as to minimize any material
adverse interference with Tenant's use of the Leased Premises: (a) Landlord
shall have the right to control, change or otherwise alter the Appurtenant Areas
as it shall deem necessary or proper, provided (i) parking available to Tenant
is not thereby reduced below the level existing as of the Commencement Date and
except for temporary periods agreed to by the parties, including periods
necessary in connection with the construction of the Phase II Development (as
defined in Section 15.20), (ii) Tenant is not denied reasonable access to the
Leased Premises or the Parking Area on a 24-hour per day, 7-days per week basis,
(iii) the quality and convenience of the Appurtenant Areas, including access
drives and parking
10
areas as they exist on the Effective Date, is not materially reduced or
impaired; and (b) Landlord, its employees and agents and any mortgagee of the
Building shall have the right to enter any part of the Leased Premises at
reasonable times upon reasonable prior notice and consistent with Tenant's
written standard access and security procedures that Tenant has provided to
Landlord (except in the event of an emergency where no notice or compliance with
Tenant's standard access and security procedures shall be required), for the
purposes of (i) examining or inspecting same (including, without limitation
conducting inspections to determine Tenant's compliance with its obligations
under this Lease), (ii) performing Landlord's obligations under this Lease,
(iii) showing the same to prospective purchasers, mortgagees or, during the last
twelve (12) months of the Lease Term or any extension term, tenants, and (iv)
making such repairs to the Leased Premises which are necessary for its
preservation; provided, however, that any repairs made by Landlord that are the
obligation of Tenant under Article 7 shall be at Tenant's expense. Landlord
shall incur no liability to Tenant for such entry, nor shall such entry
constitute an eviction of Tenant or a termination of this Lease, or entitle
Tenant to any abatement of rent therefor.
ARTICLE 6 - UTILITIES AND OTHER BUILDING SERVICES
-------------------------------------------------
Section 6.01. Services to be Provided by Tenant. Tenant shall obtain in its
own name and pay directly to the appropriate supplier the cost of all utilities
and services serving the Leased Premises. In the event of utility
"deregulation", Landlord may choose the service provider, except Tenant may
choose the service provider as long as Tenant leases the entire Leased Premises.
Contractors and vendors selected by Tenant to perform any building services
shall be Approved Contractors (as defined in Section 7.04).
Section 6.03. Interruption of Services. Tenant understands, acknowledges
and agrees that any one or more of the utilities or other building services
identified in Sections 6.01, or 6.02 or otherwise hereunder may be interrupted
by reason of accident, emergency or other causes beyond Landlord's control, or
may be discontinued or diminished temporarily by Landlord or other persons until
certain repairs, alterations or improvements can be made. Landlord shall not be
liable in damages or otherwise for any failure or interruption of any utility
service and no such failure or interruption shall entitle Tenant to terminate
this Lease or withhold sums due hereunder. Notwithstanding anything in this
Lease to the contrary, Landlord shall use commercially reasonable efforts to
promptly restore utility service, provided that such restoration is within
Landlord's control. In the event restoration of service is within Landlord's
control and Landlord fails to restore such service within a reasonable time
under the circumstances, thereby causing the Leased Premises to be rendered
untenantable by Tenant (meaning that Tenant is unable to use such space in the
normal course of its business) for more than five (5) consecutive business days
after receipt of notice (which may be verbal if communicated to Landlord's
property manager for the Building) from Tenant that such service has been
interrupted and a reasonable opportunity for Landlord to restore such service,
Minimum Annual Rent shall xxxxx on a per diem basis for each day after such five
(5) business day period during which the Leased Premises remain untenantable. In
connection with the Phase II Development, Landlord shall make commercially
reasonable efforts to advise contractors to locate existing underground
facilities serving the Building before excavating, and shall inform Tenant of
the commencement of the Phase II Development prior to the commencement of the
the work.
ARTICLE 7 - REPAIRS, MAINTENANCE AND ALTERATIONS
------------------------------------------------
Section 7.01. Repair and Maintenance of Building and Appurtenant Areas.
Subject to Section 7.02 and except for any repairs made necessary by the
negligence, misuse, or default of Tenant, its employees, agents, customers and
invitees, Landlord shall repair, and replace as necessary, the roof (including
the roof membrane, flashing and coping on parapet walls), exterior walls,
foundation and structural frame of the Building (including the curtain wall, but
not the replacement of broken glass) and, except to the extent maintained by the
trustees under the Declaration or the Indenture, the Appurtenant Areas, all in
conformity with applicable laws and consistent with the prevailing standards for
Class A
11
office buildings in the St. Louis metropolitan area (the "Class A Standards"),
the costs of which (except for repairs and replacements to the roof, exterior
walls, foundation and structural frame of the Building) shall be included in
Operating Expenses. Landlord agrees that it will seek at least three (3)
competitive bids on any work the cost of which exceeds and/or is anticipated to
exceed Twenty Thousand Dollars ($20,000.00) and which is to be included in
Operating Expenses.
Section 7.02. Repair and Maintenance of Leased Premises. During the Lease
Term, Tenant shall, at its own cost and expense, maintain the Leased Premises
and the Building systems, whether or not located within the Leased Premises, in
good condition consistent with the Class A Standards and in conformity with
applicable laws, regularly servicing and promptly making all repairs and
replacements thereto, including but not limited to the electrical systems,
automatic elevator systems, heating and air conditioning systems, plate glass
(including glass that forms a portion of the curtain wall of the Building),
floors, windows and doors, sprinkler and plumbing systems, and shall obtain
preventive maintenance contracts and/or provide for the inspections for the
building systems, utilizing Approved Contractors, consistent with the criteria
set forth in EXHIBIT I attached hereto and made a part hereof. Tenant shall
promptly provide to Landlord copies of such contracts, invoices and of all
reports generated under said contracts or resulting from such inspections.
Tenant shall provide to Landlord evidence on an annual basis that all such
service contracts are in full force and effect. Tenant may, from time to time,
request that Landlord perform one or more of its obligations under this Section
7.02, and, if Landlord consents to perform the same, Landlord shall cause the
same to be performed and the costs thereof, together with a management fee of
one percent (1%) of the costs of the work shall be paid to Landlord by Tenant
within thirty (30) days following Tenant's receipt of an invoice therefor. All
capital improvements made or caused to be made by Tenant with respect to the
performance of its obligations under this Section 7.02 shall be of a quality
consistent with and necessary for Tenant to comply with its obligations to
maintain the Leased Premises in a good condition consistent with the Class A
Standards and shall be made at Tenant's sole cost and expense; provided,
however, that if (a) the making of a particular capital improvement is
reasonably necessary to maintain the Leased Premises to the Class A Standards;
(b) Landlord and Tenant have mutually agreed on the cost thereof and (c) the
expected useful life of such capital improvement (as determined by generally
accepted accounting principles) extends beyond the expiration of the Lease Term,
then the cost of such capital improvement shall be paid by Tenant, but Landlord
shall reimburse Tenant for the unamortized portion of such capital improvement
(amortized in accordance with generally accepted accounting principles)
attributable to the period of the useful life of same that extends beyond the
expiration of the Lease Term, provided further, however, that Landlord shall not
be obligated to make any such reimbursement until the expiration of the Lease
Term, and if the Lease Term is extended (whether or not pursuant to Section
15.13 hereof), Landlord's reimbursement obligation (if any) shall be determined
with respect to the Lease Term as so extended, and if the useful life of such
capital improvement does not extend beyond the expiration of the Lease Term as
so extended, Landlord shall have no obligation to reimburse Tenant for any
portion of the cost of such capital improvement.
Section 7.03. Alterations. At any time after the Commencement Date, Tenant,
at its sole cost and expense, shall have the right without Landlord's consent
(except as hereinafter provided) to (a) make alterations, additions, or
improvements to the Leased Premises which are not Material Alterations (as
defined below) and (b) to install Tenant Facilities, the location of which
Tenant Facilities shall be subject to Landlord's approval, which shall not be
unreasonably withheld, conditioned or delayed and, provided Tenant has supplied
Landlord with all information, including plans and specifications for such work,
that Landlord requires for evaluating Tenant Installations, Landlord's approval
(including approval with reasonable conditions) or denial (including reasons
therefor) shall be given within fifteen (15) days following Landlord's receipt
of Tenant's written request for such approval. Landlord's prior written consent
shall be required for any "Material Alteration." A "Material Alteration" is an
alteration that: (a) is in excess of Ten Thousand Dollars ($10,000.00) in the
aggregate for a twelve (12) month period; (b) is visible from outside of the
Leased
12
Premises; (c) is of a structural nature; (d) would adversely affect the Building
electrical, mechanical or HVAC systems; (e) involves the erecting or demolition
of a fire-rated partition or (f) is to be located upon the roof (provided that
if the installation on the roof is a Equipment (as defined in Section 15.17, the
installation and Landlord's approvals thereof shall be determined in accordance
with Section 15.17). In situations where Landlord's prior approval is not
required, Tenant shall promptly notify Landlord with respect to such alteration
and furnish Landlord with architectural drawings regarding the same prior to the
commencement of the work. If Tenant desires to make a Material Alteration,
Tenant shall request in writing Landlord's written consent, which shall not be
unreasonably withheld, delayed or conditioned, but which may be conditioned upon
Landlord's final approval of construction drawings prepared by Tenant at
Tenant's sole cost and expense. In the event that Landlord withholds consent to
a Material Alteration, Landlord's written notice withholding consent must state
with reasonable particularity the reason for withholding consent and, what must
be done, if anything, in order to obtain Landlord's consent. Landlord's failure
to respond in writing within fifteen (15) business days to Tenant's request for
consent to a Material Alteration shall conclusively be deemed Landlord's
consent. As a condition of such approval (or with respect to any alterations not
requiring Landlord's approval), Landlord may require Tenant to remove the
alterations (Landlord and Tenant shall expressly agree on which party shall be
responsible for removal of the alteration in writing at the time such approval
is given to Tenant by Landlord or, with respect to alterations not requiring
Landlord's approval, Landlord shall designate which alterations are to be
removed by Tenant, if requested by Tenant prior to the commencement of the work
or, if not so requested, such alterations shall be subject to Landlord's later
determination that Tenant must remove them) and restore the Leased Premises upon
termination of this Lease; otherwise, all such alterations shall become a part
of the realty and the property of Landlord, and shall not be removed by Tenant.
The foregoing notwithstanding, if Tenant shall make any alteration or addition
that changes the layout of the hallways in the Leased Premises as configured on
the Commencement Date, Tenant may be required to restore the hallways to the
original configuration unless Tenant has requested and received Landlord's prior
written consent, and if Tenant does so request Landlord's consent, the
provisions of this Section 7.03 shall govern concerning giving or withholding or
consent and concerning whether or not Landlord may require removal of the
alteration at the end of the Term. As to any proposed Material Alteration,
Landlord and Tenant hereby agree to diligently work toward the completion and
approval by Landlord of a set of construction drawings to be prepared by
Tenant's architect depicting the Material Alterations which Tenant desires to
effect. Such construction drawings shall include the partition layout, ceiling
plan, electrical outlets and switches, drawings for any modifications to the
mechanical and plumbing systems of the Building, and detailed plans and
specifications for the construction of the improvements called for in accordance
with all applicable governmental laws, codes, rules, and regulations exclusive
of matters required by the applicable governmental authority identified as a
condition of necessary building permits about which Tenant's architect is not
aware (such matters being the "Permit Matters"). Landlord's approval of such
construction drawings shall not be unreasonably withheld or conditioned and
shall be given or denied (and if denied, with reasons therefor) within fifteen
(15) days after the submission by Tenant of such construction drawings; provided
that (a) such construction drawings comply with all applicable governmental
laws, codes, rules and regulations other than Permit Matters; and (b) such
construction drawings are sufficiently detailed to allow construction of the
Tenant Improvements in a good and workmanlike manner. In the event Landlord
notifies Tenant of any objections to such proposed construction drawings Tenant
and Landlord shall work together diligently to address such objections until
resolved satisfactorily by Landlord and Tenant. As used herein, "Construction
Drawings" means those construction drawings approved by Landlord and Tenant.
Tenant shall ensure that all alterations shall be made in accordance with all
applicable laws, regulations and building codes, in a good and workmanlike
manner and of quality equal to or better than the original construction of the
Building. No person shall be entitled to any lien derived through or under
Tenant or under any subtenant of Tenant for any labor or material furnished to
the Leased Premises, and nothing in this Lease shall be construed to constitute
a consent by Landlord to the creation of any lien. If any lien is filed against
the Leased Premises for work claimed to have been done for or material claimed
to have been furnished to Tenant or any subtenant of Tenant, Tenant shall cause
such lien to be discharged of record or bonded over with a surety approved by
Landlord within thirty (30) days after filing. Tenant shall
13
indemnify Landlord from all costs, losses, expenses and attorneys' fees in
connection with any construction or alteration and any related lien.
Section 7.04. Performance of Alterations, Improvements and other Work.
Except as otherwise expressly provided in this Section 7.04, and so long as Duke
Realty Limited Partnership, or an affiliate, joint venture partner or related
entity of Duke Realty Limited Partnership (each a "Duke Entity") owns the
Building, Tenant agrees that all work on any alterations under Section 7.03
(whether or not the same require Landlord's approval) or on capital improvements
under Section 7.02, or any other additions or improvements to the Building that
are not the obligation of Landlord to perform (collectively, the "Building
Work") shall be performed by Duke Construction Limited Partnership or any
subsidiary or affiliate of Duke Realty Limited Partnership ("DCLP")
substantially in accordance with the provisions set forth in the Tenant
Improvement Construction Work Agreement attached hereto and made a part hereof
as EXHIBIT J , as it may be modified by agreement of the parties to take into
account a lump sum or guaranteed maximum price arrangement (the "Work
Agreement"). From and after such time as a Duke Entity ceases to own the
Building, Tenant may cause any Building Work to be performed by such reputable,
experienced contractors as Tenant may determine. Notwithstanding the foregoing
sentence, regardless of whether a Duke Entity owns the Building, Tenant may
self-perform, utilizing Approved Contractors (a) the installation of Tenant's
trade fixtures, (b) Tenant Facilities, (c) any Building Work for which Tenant
obtains a competitive proposal from an Approved Contractor that is materially
lower than the price quoted by DCLP (Duke's quote to be based on the scope of
work and plans and specifications provided by Tenant and assuming the use of the
Work Agreement, unless modification of the Work Agreement is necessary to take
into account a lump sum price or a guaranteed maximum price), provided that DCLP
shall be given the opportunity to review such proposal and to adjust its price
and/or scope of work, and if such adjustment results in DCLP proposing price
equal to or less than that of the Approved Contractor for substantially the same
scope of work as set for the in the Approved Contractor's proposal, DCLP shall
be awarded the work; (d) any Building Work that Tenant shall establish to
Landlord's reasonable satisfaction that Tenant or an Approved Contractor of
Tenant has significantly greater expertise in performing such Building Work than
DCLP and (e) any Building Work that DCLP declines to do. For purposes of this
Lease "Approved Contractors" shall mean those contractors and vendors set forth
on EXHIBIT K attached hereto and made a part hereof, and such other contractors
and vendors as Landlord may approve in writing from time to time, which approval
shall not be unreasonably withheld, conditioned or delayed; provided, however,
that Landlord may, in its reasonable discretion, advise Tenant in writing that
an Approved Contractor is no longer approved, in which event such contractor
shall cease to be an Approved Contractor. For any Building Work not performed by
DCLP, DCLP shall be entitled to an administrative fee equal to five percent (5%)
of the cost of such Building Work.
ARTICLE 8 - CASUALTY
--------------------
In the event of total or partial destruction of all or any portion of the
Leased Premises, including the Building, or the Appurtenant Areas by fire or
other casualty, then except as otherwise provided in this Article, Landlord
shall promptly restore and repair same at Landlord's expense to the condition
which existed prior to the date of the casualty. If the Leased Premises is
damaged or destroyed and if in the reasonable opinion as certified to Tenant by
Landlord's licensed architect ("Architect's Opinion"), which shall not take into
account periods that may be attributable to force majeure delays or delays in
the receipt of insurance proceeds and which shall be given within thirty (30)
days next following such damage or destruction, Substantial Completion (as
hereinafter defined) cannot occur within one hundred eighty (180) days after the
date of the casualty, then either Landlord or Tenant may cancel and terminate
this Lease at any time within thirty (30) days next following the rendering of
such Architect's Opinion by the giving of written notice to the to the other
party within said thirty (30)-day period. In the event Landlord elects to
terminate the Lease, Tenant may give written notice to Landlord within thirty
(30) days next following receipt of Landlord's notice, of Tenant's desire to
restore the Leased Premises, in which event the Landlord's notice of termination
shall be deemed null and void, the Lease shall be deemed automatically
14
reinstated as of the date of Tenant's notice, Landlord shall assign to Tenant
any rights that it may have to insurance proceeds (and Landlord shall use
commercially reasonable efforts to cause Landlord's lender to permit such
insurance proceeds to be utilized for restoration of the damaged areas) and pay
to Tenant Landlord's deductible under Landlord's insurance policy to the extent
necessary to accomplish such restoration, and Tenant shall promptly restore and
repair the Leased Premises to the condition which existed prior to the date of
casualty, and if the insurance proceeds are insufficient to effect such
restoration, Tenant shall pay all additional costs and expenses necessary to
restore the Leased Premises. In the event (i) neither party cancels and
terminates this Lease as provided above; (ii) Landlord is, pursuant to this
Lease, obligated to effect restoration; and (iii) substantial completion of the
Leased Premises does not occur within three hundred (300) days of the casualty,
then Tenant, upon giving written notice to Landlord may cancel and terminate
this Lease by giving written notice thereof to Landlord. In the event neither
party terminates this Lease, and Tenant insures the Leased Premises as permitted
under Article 9 hereof, then Tenant shall be entitled to all insurance proceeds
and shall promptly (a) restore and repair the Leased Premises at Tenant's
expense to the condition which existed prior to the date of the casualty, and,
notwithstanding anything contained herein to the contrary, Rent shall not xxxxx
during the period of such restoration, and (b) restore any FF&E which Tenant is
required to return pursuant to Section 2.04.
In the event of a termination of this Lease pursuant to this Article 8,
this Lease shall terminate without liability to either party other than for
liabilities theretofore accrued and which remain unpaid or unsatisfied.
Notwithstanding anything to the contrary in this Article 8: (1) Landlord shall
have the right, upon thirty (30) days' written notice to Tenant, to terminate
this Lease if the Leased Premises, or any portion thereof, is damaged by a
casualty which is not covered by the insurance required hereunder; and (2)
Landlord shall not be obligated to restore and repair tenant finish improvements
effected by Tenant after the Commencement Date or any of Tenant's personal
property. Landlord shall be obligated to restore any FF&E that is damaged and
that Landlord is required to insure pursuant to Article 9, but only to the
extent of available insurance proceeds. In the event of any such destruction
which is the subject of this Article 8, except as provided in the foregoing
paragraph, Tenant shall be entitled to a proportionate reduction of Annual Rent
and Additional Rent from the time of the casualty until the earlier of (i) the
date the Leased Premises are restored to the condition and operation which
existed prior to the casualty in accordance applicable governmental rules and
regulations (including zoning ordinances) and all occupancy permits necessary
for Tenant legally to be able to occupy the Leased Premises have been delivered
to Tenant ("Substantial Completion"); or (ii) Tenant commences use of the Leased
Premises. Such proportionate reduction shall be based upon the extent to which
such damage or destruction and the making of such repairs and restoration
substantially interferes with the use conducted by Tenant at the Leased Premises
and the Tenant therefore is required to curtail or close any part of operations
at the Leased Premises. If from the standpoint of prudent business management
the Leased Premises cannot be operated at all during the restoration process,
then Rent shall totally xxxxx while Tenant is closed during such period of
restoration. Landlord shall use commercially reasonable efforts to cause its
lenders to permit any insurance proceeds that become available and result in a
casualty event to be used by Landlord to effect the repairs and restoration
contemplated under this Article 8. In the event this Lease is not terminated or
reinstated pursuant to the provisions of this Article 8, the Lease Term shall be
automatically extended for the period of time from the date of such casualty to
the date of Substantial Completion of the Leased Premises reduced by a
percentage equal to the percentage of the Leased Premises that was not rendered
untenantable during the period of restoration of the Leased Premises. The Annual
Base Rent during such extension of the Lease Term shall be the same as the
Annual Base Rent for the final year of the Lease Term, including the Lease Term
as it may be extended under Section 15.13.
15
ARTICLE 9 - INSURANCE
---------------------
Section 9.01. Tenant's Responsibility. Landlord shall not be liable to
Tenant for, and Tenant hereby releases Landlord from liability for damage to
property or injury or death to persons (i) due to the condition of the Leased
Premises or the FF&E, or (ii) the occurrence of any accident in or about the
Leased Premises (iii) any act or neglect of Tenant or of any other person,
unless such damage, injury or death arising under the circumstances described in
clause (i), (ii) or (iii) is directly and solely the result the acts or
omissions of any Landlord Indemnitees.
Section 9.02. Tenant's Insurance. During the Lease Term, Tenant shall carry
the following insurance subject to the following coverages, issued by one or
more insurance companies reasonably acceptable to Landlord, with the following
minimum coverages:
A. Worker's Compensation: minimum statutory amount.
B. ISO Commercial General Liability Insurance, including blanket,
contractual liability, broad form property damage, personal injury,
completed operations, products liability, and fire damage: Not less than
$3,000,000 Combined Single Limit for both bodily injury and property
damage, $2,000,000 of which may be provided by an umbrella policy.
C. ISO Special Form Causes of Loss Coverage (or its equivalent) covering
Tenant's personal property for the full cost of replacement of Tenant's
property.
D. Business interruption insurance.
Tenant's Commercial General Liability Insurance Policy (including any that
Tenant may elect to provide under Section 9.03) shall protect Tenant and
Landlord as their interests may appear, naming Landlord and Landlord's managing
agent and mortgagee as additional insureds, and shall provide that they may not
be canceled on less than thirty (30) days' prior written notice to Landlord.
Tenant shall furnish Landlord with Certificates of Insurance evidencing all
required coverages on or before the earlier of the Commencement Date or the
commencement of the Advance Occupancy Period. If Tenant fails to carry such
insurance and furnish Landlord with such Certificates of Insurance after a
request to do so, Landlord may obtain such insurance and collect the cost
thereof from Tenant.
Section 9.03. Landlord's Insurance. During the Lease Term following the
Commencement Date, Landlord shall provide ISO special form causes of loss
coverage (or its equivalent) insuring Landlord against loss or damage to all or
any part of the Leased Premises and FF&E (exclusive of footings, foundations and
Tenant's trade fixtures, furnishings, equipment, plate glass, signs and all
other items of personal property of Tenant). The cost of all insurance
maintained by Landlord pursuant to this Section 9.03 shall be included as part
of Operating Expenses. If requested by Tenant, Landlord shall provide to Tenant
a schedule of its insurance coverages with respect to the Leased Premises and
FF&E, and Tenant shall, upon written notice to Landlord, be entitled (i) to
require Landlord to provide additional coverage provided Tenant reimburses
Landlord for the cost thereof or (ii) to provide such insurance coverages with
insurer(s) acceptable to Landlord and with at least the same coverages provided
by Landlord, in which event Landlord shall not include insurance premiums in
Operating Expenses to the extent insurance is provided and maintained by Tenant.
If Tenant elects to provide such insurance, Tenant shall also provide rental
insurance to assure the payment of Rent to Landlord during the period of time
that Tenant is causing the Leased Premises to be restored.
Section 9.04. Indemnification. Subject to the release and waiver of
subrogation in Section 9.05 below, Tenant shall be liable for and shall
indemnify, save harmless and defend Landlord, its members,
16
managers, officers, mortgagees, agents, employees, independent contractors,
invitees and other persons acting under Landlord (collectively, the "Landlord
Indemnitees") from and against all liability, claim or cost (including
reasonable attorneys' fees) arising in whole or in part out of (i) any injury to
any person while on or about the Leased Premises (except to the extent directly
resulting from the act or omissions of any of the Landlord Indemnitees), (ii)
any condition of the Leased Premises or FF&E not the responsibility of Landlord;
(iii) any breach of any Lease covenant by Tenant; (iv) the use of the Leased
Premises or FF&E by, or any act or omission of Tenant or persons claiming by,
through or under Tenant, or any of its agents, employees, independent
contractors, customers, suppliers or invitees. Subject to the release and waiver
of subrogation in Section 9.05 below, Landlord shall indemnify, defend and hold
Tenant, its officers, managers, agents, employees, independent contractors,
invitees and other persons acting under Tenant (collectively, "Tenant
Indemnitees") harmless from and against all liabilities, claim(s) and/or
injuries to all persons occurring in or about the Appurtenant Areas, due to any
act or omission of any of the Landlord Indemnitees or resulting from any default
under this Lease by Landlord, its agents, contractors, employees and/or
invitees, unless such liabilities, claim(s) and/or injuries are the direct
result of the acts or omissions of the Tenant Indemnitees. The provisions of
this Section 9.04 shall survive the expiration or earlier termination of this
Lease.
Section 9.05. Waiver of Right of Recovery. Neither Landlord nor Tenant
shall be liable to the other or to any insurance company (or to Landlord as a
self-insurer) (by way of subrogation or otherwise) insuring the other party for
any loss or damage to any building, structure or other tangible property, or any
resulting loss of income, or losses under worker's compensation laws and
benefits, even though such loss or damage might have been occasioned by the
negligence of such party, its agents or employees. The provisions of this
Section 9.05 shall not limit the indemnification for liability to third parties
pursuant to Section 9.04.
ARTICLE 10 - EMINENT DOMAIN
---------------------------
Section 10.01. Total Taking. In the event the entire Leased Premises shall
be taken or appropriated for public or quasi-public use, or shall be transferred
in lieu of said taking or appropriation, the liabilities of the parties under
this Lease shall terminate as of the date of vesting of title, except for those
that expressly survive termination of this Lease.
Section 10.02. Partial Taking. In the event of an appropriation or taking
for public or quasi public purpose or transfer in lieu thereof of one or more of
the following with the result that the Leased Premises are rendered
substantially unusable by Tenant for the Permitted Use, Tenant may, upon written
notice given by Tenant to Landlord within thirty (30) days of the date of
appropriation or taking or the date on which a sale in lieu thereof is closed,
terminate this Agreement upon a date chosen by Tenant in its sole discretion:
(a) any substantial portion of the parking spaces on the Appurtenant Areas which
reduces the available parking spaces below that required by applicable law, (b)
direct access to and from the Leased Premises to and from any adjacent street or
highway, (c) any common driveway or private driveway over which access between
the Leased Premises and public rights of way is obtained, or (d) any portion of
the Leased Premises or of the Appurtenant Areas.
Section 10.03. Continued Effect. In the event Tenant does not terminate
this Lease pursuant to Section 10.02, and such appropriation, taking or transfer
reduces Tenant's useable area of the Leased Premises, this Lease shall continue
in effect with respect to the portion of the Leased Premises not so taken,
except that the Annual Base Rent payable shall be reduced by a fraction, the
numerator of which shall be the number of rentable square feet of the Leased
Premises rendered unusable, and the denominator of which shall be the rentable
square footage of the Leased Premises prior to the taking or condemnation.
Landlord, with all due diligence and at its own cost and expense to the extent
of the condemnation proceeds received by Landlord, shall repair and restore the
Leased Premises or what may
17
remain of it, to a complete architectural unit substantially in the condition
existing on the Commencement Date, and until the completion of such work, the
obligation of Tenant to pay Annual Base Rent and Additional Rent for the
non-useable area of the Leased Premises shall xxxxx.
Section 10.04. Awards. In the case of a taking or appropriation pursuant to
Sections 10.01, 10.02, or 10.03 or a transfer in lieu of any such taking or
appropriation, all damages awarded shall belong to Landlord, provided however,
Tenant, so long as same shall not reduce Landlord's claim/award, reserves the
right to claim and prosecute a claim necessary to compensate Tenant for any loss
or damage to its personal property, any business damages (e.g., for interruption
or loss of business) or special damages resulting from such taking or
condemnation for public or quasi public purposes in any case resulting from such
a taking or condemnation; and any moving expenses. Tenant reserves unto itself
the right to claim and prosecute its claim for such compensation in all
appropriate courts and agencies for such compensation. In the event of a
temporary taking of any of the Appurtenant Areas for a period not extending
beyond the Lease Term, all damages shall be paid to Tenant.
ARTICLE 11 - ASSIGNMENT AND SUBLEASE
------------------------------------
Section 11.01. Landlord's Consent Required. Tenant shall not directly or
indirectly transfer any part of the Leased Premises to any other entity, whether
by sale, assignment, mortgage, sublease, license, transfer, operation of law or
act of Tenant, or by Tenant's merger, consolidation, acquisition, liquidation or
otherwise (each a "Transfer") without Landlord's prior written consent, except
as provided in Section 11.02 below. Consent to one Transfer does not imply
consent to any other Transfer or waive the consent requirement. Any entity to
which a Transfer is made is a "Transferee." Tenant shall not be bound by any
material modifications to this Lease effected between Landlord and a Transferee
under a Transfer requiring Landlord's consent unless Tenant has given its prior
written consent to such modifications, which consent shall not be unreasonably
withheld, conditioned or delayed, but Tenant shall not be released from its
obligations or liabilities under this Lease without regard to such
modifications.
Section 11.02. Landlord's Consent. Tenant's request for Landlord's consent
to any Transfer shall describe the details of the proposed Transfer, including
the name, business and financial condition of the prospective Transferee, and
the financial terms of the proposed Transfer (e.g., term, rent and security
deposit). Landlord shall not unreasonably withhold, delay or condition its
consent to a Transfer which requires Landlord's prior approval, but Landlord
may, in addition to other factors, consider: (i) whether the business of the
proposed Transferee and the proposed use of the Leased Premises is consistent
with the Permitted Use; and (ii) whether the net worth and financial condition
of the proposed assignee in the event of a proposed assignment is sufficient in
Landlord's reasonable opinion for such assignee to be able to satisfy its
obligations under this Lease. In the case of a proposed assignment (regardless
of whether Landlord's consent is required), the assignee shall agree in writing
to comply with all of Tenant's obligations under this Lease. Provided Tenant has
supplied Landlord with all relevant information required by Landlord to evaluate
the Transferee, Landlord's consent shall be given or withheld (and if withheld
with reasons therefor) within fifteen (15) business days after a request from
Tenant for approval of a Transfer requiring such approval.
Landlord's consent is not required for (a) Transfers to any Affiliate; (b)
any assignment of this Lease to any successor to substantially all of Tenant's
business and assets, including any transfer of Tenant's interest in this Lease
by merger, consolidation, operation of law, acquisition of a controlling
interest in Tenant or of a substantial part of its assets, liquidation or
otherwise; (c) any sublease of all or any portion of the Surplus Space, provided
that (1) Tenant gives Landlord prior written notice of the Transfer, together
with a copy of the proposed form of Transfer document and evidence that the
Transfer is one that qualifies under clause (a), (b) or (c) above and with
respect to a clause (a) or (b) Transfer satisfies clause (i) above or, with
respect to a clause (b) Transfer under which Tenant ceases to exist as a
18
legal entity (as in a merger) or sells substantially all of its assets to the
Transferee, satisfies clause (ii) above; (2) with respect to a clause (c)
Transfer, (u) the rental rate for such portion of the Surplus Space to be
subleased is not publicly advertised (such as by flyers, letters and written or
electronic marketing materials) to be less than the current rental rate for
similar premises in buildings owned by Landlord in the St. Louis metropolitan
area (and Landlord shall provide such rates to Tenant on request); (v) the
business reputation of the proposed sub-tenant is unacceptable to Landlord in
Landlord's reasonable opinion, (w) the Tenant has continuously occupied a
majority of the Leased Premises except for the Surplus Space being subleased,
throughout the Lease Term; (x) Tenant is not then in Default under this Lease,
(y) Tenant agrees that to the extent the rent received under any sublease of the
Surplus Space exceeds the rental rate provided under this Lease, (such rental
rates being deemed grossed up or appropriately adjusted for the purpose of
arriving at a comparison of rents on a gross to gross or net to net basis (or
other consistent basis)) that fifty percent (50%) of the excess, less the cost
of tenant improvements performed and paid for by Tenant, commissions,
advertising and marketing expenses paid by Tenant and Tenant's carrying cost for
the Surplus Space being subleased, shall be paid to Landlord, if, as and when
received by Tenant, and (z) the subtenant is not also a tenant of Landlord; and
(3) the Transfer or assignment otherwise complies with this Lease. "Affiliate"
means any entity that directly or indirectly controls, is controlled by or is
under common control with Tenant, and "control" means owning more than fifty
percent (50%) of the shares or other beneficial ownership interests of an
entity, together with the power to control and manage the entity's affairs,
directly or by electing or appointing directors, officers or managers. Without
limiting Landlord's right to otherwise reasonably condition its approval of any
Transfer, it shall not be unreasonable for Landlord, in the case of a sublease,
to condition its approval upon the agreement of Tenant and its subtenant that in
the event of a Default by Tenant in the payment of rent under this Lease, the
subtenant may be required to pay rent under the sublease directly to Landlord.
Notwithstanding the foregoing, the provisions of this Article 11 shall not apply
to the transfer or issuance of Tenant's stock, in the ordinary course of
business, that is publicly traded on a national securities exchange.
Section 11.03. No Release of Tenant. No Transfer shall release Tenant or
change Tenant's primary liability to pay Rent and to perform all of Tenant's
obligations under this Lease. If any Transferee defaults under this Lease,
Landlord may proceed directly against Tenant without pursuing remedies against
the Transferee. Landlord's acceptance of Rent from any other person shall not
waive any provision of this Article 11.
ARTICLE 12 - TRANSFERS BY LANDLORD
----------------------------------
Section 12.01. Sale of the Leased Premises. Landlord shall have the right
to sell the Leased Premises at any time during the Lease Term, subject only to
the rights of Tenant hereunder; and provided the transferee expressly assumes
this Lease and Landlord's rights and obligations hereunder, such sale shall
operate to release Landlord from liability hereunder accruing after the date of
such conveyance but no such transfer shall be deemed to release Landlord from
obligation which accrued prior to the date of this Lease.
Section 12.02. Subordination. Notwithstanding anything to the contrary in
this Lease, this Lease and Tenant's interest therein shall not be subordinate or
deemed to be subordinate to any ground lease, or any deed of trust, mortgage or
other security instrument (or to the lien created by any such deed of trust or
security instrument) which first encumbers the Leased Premises or any portion
thereof after the date on which Landlord and Tenant execute this Lease (and
Landlord represents that it has not so encumbered the Leased Premises prior to
the execution of this Lease) unless and until Landlord delivers to Tenant a so
called "subordination, non-disturbance and attornment agreement" ("SNDA") duly
executed by the ground lessor under any such ground lease, the secured party
under any such security instrument and/or the beneficiary under any such deed of
trust in recordable form and otherwise in a form reasonably
19
acceptable to Tenant. Subject to the foregoing, upon full execution and delivery
of any such "subordination, non-disturbance and attornment agreement" by all
parties thereto, such subordination by Tenant shall constitute only the
subordination of the Lease to the lien of any such deed of trust or security
interest and/or to the interest of any such ground lessor.
ARTICLE 13 - DEFAULT AND REMEDY
-------------------------------
Section 13.01. Default. The occurrence of any of the following shall be a
"Default":
(a) Tenant fails to pay any Monthly Rental Installment or other sum due to
Landlord within five (5) days after notice from Landlord of such failure, or
Tenant fails to pay any other amounts due Landlord from Tenant within ten (10)
days after notice from Landlord of such failure, provided that Landlord shall
not be obligated to provide more than one (1) notice of any particular payment
Default or more than two (2) notices of payment Defaults in the aggregate during
any consecutive twelve (12)-month period of the Lease Term, and if Landlord is
not so obligated to provide notice for any payment Default, Tenant shall be
deemed to be Default with respect to any such payment that is not made on the
date the same is due hereunder;
(b) Tenant fails to perform or observe any other term, condition, covenant
or obligation required under this Lease for a period of thirty (30) days after
notice thereof from Landlord; provided, however, that if the nature of Tenant's
default is such that more than thirty days are reasonably required to cure, then
such default shall be deemed to have been cured if Tenant commences such
performance within said thirty-day period and thereafter diligently completes
the required action within a reasonable time or;
(c) Tenant shall effect a Transfer in contravention of the provisions of
Article 11 of this Lease.
Section 13.02. Remedies. Upon the occurrence of any Default, Landlord shall
have the following rights and remedies, in addition to those allowed by law or
in equity, any one or more of which may be exercised without further notice to
Tenant:
(a) Landlord may apply the Security Deposit or re-enter the Leased Premises
and cure any default of Tenant, and Tenant shall reimburse Landlord as
additional rent for any costs and expenses which Landlord thereby incurs; and
Landlord shall not be liable to Tenant for any loss or damage which Tenant may
sustain by reason of Landlord's action. Without limiting the generality of the
foregoing and without waiving its right to pursue any other remedies allowed by
law, in equity or in this Section 13.01, if the Default involves Tenant's
failure to perform its obligations under either Section 6.01 or Section 7.01
hereof to the standards provided therein (including, without limitation,
Tenant's failure to replace items), Landlord may, in addition to correcting such
failure as provided in this subsection (a), provide written notice to Tenant of
Landlord's determination to assume any or all of such obligations, and, if,
within ten (10) days of such notice, Tenant shall fail to demonstrate to
Landlord's reasonable satisfaction that Tenant will be able to perform those
obligations for the balance of the Lease Term in a manner consistent with the
standards set forth in such Sections including, but not limited to, if requested
by Landlord (and notwithstanding any prior approval by Landlord of any service
contractor or vendor) terminating service contracts without liability to
Landlord (and Tenant shall defend, indemnify and hold Landlord harmless from
such liability) and entering into new service contracts with contractors and
vendors reasonably acceptable to Landlord, Landlord may, but shall not be
obligated to, assume any or all of such obligations, the costs of which shall be
included in Operating Expenses;
(b) Landlord may terminate this Lease or, without terminating this Lease,
terminate Tenant's right to possession of the Leased Premises as of the date of
such Default, and thereafter (i) neither Tenant
20
nor any person claiming under or through Tenant shall be entitled to possession
of the Leased Premises, and Tenant shall immediately surrender the Leased
Premises to Landlord; and (ii) Landlord may re-enter the Leased Premises and
dispossess Tenant and any other occupants of the Leased Premises by any lawful
means and may remove their effects, without prejudice to any other remedy which
Landlord may have. Upon the termination of this Lease, Landlord may declare the
present value (discounted at the Prime Rate) of all rent which would have been
due under this Lease for the balance of the Lease Term to be immediately due and
payable, whereupon Tenant shall be obligated to pay the same to Landlord, less
the present value of the fair rental value of the Leased Premises for the
balance of the Lease Term, together with all loss or damage which Landlord may
sustain by reason of Tenant's default ("Default Damages"), which shall include
without limitation expenses of preparing the Leased Premises for re-letting,
demolition, repairs, tenant finish improvements, brokers' commissions and
attorneys' fees, it being expressly understood and agreed that the liabilities
and remedies specified in this clause (b) shall survive the termination of this
Lease;
(c) Landlord may, without terminating this Lease, re-enter the Leased
Premises and re-let all or any part thereof for a term different from that which
would otherwise have constituted the balance of the Lease Term and for rent and
on terms and conditions different from those contained herein, whereupon Tenant
shall be immediately obligated to pay to Landlord as liquidated damages the
present value (discounted at the Prime Rate) of the difference between the rent
provided for herein and that provided for in any lease covering a subsequent
re-letting of the Leased Premises, for the period which would otherwise have
constituted the balance of the Lease Term, together with all of Landlord's
Default Damages; or
(d) Landlord may xxx for injunctive relief or to recover damages for any
loss resulting from the Default.
(e) If required by applicable law, but subject to the limitations set forth
below, if Tenant defaults and/or if Landlord terminates this Lease or Tenant's
right to possession, Landlord shall have an obligation to mitigate Landlord's
damages. Landlord shall be required only to use reasonable efforts to mitigate,
which shall not exceed such efforts as Landlord generally uses to lease other
Buildings. Landlord will not be deemed to have failed to mitigate if Landlord
leases any other Buildings owned by it before reletting all or any portion of
the Leased Premises. Landlord shall not be deemed to have failed to mitigate if
it incurs reasonable reletting costs. In recognition that the value of the
Building depends on the rental rates and terms of leases therein, Landlord's
rejection of a prospective replacement tenant based on an offer of rentals below
Landlord's published rates for new leases of comparable space at the Building or
at buildings in the vicinity of the Building at the time in question, or at
Landlord's option, below the rates provided in this Lease, or containing terms
less favorable than those contained herein, shall not give rise to a claim by
Tenant that Landlord failed to mitigate Landlord's damages. Notwithstanding
anything herein to the contrary, in any action between the parties, Tenant shall
bear the burden of proving Landlord's failure to mitigate damages.
Section 13.03. Landlord's Default and Tenant's Remedies. Landlord shall be
in default if it fails to perform any term, condition, covenant or obligation
required under this Lease for a period of thirty (30) days after written notice
thereof from Tenant to Landlord; provided, however, that if the term, condition,
covenant or obligation to be performed by Landlord is such that it cannot
reasonably be performed within thirty (30) days, such default shall be deemed to
have been cured if Landlord commences such performance within said thirty-day
period and thereafter diligently undertakes to complete the same. In addition to
the foregoing, if Landlord shall default in the payment, performance or
observance of any agreement or condition contained in this Lease to be paid,
performed or observed by Landlord and if Landlord shall not cure such default
within thirty (30) days after notice from Tenant specifying such default (or, if
such default cannot by its nature be cured within such thirty (30) day period,
shall not
21
within such period commence to cure such default and thereafter proceed to cure
such default to completion with due diligence), Tenant may, at its option,
without waiving any claim for damages for breach of agreement, at any time
thereafter (but with additional prior notice to Landlord) cure such default for
the account of Landlord, and any amount paid by Tenant in so doing shall be
deemed paid for the account of Landlord, and Landlord agrees to reimburse Tenant
therefor. Tenant may cure any such default as aforesaid prior to the expiration
of said thirty (30) day period, but after reasonable notice to Landlord, if the
curing of such default prior to the expiration of said thirty (30) day period is
reasonably necessary to protect the Leased Premises or Tenant's interest therein
or to prevent injury or damage to persons or property or to Tenant's business.
Upon the occurrence of any such default, Tenant may xxx for injunctive relief or
to recover damages for any loss directly resulting from the breach and/or
exercise of such self-help rights, but Tenant shall not be entitled to terminate
this Lease or withhold, offset or xxxxx any sums due hereunder, except as
ordered by a court of competent jurisdiction.
Section 13.04. Limitation of Landlord's Liability. If Landlord shall fail
to perform any term, condition, covenant or obligation required to be performed
by it under this Lease and if Tenant shall, as a consequence thereof, recover a
money judgment against Landlord, Tenant agrees that it shall look solely to
Landlord's right, title and interest in and to the Building (which includes
Annual Base Rent and insurance proceeds arising from or relating to this Lease
or the Leased Premises) for the collection of such judgment; and Tenant further
agrees that no other assets of Landlord shall be subject to levy, execution or
other process for the satisfaction of Tenant's judgment.
Section 13.05. Nonwaiver of Defaults. Neither party's failure or delay in
exercising any of its rights or remedies or other provisions of this Lease shall
constitute a waiver thereof or affect its right thereafter to exercise or
enforce such right or remedy or other provision. No waiver of any default shall
be deemed to be a waiver of any other default. Landlord's receipt of less than
the full rent due shall not be construed to be other than a payment on account
of rent then due, nor shall any statement on Tenant's check or any letter
accompanying Tenant's check be deemed an accord and satisfaction. No act or
omission by Landlord or its employees or agents during the Lease Term shall be
deemed an acceptance of a surrender of the Leased Premises, and no agreement to
accept such a surrender shall be valid unless in writing and signed by Landlord.
Section 13.06. Attorneys' Fees. If either party defaults in the performance
or observance of any of the terms, conditions, covenants or obligations
contained in this Lease and the non-defaulting party obtains a judgment against
the defaulting party, then the defaulting party agrees to reimburse the
non-defaulting party for reasonable attorneys' fees and expenses incurred in
connection therewith.
Section 13.07. Subordination of Landlord Liens. Landlord hereby agrees to
subordinate any statutory or common law "landlord's lien" as to all equipment,
inventory and furniture, trade fixtures and other personal property of or
utilized by Tenant and located from time to time in the Leased Premises or in an
Appurtenant Facility to any unaffiliated third-party lender or creditor and
agrees to deliver a confirmation of such subordination from time to time as
requested by Tenant in a form reasonably acceptable to Tenant and Landlord.
Notwithstanding any other provision of this Lease to the contrary, Tenant's
interest in any equipment and inventory, inventory, trade fixtures and other
personal property of or utilized by Tenant and located at the Leased Premises
and any interest of Tenant's lenders, leasing companies or similar entities
shall at no time be subordinate to any interest of any of Landlord's lenders,
mortgagee's banks or leasing companies.
22
ARTICLE 14 - TENANT'S RESPONSIBILITY REGARDING
----------------------------------------------
ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES.
-------------------------------------------
Section 14.01. Definitions.
(a) "Environmental Laws" - All present or future federal, state and
municipal laws, ordinances, rules and regulations applicable to the
environmental and ecological condition of the Leased Premises, the rules and
regulations of the Federal Environmental Protection Agency or any other federal,
state or municipal agency or governmental board or entity having jurisdiction
over the Leased Premises.
(b) "Hazardous Substances" - Those substances included within the
definitions of "hazardous substances," "hazardous materials," "toxic substances"
"solid waste" or "infectious waste" under Environmental Laws.
Section 14.02. Compliance. Tenant, at its sole cost and expense, shall
promptly comply with the Environmental Laws including any notice from any source
issued pursuant to the Environmental Laws or issued by any insurance company
which shall impose any duty upon Tenant with respect to the use, occupancy,
maintenance or alteration of the Leased Premises whether such notice shall be
served upon Landlord or Tenant.
Section 14.03. Restrictions. Tenant shall operate its business and maintain
the Leased Premises in compliance with all Environmental Laws. Tenant shall not
cause or permit the use, generation, release, manufacture, refining, production,
processing, storage or disposal of any Hazardous Substances on, under or about
the Leased Premises, or the transportation to or from the Leased Premises of any
Hazardous Substances, except as necessary and appropriate for its Permitted Use
in which case the use, storage or disposal of such Hazardous Substances shall be
performed in compliance with the Environmental Laws and the highest standards
prevailing in the industry. During the development of the Phase II Property,
neither Landlord nor its affiliates shall cause or permit the use, generation,
release, manufacture, refining, production, processing, storage or disposal of
any Hazardous Substances on, under or about the Phase II Property, or the
transportation to or from the Phase II Property of any Hazardous Substances,
except as necessary and appropriate for the development of the Phase II
Property, in which case the use, storage or disposal of such Hazardous
Substances shall be performed in compliance with the Environmental Laws and the
highest standards prevailing in the industry.
Section 14.04. Notices, Affidavits, Etc. Tenant shall immediately notify
Landlord of (i) any violation by Tenant, its employees, agents, representatives,
customers, invitees or contractors of the Environmental Laws on, under or about
the Leased Premises, or (ii) the presence or suspected presence of any Hazardous
Substances on, under or about the Leased Premises and shall immediately deliver
to Landlord any notice received by Tenant relating to (i) and (ii) above from
any source. Tenant shall execute affidavits, representations and the like within
five (5) days of Landlord's request therefor concerning Tenant's best knowledge
and belief regarding the presence of any Hazardous Substances on, under or about
the Leased Premises.
Section 14.05. Landlord's Rights. Landlord and its agents shall have the
right, but not the duty, upon advance notice (except in the case of emergency
when no notice shall be required) to inspect the Leased Premises and conduct
tests thereon to determine whether or the extent to which there has been a
violation of Environmental Laws by Tenant or whether there are Hazardous
Substances on, under or about the Leased Premises. In exercising its rights
herein, Landlord shall use reasonable efforts to minimize interference with
Tenant's business but such entry shall not constitute an eviction of Tenant, in
23
whole or in part, and Landlord shall not be liable for any interference, loss,
or damage to Tenant's property or business caused thereby.
Section 14.06. Indemnification. Tenant shall indemnify Landlord and
Landlord's managing agent from any and all claims, losses, liabilities, costs,
expenses and damages, including attorneys' fees, costs of testing and
remediation costs, incurred by Landlord in connection with any breach by Tenant
of its obligations under this Article 14. The covenants and obligations under
this Article 14 shall survive the expiration or earlier termination of this
Lease.
Section 14.07. Tenant Release. Notwithstanding anything contained in this
Article 14 to the contrary, Tenant shall not have any liability to Landlord
under this Article 14 resulting from any conditions existing, or events
occurring, or any Hazardous Substances existing or generated, at, in, on, under
or in connection with the Leased Premises prior to the Commencement Date of this
Lease except to the extent Tenant exacerbates the same.
Section 14.08. Landlord's Indemnification. Notwithstanding anything above
to the contrary, Landlord shall indemnify Tenant from any and all damages,
claims or liability Tenant incurs by reason of the existence of Hazardous
Substances on the Leased Premises or the Land prior to the Commencement Date or
Landlord's violation of any Environmental Laws or the generation, use, or
release of any Hazardous Substances by Landlord in connection with the Leased
Premises, the Building or the property appurtenant to the Building, except to
the extent Tenant exacerbates the same. The covenants and obligations of
Landlord under this Article 14 shall survive the expiration or earlier
termination of this Lease.
ARTICLE 15 - MISCELLANEOUS
--------------------------
Section 15.01. Benefit of Landlord and Tenant. This Lease shall inure to
the benefit of and be binding upon Landlord and Tenant and their respective
successors and assigns.
Section 15.02. Governing Law. This Lease shall be governed in accordance
with the laws of the state where the Building is located.
Section 15.03. Quiet Enjoyment. Landlord covenants that, upon the
continuing full and timely compliance by Tenant with all of the terms,
covenants, and provisions of this Lease to be performed by Tenant, Tenant shall
peacefully and quietly hold and enjoy the Leased Premises throughout the Lease
Term, without hindrance, ejection or molestation, by, from, or though Landlord
or anyone claiming by, from, or through Landlord subject to the terms of this
Lease.
Section 15.04. Force Majeure. Landlord and Tenant (except with respect to
the payment of rent or any monetary obligation) shall be excused for the period
of any delay in the performance of any obligation hereunder when such delay is
occasioned by causes beyond its control, including but not limited to work
stoppages, boycotts, slowdowns or strikes; shortages of materials, equipment,
labor or energy; unusual weather conditions; or acts or omissions of
governmental or political bodies.
Section 15.05. Examination of Lease. Submission of this instrument for
examination or signature to Tenant does not constitute a reservation of or
option for Lease, and it is not effective as a Lease or otherwise until
execution by and delivery to both Landlord and Tenant.
Section 15.06. Indemnification for Leasing Commissions. The parties hereby
represent and warrant that the only real estate brokers involved in the
negotiation and execution of this Lease are the Brokers. Landlord is responsible
for paying all commissions payable to such Brokers resulting from the
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execution of this Lease. Each party shall indemnify the other from any and all
liability for the breach of this representation and warranty on its part and
shall pay any compensation to any other broker or person who may be entitled
thereto.
Section 15.07. Notices. Any notice required to be given under this Lease or
by law shall be deemed to have been given if it is written and delivered in
person or by overnight courier or mailed by certified mail, postage prepaid, to
the party who is to receive such notice at the address specified in Article 1.
If delivered in person, notice shall be deemed given as of the delivery date. If
sent by overnight courtier, the notice shall be deemed to have been given one
day after sending. If mailed, the notice shall be deemed to have been given on
the date which is three (3) business days following mailing. Either party may
change its address by giving written notice thereof to the other party.
Section 15.08. Partial Invalidity; Complete Agreement. If any provision of
this Lease shall be held to be invalid, void or unenforceable, the remaining
provisions shall remain in full force and effect. This Lease represents the
entire agreement between Landlord and Tenant covering everything agreed upon or
understood in this transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof or in effect between the
parties. No change or addition shall be made to this Lease except by a written
agreement executed by Landlord and Tenant.
Section 15.09. Financial Statements. During the Lease Term and any
extensions thereof, Tenant shall provide to Landlord on an annual basis, within
sixty (60) days after Landlord's request, which request shall be given, if at
all, no earlier and no later than within ninety (90) days following certified
and audited and the end of Tenant's fiscal year, a copy of Tenant's most recent
financial statements prepared as of the end of Tenant's fiscal year. Such
financial statements shall be signed by Tenant, who shall attest to the truth
and accuracy of the information set forth in such statements. All financial
statements provided by Tenant to Landlord hereunder shall be prepared in
conformity with generally accepted accounting principles, consistently applied.
As long as Tenant is a publicly traded corporation and Tenant's financial
statements are available to the public on the world wide web as a result of
required filings with the Securities and Exchange Commission, such availability
shall satisfy Tenant's obligations to provide such financial statements under
this Section 15.09.
Section 15.10. Representations and Warranties. The undersigned represent
and warrant that (i) such party is duly organized, validly existing and in good
standing (if applicable) in accordance with the laws of the state under which it
was organized; and (ii) the individual executing and delivering this Lease has
been properly authorized to do so, and such execution and delivery shall bind
such party.
Section 15.11. Memorandum of Lease. Landlord and Tenant shall, concurrently
with the execution of this Lease, execute a memorandum of this Lease in form
acceptable to Tenant for recording upon or after the Commencement Date in the
chain of title of the Land, setting forth the parties hereto, the date hereof,
the term hereof, any option to extend hereunder, and any options or rights of
purchase or first refusal, and said memorandum shall be promptly recorded by
Tenant; provided, however, Tenant shall pay all cost incurred in the preparation
and recording of the memorandum and Tenant shall be obligated to release the
memorandum, at its cost, upon expiration or earlier termination of this Lease.
In the event Tenant fails to release the memorandum as provided above, Landlord
shall have the right to execute and record a release on Tenant's behalf. The
foregoing provision shall survive the expiration or earlier termination of the
Lease
Section 15.12. Counterparts. This Lease may be executed in one or more
counterparts, with signatures to one being deemed signatures to each such
counterpart, each of which shall be deemed one
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and the same instrument. The parties agree that signature pages sent by
facsimile shall be deemed originals.
Section 15.13. Option to Extend.
X. Xxxxx and Exercise of Option. Provided that (i) Tenant has not been in
Default in the payment of Rent or any other sum due Landlord hereunder more than
two (2) times during the immediately preceding two (2) years, (ii) the
creditworthiness of Tenant is then equal to or in excess of Tenant's
creditworthiness as of the date of this Lease and the letter of credit is still
in effect, (iii) Tenant originally named herein remains in possession of and has
been continuously operating in a majority of the Leased Premises, excluding any
Surplus Space that has not been subleased pursuant to Article 11, throughout the
Original Term and (iv) the current use of the Leased Premises is the Permitted
Use, Tenant shall have one (1) option to extend the original fifteen year term
for one (1) additional period of five (5) years (the "Extension Term"). Any
Extension Term resulting from the due exercise by Tenant of any Extension Option
shall be deemed part of the Lease Term upon the same terms and conditions
contained in the Lease for the Original Term except (i) Tenant shall not have
any further option to extend and (ii) the Annual Base Rent shall be adjusted as
set forth herein ("Rent Adjustment"). Tenant shall exercise such option by
delivering to Landlord, no later than twelve (12) months prior to the expiration
of the Original Term, written notice ("Tenant's Notice") of Tenant's desire to
extend the Original Term. Tenant's failure to properly exercise such option
shall waive it. If Tenant properly exercises its option to extend, Landlord
shall notify Tenant of the Rent Adjustment no later than thirty (30) days after
its receipt of Tenant's Notice. Tenant shall be deemed to have accepted the Rent
Adjustment if it fails to deliver to Landlord a written objection thereto within
five (5) business days after receipt thereof. If Tenant properly exercises its
option to extend, Landlord and Tenant shall execute an amendment to the Lease
(or, at Landlord's option, a new lease on the form then in use for the Building)
reflecting the terms and conditions of the Extension Term, within thirty (30)
days after Tenant's acceptance of the Rent Adjustment.
B. In the event that Tenant exercises its option to extend the Lease Term
for the Extension Term as provided herein, then the Annual Base Rent for the
Extended Term shall be the then-prevailing market rent for similar space in
similar buildings in the St. Louis area (the "Market Rent"). "Then-prevailing
market rent" as used in this paragraph shall mean the Market Rent prevailing as
of the date Landlord receives Tenant's Notice.
In the event that Tenant exercises its option to extend the Lease Term but
disagrees with Landlord's determination of the Market Rent, Tenant shall so
inform Landlord in writing within five (5) business days after its receipt of
the Rent Adjustment. If Landlord and Tenant can not agree on the appropriate
Market Rent within fifteen (15) business days after Tenant's objection is given
to Landlord, then the matter shall be submitted to arbitration by appraisal in
the manner hereinafter set forth, and the parties agree to be bound by the
decision of the appraiser(s).
After a demand for arbitration by one of the parties and within ten (10)
business days after such demand, the parties shall meet and attempt to agree
upon and designate a mutually acceptable appraiser. In the event that the
parties are unable to agree upon a single mutually acceptable appraiser within
said ten (10) day period, then within five (5) business days thereafter, each
party shall appoint its own appraiser. The independent appraisers shall be
directed to mail their independent appraisals to each of the parties
simultaneously within twenty (20) business days thereafter. If the independent
appraisals differ by no more than eight percent (8%), then the Market Rent shall
be the average of the two appraisals. If the two appraisals differ by more than
eight percent (8%), then the two appraisers shall, within ten (10) business days
after being informed by either party that the two appraisals differ by more than
eight percent (8%), choose a mutually agreed upon third appraiser who shall be a
Member of the Appraisal
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Institute ("MAI") and have at least ten (10) years' experience in the appraisal
of commercial properties in the St. Louis area. The third appraiser shall do an
independent appraisal without knowledge as to the amounts determined by the
prior appraisals, and shall mail his or her independent appraisal to each of the
parties and to each of the first two appraisers simultaneously within twenty
(20) business days after having been appointed. The Market Rent shall be the
average of the two of the three appraisals that are closest in amount.
In the event that the Extension Term commences prior to the termination of
the arbitration by appraisal, then in the interim the Base Rent shall be the
Market Rent set forth in Landlord's Notice. After the proper Market Rent has
been determined, the Base Rent shall be the Market Rent as determined by the
arbitration by appraisal, and Tenant shall promptly pay to Landlord the amount
of any previous underpayment or Landlord shall promptly reimburse Tenant the
amount of any overpayment, whichever is appropriate.
Section 15.14. Right Of First Offer.
(a) Prior to making an offer to sell, listing for sale or placing in any
manner the Leased Premises, or any portion thereof, on the market for sale, the
Landlord shall first notify Tenant in writing that the Landlord desires to sell
the Leased Premises, or any portion thereof on the basic business terms set
forth in such notice (which shall include a description of the status of title
of the Property which the Landlord is willing to convey) subject to resolution
of legal issues ("Sale Notice"). Tenant shall have thirty (30) days after such
Sale Notice either to notify the Landlord that Tenant desires to acquire the
Leased Premises, or portion thereof, on such basic terms subject to the
resolution of legal issues ("Acquisition Notice") or to deliver a notice that it
elects not to acquire the Leased Premises, or portion thereof ("Refusal
Notice"). In the event Tenant delivers a Refusal Notice or fails to provide the
Acquisition Notice or a Refusal Notice to the Landlord within such thirty (30)
day period, the Landlord may offer the Leased Premises, or portion thereof, for
sale. In the event Tenant provides the Acquisition Notice to the Landlord within
said thirty (30) day period, the parties shall act in good faith to finalize,
execute and deliver a contract for the purchase and sale of the Leased Premises,
or portion thereof, within thirty (30) days after the Acquisition Notice. In the
event the parties have, after acting in good faith, not finalized, executed and
delivered such a contract within said thirty (30) day period, the Landlord may
offer the Leased Premises, or portion thereof, for sale.
(b) Time is of the essence respecting this Section 15.14.
(c) This Section 15.14 shall not apply to the sale or other transfer of the
Leased Premises, or any portion thereof, to any affiliated or related entity of
Landlord.
Section 15.15. Signage; Street Name. Provided that (i) the Lease is in
effect and (ii) Tenant complies with all zoning and other municipal and county
regulations and with the Declaration and the Indenture, Tenant may, at its own
cost and expense, erect signage ("Signage") identifying its business upon the
exterior of the Building. The location, style, and size of the Signage shall be
subject to Landlord's prior written approval, which approval shall not be
unreasonably withheld or delayed. Tenant agrees to maintain such Signage in
first-class condition and in compliance with all zoning and building codes
throughout the Lease Term and with the Declaration and the Additional
Declaration. Upon expiration or earlier termination of the Lease Term or
Tenant's vacating the Leased Premises prior to the expiration or earlier
termination of the Lease Term, Tenant shall remove the Signage and repair all
damage to the Building caused thereby. Landlord does not warrant the
availability of such Signage to Tenant but agrees to cooperate and to the extent
necessary participate with Tenant in obtaining all governmental consents to such
signage so long as Tenant reimburses Landlord for all reasonable out of pocket
expenses incurred by Landlord in connection with such cooperation. Any language
in the Lease
27
notwithstanding, Tenant shall indemnify and hold harmless Landlord from any and
all liability for loss of or damage or injury to any person (including death
resulting therefrom) or property connected with or arising from the Signage or
the rights granted herein. Tenant may, at its option, cause the street address
for the Leased Premises, to be renamed at its sole cost and expense. Landlord
does not warrant the changing of the address but agrees to cooperate and to the
extent necessary participate with Tenant in changing the address so long as
Tenant reimburses Landlord for all reasonable out of pocket expenses incurred by
Landlord in connection with such cooperation.
Section 15.16. Contingencies. Provided this Lease is not terminated as
provided herein, Tenant's obligation to accept the Leased Premises and commence
paying Rent and Landlord's obligation to deliver possession of the Leased
Premises are contingent upon the following:
(a) Landlord closing on the transaction contemplated in the Sale Agreement.
In the event this contingency is not satisfied by June 15, 2002, upon written
notice from either Landlord or Tenant to the other party, this Lease shall
terminate and, except for obligations that expressly survive the termination of
this Lease, neither party shall have any further rights or obligations
hereunder. In the event closing does not occur because of the default of Seller
under the Sale Agreement, at the request of Tenant, Landlord shall pursue the
remedy of specific performance to the extent provided under the Sale Agreement.
(b) Intentionally omitted.
Section 15.17. Telecommunications. Landlord may grant to Seller that
certain Telecommunications Easement Agreement, the substantially final form of
which is attached hereto as EXHIBIT L (the "Easement"), and Tenant's rights
granted under this Section 15.17 shall be subject and subordinate to the rights
granted under the Easement, provided, however, that, to the extent that Landlord
has any consent or approval rights under said Easement, Landlord shall first
endeavor to obtain the consent or approval of Tenant before determining whether
to grant such consent or approval, provided that if Tenant withholds its consent
or approval, Landlord shall not be in default under this Lease for granting such
consent or approval, if Landlord does so in conformity with the requirements of
the Easement Agreement. Subject to the Easement and the terms and provisions of
this Lease, Tenant shall have the exclusive right to grant the right to utilize
the rooftop by telecommunications provider(s) that provide services to Tenant or
are necessary for Tenant's customary business operations (the "Providers") All
equipment installed on the roof under this Section 15.17 shall not materially
detract from the aesthetic appearance of the Building. If Tenant selects
Provider(s) that do not already have authority and access granted by Landlord,
Landlord will act in a commercially reasonable manner to enter into an access
agreement for access to the Building risers, conduit, rooftop and equipment
rooms on terms reasonably acceptable to Tenant, so that Tenant's
telecommunications provider(s) may provide Tenant's requested telecommunications
services to the Leased Premises. Such access agreement shall be offered to such
telecommunications provider(s) free of charge, on a non-discriminatory basis and
in compliance with all applicable laws. The following provisions shall apply to
the use of the rooftop by Tenant and its Providers, and all Providers shall
agree in writing with Landlord to be bound thereby:
A. "Roof Area" shall mean the surface of the roof of the Building.
B. "Equipment" shall mean antennae, dishes and related wiring, cabling,
conduit and appurtenant structures required to provide telecommunications
services by the parties or their respective Providers.
C. License of Roof Area. Provided Tenant is not in Default under the Lease,
and provided further that Tenant complies with all zoning and other municipal
and county rules and regulations, Tenant
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shall have the right, at its own cost and expense and subject to the terms
hereof, to install, operate and maintain the Equipment on the Roof Area, so long
as the Equipment. The Rooftop License Fee is granted free of charge to Tenant.
Tenant shall be solely responsible for obtaining any necessary permits and
licenses required to install and operate the Equipment. Copies of such permits
and licenses shall be provided to Landlord.
D. Installation of the Equipment.
(i) Tenant understands and agrees that the structural integrity and the
load bearing capability of the roof of the Building, the moisture
resistance of the Building membrane, and the ability of Landlord to use all
parts of the roof of the Building are of critical importance to Landlord.
Tenant, therefore, agrees that Tenant shall not penetrate the roof membrane
and that it will submit specifications and plans for installation of the
Equipment to Landlord for approval prior to installation. Tenant shall not
begin installation until Landlord has approved Tenant's plans and
specifications in writing, which approval shall not be unreasonably
withheld, conditioned or delayed. Landlord's approval of any installation
is not a representation that such installation of the Equipment is in
compliance with all applicable laws, ordinances, rules and regulations or
that it will not cause interference with other communications operations on
the Property. Tenant will notify Landlord at least two (2) days prior to
commencing Tenant's installation.
(ii) Tenant shall use the roofing company specified by the Landlord to
perform any work affecting the roof, provided the costs charged by such
roofer are competitive with charges for similar services within the same
geographic region. Tenant shall match as nearly as possible the color of
the Equipment to the existing facade of the Building. All cable runs,
conduit and sleeving shall be installed in a good workmanlike manner.
Cables and transmission lines shall be routed and attached in accordance
with current, state of the art industry practices. The Equipment shall be
identified with permanently marked, weather proof tags at the following
locations: (i) each antenna bracket; (ii) at the transmission line building
entry point; (iii) at the interior wall feed through or any other
transmission line exit point; and (iv) at any transmitter combiner,
duplexer, or multifed receive port. In addition, all Tenant telephone
blocks, demarcs, and cables shall be clearly identified with the Tenant's
name, type of line, and circuit number.
E. Roof Work. If, during the term of this Agreement, as same may be
extended, Landlord needs to perform maintenance work to Landlord's equipment on
the roof of the Building or repair or replace the roof of the Building ("Roof
Work"), Tenant agrees to cooperate and work with Landlord (at Tenant's sole cost
and expense) to achieve said Roof Work. Landlord agrees to provide at least
thirty (30) days notice to Tenant of its intention to perform said work; except
in the case of emergency Roof Work in which case Landlord shall give as much
notice as possible under the circumstances. Such plan may require the relocation
of any portion of the Equipment at Tenant's cost and expense or Tenant's
installation of temporary equipment. Moreover, if a temporary relocation of the
Equipment is required to accommodate the Roof Work, Landlord agrees to exercise
commercially reasonable efforts to identify a technically feasible alternative
location for the relocation portion of the Equipment which will not impede the
Roof Work. Notwithstanding the foregoing, Landlord does not warrant and
represent that in all circumstances that an alternative location will be
available and, consequently, Landlord's obligation to provide such alternative
location is subject to the availability of such space and under no circumstances
shall Landlord be liable to Tenant for any consequential damages as a result of
such relocation including, but not limited to, loss of business income or
opportunity. Notwithstanding the foregoing, Tenant shall
29
move the Equipment back to its original location after the Roof Work is
completed unless the parties agree to utilize the relocated area permanently.
F. Interference. Tenant shall not use the Roof Area or the Equipment in any
way that interferes with the use and enjoyment of the Building by the grantee
under the Easement. The operation of the Equipment shall not interfere with the
maintenance or operation of the Building, including but not limited to the roof,
MATV, CATV or other video systems, HVAC systems, electronically controlled
elevator systems, computers, telephone systems, or any other system serving the
Building and/or its occupants. The operation of the Equipment shall not
interfere with radio or telecommunication equipment installed by the grantee
under the Easement. Tenant shall indemnify Landlord and hold Landlord harmless
from all expenses, costs, damages, loss, claims or other expenses and
liabilities arising from any such interference. Tenant agrees to cease all
operations (except for testing as approved by Landlord) within twenty-four (24)
hours of receipt of notice from License of such interference and to continue to
cease all operations until the interference has been corrected to the sole
satisfaction of the Landlord. If such interference has not been corrected within
thirty (30) days, Landlord may require Tenant to remove the specific items from
the Equipment causing such interference. All operations by Tenant shall be
lawful and in compliance with all FCC rules and regulations. Tenant shall be
responsible for all costs associated with any tests deemed necessary to resolve
any and all interference which Landlord determines or reasonably believes is
being caused by the Equipment or Tenant's use thereof.
G. Noise. Tenant shall not allow any excessive or objectionable levels of
noise to be generated by the Equipment during normal operations.
H. Emergencies. Notwithstanding the foregoing, if an emergency situation
exists which Landlord reasonably determines, in its sole discretion, to be
attributable to the Equipment, Landlord shall immediately notify Tenant
verbally, who shall act diligently and expediently to remedy the emergency
situation. Should Tenant fail to so remedy the emergency situation or should
Landlord reasonably determine that the response time by Tenant is not adequate
given the nature of the emergency, Landlord may then shut down the Equipment and
Tenant shall have no recourse against Landlord as a result of such action.
I. Removal of the Equipment upon Termination. Following any termination or
expiration of this Lease, Tenant shall remove all of the Equipment from the
Building. In performing such removal, Tenant shall restore the Roof Area and any
personal property and fixtures thereon to as good a condition as they were prior
to the installation or placement of the Equipment, reasonable wear and tear
excepted. If Tenant fails to remove the Equipment within thirty (30) days after
expiration or earlier termination of this Agreement, Landlord may remove and
dispose of the Equipment and Tenant shall reimburse Landlord for the costs of
such removal and restoration of the Roof Area. Moreover, Landlord may deem the
Equipment abandoned in which event the Equipment shall become Landlord's
property. This subsection (I) shall survive the expiration or earlier
termination of this Lease.
J. Utilities. Tenant shall be responsible for obtaining and paying for all
utilities to operate the Equipment.
K. Marking and Lighting Requirements. Tenant shall construct and install
the Equipment at the Building in compliance with all marking and lighting
requirements of the Federal Aviation Administration ("FAA") and the FCC.
L. Electromagnetic Emissions. Tenant shall at all times comply with any
Federal, state or local law, rule or regulation pertaining to non-ionizing
radiation or electromagnetic emissions, that is either currently enacted or that
may become enacted or promulgated during the term hereof. Tenant
30
shall be responsible for such compliance either with respect to the Equipment
individually or the integration of the Equipment with any other communication
facilities or other electromagnetic emitting facilities at the Building. Tenant
shall provide at its sole cost and expense any documentation required to
evidence such compliance as well as performing all tests to obtain such required
documentation. Tenant shall, at its sole cost and expense, and subject to
Landlord's approval as provided in this Lease perform such alterations or
adjustments to the Equipment that may be required during the term hereof due to
a change in law or the implementation of a new law.
M. Tenant's Right to Discontinue Use. Tenant reserves the right to
discontinue its use of the Equipment at any time prior to the termination of the
Lease or any renewal or extension thereof for any reason whatsoever, provided
that Tenant gives thirty (30) days prior written notice thereof to Landlord.
N. Indemnification. Any language in the Lease notwithstanding, Landlord
shall not be liable and Tenant shall indemnify, defend and hold Landlord
harmless from and against any and all liability, damages (including but not
limited to personal injury, death, or property damages), costs, expenses, and
attorneys' fees incurred by Landlord arising from any Equipment related cause
whatsoever, including those arising from the installation, use, maintenance and
removal thereof.
Section 15.18. Personal Property Taxes. Tenant shall pay, prior to
delinquency to the applicable taxing authority, all Personal Property Taxes on
all personal property of Tenant contained in the Leased Premises including any
Taxes on replacements to FF&E.
Section 15.19. Tenant's Right to Contest Real Estate Taxes. To the extent
permitted by law, Tenant shall have the right (but not the obligation) to
contest or object to the legal validity or amount of Taxes for which Tenant is
responsible under this Lease and may institute such proceeding as Tenant
considers necessary with respect thereto, provided that Tenant gives Landlord
written notice of such contest or objection at least fifteen (15) calendar days
before the taxing authority's delinquency date, and further provided that Tenant
shall continue to pay such Taxes during the pendency of such contest. Landlord
shall not be required to join in any proceeding or contest brought by Tenant
unless the provisions of any applicable law require that the proceeding or
contest brought by or in the name of Landlord, in which case Landlord shall join
in the proceeding or contest or permit it to be brought in Landlord's name and
use all reasonable efforts to cooperate with Tenant in said proceeding or
contest, so long as Landlord is not required to bear any cost of such proceeding
or contest or any cost incurred in connection therewith. Landlord shall promptly
pay to Tenant the Tenant's Proportionate Share of any tax rebate, adjustment, or
refund collected by Landlord in respect of the Leased Premises, whether or not
resulting from such appeal, audit or protest, except to the extent solely
attributable to a period of Landlord's ownership that is not within the Lease
Term. During the pendency of the proceeding or after the final determination
thereof, Tenant will reimburse Landlord for any out-of-pocket costs incurred by
Landlord in connection with any such proceeding and for interest and/or
penalties imposed or assessed in connection with such proceeding or contest
within thirty (30) days after Landlord's billing to Tenant therefor, accompanied
by reasonable proof of the expenditure; in the alternative, Landlord may direct
Tenant in writing to make payment directly to the entity issuing the xxxx or
notice of assessment and Tenant will make such payment on or before the date
specified in the xxxx or notice as the last date prior to delinquency on which
such payment may be made. In the event any proceeding or contest brought by
Tenant to which Landlord objects prior to the date that such proceeding or
contest may be dismissed or withdrawn results in a determination increasing the
assessment or amount of any Tax, Tenant shall, at its sole cost and expense,
prosecute any appeal of such determination, and if a final non-appealable
judgment or order is issued resulting in an increase in the assessment or of the
amount of any Tax, Tenant shall be liable to Landlord for the Taxes attributable
to such increase for a period of two (2) years following the expiration of the
Lease Term or the earlier termination of this Lease, which obligation shall
survive such expiration or earlier termination. In the event any proceeding or
contest brought by Landlord to which
31
Tenant objects prior to the date that such proceeding or contest may be
dismissed or withdrawn results in a determination increasing the assessment or
amount of any Taxes, the amount of any increase in Taxes resulting from such
determination shall not be included as Taxes under this Lease.
Section 15.20. Development of Parcel II Property. Landlord or any successor
to or transferee of Landlord's interest in and/or title to the Phase II Property
or other person or entity subsequently acquiring title to the Phase II Property
prior to its development as an office building (the "Phase II Owner"), shall
have the right at any time to develop the Parcel II Property with a building and
related improvements, which related improvements may be located within the
Appurtenant Areas (collectively, the "Phase II Development") and shall have the
right to use the Land (but no portion of the Building) for access to and
temporary encroachments by contractors and subcontractors (and the equipment and
employees thereof) and temporary storage of construction materials and equipment
during construction or maintenance or repairs to the extent reasonably necessary
to construct and develop the Phase II Development in accordance with the
development plan therefor, provided, however, (i) the Phase II Owner shall
exercise its rights under this Section 15.20 in such a manner as to minimize
disruption of the Tenant's quiet enjoyment and use of the Leased Premises and of
the Parking Area and access requirements (ii) the Phase II Owner shall not use
the Parking Area to the extent that Tenant's then current actual parking
requirements would be diminished; (ii) any access and encroachment activities
permitted by this Section 15.20 shall be completed as soon as reasonably
possible once commenced; (iii) the Phase II Owner, exercising its rights under
this Section 15.20 agrees to hereby indemnify any other owner of any portion of
the Land and the Tenant from any loss, costs, damage or expense incurred as a
result of the exercise by the Phase II Owner of its rights under this Section
15.20; (iv) the Phase II Owner shall repair, at its sole cost and expense, any
damage done to any Appurtenant Areas (including, without limitation, the Parking
Area) resulting from such development activities. Tenant shall not be liable to
pay the costs of any development expenses associated with the Phase II
Development (including the development of any Parking Facility). Without
limiting the scope of the Phase II Development, the Phase II Owner shall have
the right to construct one or more parking facilities, including, without
limitation, garages and surface parking lots, on the Land for the benefit of the
Parcel II Property and/or the Building (each a "Parking Facility"), provided
that to the extent any Parking Facility reduces the number of parking spaces
currently available to Tenant within the Parking Area as of the Commencement
Date, the number of spaces within the Parking Facility when added to the number
of parking spaces remaining in the Parking Area outside the Parking Facility
equals the number of parking spaces available in the Parking Area as of the
Commencement Date plus the number of spaces required under applicable law for
the Phase II Development, and Landlord shall provide parking to replace such
parking spaces upon or within a Parking Facility to the extent of such reduction
("Replacement Spaces") and unless and until the Parking Facility is included as
a part of the common area in a subdivision plat as provided below, the costs of
the maintenance, repair and replacement of such Parking Facility shall be
included in Operating Expenses only in the proportion that the number of
Replacement Spaces within such Parking Facility bears to the total number of
parking spaces within the Parking Facility. Except as provided in the
immediately preceding sentence with respect to Replacement Spaces, Tenant shall
have no liability for Real Estate Taxes or other Operating Expenses to the
extent they are attributable to the Phase II Development unless and until (a)
the Phase II Development is constructed to a stage that a building built for
tenant occupancy, which building comprises a part of the Phase II Development,
would qualify for the issuance of a certificate of occupancy from the applicable
governmental authority without regard to any requirement for the completion of
tenant space; (b) the Land is included within a recorded subdivision plat
subdividing the Land substantially into the lots shown on EXHIBIT A (subject to
the provisions set forth in Section 1.01 Q permitting revisions with respect to
the Phase II Property), under which the Phase II Property and the portion of the
Land on which the Building is located are created as separate lots and the
Appurtenant Areas are designated as common areas; and (c) a declaration of
covenants, conditions, easements and restrictions or trust indenture (the
"Indenture") is recorded with respect to the subdivision plat,
32
Indenture shall have priority over any and all deeds of trust, security
agreements or ground leases, if any, already of record against the Land, may not
diminish or contravene Tenant's rights under this Lease, does not materially
increase Tenant's obligations under this Lease, without regard to this Section
15.20, or reduce the value of the Phase II Property or the ability of any such
subsequent purchaser or acquirer of the Phase II Property from effecting the
Phase II Development and which provides for in a fair, reasonable, and
commercially acceptable manner consistent with the foregoing standards, the
following basic provisions (it being intended that the following list may be
expanded as appropriate and necessary consistent with the foregoing standards):
(i) the maintenance, repair and replacement of the common areas and facilities
therein, (ii) the payment of real estate taxes and utility charges on the common
areas; (iii) the administration and governance of the subdivision; (iv) the
levying of assessments with respect to the foregoing between or among the owners
of the respective lots within the subdivision allocated on an equitable basis
(e.g. on the basis of the relative square footages of the buildings) (v) the
creation of easements reasonably necessary for the operation and maintenance of
the subdivision and for the benefit of the owners of lots as necessary for the
development and use of their lots which shall include an easement for the
benefit of the Building permitting the owner of the Building and its tenants to
have continuous access to and use of the Appurtenant Facilities; (vi) the
ability, but not the obligation, of owners of lots in the subdivision to
designate their tenant or tenants as entitled to enforce the obligations of the
trustees under the Indenture to the same extent as the owners are entitled (the
occurrence of the foregoing conditions shall constitute the "Phase II
Development Completion"); (vii) the restoration of Appurtenant Areas in the
event of a casualty or condemnation; (viii) the maintenance of property,
liability and directors' and officers' liability insurance; and (ix) such other
matters as may be required by law; and prior to recording the Indenture shall be
subject to the review of Tenant to assure that it is consistent with the
foregoing. Upon the occurrence of the Phase II Development Completion, the
assessments under item (iv) relative to the Building shall be included in
Operating Expenses. It shall be the obligation of (a) the trustees under the
Indenture to assure that any Parking Facility that is a common area under the
Indenture shall not be used in a manner that would deny to Tenant the right to
use the number of spaces that exist on the Parking Area as it exists on the
Commencement Date and (b) the Tenant to assure that Tenant shall not use or
permit the use of such Parking Facility in a manner that would deny to the owner
of the Phase II Property the number of spaces that exist in the Parking Facility
less any Replacement Spaces. To the extent that the Appurtenant Areas are
designated as common areas under the Indenture and the maintenance, repair and
replacement thereof made the obligation of the trustees under the Indenture,
then Landlord shall be relieved of its obligations under this Lease with respect
to such Appurtenant Areas to the extent that the performance of the obligations
of the trustees under the indenture with respect to the common areas.
Section 15.21. Colocation. Subject to the provisions of this Lease,
including, without limitation the rights of any telecommunications provider(s)
granted access to the Building under Section 15.17 hereof, Tenant may enter into
arrangements, without charge by Landlord, with third parties providing for (i)
the installation in the Building of communications and/or computer equipment
owned or leased by third parties (including communications and/or computer
equipment leased by Tenant to such third parties) to enable Tenant to provide
such third parties with broadband connectivity to the internet, IP VPN services,
and/or all other internet, intranet and extranet facilities and equipment and/or
services then currently being provided by Tenant; (ii) the use, maintenance,
repair, and operation of such communications and/or computer equipment by such
third parties and/or by Tenant; and (iii) a grant by Tenant to such third
parties of the right to have actual and/or virtual access to the Building and to
such communications and/or computer equipment (each such third party is a
"Co-location Party"; the equipment of, owned, leased or otherwise belonging to
the Co-location Party is the "Co-location Equipment" and the arrangements
between Tenant and a Co-location Party consistent with (i)-(iii) above being the
"Permitted Co-location Arrangements"). Notwithstanding the foregoing, Permitted
Co-location Arrangements may be effected whether or not Tenant provides managed
hosting services to the Co-location Party.
33
Section 15.22. Option to Purchase Phase II Parcel. Contemporaneously with
the execution and delivery of this Lease, Tenant has delivered to Landlord a
promissory note payable to Landlord in the amount of Two Million Dollars
($2,000,000.00) (the "Option Note"), which Option Note is secured by a leasehold
deed of trust, security agreement and fixture filing (the "Deed of Trust") (the
Option Note and Deed of Trust collectively, the "Security Documents"). In
exchange for Tenant's delivery of the Security Documents, Landlord hereby grants
to Tenant an option to purchase Landlord's interest in the Phase II Property,
exercisable at any time during the first twelve months (12) months of the Lease
Term. Such option shall be subject to Landlord's right to sell or otherwise
transfer Landlord's interest in the Phase II Property to a Duke Entity, but
subject to Tenant's option, and shall be exercised by Tenant's giving written
notice to Landlord of its intention to purchase no later than the end of the
twelfth (12th) month of the Lease Term. Failure to timely and properly exercise
this option shall forever waive and extinguish it. If such option is validly
exercised by Tenant, the purchase price shall be Four Million Three Hundred
Fifty Thousand Dollars ($4,350,000.00), subject to customary prorations, and
closing shall take place within thirty (30) days of Tenant's exercise of said
option or such longer period as may be required to subdivide the Land. Upon
Tenant's exercise of such option, Tenant and Landlord shall execute a binding
agreement to sell and to purchase the Phase II Property in its "AS IS"
condition, wherein all closing costs, title insurance and survey costs shall be
borne by Tenant and upon such other customary terms and conditions, with closing
to occur within thirty (30) days following Tenant's exercise of said option,
unless otherwise mutually agreed in writing. Tenant shall receive a credit
against the Option Price in the amount of any principal payments made under the
Option Note, and upon the closing of the purchase and sale of the Phase II
Property to Tenant, the Option Note shall be cancelled by Landlord and the Deed
of Trust released of record. Tenant is prohibited from assigning any of its
rights under this Section 15.22 to any third party other than to an assignee of
the Lease, subject to Article 11. The Phase II Property shall not be conveyed
prior to the subdivision of the Land and the placing of the Indenture of record.
Prior to the expiration of the Tenant's option to purchase granted hereunder,
Landlord shall not grant any easements in the Land without Tenant's prior
written consent, which shall not be unreasonably withheld, conditioned or
delayed. Landlord agrees that following the Effective Date of this Lease, it
shall promptly initiate the process required for (a) subdividing the Land as
provided in Section 15.20, (b) preparing and placing the Indenture of record and
(c) pursuing its obligation to pursue the Zoning Approval, as defined in and
subject to the provisions of the Option Note, and shall make commercially
reasonable efforts to file all applications for subdivision approval and the
Zoning Approval within sixty (60) days of the Effective Date, and shall
thereafter diligently pursue to completion the subdivision of the land and the
recording of the Indenture and to the conclusion of the proceedings with respect
to the Zoning Approval.
If Tenant exercises its option to purchase Landlord's interest in the
Leased Premises as set forth herein, either party shall have the right to
sell/acquire the Building as part of a transaction that is intended to qualify
as a tax-deferred exchange under Section 1031 of the Internal Revenue Code of
1986, as amended. The non-exchanging party shall make all reasonable efforts to
cooperate with the exchanging party, provided, however, that the date of closing
shall not thereby be delayed, the non-exchanging party shall not be obligated to
incur any additional expenses and the exchanging party shall defend, indemnify
and hold harmless the non-exchanging party against any and all reasonable
losses, costs, expenses and liabilities which may arise out of such tax-deferred
exchange. To facilitate such exchange, the exchanging party shall have the right
to assign its rights under the agreement to a qualified intermediary and to
require the non-exchanging party's execution and delivery of all documents and
instruments required to effect such exchange to such intermediary.
Section 15.24. Effect of Declaration and Indenture. This Lease and the
rights, liabilities and obligations of the parties hereunder shall be subject
and subordinate to the Declaration and the Indenture and the Easement. Without
limiting the generality of the foregoing, to the extent that any obligation of
Landlord under this Lease is, pursuant to either the Declaration or the
Additional Declaration, an obligation of the trustees thereunder, and such
obligation is performed by such trustee(s), then Landlord
34
shall be relieved of liability to Tenant for the performance of such obligation
but shall use its good faith efforts to assure that the obligation is performed
by such trustee(s) to the same extent as Landlord is required to perform such
obligation under this Lease, and to the extent such trustee(s) shall fail to
perform such obligation, Landlord, to the extent permitted under the Declaration
or Additional Declaration, shall use commercially reasonable efforts to cause
the same to be performed or shall enforce any rights that it may have thereunder
to compel the trustee(s) to perform such obligations, and Landlord is hereby
deemed to have designated Tenant as being entitled to enforce the obligations of
the trustees under the Indenture, in the event Landlord shall fail to do so
within a reasonable period of time. To the extent the trustee(s) levy an
assessment, whether special or general, with respect to the performance of their
obligations under the Declaration or the Additional Declaration, which are also
obligations of Landlord to Tenant under this Lease (e.g. maintenance, repair and
replacement of the Parking Area), Tenant shall be responsible to pay Tenant's
Proportionate Share of such assessment, but subject to the limitations on
Operating Expenses that may be included in Additional Rent hereunder.
Notwithstanding anything to contrary in this Lease so long as Landlord,
including its successors, assigns and/or transferees of all of any portion of
the Land or any improvement thereon or any of their respective affiliates are
entitled to vote or any matters pursuant to the Declaration (such person or
entities collectively being the "Voting Parties," and individually being a
"Voting Party"), no Voting Party shall vote in a manner which would materially
diminish any rights of Tenant under this Lease or materially increase Tenant's
obligations under this Lease or which would otherwise materially adversely
affect Tenant or Tenant's operations at the Leased Premises as permitted under
this Lease without prior written consent of Tenant whose consent shall not be
unreasonably withheld or delayed; provided that compliance with the foregoing
shall not require any Voting Party to breach its fiduciary duty to the owners of
the Land or to violate or cause the trustees or owners to be in violation of
applicable law.
Section 15.25. Racquetball Court Damage. The parties acknowledge that prior
to the Effective Date the racquetball court located in the Leased Premises
suffered water damage as the result. Landlord shall cause such damage to be
repaired, provided that to the extent the damage was caused by or arose out of
the acts or omissions of Tenant, its agents, employees or consultants, Tenant
shall reimburse Landlord for the cost thereof within thirty (30)-days of receipt
of an invoice therefor.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written.
LANDLORD:
DUKE REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership, d/b/a Duke Realty of
Indiana Limited Partnership,
By: Duke Realty Corporation,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxxx
Vice President
St. Louis Office
35
TENANT:
SAVVIS COMMUNICATIONS CORPORATION,
a Missouri corporation
By: /s/ Xxxxxx XxXxxxxxx
---------------------------------
Printed: Xxxxxx XxXxxxxxx
----------------------------
Title: Chief Executive Officer
------------------------------
36
EXHIBIT A
---------
[Graphic Omitted]
Exhibit "A"
Page 1
EXHIBIT A-1
-----------
[Graphic Omitted]
Exhibit "A-1"
Page 1
EXHIBIT B
---------
Furniture, Fixtures and Equipment
LOWER LEVEL
-----------
Miscellaneous Offices/Storage/Work Rooms
----------------------------------------
o All built-in casework in secondary rooms/offices
o All environmental equipment currently in place (inside and out)
o Kohler Generator set 1000KVA/800KW
o Aqua colored couches in lower level lobby (2)
o Wood end tables w/marble tops (2)
Fitness Center
--------------
o Yamaha VCR Ser. #Y344340SU
o Sony Television o Lockers - Mens and Womens Rooms
o Sauna - Mens Room only
o Tectrix Exercise Bikes (3)
o Tektrix Climber Max 1000 (1)
o Tektrix Weight Nautilus with weight bench
o Precor Stairmaster EFX544 (1)
o Flex Fit Leg Curl (1)
o Flex Fit Leg Extension (1)
FIRST THRU FOURTH FLOORS
------------------------
Main Lobby
----------
o Leather Sofa (1)
o Large wood table w/glass top (1)
o End tables w/glass top (2)
o Built-in TV monitors in elevator lobby (2). Typical of 1st to 5th
floors.
o Custom area carpet in front of sofa (1)
Training Room, Auditorium, Presentation, Lunch Rooms 1st Floor
--------------------------------------------------------------
o Training tables wooden (13)
o Leather chairs (22)
o 37" built-in monitor
o Built-in white projection screen
o Moveable multi-media stand
o Lunch room tables (13)
o Television in Lunch room - two attached to ceiling rack and two
built-in (4)
o All multi-media projection screens and associated equipment (as-is
condition as of 3/18/02).
o Ice machine 1st floor
o Refrigerators/microwaves 1st to 4th floors
NOC Room
--------
o All access control equipment for Security System
o Large built-in screens (5)
o Built-in Monitors on each side of built-in screens (4)
o Custom NOC work station furniture with chairs
Exhibit "B"
Page 1
o Barco Projection Equipment
x Xxxxxxxx TV in ceiling rack (1)
Data Center
-----------
o Installed RAF (raised access flooring) and stored excess
o MGE PDU w/cables DPS 2500 - PDUB (1); PDUA (1) - (2)
o Liebert 20 ton A/C - (2)
Storage Room (Data Center)
--------------------------
o All FM200 equipment
o All CAT 5 cabling through-out facility
UPS Room
--------
o UPS feeding DP-6
o Liebert Challenger 3000 (1)
o Wall mounted switch gear
o FM 200 equipment
LAN Room
--------
o Liebert Challenger 3000 (1)
o MGE PDUC (1)
o Existing RAF
Storage Room (PBX Room)
-----------------------
o "As-is" 3/18/02
o Nortel Meridian 81C PBX
o Powerplant
o Meridian 1 Max and CCR (ACD)
o Meridian Mail (voice mail)
o DC rectifier
o Adtran channel bank
Data 104 Room
-------------
o "As-is" as of 3/18/02
o CCTV System and Control PC
o Fiber & cable
Elevator Lobbies
----------------
o Built-in monitors (2 per lobby)
o Leather bench 1st floor elevator lobby
Breakrooms
----------
o Refrigerators (5) and microwaves (5) as shown on site.
Cubical/Casegoods Furniture Inventory as shown on Premises
----------------------------------------------------------
o Cubes 6x8 - 147\
o Cubes 6x6 - 442> Total 689 cubes
o Cubes 12x8 - 100/
o Casegood Office Sets - 7
o Conf. Xxxxxx Xxxx Tables 14'x42" - 2
o Conf. Table 6' Oval - 5
On-Site Inventory of Steelcase Context systems furniture in Garage
------------------------------------------------------------------
o Cubes 6x8 - 12\
o Cubes 6x6 - 170/ Total 182 cubes
Additional file cabinets, bookcases are also on site but not listed.
Exhibit "B"
Page 2
EXHIBIT C
---------
THE LAND
TOTAL TRACT
A tract of land being part of Xxxx 0, 0, xxx 0 xx Xxxxxxxx Office Park, a
subdivision according to the plat thereof recorded in Plat Book 217, Pages 74
and 75 of the St. Louis County Records, and in U.S. Survey 369, Township 45
North, Range 4 and 5 East. and in part of Section 18, Township 45 North, Range
5 East, St. Louis County, Missouri. and being all of that property as acquired
by Xxxxxx Fiber Properties, Inc. by instrument recorded in Book 10935 Page 2267
of the St. Louis County Records, and being more particularly described as
follows:
Beginning at the Northeasterly corner of above said Lot 2, said point also
being located on the South line of Interstate Xxxxx 00 (xxxxxxxx Xxxxx 00XX);
thence along the Easterly and Southeasterly lines of above said Lot 2 the
following courses and distances: South 09 degrees 57 minutes 22 seconds West
171.00 feet; thence South 60 degrees 38 minutes 30 seconds West 330.00 feet;
thence South 29 degrees 21 minutes 30 seconds East 227.00 feet; thence South 60
degrees 38 minutes 30 seconds West 494.33 feet to a point on the Southerly line
of above said Lot 2; thence along last said Southerly line and the Southerly
line of above said Xxx 0 Xxxxx 00 degrees 53 minutes 30 seconds West 889.17
feet to a point on the Easterly line of Old Woodsmill Road, variable width;
thence along last said Easterly line the following courses and distances: North
14 degrees 46 minutes 55 seconds East 532.66 feet to a point of curvature to
the right, said curve having a radius of 405.38 feet; thence along last said
curve an arc distance of 235.68 feet to a point of tangency; thence North 48
degrees 05 minutes 36 seconds East 77.77 feet to a point of curvature to the
right, said curve having a radius of 690.20 feet; thence along last said curve
an arc distance of 515.40 feet to a point on the Southerly line of above said
Missouri Interstate Route 64 (formerly Route 40 TR) and a point of tangency;
thence along last said Southerly line the following courses and distances;
thence South 89 degrees 07 minutes 17 seconds East 19.82 feet to a point of
curvature to the right, said curve having a radius of 1388.39 feet; thence
along last said curve an arc distance 358.57 feet to a point of tangency;
thence South 74 degrees 19 minutes 27 seconds East 376.82 feet; thence South 80
degrees 02 minutes 38 seconds East 2.76 feet to the Point of Beginning and
containing 1,022,373 square feet or 23.470 acres more or less according to a
survey by Stock & Associates Consulting Engineers, Inc. during March, 2002.
EXHIBIT D
---------
INTENTIONALLY OMITTED
EXHIBIT E
---------
TENANT'S WORK
AUDIO AND VISUAL / PA / CONFERENCE / CCTV SYSTEMS
-------------------------------------------------
Any and all work associated with these systems
VOICE / DATA / COMMUNICATION SYSTEMS
------------------------------------
Any and all work associated with these systems
SECURITY SYSTEMS
----------------
Any and all work associated with these systems
BUILDING CLEANING AND JANITORIAL
--------------------------------
Any and all work associated with cleaning for move-in & occupancy
FURNITURE AND FIXTURES
----------------------
Any and all work associated with these systems
EXHIBIT F
---------
LANDLORD'S WORK
SITE AND CIVIL
ASPHALT / CONCRETE
------------------
Remove and repair (25) sy of 4" asphalt paving
Remove and repair (10) lf of concrete curb
Remove and repair (1) ea concrete pole base at handicap sign
Neutralize vegetation entire lot
Mill and repair (690) lf of open pavement seams
Install (85) lf of sub drain in southwest quadrant
Crack fill (3000) lf of existing cracks throughout lot
Seal coat (23,500) sy of lot and driveway area
Stripe entire lot after seal coat has been applied
ELECTRICAL LIGHTING
-------------------
Repair broken fixtures and replace burnt bulbs as follows:
Outside Loading Dock - (3) lights burnt out
South East Corner Ground Lights - (4) burnt out
Back of Building Ground Lights -(4) burnt out
South East Corner Building Lights - (2) burnt out
Light Close to Building - (3) damaged lights to be repaired
Side Entry - (1) damaged light to be repaired
Front of Building - (5) damaged fixtures to be repaired or replaced; (8) lights
burnt out
Brick Columns - (18) burnt out lights
Front Stairwell - (8) burnt out lights
Pond Light - Burnt out lights
LANDSCAPING
-----------
PLANTS TO BE REPLACED AS FOLLOWS:
Inkberry - (5) gal - (71) ea
Azalea - (5) gal - (32) ea
Honey locust - 4" caliper (4) ea
Cotoneaster - (5) gal - (62) xx
Xxxxx Pine - 7' to 8' - (7) xx
Xxxxx Pine - 8' to 10' - (5) ea
Redbud - 3" caliper - (1) ea
Juniper - (5) gal - (53) xx
Xxx - 4" caliper - (8) ea
Burning xxxx - 30" to 3 6" - (14) ea
Yew - 24" - (1) ea
Red Twig Dogwood - 30" to 36" - (43) ea
Maple - 4" caliper (4) ea
Crabapple - 3" caliper (7) ea
Forsythia - 30" to 36" - (3) ea
TURF RENOVATION AS FOLLOWS:
Approximately two acres of turf will be renovated using a slit seeder. A
fescue-rye mix will be sown at a (5) lb per (1000) sf rate. Starter fertilizer
will be applied. Approximately (10) cy of topsoil will be added along the
southeast part of the building where soil has eroded away. Soil will be tamped
down to grade level. Seed will be sown to fill in.
IRRIGATION REPAIRS AS FOLLOWS:
Repair and or replace all broken and missing heads.
STRUCTURE
FOUNDATION
----------
Attempt to repair what seems to be a foundation leak into garage level. Further
investigation is required in order to find the cause and repair.
CURTAIN WALL
------------
Repair or replace missing and damaged metal panels at the garage entry and
building entry.
Replace stainless steel base rail caps at: the entry doors; floor closure covers
at entry doors; metal panel corner mullions at entry area.
Replace base perimeter seals at lower level.
Floor thresholds and closers at entry need to be sealed and missing pieces
replaced.
Repair open joints in the masonry brick veneer on the two wing walls.
Replace one broken atrium glass roof panel.
ROOFING
-------
The roof system flashings and metal details are in need of repair and
installation where missing. The entire roof surface will be properly prepared
which includes removing loose asphalt and all debris, broom cleaning and asphalt
priming. Repairs will be made to the roof areas where embedded items have been
removed. The roof surfaces will then be covered with a good quality, fibered
(asbestos free) roof coating. Clear (1) overflow drain that is blocked-up on
lower west roof area. Replace missing drain strainers. Replace missing window
washing post caps. Fill any low pitch pans with filler at the lighting rod
grounding cables. Repair any improper mastic repairs and or open repairs / lap
seams on the walls and in the field. Note: There is no contractor or
manufacturer warranty in existence for this building.
ARCHITECTURAL
ATRIUM FLOORING: Repair any loose marble flooring due to cracks at the base of
the entry stairs.
WATERFALL FOUNTAINS: Repair leaking fountains #3 & #8.
GARAGE ENTRANCE: Repair water damage ceiling and replace back to original
condition.
DRYWALL REPAIRS: Replace damaged drywall due to water fountain leaks.
FRONT ENTRY REPAIRS: Replace any damaged ceiling tiles at the front entry area.
GARAGE DOOR ACCESS GATE: Install new safety edge take up reel and wiring.
MECHANICAL, ELECTRICAL, AND PLUMBING
ELEVATORS
---------
Register elevators with the State of Missouri, have them inspected by the State,
correct code deficiencies that the State inspectors find.
SPRINKLERS
----------
Replace a 3/4" casing relief valve on the fire pump.
All sprinkler heads throughout the building are Central 804 A concealed heads
that are being recalled by the manufacturer. Therefore, Duke will perform the
necessary steps required to have the heads replaced by the manufacturer per the
manufacturer recall program.
ELECTRICAL
----------
LIGHTING: Approximately (458) lamps were burnt out and will be relamped. Repair
NOCC Room lighting to make operable.
MAIN ELECTRICAL SYSTEM: The main switch had some problems when the power was
shut off. It would trip when power was shut off or turned on. The main switch
will be repaired or replaced to correct the problem. Repair or replace the
improper type of ground lug that was used.
UPS SYSTEM: Replace (36) ea type UPS 12370 batteries. Repair remote panel in
room 021 that is not working.
FIRE ALARM SYSTEM: There are (8) ea devices to be
relocated per code. There is (1) ea strobe that will be added in the kitchen
area. The 2nd floor duct detector in the west return airshaft will be repaired
or replaced. Possible programming of elevators is required to have them reset
after smoke test. A relay has been installed in the panel to drop door locks per
code, panel was retested and door hardware problem is corrected.
EMERGENCY
LIGHTING: Add (1) ea light to each electrical room per floor.
CODE VIOLATIONS: The following items in the fire pump / sprinkler room #005 &
#025 will be repaired to meet code: Platform to be built over conduits on floor
to prevent trip hazard, 6x6 junction box to be repaired, paint on main water
line needs to be scraped to make good ground, all metal piping within the room
should be bonded, replace 18x 18 cover for electrical box.
ELECTRICAL DISTRIBUTION SYSTEM: Perform a maintenance program as follows: Open
all panels, switchgear and transformers so they can be cleaned, tighten all
connections to manufacture specs, perform infrared and ultrasonic testing.
HEATING VENTING AND AIR CONDITIONING
------------------------------------
CHILLER #1: Circuit #1 needs repairs on valves, filters and coils. Circuit #2
compressor needs replacing along with contactor and motor protector repairs.
CHILLER #2: Condensers, starters and contactors need repairs.
CHILLER #3: Flow switch, condenser fan motor and blade need repairs.
AIR HANDLER #1: Needs cleaning, repair work and programming.
AIR HANDLER #2: Actuators and controllers need repairs.
AIR HANDLER #3: Belts and filters need repairs.
AIR HANDLER #4: Actuators need repairs.
AIR HANDLER #5: Flow switch needs repairs.
RTU #1: Replace filters.
STAIRWELL HEATERS: Replace filters.
CIRCULATION LOOP AND PUMPS: Replace motor, change wiring, drain loop, clean and
refill loop with glycol, treat water loop with chemicals.
COMPUTER ROOM / UPS UNITS: Rebuild humidity bottles, water detection cable, and
backflow.
BUILDING RELIEF FAN: Repair communication link and programming.
PLUMBING
--------
SAND & OIL INTERCEPTOR: Needs to be cleaned.
SUMP PUMP: Run test.
WATER FOUNTAIN: Repair leak on outlet of pump and vacuum breaker on boiler
drain. Test Backflow.
WATER HEATERS: Drain and remove debris.
DRINKING FOUNTAINS: Two in the basement are in need of repairs to properly work.
All fountains not ADA height and may be required to be lowered by building
inspector.
XXXXX VALVES: Replace all batteries.
SINK AERATORS: Remove and flush all aerators.
RESTROOM REPAIRS: Miscellaneous diaphragms, flush valves and sinks will be
repaired to properly work.
WASTE SYSTEM: Install cleanouts in the following locations: Penthouse; Restrooms
on penthouse and 4th floor; Bathroom stack between each floor; at 1st floor
sinks on the south side.
EXHIBIT G
---------
LETTER OF CREDIT
LETTER OF CREDIT
(ON BANK LETTERHEAD)
[Insert name and address of issuing bank]
[Insert date]
IRREVOCABLE LETTER OF CREDIT NO. [Insert number]
Duke Realty Limited Partnership
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Dear Sir:
At the request and for the account of Savvis Communications Corporation
located at [insert address of tenant] (hereinafter called "Applicant"), we
hereby establish our Irrevocable Letter of Credit No. [insert number] in your
favor and authorize you to draw on us up to the aggregate amount of US
$3,000,000.00 available by your draft(s) at sight drawn on us and accompanied by
the following:
A written statement by you that:
(i) "Applicant is in Default under and as defined in that certain lease
dated as of May 24, 2002 between you, as landlord, and Applicant as tenant (the
"Lease") and that Landlord is entitled to US $[Beneficiary to insert amount] as
the result of such Default;" or
(ii) "Applicant has failed to deliver timely a renewal Letter of Credit
as provided in the Lease."
This Irrevocable Letter of Credit will be duly honored by us at sight
upon delivery of the statement set forth above without inquiry as to the
accuracy of such statement and regardless of whether Applicant disputes the
content of such statement.
We hereby engage with you that all drafts drawn under and in compliance
with the terms of this Irrevocable Letter of Credit will be duly honored by us
if presented at [insert address of issuing bank] no later than May 24, 2003, it
being a condition of this Irrevocable Letter of Credit that it shall be
automatically extended for periods of at least one year from the present and
each future expiration date unless, at least sixty (60) days prior to the
relevant expiration date, we notify you, by certified mail, return receipt
requested, or by overnight courier service that we elect not to extend this
Irrevocable Letter of Credit for any additional period.
This Letter of Credit is transferable, provided that such transfer
would not violate any governmental rule, order or regulation applicable to us.
Transfer of this Letter of Credit is subject to our receipt of Beneficiary's
instructions in the form attached hereto as Exhibit A accompanied by the
original Letter of Credit and Amendment(s), if any. Costs or expenses of such
transfer shall be for the account of the Applicant.
All notices from us to you shall be in writing and delivered to the
following addresses:
Duke Realty Limited Partnership
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Duke Realty Limited Partnership
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: General Counsel
Duke Realty Limited Partnership
000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn: Chief Financial Officer
This Irrevocable Letter of Credit is subject to the Uniform Customs and
Practices for Documentary credits (1993-Rev) International Chamber of Commerce
Publication #500.
Sincerely yours,
[Insert authorized signature]
