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EXHIBIT 10.6
EXECUTION FORM
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EDISON BROTHERS BUILDING
STANDARD OFFICE LEASE
FOR
STIFEL FINANCIAL CORP.
AND
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
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EDISON BROTHERS BUILDING
STANDARD OFFICE LEASE
TABLE OF CONTENTS
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ARTICLE INDEX PAGE
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ARTICLE 1. PARTIES AND REFERENCE DATA........................................................1
ARTICLE 2. DEMISING CLAUSE...................................................................6
ARTICLE 3. TERM AND POSSESSION...............................................................6
ARTICLE 4. RENT..............................................................................8
ARTICLE 5. SECURITY DEPOSIT.................................................................11
ARTICLE 6. PERMITTED USE....................................................................11
ARTICLE 7. SERVICES.........................................................................11
ARTICLE 8. SUBLETTING AND ASSIGNMENT........................................................13
ARTICLE 9. QUIET POSSESSION AND SUBORDINATION...............................................14
ARTICLE 10. LANDLORD'S RESERVED RIGHTS......................................................15
ARTICLE 11. ALTERATIONS AND IMPROVEMENTS....................................................16
ARTICLE 12. REPAIRS AND REPLACEMENTS........................................................17
ARTICLE 13. DESTRUCTION OR DAMAGE...........................................................17
ARTICLE 14. EMINENT DOMAIN..................................................................18
ARTICLE 15. HOLDING OVER....................................................................18
ARTICLE 16. SURRENDER OF POSSESSION.........................................................19
ARTICLE 17. DEFAULT AND REMEDIES............................................................19
ARTICLE 18. BANKRUPTCY......................................................................21
ARTICLE 19. INSURANCE AND WAIVER OF RECOVERY................................................22
ARTICLE 20. TAXES ON TENANT'S PROPERTY......................................................23
ARTICLE 21. AMERICANS WITH DISABILITIES ACT.................................................23
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ARTICLE 22. HAZARDOUS MATERIALS.............................................................23
ARTICLE 23. GENERAL PROVISIONS..............................................................24
Exhibit A Floor Plan
Exhibit A-1 Signage Plan
Exhibit B INTENTIONALLY OMITTED
Exhibit C Work to be Performed on the Premises
Exhibit D Building Rules
Exhibit E Lease Commencement Agreement
Exhibit F Lien Waivers
Exhibit G Nondisturbance and Subordination Agreement
Exhibit H Lease Estoppel Certificate
Exhibit I Twelfth Floor Expansion
Addendum No. 1
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EDISON BROTHERS BUILDING
STANDARD OFFICE LEASE
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ARTICLE 1.
PARTIES AND REFERENCE DATA
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As used in this Lease the following terms shall have the following
meanings:
1.1. LANDLORD: EBS Building, L.L.C., a Delaware limited liability
company, having as its address for notice purposes c/o Price Waterhouse Coopers
LLP, 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, Attn: Xx. Xxxxx
X. Xxxxxx, Partner.
1.2. TENANT: Stifel Financial Corp., a Delaware corporation and
Xxxxxx, Xxxxxxxx & Company, Incorporated, a Missouri corporation, having as
their address for notice purposes (i) 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx,
Xxxxxxxx 00000, Attn.: Xxxxx Xxxxxxxx, until the Lease Commencement Date, and
(ii) 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000, Attn: Xxxxx
Xxxxxxxx thereafter (collectively referred to herein as "Tenant"). Each and
every reference herein to "Tenant" shall apply to each and both of Stifel
Financial Corp. and Xxxxxx, Xxxxxxxx & Company, Incorporated; and the
representations and warranties of "Tenant" herein and the covenants and
agreements of "Tenant" herein shall be deemed jointly and severally made by and
enforceable against Stifel Financial Corp. and Xxxxxx, Xxxxxxxx & Company,
Incorporated, each and both of which such parties shall be jointly and severally
liable for the obligations of "Tenant" under this Lease.
1.3. DATE OF THIS LEASE: September 30, 1998
1.4. DATE OF PRELIMINARY SPACE PLAN: October 5, 1998
DATE OF FINAL SPACE PLAN: October 8, 1998
(12:00 Noon)
LANDLORD'S PLAN SUBMITTAL DATE
FOR INITIAL PREMISES: October 19, 1998
TENANT'S PLAN APPROVAL DATE
FOR INITIAL PREMISES: October 23, 1998
LANDLORD'S PLAN SUBMITTAL DATE
FOR SUBSEQUENTLY DELIVERED
PREMISES: November 2, 1998
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TENANT'S PLAN APPROVAL DATE
FOR SUBSEQUENTLY DELIVERED
PREMISES: November 13, 1998
1.5. LEASE COMMENCEMENT DATE: January 1, 1999
RENT COMMENCEMENT DATE: January 1, 1999
LEASE EXPIRATION DATE: December 31, 2010
1.6. TERM: Twelve (12) years
1.7. BUILDING: The office building in the City of St. Louis, State
of Missouri, known and numbered as 000 Xxxxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx
00000, together with the land owned and/or leased by Landlord upon which it is
situated, including all facilities and improvements thereon and consisting of
434,136 rentable square feet.
1.8. PREMISES: Not less than 82,000 rentable square feet, located
on a portion of the seventh floor and all of the eighth and ninth floors in the
Building as depicted in Exhibit A of this Lease and as improved in accordance
with the provisions of Exhibit C of this Lease. Landlord and Tenant hereby
stipulate and agree that the eighth and ninth floors of the Building contain
32,000 rentable square feet each. Concurrent with its approval of the Final
Space Plan, Landlord shall calculate the number of usable square feet in that
portion of the seventh floor of the Building which constitutes part of the
Premises in accordance with BOMA standards, and Landlord shall multiply such
number by a load factor of 12% and add such sum to the number of usable square
feet to determine the number of rentable square feet in the seventh floor
Premises. Landlord shall then promptly prepare and deliver, and Tenant shall
promptly countersign and return to Landlord, an acknowledgment in respect of
this Lease setting forth the aggregate number of square feet constituting the
Premises and any corresponding adjustments to the rental amounts payable
hereunder, Tenant's Proportionate Share, the Tenant Improvement Allowance (and
the portion thereof which may be expended on Move Expenses) and the number of
parking spaces to be made available to Tenant.
1.9. SUITE NUMBER: 900, FLOOR NUMBERS: 7, 8 and 9
1.10. PERMITTED USE: General office purposes, sales of securities
and investment banking services, and other lawful accessory uses.
1.11. ANNUAL BASE RENT AND MONTHLY BASE RENT INSTALLMENT (assuming
the Premises consist of 85,000 rentable square feet, but subject to adjustment
as acknowledged per Section 1.8 above):
From 01/01/1999 - 3/31/1999; Annually $ 150,000.00; Monthly
$12,500.00, based upon a base rental rate of $15.00 per rentable
square foot.
From 04/01/1999 - 12/31/1999; Annually $ 1,275,000.00; Monthly
$106,250.00, based upon a base rental rate of $15.00 per rentable
square foot.
From 01/01/2000 - 12/31/2000; Annually $ 1,317,500.00; Monthly
$109,791.67,
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based upon a base rental rate of $15.50 per rentable square foot.
From 01/01/2001 - 12/31/2001; Annually $ 1,360,000.00; Monthly
$113,333.33, based upon a base rental rate of $16.00 per rentable
square foot.
From 01/01/2002 - 12/31/2002; Annually $ 1,360,000.00; Monthly
$113,333.33, based upon a base rental rate of $16.00 per rentable
square foot.
From 01/01/2003 - 12/31/2003; Annually $ 1,402,500.00; Monthly
$116,875.00, based upon a base rental rate of $16.50 per rentable
square foot.
From 01/01/2004 - 12/31/2004; Annually $ 1,402,500.00; Monthly
$116,875.00, based upon a base rental rate of $16.50 per rentable
square foot.
From 01/01/2005 - 12/31/2005; Annually $ 1,445,000.00; Monthly
$120,416.67, based upon a base rental rate of $17.00 per rentable
square foot.
From 01/01/2006 - 12/31/2006; Annually $ 1,487,500.00; Monthly
$123,958.33, based upon a base rental rate of $17.50 per rentable
square foot.
From 01/01/2007 - 12/31/2007; Annually $ 1,530,000.00; Monthly
$127,500.00, based upon a base rental rate of $18.00 per rentable
square foot.
From 01/01/2008 - 12/31/2008; Annually $ 1,572,500.00; Monthly
$131,041.67, based upon a base rental rate of $18.50 per rentable
square foot.
From 01/01/2009 through 12/31/2009, Annual Base Rent due under
this Lease shall be that amount equal to the number of rentable square feet
constituting the Premises, as acknowledged pursuant to Section 1.8 above, times
the product obtained by multiplying $16.50 by a fraction, the numerator of which
shall be the CPI-U (as hereinafter defined) for December 31, 2008, and the
denominator of which shall be the CPI-U (as hereinafter defined) for January 1,
1999, which Annual Base Rent shall not exceed $22.17 per rentable square foot.
The Monthly Base Rent Installment shall be the amount of Annual Base Rent
divided by twelve.
From 01/01/2010 through 12/31/2010, Annual Base Rent due under
this Lease shall be that amount equal to the number of rentable square feet
constituting the Premises, as acknowledged pursuant to Section 1.8 above, times
the product obtained by multiplying the Annual Base Rent for the immediately
prior lease year by a fraction, the numerator of which shall be the CPI-U (as
hereinafter defined) for December 31, 2009, and the denominator of which shall
be the CPI-U for December 31, 2008, which Annual Base Rent shall not exceed
$22.84 per rentable square foot. The Monthly Base Rent Installment shall be the
amount of Annual Base Rent divided by twelve.
As used herein, the term "Consumer Price Index" shall mean The
Consumer Price Index for All Urban Consumers (CPI-U), All Items, U.S. City
Average (1982-1984 = 100) published by the United States Department of Labor,
Bureau of Labor Statistics. In the event the Consumer Price Index is not
published effective as of the date(s) referred to above, then the adjustment
shall be measured from the date most immediately preceding the date(s) in
question. If the Consumer Price Index is changed so that the base year differs
from that referenced above, the Consumer Price Index shall be converted in
accordance with the conversion factor published by the United States Department
of Labor, Bureau of Labor Statistics. If the Consumer Price Index is
discontinued or revised during the Term, such other governmental index or
computation
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with which it is replaced shall be used in order to obtain substantially the
same result as would be obtained if the Consumer Price Index had not been
discontinued or revised.
1.12. COMMERCIAL OR COMPREHENSIVE GENERAL LIABILITY INSURANCE
REQUIRED: One Million and 00/100 Dollars ($1,000,000.00).
1.13. SECURITY DEPOSIT: None.
1.14. TENANT'S PROPORTIONATE SHARE: The percentage determined by
dividing the number of rentable square feet constituting the Premises, as
acknowledged pursuant to Section 1.8 above, by 434,136 (the number of rentable
square feet within the Building stipulated and agreed upon by Landlord and
Tenant, based on the information made available to Landlord as of the date of
this Lease).
1.15. EXPENSE STOP AMOUNT: The Expense Stop Amount shall be the
amount equal to the Expenses, as defined in Section 4.2 of the Lease, of the
Building for the 1999 (01/01/99-12/31/99) calendar year.
1.16. TAX EXPENSE STOP AMOUNT: The Tax Expense Stop Amount shall
be the amount equal to Taxes as defined in Section 4.2 of the Lease, of the
Building for the 1999 (01/01/99-12/31/99) calendar year, provided, however, that
effective January 1, 2009 (and applicable during the remainder of the Term
thereafter), the Tax Expense Stop Amount shall be increased by $1.00 per
rentable square foot.
1.17. NUMBER OF PARKING SPACES: Tenant shall have the nonexclusive
use of 1 parking space per 1,000 square feet of rentable space for the Premises,
as acknowledged pursuant to Section 1.8, 21 of which shall be located in the
parking garage in the Building (the "Building Garage") and the remainder of
which shall be located in the garage owned and operated by the Land Clearance
for Redevelopment Authority of the City of St. Louis and located on City Block
118 in the City of St. Louis (the "St. Louis Centre Garage"); provided, however,
that as parking spaces become available in the Building Garage as a result of
Edison Brothers Stores' exercise of its right to vacate and surrender portions
of its premises in the Building, for every parking space in the Building Garage
vacated and surrendered by Edison Brothers Stores after the Lease Commencement
Date, Landlord shall offer Tenant, by notification in writing of the
availability of substitute parking for each parking space surrendered by Edison
Brothers Stores, 1 parking space in the Building Garage in exchange for 1
parking space in the St. Louis Centre Garage. Tenant shall then have the right
to accept such offer and thereby substitute up to 21 (in the aggregate, over the
Term) parking spaces located in the St. Louis Centre Garage for parking spaces
in the Building Garage so long as Tenant responds to Landlord in writing within
five (5) business days of Tenant's receipt of notice of the availability of said
substitute spaces. All of the parking spaces shall be unreserved. Landlord and
Tenant hereby acknowledge that five (5) of the parking spaces in the Building
Garage to be provided to Tenant are considered "double" parking spaces (by
length or by width) and the same shall be counted as two (2) parking spaces for
purposes of allocating parking spaces to Tenant under this Lease; such double
spaces shall be specifically designated from time to time for Tenant's use. The
other eleven (11) spaces in the Building Garage are "single" parking spaces and
shall not be specifically designated for Tenant's use. In
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the event Tenant elects to substitute parking spaces in the St. Louis Centre
Garage for parking spaces in the Building Garage pursuant to the procedures
described above, the first five (5) spaces to be offered to Tenant shall be
"single" parking spaces and the remaining sixteen spaces to be so offered to
Tenant shall consist of four (4) "double" parking spaces and eight (8) "single"
parking spaces, in such order as Landlord may elect. Parking spaces in the
parking garage in the Building are accessible 24 hours per day, seven days per
week (subject to interruptions for maintenance and the like) at no additional
charge. From and after the Lease Commencement Date, Landlord covenants to
perform those obligations of the tenant under the lease for the St. Louis Centre
Garage which, if not performed, would give the landlord thereunder the right to
terminate such lease. Parking spaces in the St. Louis Centre Garage shall be
available during normal downtown business hours as referenced in the lease for
the St. Louis Centre Garage. To the extent any of the parking spaces surrendered
by Edison Brothers Stores in the St. Louis Centre Garage (in connection with a
reduction in the size of its premises in the Building or a termination of its
lease) are designated by Edison Brothers Stores as being entitled to exiting
privileges without charge on a twenty-four (24) hour basis pursuant to Section
IX.D. of the lease for the Xx. Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx shall make such
space(s) available to Tenant in substitution for, and not in addition to,
parking spaces otherwise made available to Tenant in the St. Louis Centre Garage
hereunder until such time as one (1) out of every five (5) spaces furnished to
Tenant in the St. Louis Centre Garage is entitled to such exiting privileges. In
the event landlord and/or manager of the St. Louis Centre Garage imposes a
charge for exiting privileges after normal downtown business hours as referenced
in the lease for the St. Louis Centre Garage, Tenant shall have the right to
surrender the use of all or any portion of the parking spaces in the St. Louis
Centre Garage which are subject to such charge (which surrender shall reduce,
accordingly, the number of parking spaces to which Tenant is entitled
hereunder). Tenant may exercise this right only by giving Landlord thirty (30)
days prior written notice and by delivering to Landlord within such thirty (30)
day period the parking access cards for such spaces. Subject to Landlord's
receipt of the parking access cards, Tenant's obligation to pay for such spaces
hereunder shall terminate concurrent with the expiration of such thirty (30) day
period.
1.18. INITIAL MONTHLY RENT PER PARKING SPACE: $85.00 through
December 31, 1999. Thereafter, at any time and for time to time, the monthly
rent per parking space shall be subject to increase in amounts equal to the
lesser of market rate increases for comparable parking in the downtown St. Louis
market (as determined by Landlord) or three percent (3%) annually, calculated on
a cumulative basis.
1.19. ADDENDUM: Addendum No. 1, consisting of 4 pages,
incorporated herein by this reference.
1.20. BROKERS: Name of Landlord's broker: Insignia/ESG, Inc.;
Party responsible for payment: Landlord. Name of Tenant's broker: Pace
Properties Incorporated; Party responsible for payment: Landlord. Landlord shall
pay Pace Properties Incorporated on behalf of Tenant a commission equal to three
and one-half percent (3.5%) of the Base Rent for the first five (5) years of the
Lease and one and one-half percent (1.5%) of the Base Rent for the seven (7)
years of the Lease (assuming a Base Rent of $16.50 per rentable square foot for
years eleven and twelve), payable in two (2) equal installments, due on the date
of execution of the Lease and on the Lease Commencement Date.
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1.21. EXHIBITS: The following Exhibits attached to this Lease are
incorporated herein by this reference.
Exhibit A. Floor Plan
Exhibit A-1. Signage Plan
Exhibit B. INTENTIONALLY OMITTED
Exhibit C. Work to be Performed on the Premises
Exhibit D. Building Rules
Exhibit E. Certificate of Occupancy
Exhibit X. Xxxx Waivers
Exhibit G. Nondisturbance and Subordination Agreement
Exhibit H. Lease Estoppel Certificate
Exhibit I. Twelfth Floor Expansion
Addendum No. 1
1.22. STORAGE AREA: Approximately 4,200 useable square feet of
storage space located on the Seventh Floor of the Building, as depicted in
Exhibit A of this Lease. See Section 23.32 of the Lease.
ARTICLE 2.
DEMISING CLAUSE
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Landlord, for and in consideration of the rents, covenants and
agreements hereinafter mentioned and hereby agreed to be paid, kept and
performed by Tenant, does hereby lease to Tenant, and Tenant does hereby lease
from Landlord, the Premises on the terms and conditions contained herein.
ARTICLE 3.
TERM AND POSSESSION
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3.1. TERM. The Term shall commence on the Lease Commencement Date
and shall continue until the Lease Expiration Date, unless earlier terminated as
provided herein, provided that if Tenant, with Landlord's prior permission,
occupies the Premises (or any part thereof) prior to the Lease Commencement
Date, then the Term shall also include the period from the date of occupancy to
the Lease Commencement Date.
3.2. POSSESSION. On or prior to January 1, 1999, Landlord shall
deliver to Tenant possession of that portion of the Premises comprising
approximately 10,000 square feet located on the eighth floor of the Building
(the "Initial Premises"). On or prior to April 1, 1999, Landlord shall deliver
to Tenant possession of the remainder of the Premises (the "Subsequently
Delivered Premises"). Landlord shall use reasonable efforts to so deliver the
Premises by such dates, subject to Section 23.11 of this Lease and subject to
Tenant's compliance with the Approval Procedures (as hereafter defined in
Exhibit C to this Lease). The Initial Premises and the Subsequently Delivered
Premises shall together constitute the Premises. Tenant acknowledges that it
shall have no right to use or occupy the Subsequently Delivered Premises prior
to April 1, 1999 except as expressly set forth below. Tenant may move its
personal property
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into the Subsequently Delivered Premises in areas designated by Landlord during
each of the weekends of March 1999, as long as such activity does not interfere
with Landlord's construction of the Tenant Improvements. Landlord shall offer
reasonable cooperation to Tenant in connection with Tenant's move into the
Premises, provided, however, that such cooperation shall be without cost to
Landlord. Tenant's move into the Premises shall not unreasonably interfere with
any other tenant's or occupant's use or enjoyment of its premises in the
Building. If the Initial Premises are not ready for occupancy on or prior to the
Lease Commencement Date, this Lease shall nevertheless continue in effect, but
(a) Rent (as hereinafter defined) with respect to such portion of the Initial
Premises which is not ready for occupancy shall xxxxx (on a pro rata basis)
until such portion of the Initial Premises is ready for occupancy, and (b) the
Lease Expiration Date shall be extended for a period commensurate with such
period of Rent abatement, if any, with respect to the Initial Premises, and
Landlord shall have no other liability whatsoever on account thereof. If the
Subsequently Delivered Premises are not ready for occupancy on or prior to April
1, 1999, this Lease shall nevertheless continue in effect, but (a) Rent with
respect to such portion of the Subsequently Delivered Premises which is not
ready for occupancy shall xxxxx, (b) the Lease Expiration Date shall be extended
for a period commensurate with such period of Rent abatement, if any, with
respect to the Subsequently Delivered Premises, (c) Landlord shall reimburse
Tenant for any increase in base rent payable by Tenant in its current premises
at 000 Xxxxx Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx (which reimbursement obligation shall
not, however, exceed One Thousand Two Hundred Ninety-Eight and 63/100 Dollars
($1,298.63) per day), and Landlord shall have no other liability whatsoever on
account thereof. Rent shall not be abated, nor shall Landlord be obligated to
reimburse Tenant for any increase in base rent payable by Tenant in its current
premises at 000 Xxxxx Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx, if the Initial Premises or
the Subsequently Delivered Premises are not ready for occupancy because of the
failure to complete the installation of special items ordered by Tenant or
because of any delay resulting from Tenant's failure to submit plans on or prior
to Tenant's Plan Approval Dates in accordance with Exhibit C or Tenant's failure
otherwise to comply with the Approval Procedures, or resulting from changes or
additions to Tenant's plans after the initial submission. The determination of
Landlord's architect for the Tenant Improvements shall be set forth in writing
and shall be final as to whether the Premises are ready for occupancy. Tenant's
taking possession of any portion of the Premises shall be conclusive evidence
that such portion of the Premises was in good order and satisfactory condition
when Tenant took possession, except as to latent defects and damage caused by
Tenant or Tenant's agents. On the date on which Tenant takes possession of the
Initial Premises, the parties shall execute a Lease Commencement Agreement in
the form attached hereto as Exhibit E confirming the Lease for the Initial
Premises and Rent Commencement Date for the Initial Premises and setting forth
any incomplete items (if any), but failure to execute such document shall not in
any manner affect the obligations of the parties hereunder.
3.3. INTENTIONALLY OMITTED.
3.4. BUILDING PLANNING. If (i) during the two (2) years from the
date the Subsequently Delivered Premises are ready for occupancy, Tenant
exercises the expansion rights set forth in Section 23.34.a hereof, and such
expansion encompasses all or a portion of the Storage Area or (ii) at any time
if Landlord requires the Storage Area for use in connection with the lease of
the sixth floor of the Building to another tenant or (iii) at any time after the
first two (2) years of the Term, if Landlord requires the Storage Area for use
in conjunction with another
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suite or for other reasons connected with the Building planning program,
Landlord shall have the right, upon notifying Tenant in writing, to move the
Storage Area to other space in the Building, at Landlord's sole cost and
expense, and the terms and conditions of this Lease shall remain in full force
and effect, save and excepting that a revised Exhibit A and B shall become part
of this Lease and shall reflect the location of the new space and Article 1 of
this Lease shall be amended to include all correct data as to the new space. In
effecting such move, Landlord shall use reasonable efforts not to disturb
Tenant's ongoing business operations in any material respect.
3.5. COMMON AREAS. The "common areas" in the Building shall mean
such areas as are provided and maintained by Landlord from time to time as areas
for use by Tenant in common with Landlord and other tenants or occupants of the
Building. The portions of the common areas of the Building affording entrance
into the Building and access to the elevators serving the floors on which the
Premises are located shall be maintained and configured in a manner reasonably
determined by Landlord to afford substantially equivalent access and prestige to
the manner and means of access and prestige offered by such portions of the
common areas as of the date of this Lease. Tenant shall have the nonexclusive
right to use the from time to time common areas in common with other tenants in
the Building and subject to the Building Rules (which Landlord shall use
reasonable efforts to enforce in a non-discriminatory manner).
3.6. COMMUNICATIONS DISH. Tenant shall have the right, at Tenant's
sole cost and expense and subject to all applicable rules, regulations and
ordinances of the City of St. Louis or any other applicable governmental or
quasi-governmental agency or authority, to place a communications dish on the
roof of the Building. Such installation shall be in strict accordance with plans
and specifications approved by Landlord. Upon termination of the Lease, Tenant
shall, at its sole cost and expense, remove the communications dish and all
ancillary connections from the Building and restore the roof of the Building
pursuant to the terms of Article 16 of this Lease. Any and all construction with
respect to the installation and removal of the communications dish shall be
performed by a contractor selected by Tenant and approved by Landlord and a
representative of Landlord shall supervise the installation or removal. Tenant's
installation and use of such communications dish may not interfere with other
communications or transmission equipment utilized by other tenants of the
Building.
Landlord shall use reasonable efforts to cause or request other
tenants of the Building to use their respective communications or transmissions
equipment, if any, in a manner that does not interfere with Tenant's use of
Tenant's communications dish.
ARTICLE 4.
RENT
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4.1. RENT. Commencing on the Rent Commencement Date, Tenant shall
pay the Annual Base Rent specified in Article 1 to Landlord at the location
designated from time to time by Landlord in the Monthly Base Rent Installment
specified in Article 1 in advance, on, or prior to the first day of each and
every month during the Term without set off or deduction whatsoever. The rent
for any partial month shall be prorated on the basis of the number of days in
such month and shall be paid on the first day of such partial period.
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4.2. ADJUSTMENTS TO RENT. The Annual Base Rent shall be adjusted
from time to time in accordance with this section to reflect increases in the
Expenses of operating the Building, as defined in Section 4.3, and increases in
Taxes on the Property or the Building, as defined in Section 4.4. The Annual
Base Rent including the adjustments made pursuant to this section and the rent
for the Storage Space referred to in Section 23.32 is referred to in this Lease
as the "Rent". As used herein ("Tenant's Proportionate Share") shall be a
fraction, the numerator of which is the rentable area of the Premises and the
denominator of which is the total rentable area of the Building. If the Expenses
in any period during the Term commencing after December 31, 1999 exceed the
Expense Stop Amount, Annual Base Rent shall be adjusted to include Tenant's
Proportionate Share of the amount Expenses that exceed the Expense Stop Amount.
If the Taxes in any period during the Term commencing after December 31, 1999
exceed the Tax Expense Stop Amount, Annual Base Rent shall be adjusted to
include Tenant's Proportionate Share of such excess. Tenant shall not be
responsible for any payment of Expenses pursuant to this Article 4 during 1999,
and Tenant shall not be responsible for any payment of Taxes pursuant to this
Article 4 during 1999. For 1999 and for each year of the Term thereafter,
Expenses shall be calculated in accordance with consistently applied accounting
practices on a grossed-up basis reflecting the variable Expenses of the Building
(including the gross revenue component of the management fee) for each calendar
year as if the Building was the greater of (i) the actual percentage of
occupancy of the Building (calculated on a weighted average using the average
monthly occupancy for each month of the calendar year) or (ii) ninety five
percent (95%) occupied; provided, however, if the gross-up percentage for any
calendar year, other than 1999, is as set forth in (i) above, for each calendar
year in which such percentage is used, such percentage shall also be used to
gross-up retroactively Expenses for 1999. Only those component Expenses that are
affected by variations in occupancy levels may be so adjusted.
Within one hundred eighty (180) days after the end of each
calendar year (or portion thereof) during the Term, Landlord will provide Tenant
with a written notice ("Statement") setting forth the amount of any adjustments
to Annual Base Rent together with a statement of Expenses and Taxes for the
previous calendar year. The Statement shall contain sufficient detail to permit
Tenant to duplicate Landlord's calculation of Expenses and Taxes, together with
any gross-up, and Tenant's Proportionate Share thereof. Within thirty (30) days
following receipt of the Statement, Tenant shall pay to Landlord as additional
rent: (a) the adjustment to Annual Base Rent of the previous calendar year after
credit for any estimated payments which Tenant has made pursuant to this
section; and (b) an estimated adjustment to Annual Base Rent for the months
which have elapsed in the current calendar year based on the previous calendar
year's increase in Expenses and/or Taxes and Landlord's good faith projection of
the increase in Expenses and/or Taxes during the current calendar year after
credit for any estimated payments made by Tenant pursuant to this section.
Commencing with the month following the month in which the Statement is dated
and continuing until such time as Tenant receives Landlord's next Statement, the
Monthly Base Rent Installments shall be adjusted to include Tenant's
Proportionate Share of any Expenses and/or taxes in excess of the Expense Stop
Amount based on Expenses for the previous year and taxes in excess of the Tax
Expense Stop Amount based on Taxes for the previous year and Landlord's good
faith projection of the increase in Expenses and Taxes for the current calendar
year. The adjusted portion of the payments of Annual Base Rent as so adjusted
with respect to Expenses shall be credited against the actual
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Expenses as shown in Landlord's next Statement. Similarly, the adjusted portion
of the payments of Annual Base Rent as so adjusted with respect to Taxes shall
be credited against the actual Taxes as shown in Landlord's next Statement. If
the next Statement shows that Tenant has overpaid and if Tenant is not then in
default, Landlord shall credit such overpayment against the next accruing
payments of Rent until the overpayment is reduced to zero. The obligation to pay
the adjustments to Annual Base Rent shall survive any termination of the Term.
Notwithstanding anything contained in this Section 4.2, the Annual Base Rent
payable by Tenant shall in no event at any time be less than the Annual Base
Rent specified in Article 1 hereof. The adjustment to Annual Base Rent payable
under this section shall be payable in respect of all periods during the Term,
including any portion of the Term prior to the Rent Commencement Date.
4.3. EXPENSES. "Expenses" shall mean all expenses and costs of
operating the Building, including, without limitation, the following costs: (a)
wages of all on-site employees (including employment taxes and fringe benefits);
(b) janitorial labor and materials; (c) costs of building security personnel and
materials; (d) electricity, gas, sewer, water, trash disposal and other
utilities; (e) maintenance and repairs (including maintenance and service
contracts); (f) landscaping maintenance; (g) insurance premiums; (h) capital
improvements to the extent necessary to comply with applicable governmental
rules and regulations; (i) expense of building management fees; (j) capital
expenses which reduce any component cost of Expenses (such cost to be reasonably
amortized by Landlord (over the useful life of the capital item) and (k) legal
and accounting fees and expenses. Expenses shall not include: (w) costs of
alterations of any tenant's premises; (x) principal and interest payments on
loans made on the security of the Building; (y) costs of capital expenditures
(except as provided above in the this section); and (z) leasing commissions. If
the Building is not fully leased or if Landlord is not providing standard
building services to all tenants during any calendar year, actual Expenses shall
be adjusted to reflect a fully serviced and leased Building (in the manner
described in Section 4.2) for the purpose of making the adjustment to Annual
Base Rent.
4.4. TAXES. "Taxes" shall mean (a) real estate and personal
property taxes assessed on the Building and personal property of the Landlord
therein, including any increases in real estate taxes as any partial or full tax
relief which presently may be afforded to the Building expires, and further
including any tax imposed as a substitute for or supplement to presently
existing real estate and/or personal property taxes; and (b) reasonable expenses
of Landlord in attempting to reduce or limit real estate and/or personal
property taxes (any refunds to be credited against taxes in the year received).
Landlord and Tenant hereby expressly acknowledge and agree that the Tax Expense
Stop Amount is hereby increased by $1.00 per rentable square foot effective
January 1, 2009, as set forth in Section 1.16.
4.5. INSPECTION RIGHTS. During the Term and upon ten (10) days
prior written notice to Landlord, Tenant or Tenant's designee shall have the
right, during normal business hours, to inspect at the Landlord's office in the
Building, Landlord's books and records with respect to Expenses and Taxes within
ninety (90) days of Tenant's receipt of the Statement. Landlord shall cooperate
with Tenant in any such inspection of Landlord's books and records, and shall,
if requested by Tenant make available a member of its staff to explain any
entries in such books and records. Tenant may, at Tenant's expense, make copies
of any such books or records not designated as confidential by Landlord;
provided, however, that such materials may not be
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disclosed by Tenant to any other person or entity without Landlord's consent.
Unless Tenant asserts specific error(s) within ninety (90) days of Tenant's
receipt of the Statement, the Statement shall be deemed to be correct. In the
event Landlord concurs with Tenant's determination of specific error(s) in the
Statement and if Tenant is not then in default or thereafter in the event such
default is cured within the applicable cure period, Landlord shall credit any
overpayment against the next accruing payments of Rent until the overpayment is
reduced to zero, or if the Term of this Lease has ended, Landlord shall repay
such amount to Tenant. If Tenant's inspection of the books and records show that
Tenant overpaid its proportionate share of Expenses and Taxes by more than three
percent (3%), then Landlord shall pay to Tenant Tenant's reasonable
out-of-pocket costs of conducting the inspection (not to exceed $2,000 in each
instance).
ARTICLE 5.
SECURITY DEPOSIT
----------------
INTENTIONALLY OMITTED.
ARTICLE 6.
PERMITTED USE
-------------
Tenant shall use and occupy the Premises only for the Permitted
Use. Tenant agrees that from and at all times after the date of delivery of the
Subsequently Delivered Premises, occupancy of the Premises shall not exceed one
(1) person per 200 rentable square feet on any floors which are not fully
occupied by Tenant. Tenant and all persons permitted by Tenant to come upon the
Premises or the Storage Area shall comply with the Building Rules and with such
reasonable modifications thereof as Landlord may make from time to time.
Landlord shall use reasonable efforts to enforce the Building Rules in a
non-discriminatory manner. Landlord shall not be liable for any nonobservance of
the Building Rules by any other person. Tenant shall not make or permit to be
made any use of the Premises or the Storage Area which is forbidden by
applicable law or governmental regulation or which may be dangerous to persons
or property or which may invalidate or increase the premium cost of any policy
of insurance carried on the Building.
ARTICLE 7.
SERVICES
--------
7.1. BUILDING STANDARD SERVICES. Landlord at Landlord's expense
shall furnish: (a) heat and air conditioning to provide a seasonable temperature
(subject to governmental regulations) for normal occupancy and use of the
Premises under normal business operations daily Monday through Friday from 8:00
A.M. to 6:00 P.M., Saturdays from 8:00 A.M. to 1:00 P.M., Sundays and the
following holidays excepted: New Year's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day and Christmas Day ("Normal Business Hours"); (b)
cold water from the public supply for drinking, lavatory and toilet purposes and
hot water for lavatory purposes from regular Building supply drawn through
fixtures installed by Landlord; (c) janitor service and customary cleaning in
and about the Premises (private kitchens, eating areas and restrooms excepted,
provided Landlord shall remove trash from such areas)
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Monday through Friday (holidays excepted) comparable to standard janitor service
furnished by other comparable buildings in the vicinity of the Building (Tenant
shall not provide any janitor services or cleaning without Landlord's prior
consent); (d) passenger elevator service in common with other tenants at
reasonable times (freight elevator service will be made available by Landlord
upon reasonable notice by Tenant); (e) window washing of all exterior windows in
the Premises, both inside and out, at reasonable intervals (but, with respect to
the outside of such windows, no less frequently than two times per year); (f)
electrical service at those points of connection provided and installed by
Landlord and in the manner and to the extent deemed by Landlord to be standard;
and (g) 24 hour on site security personnel. Tenant shall have no right of access
to and within the Building for the installation or operation of systems for the
provision of electrical service to the Premises for part or all of Tenant's
electrical energy requirements without Landlord's prior written consent, which
consent shall not be unreasonably withheld, conditioned or delayed. Tenant shall
report to Landlord any deficiency in the services provided by Landlord or
Landlord's agents, which services shall be comparable in quality to services
provided in comparable office buildings in the vicinity of the Building.
7.2. OVER BUILDING STANDARD SERVICES. If Tenant occupies the
Premises after Normal Business Hours, Tenant shall reimburse Landlord for the
increased expenses of providing utilities and other services necessary to
operate the Building during such hours, including but not limited to, increased
expenses for heating, air conditioning, security service, Building employees'
overtime and any additional janitorial service. After Normal Business Hours
heating, ventilating and air conditioning will be available to Tenant at
Tenant's expense at a cost of $25.00 per hour per floor, subject to actual cost
increases thereof to Landlord as reasonably calculated by Landlord at any time
and from time to time. Tenant shall have the right to request such other
services after Normal Business Hours and Landlord shall use reasonable efforts
to make such services available to Tenant at reasonable costs. Landlord shall
use reasonable efforts to advise Tenant as to when Tenant's occupancy of the
Premises after Normal Business Hours will result in additional charges to Tenant
under this Section 7.2 in addition to the foregoing HVAC charge.
The maximum installed electric load on the Premises shall not
exceed: (i) electricity drawn from Building standard receptacles: 3 xxxxx per
usable square foot in the Premises per hour; and (ii) Building standard
lighting: 2.5 xxxxx per usable square foot in the Premises per hour; provided,
however, that the specified wattage capacity set forth in clause (i) may be
increased from 3 to 4 xxxxx for each floor of the Building on which the Premises
are situated at Tenant's written request in conjunction with the construction of
the Tenant Improvements. Tenant shall contribute the sum of Six Thousand Dollars
($6,000.00) for each floor of the Building on which it desires to have such
wattage increased. Tenant's written request for such increase must be submitted
to Landlord by not later than five (5) days prior to Landlord's Plan Submittal
Date for the Subsequently Delivered Premises. Tenant's contribution to such
costs may be charged against the Tenant Improvement Allowance.
Normal electrical consumption on the Premises is as follows: (i)
electricity drawn from Building standard receptacles: 3 xxxxx per usable square
foot in the Premises per hour; (ii) Building standard lighting: 2.5 xxxxx per
usable square foot in the Premises per hour; and (iii) Building standard
heating, ventilating and air conditioning is designed to offset 4.5 xxxxx per
usable square foot in the Premises per hour. Tenant will not be allowed to
exceed any of the
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maximum installed electric load in the Premises as herein referenced. If
Tenant's usage of electricity exceeds normal electrical consumption, Tenant is
responsible for all expenses associated with such excess electrical consumption.
Landlord reserves the right to install submeters or to conduct an electric
consumption audit to determine electrical consumption on the premises at the
expense of Landlord. A master meter if desired by Tenant may be installed at
Tenant's expense in a manner approved by Landlord. Landlord shall have access to
such metering devices at all reasonable times and shall prepare a separate
monthly statement of the excess utilities used by such equipment based on the
utility rates established from time to time by the public utility furnishing
such service. Tenant shall pay the amounts shown on such statements to Landlord
within fifteen (15) days of receipt. Should Tenant fail to promptly pay for such
service, Landlord may discontinue furnishing such service, which shall not be
deemed an eviction (actual or constructive) or a disturbance of Tenant's
possession, use and quiet enjoyment of the Premises. Tenant agrees that Landlord
shall not be liable for damages resulting from such discontinuance, nor shall
Tenant be relieved from the performance of any of Tenant's covenants or
obligations under this Lease.
Landlord, by furnishing any of the above services, shall not be
deemed to have warranted the same to be free from any interruption or
discontinuance that is beyond the reasonable control of the Landlord or which
may result from occasional damage or malfunctions of equipment and distribution
facilities. Any such interruption or discontinuance shall not constitute an
eviction (actual or constructive) or a disturbance of Tenant's possession, use
or quiet enjoyment of the Premises. If, due to any Landlord work or installation
under this Lease or Landlord's failure to perform its obligations under this
Lease, (i) Tenant is unable for at least five (5) consecutive business days to
operate its business in the Premises in substantially the same manner as its
business was operated before the work, installation or Landlord's failure, (ii)
the interruption occurs during Tenant's business hours, and (iii) the work or
installation is either (x) in the public area of the Premises or (y) Tenant is
unable, after using reasonable efforts, to relocate its employees and property
so as to continue to operate its business, Rent shall be abated on a per diem
basis in the proportion that the area of the Premises that is unusable bears to
the total area of the Premises. Tenant agrees that Landlord shall not be liable
for damages resulting from any such interruption or discontinuance, nor shall
Tenant be relieved of the performance of any of Tenant's covenants or
obligations under this Lease except as expressly set forth above.
ARTICLE 8.
SUBLETTING AND ASSIGNMENT
-------------------------
Tenant shall not by operation of law or otherwise, without
Landlord's prior written consent, which consent shall not be unreasonably
withheld, conditioned or delayed, assign, hypothecate, mortgage, encumber or
convey this Lease or any interest in or under it, or to sublet, or otherwise
permit occupancy by any other person or entity of all or any portion of the
Premises or Storage Area. Tenant acknowledges and agrees that it shall not be
deemed unreasonable for Landlord to refuse its consent to any proposed assignee
or subtenant (i) whose reputation or financial condition is unacceptable to
Landlord; (ii) who is currently a tenant in the Building; or (iii) who is or has
been in active good faith negotiation with Landlord or its agent within the last
ninety (90) days for comparable space in the Building. For the purposes of this
section any transfer of stock in a corporate tenant or any transfer of an
interest in a partnership tenant in
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which a transfer of control of the corporation or partnership is effected shall
not be deemed to be an assignment of this Lease requiring the prior written
consent of Landlord. Any document purporting to sublet the Premises and/or the
Storage Area or assign Tenant's interest in this Lease shall be of no force or
effect unless the same shall bear the written consent of Landlord. No subtenant
or assignee shall use the Premises for any purpose other than the Permitted Use.
No permitted sublease or assignment shall in any way release Tenant from
Tenant's primary liability under this Lease. If Tenant desires the consent of
Landlord to sublease or assign, at least thirty (30) but no more than one
hundred twenty (120) days prior to the date on which Tenant desires the
assignment or sublease to be effective (the "Transfer Date") Tenant must submit
the proposed sublease or assignment to Landlord for Landlord's approval,
together with the following documents: (a) a detailed description of the portion
of the Premises and/or the Storage Area proposed to be sublet (which must be a
single, self-contained unit (the "Space"); (b) a complete financial statement of
the subtenant or assignee with an authorization to verify the same; (c) a
declaration by the subtenant or assignee as to the type of business to be
carried out and the number of employees to occupy the Space; (d) payment of a
$200 fee for processing of the sublease or assignment documents; (e) proof of
payment of all leasing commissions, if applicable; and (f) executed lease
estoppel certificates from Tenant and the proposed subtenant or assignee in the
Building standard form. If Tenant is permitted to sublease at a base rent in
excess of that provided for herein, or if Tenant is permitted to assign its
interest in this Lease for any consideration whatsoever, such excess or such
consideration (net of any subletting or assignment costs, including commissions,
paid by Tenant and approved in writing by Landlord in connection with such
permission to sublease or assign) shall be paid by Tenant to Landlord as
received. Tenant shall pay all of Landlord's out-of-pocket costs and expenses,
including reasonable attorneys' fees, relating to any such proposed assignment
or subletting.
ARTICLE 9.
QUIET POSSESSION AND SUBORDINATION
----------------------------------
Landlord covenants and agrees with Tenant that so long as Tenant
is not in default hereunder, Tenant shall peaceably and quietly enjoy the
Premises through the Term without hindrance or molestation by anyone claiming
through or under Landlord, subject, however, to the terms of this Lease. This
Lease is subject and subordinate to all present or future financial encumbrances
on the Building and to all modifications and replacements thereof and to all
advances made or hereafter to be made on the security thereof, and is further
subject to all present and future easements, conditions and encumbrances of
record, and to all applicable laws, ordinances and governmental rules and
regulations (hereinafter, with the above described financial encumbrances,
collectively called the "Conditions"). Landlord shall use its reasonable efforts
to obtain from the holder of any deeds of trust or mortgages affecting the
Building a non-disturbance and subordination agreement substantially in the form
of Exhibit G attached hereto and incorporated herein by reference. Such
non-disturbance and subordination agreement shall provide that, so long as
Tenant is not in default under this Lease, Tenant's use and enjoyment of the
Premises in accordance with all the material terms of this Lease shall not be
disturbed or materially diminished by reason of any foreclosure of any first
deed of trust. If Tenant is not furnished with such non-disturbance and
subordination agreement from the holder of any deed of trust or mortgage
hereafter affecting the Building or leasehold thereof, this Lease shall not be
subordinate to such deed of trust or mortgage. Landlord shall not, in any event,
be liable to
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Tenant for any failure to deliver the requested non-disturbance and
subordination agreement. If Landlord obtains and delivers the requested
non-disturbance and subordination agreement, the rights of Tenant under this
Lease shall be and are subject and subordinate at all times to the lien of any
deed of trust or mortgage hereafter in force against the Building, and to all
advances made or hereafter to be made upon the security thereof, and to all
renewals, modifications, consolidations, replacements and extensions thereof.
Except as expressly set forth above, this Article 9 is self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination Tenant shall promptly execute such further instruments as may be
requested by Landlord. Tenant hereby irrevocably authorizes Landlord to execute
and deliver in the name of Tenant any such instrument if Tenant fails to do so
and Landlord shall provide Tenant with a copy of any document so executed and
delivered by Landlord (with an additional copy sent to Tenant to the attention
of the "Legal Department"). If any purchaser at a foreclosure sale (including
any mortgagee by purchase or by deed in lieu of foreclosure) becomes the owner
of the Premises, Tenant will attorn to and recognize such entity's becoming such
owner for all purposes in place of the Landlord named in this Lease; provided
that there shall be no credit given by such entity to Tenant for any Rent which
has been prepaid more than one (1) month in advance.
ARTICLE 10.
LANDLORD'S RESERVED RIGHTS
--------------------------
Landlord reserves the following rights: (a) to change the name of
the Building (beyond the change contemplated in Section 23.35 hereof), provided
that without Tenant's consent Landlord may not change the name of the Building
so long as Tenant continues to exclusively lease and occupy (excluding any
assignment or subletting of the Premises by Tenant in accordance with the
provisions of the Lease) a minimum of 82,000 rentable square feet in the
Building as the Premises, as acknowledged pursuant to Section 1.8 above; (b) to
maintain signs on the interior and exterior of the Building; (c) to designate
and control all sources furnishing Building related services to tenants; (d) at
any time during the Term (if Tenant has vacated the Premises) and otherwise
during the last year of the Term, to display "for rent" signs on and exhibit and
otherwise prepare the Premises for reoccupancy; (e) to retain passkeys to all
doors within and into the Premises; (f) during the last year of the Term to
exhibit the Premises to prospective lessees; (g) to grant to anyone the
exclusive right to conduct any particular business in the Building; (h) to close
the Building after Normal Business Hours and on legal holidays and to affect
such reasonable security measures as Landlord may deem appropriate and in the
best interests of the Building and tenants; subject, however, to Tenant's right
to admittance under such reasonable security regulations as Landlord may
prescribe from time to time; (i) to approve the weight, size, and location of
safes or other heavy objects, which objects may be moved in, about or out of the
Building or Premises and/or the Storage Area only at such times and in such
manner as Landlord shall direct, and in all events at Tenant's sole risk and
responsibility; (j) to take any and all measures necessary or desirable for the
operation, safety, protection or preservation of the Building, including
repairs, alterations, decorations, additions or improvements, whether structural
or otherwise, in and about the Building, or any part thereof, and installation
of an energy management system to more accurately monitor and control heat,
ventilating and air conditioning in the Building, and during the continuance of
any such work to temporarily close doors, entry ways, public spaces and
corridors in the Building and to interrupt or temporarily suspend Building
services or facilities; and (k) to change the street address of the Building as
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required by law or regulation. Landlord may enter upon the Premises and may
exercise any or all of the foregoing rights without being deemed guilty of an
eviction (actual or constructive) or disturbance of Tenant's use or possession
and without being liable in any manner to Tenant and without abatement of rent
or affecting of Tenant's obligations hereunder.
ARTICLE 11.
ALTERATIONS AND IMPROVEMENTS
----------------------------
Tenant shall not, without the prior written consent of Landlord,
which consent shall not be unreasonably withheld, conditioned or delayed, make
any alterations, improvements or additions to the Premises and/or the Storage
Area (hereinafter referred to as a "Change"). Tenant's reconfiguration of its
office units shall not require Landlord's consent unless such reconfiguration
results in alterations to the Building's HVAC, electrical, plumbing or other
utility systems. If Landlord consents to a Change it may impose such conditions
with respect thereto as Landlord, acting in its reasonable discretion, deems
appropriate, including without limitation, requiring Tenant to furnish Landlord
security for the payment of all costs to be incurred in connection with the
Change, insurance against liabilities which may arise out of such work naming
Landlord as an additional insured together with all necessary permits for such
Change. The work necessary to make the Change shall be done at Tenant's expense
by employees or contractors hired by Landlord except to the extent that Landlord
may agree otherwise, and shall be performed in such manner and at such times as
Landlord shall direct to minimize disturbance to other tenants. Tenant shall
promptly pay, when due, the cost of all such work and of all decorating required
by reason thereof. Tenant shall also pay to Landlord a percentage of the cost of
such work (such percentage to be established on a uniform basis for the Building
by Landlord from time to time and shall not, in any event, exceed ten percent
(10%) of the cost of such work if there shall be no general contractor selected
and paid by Tenant, approved by Landlord and retained for such work, or five
percent (5%) of the cost of such work if there shall be such a general
contractor selected and paid by Tenant, approved by Landlord and retained for
such work) sufficient to reimburse Landlord for all expenses arising from
Landlord's involvement with such work. Upon completion of such work, Tenant
shall deliver to Landlord, if payment is made directly to contractors by Tenant,
evidence of payment, contractors affidavits and full and final waivers of all
liens for labor, services or materials (in the form attached hereto as Exhibit
F), and Tenant shall defend and hold Landlord and the Building harmless from all
costs, damages and liens and expenses related to such work. In connection with
such work Tenant shall never be deemed an agent of Landlord. All work done by
Tenant or Tenant's contractors shall be done in a good and workmanlike manner
using only good grades of materials and shall comply with all insurance
requirements and all Conditions. Tenant's contractors may not utilize any
non-union or other employees or procedures which might delay, hinder or
otherwise interfere with Landlord's construction activities in or management of
the Building. In consideration of Landlord's consent to such Change, any Change
shall (without further compensation to Tenant) become Landlord's property at the
termination of the Term, and shall, unless Landlord requests otherwise, be
relinquished to Landlord in good condition, ordinary wear excepted.
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ARTICLE 12.
REPAIRS AND REPLACEMENTS
------------------------
Landlord, at Landlord's expense, shall maintain and keep in good
condition the Premises, the Storage Area and Building, except for damage to the
Premises, the Storage Area or the Building caused by acts or omissions of
Tenant, Tenant's agents, employees, contractors, guests or invitees, in which
event Tenant, subject to the provisions of Section 19.2 hereof, will bear the
cost of such maintenance or repair. Tenant, at Tenant's expense, shall at all
times keep the Premises and Storage Area in a clean, safe and tenantable
condition and in good order, repair and appearance and Landlord shall have the
right to approve the means and methods employed in performance of such work. If
Tenant does not do so Landlord may (but need not) restore the Premises and
Storage Area to a clean, safe and tenantable condition, and Tenant shall pay the
cost thereof forthwith upon being billed by Landlord. This Section shall not
apply to damage or destruction and condemnation proceedings otherwise provided
for in this Lease. In the event emergency repairs are required within the
Premises and Tenant is unable to contact Landlord after diligent and persistent
efforts so to do and Landlord is otherwise unaware of such emergency, Tenant may
perform Landlord's repair obligations within the Premises as set forth herein.
Such repairs shall be performed in a good and workmanlike manner using materials
of a quality comparable to the materials used in the construction of the
Premises and the Building generally. During the performance of such repairs (and
thereafter, until Tenant is able to contact Landlord), Tenant shall endeavor to
notify Landlord that Tenant has undertaken to make such repairs on Landlord's
behalf and Landlord shall have the right to assume the performance of such
repairs at any time. Any such repairs undertaken by Tenant shall be performed in
a manner so as not to interfere with any other tenant's access to or use and
occupancy of its premises within the Building. Landlord shall reimburse Tenant
for the reasonable costs of said repairs within thirty (30) days of Landlord's
receipt of an invoice for same. For the purpose of this Article 12, an
"emergency" necessitating such repairs shall not be deemed to exist unless
Tenant reasonably determines that there is an imminent threat of harm to any
person or an imminent threat of material damage to Tenant's property located in
the Premises.
ARTICLE 13.
DESTRUCTION OR DAMAGE
---------------------
If all or a substantial portion of the Premises be rendered
untenantable, inaccessible or unsafe by fire or other casualty, or portions of
the Building exclusive of the Premises are damaged or a system therein is
damaged in such a way as to render the Premises untenantable by fire or other
casualty, and if it is reasonably anticipated that even though undertaken and
pursued with all due diligence it will require more than six (6) months to
repair the damaged area, or if the Building or Premises are damaged by an
uninsured casualty, (i) Landlord may terminate this Lease as of the date of such
casualty by notice to Tenant given within thirty (30) days after such
occurrence, and (ii) if such casualty occurs during the last twelve (12) months
of the Term and is not caused by an act or omission of Tenant, Tenant may
terminate this Lease as of the date of such casualty by notice to Landlord given
within thirty (30) days after such occurrence. If neither Landlord nor Tenant
elects to terminate this Lease, Landlord shall proceed with all due diligence to
repair the damaged area at Landlord's expense and the Rent shall xxxxx as to
that portion of the Premises which is untenantable for so long as the same shall
remain untenantable. If this Lease is
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terminated pursuant to this section, Rent shall be apportioned on a per diem
basis and paid to the date of the casualty. If the Premises are partially
damaged by fire or other casualty but are not rendered substantially
untenantable taking into consideration Tenant's normal use of the Premises, then
Landlord shall proceed with all due diligence to repair the Premises and the
Rent shall not xxxxx.
ARTICLE 14.
EMINENT DOMAIN
--------------
If the whole of the Building or the whole of the Premises shall be
taken by the exercise of the power of eminent domain or pursuant to any
agreement in lieu of the exercise of such power (hereinafter called a
"Condemnation Proceeding"), then this Lease shall terminate as of the date of
the taking of possession by or the vesting of title in the condemning authority
(such date being hereinafter called the "Taking Date"). If less than the whole
of the Building or less than the whole of the Premises shall be taken in a
Condemnation Proceeding, Tenant may at Tenant's option terminate this Lease as
of the Taking Date by giving notice of Tenant's exercise of such option within
sixty (60) days after the Taking Date, provided that as a result of such taking
Landlord shall have determined that the Premises (or the remaining portion
thereof) may no longer be adequately used for the Permitted Use. If a portion of
the Premises shall be taken and Tenant shall not exercise Tenant's option to
terminate this Lease or if such taking shall not give rise to such option to
terminate, then this Lease shall terminate on the Taking Date only as to that
portion of the Premises so taken but shall remain in full force and effect with
respect to that portion of the Premises not so taken, and the Rent and other
charges payable by Tenant hereunder shall be reduced in the ratio in which the
diminution of the rentable square footage of the Premises following the Taking
Date shall bear to the rentable square footage thereof immediately prior to such
Taking Date. Except as otherwise ordered by the court in a Condemnation
Proceeding, all income, rent, awards or interest derived from any Condemnation
Proceeding shall belong to and be the property of Landlord, but this shall not
preclude Tenant from making an independent claim for the value of Tenant's
personal property which Tenant is entitled to remove under this Lease and
Tenant's relocation expenses in such Condemnation Proceeding provided that such
claim does not result in a reduction of Landlord's award.
ARTICLE 15.
HOLDING OVER
------------
If Tenant without the consent of Landlord retains possession of
the Premises, the Storage Area or any part thereof after termination of the
Term, Tenant shall pay to Landlord Rent at a rate equal to (i) one hundred
thirty-three percent (133%) of the Rent payable for the month immediately
preceding the commencement of said holding over computed on a per month basis
for the first month or portion of the first month (without reduction for such
partial month) that Tenant remains in possession, (ii) one hundred sixty-seven
percent (167%) of the Rent payable for the month immediately preceding the
commencement of said holding over computed on a per month basis for the second
month or portion of the second month (without reduction for such partial month)
that Tenant remains in possession, and (iii) two hundred percent (200%) of the
Rent payable for the month immediately preceding the commencement of said
holding over computed on a per month basis for each month or part thereof
(without reduction for any partial
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month) that Tenant remains in possession after the second month; and in addition
thereto, in the event Tenant remains in possession of the Premises or any part
thereof for a period in excess of three (3) months after termination of the Term
of this Lease, Tenant shall pay Landlord all direct and consequential damages
sustained by reason of Tenant's retention of possession. Such retention of
possession shall constitute a month to month lease terminable in accordance with
law.
ARTICLE 16.
SURRENDER OF POSSESSION
-----------------------
Upon the termination of the Term Tenant shall immediately
surrender the Premises (together with any Changes) and the Storage Area to
Landlord in good order, repair and condition, ordinary wear and casualty losses
for which Tenant is not responsible pursuant to the terms of this Lease
excepted, and shall remove all vaults (as directed by Landlord), office
furniture and equipment, trade fixtures and other items of Tenant's property on
the Premises and the Storage Area. Tenant shall pay Landlord upon demand the
cost of repairing any damage to the Premises, the Storage Area and to the
Building caused by any such removal. If Tenant fails or refuses to remove any
such property from the Premises, the Storage Area or the Building, Tenant shall
be conclusively presumed to have abandoned the same and Landlord may dispose of
the same without incurring any liability therefor.
ARTICLE 17.
DEFAULT AND REMEDIES
--------------------
If Tenant shall default in the payment of any installment of the
Rent or in the payment of any other sum required to be paid by Tenant under this
Lease and such default shall continue for five (5) days after notice from
Landlord that payment thereof is due, or if Tenant shall default in the
observance or performance of any of the other covenants or conditions in this
Lease which Tenant is required to observe or perform and such default shall
continue for thirty (30) days after written notice to Tenant, or if a default
involves a hazardous condition (meaning the existence of an imminent threat of
harm to any person or imminent threat of material damage to the Building or any
part thereof or of material damage to any personal property within the Building)
and is not cured by Tenant immediately upon written notice to Tenant, or if the
interest of Tenant in this Lease shall be levied upon under execution or other
legal process, or if any voluntary petition in bankruptcy or for corporate
reorganization or any similar relief shall be filed by Tenant, or if any
involuntary petition in bankruptcy shall be filed against Tenant under any
federal or state bankruptcy or insolvency act and shall not have been dismissed
within ninety (90) days following the filing thereof, or if a receiver shall be
appointed for Tenant or any of the property of Tenant by any court and such
receiver shall not be dismissed within ninety (90) days from the date of
appointment, or if Tenant shall make an assignment for the benefit of creditors,
or if Tenant shall admit in writing Tenant's inability to meet Tenant's debts as
they mature, or if Tenant shall abandon the Premises, then Landlord may treat
the occurrence of any one or more of the foregoing events as a breach of this
Lease and thereupon at Landlord's option may, without notice or demand of any
kind to Tenant or any other person, exercise one or more of the following
described remedies, in addition to all other rights and remedies provided at law
or in equity:
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(a) Landlord may terminate this Lease and the estate
created hereby, in which event Landlord may forthwith repossess
the Premises and the Storage Area and be entitled to recover
forthwith, in addition to any other sums or damages for which
Tenant may be liable to Landlord as damages, an amount, if any,
equal to the Rent which would have been payable during any period
of rent-free occupancy provided to Tenant by this Lease, the cost
of all leasing commissions paid by Landlord in connection with
this Lease, the cost to Landlord of the initial leasehold
improvements to the Premises, and all other amounts paid to or on
behalf of Tenant in connection with Tenant's entry into this Lease
and occupancy of the Premises and the Storage Area (including
without limitation any moving cost allowance, payments on lease(s)
assumed by Landlord, payment for preparation of floor plans and
the like), including Landlord's interest expense thereon, together
with a sum of money equal to the excess of the value of the Rent
provided to be paid by Tenant for the balance of the Term over the
fair market rental value of the Premises, after deduction of all
anticipated expenses of reletting for said period.
(b) Landlord may terminate Tenant's right of possession
and may repossess the Premises and Storage Area by forcible entry
or unlawful detainer suit, by taking peaceful possession or
otherwise without terminating this Lease, in which event Landlord
may, but shall be under no obligation to, relet the same for the
account of Tenant, for such rent and upon such terms as shall be
satisfactory to Landlord. For the purpose of such reletting,
Landlord is authorized to decorate, repair, remodel or alter the
Premises. If Landlord shall fail to relet the Premises, Tenant
shall pay to Landlord as damages a sum equal to the amount of the
Rent reserved in this Lease for the balance of the then-existing
Term of this Lease. If the Premises are relet and a sufficient sum
shall not be realized from such reletting after paying all of the
costs and expenses of all decoration, repairs, remodeling,
alterations and additions and the expenses of such reletting to
satisfy the Rent provided for in this Lease and the amounts
recoverable (including broker's fees) by Landlord from Tenant
pursuant to subparagraph (a) of this paragraph, Tenant shall
satisfy and pay the same upon demand therefor from time to time.
Landlord may file suit to recover any sums falling due from time
to time and no suit or recovery of any portion due Landlord
hereunder shall be any defense to any subsequent action brought
for any amount not theretofore reduced to judgment in favor of
Landlord.
No waiver of any default by Tenant shall be implied from any omission by
Landlord to take any action on account of said default if such default persists
or shall be repeated, and no express waiver shall affect any default other than
the default specified in the express waiver and then only for the time and to
the extent therein stated. No failure of Landlord to exercise any power given
Landlord hereunder or to insist upon strict compliance with any obligation
hereunder and no custom or practice of the parties at variance with the
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terms hereof shall constitute a waiver of Landlord's right to demand exact
compliance with the terms hereof. In the event of a default by Tenant under this
Lease which continues beyond any applicable cure period, Landlord shall use
reasonable efforts to mitigate its damages in accordance with the laws of the
State of Missouri. The provisions of this Section shall survive any termination
of this Lease.
ARTICLE 18.
BANKRUPTCY
----------
If a petition is filed by or against Tenant for relief under the
bankruptcy laws of the United States (the "Bankruptcy Code"), and Tenant
(including for the purposes of this section Tenant's successor in bankruptcy,
whether a trustee or Tenant as debtor in possession) assumes and proposes to
assign, or proposes to assume and assign, this Lease pursuant to the provisions
of the Bankruptcy Code to any person or entity who has made or accepted a bona
fide offer to accept an assignment of this Lease on the terms acceptable to
Tenant, then notice of the proposed assignment setting forth (a) the name and
address of the proposed assignee, (b) all of the terms and conditions of the
offer and proposed assignment, and (c) the adequate assurance to be furnished by
the proposed assignee of the proposed assignee's future performance under this
Lease, shall be given to Landlord by Tenant no later than twenty (20) days after
Tenant has made or received such offer, but in no event later than ten (10) days
prior to the date on which Tenant applies to a court of competent jurisdiction
for authority and approval to enter into the proposed assignment. Landlord shall
have the prior right and option, to be exercised by notice to Tenant given at
any time prior to the date on which the court order authorizing such assignment
becomes final and non-appealable, to receive an assignment of this Lease upon
the same terms and conditions, and for the same consideration, if any, as the
proposed assignee, less any brokerage commission which may otherwise be payable
out of the consideration to be paid by the proposed assignee for the assignment
of this Lease. If this Lease is assigned pursuant to the provisions of the
Bankruptcy Code, Landlord: (i) may require from the assignee a deposit or other
security for the performance of assignee's obligations under this Lease in an
amount substantially the same as would have been required by Landlord upon the
initial leasing to a tenant similar to the assignee; and (ii) shall be entitled
to receive as additional Rent, any amounts received by Tenant in connection with
such assignment. Any person or entity to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code shall be deemed without further act or
documentation to have assumed all of the Tenant's obligations arising under this
Lease on and after the date of such assignment. Any such assignee shall upon
demand execute and deliver to Landlord an instrument confirming such assumption.
No provision of this Lease shall be deemed a waiver of Landlord's rights or
remedies under the Bankruptcy Code to oppose any assumption and/or assignment of
this Lease, or to regain possession of the Premises if this Lease has neither
been assumed nor rejected within sixty (60) days after the date of the order for
relief or within such additional time as a court of competent jurisdiction may
have fixed. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord under this Lease, whether or not
expressly denominated as rent, shall constitute rent for the purposes of Section
502(b)(6) of the Bankruptcy Code.
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ARTICLE 19.
INSURANCE AND WAIVER OF RECOVERY
--------------------------------
19.1 INSURANCE. Tenant shall at all times during the Term maintain
in full force and effect with respect to the Premises (a) commercial or
comprehensive general liability insurance (on an occurrence and not claims-made
basis) having the limits set forth in Article 1 hereof, (b) all risk property
insurance upon all property owned or used by Tenant in the Premises in an amount
not less than the full replacement cost thereof, (c) workers' compensation and
employer's liability insurance in form and in at least the minimum amount
required by law, (d) contractual liability insurance sufficient to cover
Tenant's indemnity obligations hereunder and (e) such other coverage as may be
reasonably required by Landlord or any mortgagee of the Building, each in the
standard form generally of use in the State of Missouri by a company reasonably
satisfactory to Landlord. The amount of such insurance coverage shall be subject
to increase upon the reasonable request of Landlord. Such insurance shall be
subject to modification, exhaustion or cancellation only upon ten (10) days
notice to Landlord. Tenant, at or prior to the Lease Commencement Date, and
thereafter not less than thirty (30) days prior to the expiration of any such
policy, shall furnish Landlord with an endorsement to such insurance, such
endorsement to be in a form reasonably acceptable to Landlord and any mortgagee
of the Building and, at the request of Landlord, to name Landlord and any such
mortgagee as an additional insured.
19.2. WAIVER OF RECOVERY. Landlord and Tenant hereby mutually
waive any and all rights of recovery against one another for real or personal
property loss or damage occurring to the Premises or to the Building or any part
thereof or any personal property located therein from perils which are able to
be insured against in standard fire and extended coverage, vandalism and
malicious mischief and sprinkler leakage insurance contracts (commonly referred
to as "All Risk") issued in the State of Missouri (whether or not such insurance
actually is carried). Such release shall include any deductible or self insured
retention. Landlord and Tenant shall request their insurance carriers to consent
to a waiver of all rights of subrogation against each other by inclusion of such
a clause in their respective policies or by endorsement thereto.
19.3. INDEMNITY BY TENANT. Subject to the foregoing limited
waiver, Tenant shall defend and indemnify Landlord and save Landlord harmless
from and against any and all claims against Landlord arising from (a) Tenant's
use or occupancy of the Premises or the conduct of Tenant's business or from any
activity, work or thing done, permitted or suffered by Tenant in or about the
Premises or Building, (b) the nonperformance of any covenant or agreement on
Tenant's part to be performed pursuant to the terms of this Lease or (c) any act
or negligence of Tenant or of any of Tenant's agents, contractors, employees,
invitees or licensees, and from and against all costs, counsel fees, expenses
and liabilities incurred in any such claim or in any action or proceeding
brought thereon; and in case any action or proceeding be brought against
Landlord by reason of any such claim, Tenant upon notice from Landlord,
covenants to resist or defend at Tenant's expense such action or proceeding by
counsel reasonably satisfactory to Landlord; provided, however, that the
provisions of this Section 19.3 shall not be construed to make Tenant
responsible for loss, damage, liability or defense resulting from injuries to
third parties to the extent caused by the negligence of Landlord or Landlord's
contractors, licensees, employees, guests and invitees.
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19.4. LANDLORD'S INSURANCE. Landlord shall at all times maintain
in full force and effect with respect to the Building commercial or
comprehensive general liability insurance having the limits set forth in Article
1 hereof.
ARTICLE 20.
TAXES ON TENANT'S PROPERTY
--------------------------
Tenant shall be liable for and shall pay before delinquency, taxes
levied against any personal property or trade fixtures placed by Tenant in the
Premises and/or the Storage Area. If any such taxes on Tenant's personal
property or trade fixtures are levied against Landlord or Landlord's property or
if the assessed value of the Building is increased by the inclusion therein of a
value placed upon such personal property or trade fixtures of Tenant and if
Landlord, after written notice to Tenant, pays the taxes based upon such
increased assessments, which Landlord shall have the right to do regardless of
the validity thereof, but only under proper protest if requested by Tenant,
Tenant shall upon demand repay to Landlord the taxes levied against Landlord, or
the proportion of such taxes resulting from such increase in the assessment;
provided that in any such event, at Tenant's sole cost and expense, Tenant shall
have the right, in the name of Landlord and with Landlord's full cooperation, to
bring suit in any court of competent jurisdiction to recover the amount of any
such taxes so paid under protest, any amount so recovered to belong to Tenant.
ARTICLE 21.
AMERICANS WITH DISABILITIES ACT
-------------------------------
Landlord shall be responsible for compliance with the requirements
of the Americans with Disabilities Act (the "ADA") with respect to the Building
shell, lobbies, restrooms (including Building standard restrooms on floors fully
occupied by Tenant), and other common areas of the Building, and agrees to hold
Tenant harmless with respect to failure by Landlord to fulfill Landlord's
obligations under the ADA with respect to those areas. Tenant shall be
responsible for compliance with the requirements of the ADA with respect to the
Premises and the Storage Area, and the use and occupancy of the Premises and the
Storage Area by Tenant, and agrees to hold Landlord harmless with respect to
failure by Tenant to fulfill Tenant's obligations under the ADA with respect to
the occupancy and use of the Premises and the Storage Area.
ARTICLE 22.
HAZARDOUS MATERIALS
-------------------
The Building was constructed in compliance with the codes and
regulations in effect at the time of construction. Landlord agrees to comply
with all applicable laws and regulations relating to hazardous materials
associated with the Building structure and common areas. The foregoing does not
relate to compliance with laws or regulations which are applicable to the use or
occupancy of premises in the Building by individual tenants or the conduct of
such tenant's business in those premises and compliance with those laws and
regulations shall be the sole responsibility of the individual tenants. As of
the date of this Lease, to the best of Landlord's knowledge, the Premises
contain no asbestos and Landlord has received no notice with respect to
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the Building from any governmental agency of any violation of the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), Resource
Conservation and Recovery Act ("RCRA") or any similar law or regulation in
effect in the State of Missouri. Tenant agrees to comply with all applicable
laws and regulations relating to hazardous materials and Tenant shall not use,
store, dispose of, or generate any such materials in, on or about the Premises,
the Storage Area, or the Building except as customarily used for general office
purposes, which materials may be utilized and subsequently disposed of only in
strict compliance with all applicable laws and regulations and insurance
requirements applicable to the Building.
ARTICLE 23.
GENERAL PROVISIONS
------------------
23.1. COSTS AND EXPENSES OF ENFORCEMENT: If Tenant or Landlord
brings any action for any relief against the other, declaratory or otherwise,
arising out of this Lease, including any suit by Landlord for the recovery of
Rent or possession of the Premises and the Storage Area, the losing party shall
reimburse the prevailing party for the reasonable fees and costs of attorneys,
including the reasonable fees and costs of investigators and experts engaged in
connection with such action and reasonable fees, costs and expenses incurred in
connection with any appeal, all of which shall be deemed to have accrued on the
commencement of such action and shall be paid whether or not the action is
prosecuted to judgment. The "prevailing party" shall be the party that prevails
in obtaining a remedy or relief which most nearly reflects the remedy or relief
which that party sought.
23.2. LATE FEES: All amounts due Landlord under this Lease shall
be considered past due for the purposes hereof on the fifth (5th) day after the
due date and shall bear interest from such date until paid at an annual rate
equal to four percent (4%) in excess of the then publicly announced Prime Rate
of Mercantile Bank National Association, St. Louis, Missouri, or its successor
(the "Bank') which rate shall change as and when such Prime Rate shall be
changed by such Bank, or the highest lawful rate, whichever is less. If the Bank
no longer exists, then in such event, Landlord may designate another bank doing
business in the City or County of St. Louis, Missouri to determine the Prime
Rate for purposes of this section. Further, on the second occasion and each
subsequent occasion in any calendar year during the Term on which an installment
of Rent has not been received by Landlord within five (5) days after the Rent's
due date, Landlord shall be entitled, as a service charge, to a fee of five
percent (5%) of the amount of the Monthly Rent then due hereunder.
23.3. NOTICES: All notices, consents, approvals and requests
required or permitted hereunder shall be given in writing and shall be effective
for all purposes if hand delivered or sent by (a) certified or registered United
States mail, postage prepaid, or (b) expedited prepaid delivery service, either
commercial or United States Postal Service, with proof of attempted delivery,
and (c) by telecopier (with answer back acknowledged), addressed if to Landlord
at Landlord's address set forth in Article 1 hereof, or at such other address
designated from time to time by Landlord, with a copy to Landlord's property
management agent, per Landlord's from time to time written notification to
Tenant on or after the date of this Lease, or if to Tenant, at Tenant's address
set forth in Article 1 hereof, or at such other address designated from time to
time by Tenant, with a courtesy copy to Tenant's attorney, per Tenant's from
time
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to time written notification to Landlord on or after the date of this Lease,
provided that such copy shall be a courtesy copy only and failure to provide
such courtesy copy shall have absolutely no effect or entitle Tenant to any
remedy whatsoever. Any notice duly given to Tenant shall be effective whether or
not the courtesy copy was given to Tenant's attorney. A notice shall be deemed
to have been given: in the case of hand delivery, at the time of delivery; in
the case of registered or certified mail, when delivered or the first attempted
delivery on a Business Day; or in the case of expedited prepaid delivery and
telecopy, upon the first attempted delivery on a Business Day.
23.4. LANDLORD'S RIGHT TO TRANSFER INTEREST: Landlord has the
right to transfer Landlord's interest in the Building and in this Lease, and
upon any such transfer Landlord shall automatically be released from all
liability under this Lease, and Tenant shall look solely to such transferee for
the performance of Landlord's obligations hereunder. Landlord may assign
Landlord's interest in this Lease to a mortgage lender as additional security
provided that such assignment shall not release Landlord from Landlord's
obligations hereunder and Tenant shall continue to look solely to Landlord for
the performance of Landlord's obligations hereunder.
23.5. ENTIRE AGREEMENT: This Lease, together with the Exhibits
referenced in Article 1 and Addendum(s), if any, constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
shall be binding upon the parties hereto and their respective heirs, personal
representatives, executors, successors and permitted assigns, as the case may
be. All terms used in this Lease shall be deemed to refer to the masculine,
feminine, neuter, singular or plural, as the context may require.
23.6. APPLICABLE LAW AND PARTIAL INVALIDITY: This Lease shall be
governed by and enforced in accordance with the laws of the State of Missouri.
The invalidity or unenforceability of any provision of this Lease shall not
affect or impair any other provision.
23.7. AMENDMENT: This Lease may not be altered, amended, modified,
or extended except by written instrument signed by Landlord and Tenant.
23.8. WAIVER: The waiver by either Landlord or Tenant of any
breach of any term, condition or covenant of this Lease shall not be deemed to
be a waiver of any subsequent breach of the same or any other term, condition or
covenant of this Lease. No failure either by Landlord or Tenant to take action
against the other party hereto on account of any failure by such party to
perform any of such party's obligations under this Lease shall be deemed to be a
waiver by the non-defaulting party, except only where the non-defaulting party
has provided to the other party a written waiver, signed by the non-defaulting
party.
23.9. BROKERAGE: Each of the parties hereto warrants to the other
that, except as set forth in Article 1 hereof, such party has not obligated the
other party for any finders', brokers' or other agents' commission, fees or
other remuneration in connection with this Lease; and each party shall indemnify
and hold the other party harmless from and against any and all claims for such
fees alleged to have been incurred by such party.
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23.10. LEASE ESTOPPEL CERTIFICATE: Tenant from time to time, upon
not less than ten (10) days prior written request by Landlord, will promptly
deliver to Landlord a duly executed Lease Estoppel Certificate in the Building
standard form (attached hereto as Exhibit H).
23.11. FORCE MAJEURE: Any prevention, delay or stoppage due to
strikes, lockouts, labor disputes, acts of God, inability to obtain labor or
materials, governmental restrictions, regulations or controls, enemy or hostile
government action, civil commotion, fire or other casualty or other causes
beyond the reasonable control of the party required to perform shall excuse the
performance by such party for a period equal to any such prevention, delay or
stoppage, except for the obligations imposed with regard to Rent and other
charges to be paid by Tenant pursuant to this Lease.
23.12. LEASE TERMINATION: This Lease may be terminated only in
accordance with its terms, and no unilateral termination by Tenant not expressly
established in writing within this Lease and no voluntary surrender of this
Lease by Tenant shall be effective unless such termination or surrender shall be
accepted by Landlord in writing.
23.13. RELATIONSHIPS: Nothing contained in this Lease shall be
deemed to constitute or be construed to create any relationship between Landlord
and Tenant other than that of lessor and lessee.
23.14. AUTHORITY: With respect to each entity constituting the
Tenant, such entity hereby covenants and warrants that (a) it is validly
existing and duly organized; (b) it is duly authorized to do business in the
State of Missouri; (c) the person executing this lease on behalf of such entity
is an officer of such entity duly authorized by such entity to sign and execute
this Lease on such entity's behalf; (d) this Lease is a valid and binding
obligation of such entity, enforceable in accordance with the Lease's terms; and
(e) no approval from any other party is necessary prior to such entity's
execution of this Lease or performance of such entity's duties hereunder.
Landlord hereby covenants and warrants that (a) Landlord is duly authorized to
do business in the State of Missouri; (b) Landlord is validly existing and duly
organized in the State of Delaware; (c) Landlord is authorized to enter into and
perform the obligations to Landlord under this Lease; (d) this Lease is a valid
and binding obligation of Landlord, enforceable in accordance with the Lease's
terms; and (e) no approval from any other party is necessary prior to Landlord's
execution of this Lease or performance of Landlord's duties hereunder.
23.15. NON-BINDING UNLESS SIGNED: Submission of the form of this
Lease for examination shall not bind Landlord in any manner, and no lease or
other obligation of Landlord shall arise until this instrument is signed by both
Landlord and Tenant, approved by the holder of any mortgage, deed of trust or
other financial encumbrance on the Building having such approval rights, and
delivery is made to each party.
23.16. RIGHTS: No rights to any view or to light or air over any
property, whether belonging to Landlord or any other person are granted to
Tenant by this Lease.
23.17. INTENTIONALLY OMITTED.
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23.18. LEASE PAYMENTS: Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease (regardless of Tenant's
designation of such payments) to satisfy obligations of Tenant hereunder in such
order and amounts as Landlord in Landlord's sole discretion may elect.
23.19. INTENTIONALLY OMITTED.
23.20. LANDLORD'S LIABILITY: Notwithstanding any other provision
hereof to the contrary, Landlord or Landlord's agents shall not be liable for
any damage to property entrusted to employees or agents of Landlord, nor for
loss of or damage to any property by theft or otherwise, nor for any injury or
damage to persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water or rain which may leak from any part of the
Building or from the pipes, appliances or plumbing works therein or from the
roof, street or subsurface or from any other place or resulting from dampness or
any other cause whatsoever. Landlord or Landlord's agents shall not be liable
for interference with the light or other incorporeal hereditaments, nor shall
Landlord be liable for any latent defect in the Premises or the Storage Area or
in the Building. Tenant shall give reasonably prompt notice to Landlord in case
of fire or accidents in the Premises or the Storage Area or in the Building or
of defects therein or in the fixtures or equipment. It is expressly understood
and agreed that none of Landlord's covenants, undertakings and agreements under
this Lease are made or intended as personal covenants, undertakings or
agreements by Landlord, and any liability for damage or breach or nonperformance
by Landlord shall be collectible only out of Landlord's interest in the
Building, and no personal liability is assumed by or at any time may be asserted
against Landlord.
23.21. CONFIDENTIALITY: The terms and conditions of this Lease are
confidential and may not be disclosed by Tenant or Landlord or their respective
representatives to any third parties (other than such party's attorneys,
accountants and advisors) without the prior written consent of the other, except
to the extent disclosure is necessary in order to comply with applicable
governmental laws, rules or regulations, including securities laws.
23.22. TENANT'S FINANCIAL STATEMENTS: At any time during the Term,
Tenant shall, upon ten (10) business days prior written notice from Landlord,
provide Landlord with a current financial statement and financial statements two
(2) years prior to the current financial statement year. Such statement shall be
prepared in accordance with generally accepted accounting principles and, if
such is the normal practice of Tenant, shall be audited by an independent
certified public accountant.
23.23. LANDLORD'S DEFAULT: In the event of any default on the part
of Landlord, Tenant shall give notice by certified mail to any holder of a
financial encumbrance covering the Building who has requested such notice(s) by
written notice to Tenant (or Landlord shall have requested same on behalf of
such holder), whose address shall have been furnished to the Tenant, and shall
offer such holder a reasonable opportunity to cure the default, including time
to obtain possession of the Building by power of sale or a judicial foreclosure,
if such should prove necessary to effect a cure.
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23.24. SIGNAGE: Tenant shall have the right to have signage
installed by Landlord in the locations depicted on Exhibit A-1 to this Lease
(the "Signage Plan"), which signage shall be subject to compliance with all
applicable laws, statutes, rules, regulations and ordinances.
All such signs shall be subject to Landlord's prior written
approval, which approval shall not be unreasonably withheld, conditioned or
delayed.
Landlord shall provide an allowance (the "Signage Allowance") for
up to Twenty Five Thousand and 00/100 Dollars ($25,000.00) of the cost of
Tenant's signage described in paragraphs a, b and c of Exhibit A-1 (excluding
the cost of electrical connections for said signage, which cost Landlord agrees
to pay without charge to such allowance). The Signage Allowance shall be
accounted for by Landlord concurrently with the distribution of the Tenant
Improvement Allowance pursuant to Exhibit C to this Lease. Tenant shall be
responsible for any cost in excess of Twenty-Five Thousand and 00/100 Dollars
($25,000.00), which excess may be deducted from the Tenant Improvement Allowance
or else shall be paid to Landlord on demand.
With respect to signage on and within the Building, however,
Landlord hereby agrees as follows: (a) no present or future tenant in the
Building engaged primarily in the sale or issuance of securities, other than
Tenant, shall have the right to exterior signage or any interior signage, other
than directory signage, which is visible from the exterior of the Building or
which is located within the portion of the common areas on the second floor of
the Building to the St. Louis Centre Garage (provided it is hereby understood
and agreed that for purposes of this prohibition no other tenant shall be
considered "engaged primarily in the sale or issuance of securities" unless such
sales and issuances shall generate in excess of 50% of the gross revenues of
such tenant generated from activities and operations within its leased premises
in the Building for any fiscal year of such tenant during the Term of this
Lease); and (b) any tenant exterior signage on the side of the Building facing
Broadway shall be at an elevation below the elevation at which Tenant is
permitted to maintain signage pursuant to Paragraph a of Exhibit A-1 of this
Lease, and any tenant exterior signage on the side of the Building facing
Washington shall be at an elevation below the elevation at which Tenant is
permitted to maintain signage pursuant to Paragraph c of Exhibit A-1 of this
Lease.
BALANCE OF THIS PAGE IS INTENTIONALLY BLANK
28
32
23.25. WAIVER OF TRIAL BY JURY: Landlord and Tenant hereby agree
not to elect a trial by jury of any issue triable of right by jury, and waive
any right to trial by jury fully to the extent that any such right shall now or
hereafter exist with regard to the claim, counterclaim or other action arising
in connection therewith. This waiver of right to trial by jury is given
knowingly and voluntarily by the parties, and is intended to encompass
individually each instance and each issue to which the right to a trial by jury
would otherwise accrue. Landlord or Tenant, as the case may be, is hereby
authorized to file a copy of this paragraph in any proceeding as conclusive
evidence of this waiver by the other party.
23.26. HEADINGS: The Article and/or Section headings and the Table
of Contents in this Agreement are included herein for convenience of reference
only and shall not constitute a part of this Agreement for any other purpose.
23.27. TIME OF THE ESSENCE: Time is of the essence with respect to
the performance and observance of all of the terms, covenants and conditions
hereof.
23.28. LANDLORD'S FEES. Whenever Tenant requests Landlord to take
any action or give any consent required or permitted under this Lease, Tenant
shall reimburse Landlord for Landlord's reasonable costs incurred in reviewing
the proposed action or consent, including, without limitation, reasonable
out-of-pocket attorneys', engineers' or architects' fees, within ten days after
Landlord's delivery to Tenant of a statement of such costs. Tenant shall be
obligated to make such reimbursement without regard to whether Landlord consents
to any such proposed action.
BALANCE OF THIS PAGE IS INTENTIONALLY BLANK
29
33
23.29. TELECOMMUNICATIONS. Tenant and its telecommunications
companies, including, but not limited to, local exchange telecommunications
companies and alternative access vendor services companies, shall have no right
of access to and within the Building for the installation and operation of
telecommunications systems, including, but not limited to, voice, video, data
and any other telecommunications services provided over wire, fiber optic,
microwave, wireless and any other transmission systems, for part or all of
Tenant's telecommunications within the Building and from the Building to any
other location without Landlord's prior written consent, which consent shall not
be unreasonably withheld, conditioned or delayed.
23.30. DISCLAIMER OF IMPLIED WARRANTIES. Landlord expressly
disclaim any implied warranty that the Premises are suitable for Tenant's
intended commercial purpose, and Tenant's obligation to pay rent and additional
rent hereunder is not dependent upon the condition of the Premises or the
performance by Landlord of its obligations hereunder, and, except as otherwise
expressly provided herein, Tenant shall continue to pay the rent and additional
rent, without abatement, setoff or deduction, notwithstanding any breach by
Landlord of its duties or obligations hereunder, whether express or implied.
BALANCE OF THIS PAGE IS INTENTIONALLY BLANK
30
34
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY
BE ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, the undersigned have caused this Lease to be
signed and delivered on their behalf on the dates set forth below.
TENANT:
STIFEL FINANCIAL CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
Date: September 30, 1998
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
Date: September 30, 1998
LANDLORD:
EBS BUILDING, L.L.C.
BY: PricewaterhouseCoopers LLP, its Manager
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Partner
Date: September 30, 1998
31
35
EXHIBIT A
FLOOR PLAN
----------
36
389251
EXHIBIT A-1
SIGNAGE PLAN
------------
Subject to the terms and conditions of Section 23.24 of the Lease,
on or prior to the Lease Commencement Date (subject to Section 23.11 of the
Lease) Landlord shall, with the cooperation of Tenant as directed by Landlord
and at the cost of Tenant (except for the Signage Allowance provided by Landlord
as set forth in Section 23.24 of the Lease), install or cause to be installed
the following signage:
a. BROADWAY ENTRANCE. Tenant shall have the exclusive right to
signage within the stone band at the base of the semi-circle where the
name "Edison Brothers Stores, Inc." is currently located (and where the
Building name will be located upon the change of such name as
contemplated under Section 23.35 of the Lease or as otherwise permitted
under Article 10 of the Lease). Tenant's sign shall be within the "band"
within the outer edge of the round columns located directly below said
band, and the font of said signage shall be limited in height to 13"
letters. Tenant shall have the right, subject to the foregoing
limitations, to back-light this signage. Such signage shall be subject to
receipt of applicable governmental approvals.
b. AIRSHAFT AT THE CORNER OF BROADWAY AND WASHINGTON. Tenant shall
have the exclusive tenant right to signage and a "Dow" ticker on the
north and east sides of the Building airshaft located at the corner of
Broadway and Washington, provided, however, that (i) the font of said
signage shall be limited in height to 6" letters on the airshaft, (ii)
any such signage must be approximately the same size as the openings on
the airshaft and (iii) any such signage shall not interfere with the
ventilating system for the Building garage. Such signage shall be subject
to receipt of applicable governmental approvals.
x. XXXXXXXXXX STREET ENTRANCE. Tenant shall have the right to
place signage on the Building facade between the brick area where the
Building name is located and the glass area at the Washington Street
entrance to the Building, and the font of said signage shall be limited
in height to 9" letters. Such signage shall be subject to receipt of
applicable governmental approvals.
Subject to the terms and conditions of Section 23.24 of the Lease,
on or after the Lease Commencement Date, (i) in the event Landlord installs a
monument sign at the St. Louis Centre entrance to the Building, Tenant shall
have the right (at Tenant's cost, to be paid to Landlord on demand) to have its
name appear on said monument sign and its position near the top of said monument
sign shall be determined in accordance with the amount of space leased by Tenant
in proportion to other tenants in the Building, and (ii) in the event Landlord
installs a monument or similar style sign at any point around the perimeter of
the Building, Tenant shall have the right (at Tenant's cost, to be paid to
Landlord on demand) to have its name appear on said sign and its position near
the top of said sign shall be determined in accordance with the amount of space
leased by Tenant in proportion to other tenants in the Building. Such signage
shall be subject to receipt of applicable governmental approvals.
37
Drawings are attached hereto and made a part of this Exhibit A-1
generally depicting the exterior signage proposed in paragraphs a, b and c
above, and showing the relationship of such exterior signage to the exterior
Building signage initially proposed by Landlord.
In the event the locations or other features of the exterior
signage described in paragraphs a, b and c of this Exhibit A-1 to the Lease (the
"Stifel Signage") shall not be permissible under applicable laws, statutes,
rules, regulations or ordinances, Landlord and Tenant agree as follows:
(i) Landlord and Tenant acknowledge that, inter alia, permits
and approvals for the Stifel Signage must first be obtained from the
appropriate St. Louis City (the "City") authorities in compliance with
the City Code, and that similar permits and approvals will be sought for
Landlord's exterior Building name identification signage initially
proposed by Landlord and shown on the drawings appended to this Exhibit
A-1 for informational purposes (the "Landlord's Building Signage").
Landlord and Tenant agree to assist and cooperate with each other to
prepare and present the applications necessary to obtain permits and
approvals (including, without limitation, any requisite zoning variances)
for such signage.
(ii) With respect to the Stifel Signage described in
paragraph a of this Exhibit A-1 and the Landlord's Building Signage on
the Broadway side of the Building, if only one sign is permitted,
Landlord and Tenant agree that such sign will include the name "Xxxxxx
Xxxxxxxx" in substantial conformity with paragraph a of this Exhibit A-1
(the "Stifel Broadway Sign"), unless the City shall require as a
condition to issuance of the required permits and approvals for the
Stifel Broadway Sign that the name of the Building be changed to include
the name "Xxxxxx Xxxxxxxx" in some manner. In such event, except to the
extent the parties shall mutually agree in writing otherwise, Landlord
and Tenant agree that Landlord shall install no signage on the exterior
Broadway side of the Building or the Washington side of the Building
(including, without limitation, Landlord's Building Signage) unless and
until the requisite permits and/or approval shall be obtained to
authorize the installation of the Stifel Broadway Sign on the Broadway
side of the Building without changing the name of the Building to include
"Xxxxxx Xxxxxxxx" in some manner.
(iii) With respect to the Stifel Signage described in
paragraph b of this Exhibit A-1 and the Landlord's Building Signage on
the airshaft, if only one sign is permitted, Landlord and Tenant agree
that such sign will include the name "Xxxxxx Xxxxxxxx".
(iv) With respect to the Stifel Signage described in
paragraph c of this Exhibit A-1 and the Landlord's Building Signage on
the Washington side of the Building, if only one sign is permitted,
Landlord and Tenant agree that such sign will be the Landlord's Building
Signage.
If, notwithstanding the efforts of Landlord and Tenant pursuant to
paragraph (i) of this Exhibit A-1, by the date of delivery of the Subsequently
Delivered Premises Landlord shall have been unable to obtain the permits and
approvals necessary to authorize the installation of the Stifel Signage without
changing the name of the Building to include the name "Xxxxxx Xxxxxxxx" in
38
some manner, Landlord agrees, upon Tenant's written request, for the limited
purposes of permitting only, to change the name of the Building to add the name
"Xxxxxx Xxxxxxxx" insofar as necessary to reflect in its permit application to
the City for the Stifel Signage that the name of the Building is "One Financial
Plaza - Xxxxxx Xxxxxxxx" (the "Name"), provided that:
(1) Landlord may discontinue or abandon use of the Name, or
otherwise change the name of the Building to omit reference to "Xxxxxx
Xxxxxxxx" at any time after issuance or denial of the permits and
approvals for the Stifel Signage without rendering the Landlord's
Building Signage or any of the Building's other signs nonconforming and
without creating any other violation of applicable zoning or other laws,
ordinances, statutes or regulations.
(2) Landlord shall not be obligated to hold out, present or
represent the Name as the name of the Building for any purpose whatsoever
other than the permitting purposes herein specified.
(3) The use of the Name in such permit application and such
permit process shall not result in any detriment, beyond the reasonable
control of Landlord, to advertising, management, operations or marketing
efforts with respect to the Building, and shall not render the Building
in nonconformity with or violation of any applicable zoning or other
laws, ordinances, statutes or regulations.
(4) The Stifel Signage described in such permit application
and such permit process shall conform to paragraphs a, b and c of this
Exhibit A-1, or shall be configured in such manner as shall differentiate
between the lettering of "One Financial Plaza" and "Xxxxxx Xxxxxxxx" to
the reasonable satisfaction of Landlord and Tenant.
Tenant agrees that, without Landlord's prior written consent,
Tenant, its officers, directors, employees, agents or contractors, or anyone
else under the control or direction of Tenant, shall not hold out, present or
represent the Name as the name of the Building for any purpose whatsoever
(including, without limitation, marketing, advertising or address purposes), and
shall not include the name of "Xxxxxx Xxxxxxxx" in references to the name of the
Building.
Tenant agrees that, without cost or charge to Landlord, Landlord
shall have the right and interest to the use of the name "Xxxxxx Xxxxxxxx" as
part of the Name in connection with the Building and the Building name at any
time, for the pendency of such permit application and such permit process and
thereafter for so long as Landlord shall elect, in its discretion; and Tenant
hereby grants such right and interest to Landlord, its successors and assigns,
and Tenant further waives all claims for compensation and all restrictions in
connection with such grant.
Tenant agrees to hold harmless and indemnify Landlord, and its
officers, members, employees, agents and contractors, against any claims, losses
or damages including, without limitation, reasonable attorneys' fees and costs,
resulting from the inclusion of the name "Xxxxxx Xxxxxxxx" in the name of the
Building for the permitting purposes herein specified.
39
EXHIBIT B
INTENTIONALLY OMITTED
---------------------
40
EXHIBIT C
WORK TO BE PERFORMED IN THE PREMISES
------------------------------------
The plan submittal and approval process and the related timing,
delivery and approval requirements (collectively the "Approval Procedures") are
very important to completion of construction in the Premises and the readiness
of the Premises for occupancy on the Lease Commencement Date. Each party agrees
to comply with the Approval Procedures, as stated in Paragraphs B and C below,
in order to prevent a delay in the Lease Commencement Date. In the event that a
delay by Tenant in the Approval Procedures should delay the readiness of the
Initial Premises for occupancy on the Lease Commencement Date or the readiness
of the Subsequently Delivered Premises on April 1, 1999, the Lease shall
nevertheless continue in effect, and Rent shall be due and payable on the Rent
Commencement Date and thereafter as otherwise set forth in the Lease, and
without abatement.
A. TENANT IMPROVEMENT ALLOWANCE. Up to Twenty-Five and 00/100
Dollars ($25.00) per rentable square foot in the Premises, as
acknowledged in accordance with Section 1.8 of this Lease (the "Tenant
Improvement Allowance"), to be used only for payment of (i) Tenant's Move
Expenses, as defined below, of up to Two and 00/100 Dollars ($2.00) per
rentable square foot in the Premises, as acknowledged in accordance with
Section 1.8 of this Lease (the "Move Expense Sub-Allowance"), and (ii)
the Construction Costs, including without limitation, permanently applied
improvements in and to the Premises, costs in connection with the related
installation of telephone and computer cabling, space planning,
demolition work, the preparation of construction drawings, the Six
Thousand and 00/100 Dollars ($6,000.00) per floor agreed upon charge, if
applicable, with respect to installation of excess electrical voltage
capacity pursuant to Section 7.2 of the Lease, the cost of any
construction permits related to the foregoing, and construction
management fees of Landlord and Tenant. Two percent (2%) of the aggregate
Construction Costs shall be paid to Landlord or Landlord's agent for said
construction management services and up to two percent (2%) of the Tenant
Improvement Allowance may be paid to Tenant's construction management
agent. The term "Move Expenses" shall mean moving materials,
advertisements, business cards, stationery, phone listings, hiring
temporary employees relating to the move, and the like. The Tenant
Improvement Allowance shall not, however, be used for the purchase of
Tenant's furnishings (other than permanently affixed improvements, such
as wallpaper and casework), trade fixtures, equipment or supplies, all of
which shall be paid for solely by Tenant, without allowance or
reimbursement from Landlord.
B. PROJECT MANAGERS - CONSTRUCTION BIDS. Landlord and Tenant shall
each engage its own construction management agent (the "Project Manager")
to take joint construction bids from the following contractors: ISC,
Guarantee Interiors, and Xxxxxxx Construction Co. Tenant and Landlord
shall each be provided with a copy of each bid and an opportunity to
review the same. The contractor for the improvements to the Premises must
be jointly approved by Tenant and Landlord or Landlord's Project Manager,
and shall be engaged by Landlord. Tenant shall approve the contractor
promptly upon request by Landlord, and in any event within four (4)
business days after the receipt of the last of the foregoing bids.
41
C. APPROVAL PROCEDURES. The following paragraphs set forth the
process for approval of the space plan and construction documents:
1. Tenant has engaged, with Landlord's approval as
to the scope of work and the cost of work, a design firm to
prepare a space plan for the proposed improvements to the
Premises. Landlord shall pay the cost of said space plan, which
amount shall not be deducted from the Tenant Improvement
Allowance.
2. Based on the space plan to be delivered by
Tenant to Landlord by October 1, 1998 and to be modified by Tenant
as reasonably required by Landlord (and revised to incorporate
such modifications) by October 5, 1998 (the "Preliminary Space
Plan"), Landlord shall commence the preparation of the plans and
specifications (the "Construction Documents") necessary to
construct the Initial Premises. At or prior to 5:00 p.m. on
October 7, 1998, Tenant shall deliver to Landlord a space plan
reflecting changes only to that portion of the Premises on the
seventh floor of the Building, which shall be modified by Tenant
as reasonably required by Landlord (and revised to incorporate
such modifications) by 12:00 Noon on October 8, 1998 (the "Final
Space Plan"), which Final Space Plan shall be substituted for the
Initial Space Plan as the basis for the preparation of the
Construction Documents. Landlord shall deliver the Construction
Documents to Tenant for review and approval no later than October
19, 1998 (the "Landlord's Plan Submittal Date for Initial
Premises"). Tenant shall review the Construction Documents and
shall either return the same to Landlord, marked approved or with
Tenant's necessary changes indicated no later than October 23,
1998 (the "Tenant's Plan Approval Date for Initial Premises"). In
the event that Tenant indicates changes to the Construction
Documents, Landlord shall promptly make the indicated changes and
return the revised Construction Documents to Tenant for Tenant's
review and approval. Tenant shall have five (5) days after receipt
of the revised Construction Documents to approve and return to
Landlord the Construction Documents. Construction Documents, with
or without requested revisions from the Tenant, must be signed by
the Tenant (together with the Construction Documents so approved
for the Subsequently Delivered Premises, the "Approved
Construction Documents") to authorize Landlord to complete the
work to the Initial Premises (work on the Initial Premises will
not begin until such approval is received by Landlord).
Based on the Final Space Plan, Landlord shall
prepare the Construction Documents necessary to construct the
Subsequently Delivered Premises. Landlord shall deliver the
Construction Documents to Tenant for review and approval no later
than November 2, 1998 (the "Landlord's Plan Submittal Date for
Subsequently Delivered Premises"). Tenant shall review the
Construction Documents and shall either return the same to
Landlord, marked approved or with Tenant's necessary changes
indicated no later than November 13, 1998 (the "Tenant's Plan
Approval Date for Subsequently Delivered Premises"). In the event
that Tenant indicates changes to the Construction Documents,
Landlord shall promptly make the indicated changes and return the
revised Construction Documents to Tenant for Tenant's review and
approval. Tenant shall have three (3) days after receipt of the
revised Construction
2
42
Documents to approve and return to Landlord the Construction
Documents. Construction Documents, with or without requested
revisions from Tenant, must be signed by the Tenant (and shall
thereafter constitute Approved Construction Documents) to
authorize Landlord to complete the work to the Subsequently
Delivered Premises (work on the Subsequently Delivered Premises
will not begin until such approval is received by Landlord).
3. Within ten (10) days of receipt of the
applicable Approved Construction Documents, Landlord will provide
to Tenant a reasonably detailed breakdown of the cost of the
construction of such work ("Construction Costs"). If the
Construction Costs and Move Expenses are not in excess of the
Tenant Improvement Allowance, Landlord shall proceed promptly with
the necessary construction. If the Construction Costs are in
excess of the Tenant Improvement Allowance, Landlord will so
advise Tenant, detailing the costs and overruns and will permit
Tenant a reasonable time (not to exceed seven (7) days from the
date of such notice) to revise the Construction Documents to
reduce the Construction Costs or approve the Construction Costs
with such excess costs payable by Tenant as set forth below.
D. CONSTRUCTION. In accordance with the Approved Construction
Documents, Landlord shall cause the construction of the improvements to
the Premises by the Contractor approved by Landlord and Tenant as
provided in Paragraph B above. In the event the sum of the Construction
Costs and the Move Expenses in an amount not to exceed the Move Expense
Sub-Allowance exceeds the Tenant Improvement Allowance, Tenant shall the
responsible for payment of all such excess costs, and Tenant shall
deposit with Landlord an amount equal to fifty percent (50%) of such
excess costs as estimated by or on behalf of Landlord prior to
construction commencement, and Tenant shall pay the balance when the
Subsequently Delivered Premises are ready for occupancy, as determined
by Landlord's architect. No credit shall be given to Tenant if the sum
of the Construction Costs and the Move Expenses in an amount not to
exceed the Move Expense Sub-Allowance shall be less than the Tenant
Improvement Allowance.
In the event that Tenant requests any modifications to the
Approved Construction Documents ("Change Orders"), Tenant, upon written approval
from the Landlord of the Change Order, will pay Landlord the total amount of
such costs as estimated by or on behalf of Landlord within ten (10) days of
Landlord's approval of the Change Order.
Landlord agrees to furnish all of the material, labor, and
equipment for the construction of the improvements to the Premises described in
clause (ii) of Paragraph A above (the "Tenant Improvements"). The Tenant
Improvements shall be constructed in a good and workmanlike manner in accordance
with the Approved Construction Documents and applicable building codes. If the
Subsequently Delivered Premises are not ready for occupancy in their entirety
but the Subsequently Delivered Premises are partially ready for occupancy during
March 1999, Tenant may, but need not, occupy the portion of the Premises that is
ready for occupancy, and in the event of such occupancy Tenant shall pay to
Landlord the pro rata portion of the full rent and the pro rata portion of the
full amount of other obligations to be paid by Tenant under this Lease based
upon the portion of the Premises occupied by Tenant as if the Lease Commencement
Date had been the date Tenant partially occupied the Premises. Such occupancy
shall otherwise be governed by the terms and conditions of this Lease.
3
43
Landlord agrees to provide reasonable cooperation to Tenant in the
enforcement by Tenant of any express warranties or guaranties of workmanship or
materials given by subcontractors or materialmen that guarantee or warrant
against defective workmanship or materials and in the enforcement by Tenant of
any service contracts that provide service, repair or maintenance to any item
incorporated in the Premises. Such cooperation shall be at no cost to Landlord.
For purposes of this Lease, the term "ready for occupancy" shall
mean that Tenant is able to obtain a certificate of occupancy for the Premises
(based upon compliance with all applicable municipal requirements pertaining to
construction, but subject to submission and provision of the application and
related documentation of any payment of any fees) from applicable governmental
authorities. On the date the Subsequently Delivered Premises are ready for
occupancy, Landlord shall notify Tenant thereof, and an inspection of the
Premises by Tenant, Landlord and the Project Managers shall be conducted as soon
as reasonably possible thereafter. During the inspection, a "punch list" of all
remaining items to be completed pursuant to the Approved Construction Documents
shall be compiled, which punch list items shall be promptly completed thereafter
by Landlord under the supervision of the Project Managers. The Premises shall,
however, be deemed ready for occupancy notwithstanding the fact that
insubstantial details of construction, decoration or mechanical adjustments may
remain and notwithstanding the fact that such a "punch list" may be compiled as
herein set forth.
4
44
EXHIBIT D
BUILDING RULES
--------------
Tenant's use of the Building and Premises shall be governed by the
following rules, which Landlord shall use reasonable efforts to enforce on a
uniform basis. Landlord reserves the right to unilaterally amend or add to the
rules, and such amendments and additions shall be effective when notice of the
same is given to Tenant in the manner provided in the Lease.
1. Nothing shall be displayed, painted or affixed by Tenant on any
part of the exterior or interior of the Building (except within the Premises)
without the prior written consent of Landlord, and then only of such color,
size, style and material as shall be approved by Landlord. Nothing shall be
placed in the Premises which may be visible from the exterior of the Building
(including window treatments) without the prior written consent of Landlord.
2. Landlord shall furnish Tenant with two (2) keys to each door
lock for the Premises. Additional keys shall be procured from Landlord and paid
for by Tenant. No additional or replacement locks shall be placed on any door of
the Premises, and Tenant shall not permit duplicate keys to be made. Tenant
shall be solely responsible for the security of all keys to the Premises. All
keys furnished to Tenant shall be surrendered to Landlord at the termination of
the Term.
3. If Tenant desires additional wiring connections, Landlord shall
direct the electricians as to where the wires are to be introduced and without
such directions no boring or cutting for wiring shall be permitted.
4. Tenant shall not install or operate any steam or internal
combustion engine, boiler, machinery, refrigerating or heat generating device or
air conditioning apparatus in or about the Premises or carry on any mechanical
business therein. Tenant shall not install any vending machines other than for
use by Tenant's employees; however Tenant may install refrigerators, microwaves
or coffee makers in the Premises for use solely by Tenant's employees.
5. The common areas of the Building shall not be obstructed by
Tenant or used in any way except for ingress and egress to and from the offices.
Tenant shall place no objects outside Tenant's premises.
6. The bathroom fixtures shall not be used for purposes other than
those for which they were constructed. The cost of repairing any damage caused
by Tenant resulting from misuse of such fixtures shall be borne by Tenant.
7. Tenant shall not permit littering of the common areas of the
Building.
8. Tenant shall not make noises, cause disturbances or vibrations
or use any electrical or electronic devices or other devices that emit sound or
other waves or disturbances or create odors, any of which may be offensive to
other tenants of the Building or which would interfere with the operation of any
device or equipment or radio or television broadcasting or reception from or
within the Building or elsewhere, and shall not place or install any musical
instrument or equipment or any similar device inside or outside the Premises
without the prior written consent of Landlord. The use thereof, if permitted,
shall be subject to control of Landlord to the end that others shall not be
disturbed or annoyed.
45
9. Tenant shall not waste utility services and shall cooperate
fully with Landlord to assure the most effective operation of the Building's
HVAC system and shall not adjust any controls other than thermostats installed
for Tenant's use. Tenant shall keep corridor door(s) closed.
10. Tenant assumes full responsibility for protecting Tenant's
space from theft, robbery and pilferage, which includes keeping doors locked and
other means of entry to the Premises closed and secured.
11. No animals, birds, bicycles or other vehicles shall be allowed
in any part of the Building without the prior consent of Landlord.
12. Any person or person (other than the janitor of Landlord) who
shall be employed for the purpose of cleaning or maintaining the Premises shall
be employed at Tenant's cost, subject to the terms of the Lease, and Landlord
shall in no way be responsible for any loss of property on or from the Premises,
however occurring, by such person.
13. Tenant shall not accumulate or store on the Premises any waste
paper, discarded records, books and paper files, sweepings, rags, rubbish or
other combustible matter. Tenant shall not place in any trash receptacle any
material which cannot be disposed of in the ordinary course, and Tenant shall
keep all trash within Tenant's Premises. All garbage and refuse disposal shall
be made in accordance with Landlord's instructions as designated from time to
time.
14. Tenant shall not make any room to room canvass to solicit
business from other tenants in the Building and shall not exhibit, sell, or
offer to sell, use, rent or exchange any item or service in or from the Premises
unless within the Permitted Use.
15. Landlord reserves the right to exclude from the Building all
disorderly persons, persons under the influence of alcohol or a controlled
substance, idlers and peddlers, solicitors, and persons entering in crowds or in
such unusual numbers as to cause inconvenience to the tenants of the Building.
16. Any parking spaces included in the Lease shall be used only
for the personal automobiles of Tenant and Tenant's employees and guests (no
trucks (other than pick-up trucks), motor homes and the like). Landlord reserves
the right to designate locations for one or more of such parking spaces. Upon
Landlord's request, Tenant promptly shall furnish Landlord the names, vehicle
descriptions and vehicle license numbers of each authorized user of Tenant's
parking spaces. Tenant shall be liable for all costs and expenses suffered or
incurred by Landlord in the towing of illegally parked vehicles of Tenant,
Tenant's employees or guests. Landlord shall have no obligation to monitor the
use of any such spaces.
17. Tenant shall comply with all Conditions (as defined in the
Lease) in connection with Tenant's use and occupancy of the Premises.
18. All deliveries to the Premises shall be subject to the
reasonable control of Landlord as to place and time of deliveries.
19. The common areas of the Building are a no smoking area in
which no smoking of any kind, including but not limited to cigarettes, cigars,
pipes, or any other device, is permitted except in an area specifically
designated by Landlord as an area where smoking is
2
46
permitted. Landlord shall not be responsible for violations of this provision by
any Tenant of the Building, Tenant's employees, visitors, contractors, or
subcontractors. In the event Landlord seeks to enforce this provision against
Tenant, Tenant shall pay all costs and expenses of every kind including, without
limitation, all court costs and attorneys fees and charges. In the event
Landlord seeks any injunctive relief to prevent violations of this provision of
the Lease, Tenant agrees that if a bond is required by the court, that the
amount of such bond not exceed $100.00. Landlord further reserves the absolute
right to designate the entire areas of the Builders, grounds and Premises as
non-smoking.
3
47
EXHIBIT E
LEASE COMMENCEMENT AGREEMENT
----------------------------
TENANT: STIFEL FINANCIAL CORP. and XXXXXX, XXXXXXXX & COMPANY,
INCORPORATED
LANDLORD: EBS BUILDING, L.L.C.
BUILDING: EDISON BROTHERS BUILDING
PREMISES: 000 Xxxxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx
DATE OF ORIGINAL LEASE EXECUTION: _______________________
This Lease Commencement Agreement is executed by Tenant and
Landlord pursuant to the provisions of the Lease referenced above, and shall be
attached thereto and become a part thereof for all purposes.
1. Tenant hereby acknowledges that it has inspected the Initial
Premises and finds same to be substantially complete, in a tenantable condition
and now suitable for Tenant's intended use.
2. Tenant and Landlord hereby agree that all work to be done to
the Initial Premises is acceptable and that the only work remaining to be done
to the Premises, all of which is of a minor nature, is as follows:______________
____________________________________ . Such work is the responsibility of
Landlord to complete and said party hereby agrees to promptly undertake the
completion of same. Tenant hereby agrees that such work may be completed after
it has taken occupancy of the Initial Premises and the term of the Lease has
commenced; and further, that Tenant shall not be entitled to any abatement of
Tenant's rent or other compensation as a result thereof except as provided in
the Lease.
3. Tenant and Landlord hereby agree, pursuant to Section 3.2 of
the Lease, that the actual Commencement Date of the term of the Lease shall be
______________________ and that the rent, as provided for in the Lease, shall
commence as of such date, and further, that the Lease will terminate at Midnight
(local time) on ____________________, if not otherwise terminated pursuant to
the provisions of the Lease.
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Executed this ______________ day of ________________, 19___
TENANT:
STIFEL FINANCIAL CORP.
By:______________________________
Title:_______________________
Date:____________________________
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By:______________________________
Title:_______________________
Date:____________________________
LANDLORD:
EBS BUILDING, L.L.C.
By:______________________________
By:______________________________
Name:________________________
Title:_______________________
Date:____________________________
2
49
EXHIBIT F
FORM 1
CONTRACTOR'S LIEN WAIVER
------------------------
STATE OF MISSOURI )
) SS. WAIVER
CITY OF ST. LOUIS )
WHEREAS, _____________________ ("Contractors") has/have been
employed by STIFEL FINANCIAL CORP. and XXXXXX, XXXXXXXX & COMPANY, INCORPORATED,
as Tenant of the Premises described below, to perform construction as a general
contractor upon the following described premises, to-wit:
("the Premises"), the specific terms and conditions of such employment being
governed by that certain Agreement dated the ________ day of __________, 19___,
and
WHEREAS, EBS Building, L.L.C. ("Landlord") is Landlord of the
Premises.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt of which is
hereby acknowledged, Contractor does hereby waive any right it may have to file
any and all mechanic's liens, claim of lien or right of lien against Landlord or
Landlord's interest in the Premises, provided by the statutes of the State of
Missouri, upon the above described Premises or any portion thereof. Further,
Contractor hereby acknowledges that Landlord has not contracted for or agreed to
pay for the work or materials called for in the contract described above.
Contractor agrees to look solely to Tenant or Tenant's interest in the Premises
to satisfy any mechanic's lien, right, claim or causes of action which
Contractor may have against Tenant arising out of the above referenced contract.
Contractor shall obtain a similar waiver and acknowledgment from all
subcontractors and suppliers.
EXECUTED this ___________day of ______________, 19____.
CONTRACTOR:
_________________________________
By:______________________________
Subscribed and sworn to before me this _______ day of ______________, 19___.
My commission expires:______________________________________________
_____________________________Notary Public
50
EXHIBIT F
FORM 2
PARTIAL WAIVER OF LIEN
(Subcontractor or Material Supplier)
STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
WHEREAS, ____________________ ("Contractors") has/have been
employed by STIFEL FINANCIAL CORP. and XXXXXX, XXXXXXXX & COMPANY, INCORPORATED,
as Tenant of the Premises described below, to perform construction as a general
contractor upon the following described premises, to-wit:
("the Premises"), the specific terms and conditions of such employment being
governed by that certain Agreement dated the _______ day of _______________,
19_, and
WHEREAS, under authority of the above mentioned Agreement,
_______________ has/have employed _______________________ as a subcontractor
material supplier, to perform labor, to furnish materials or to do both upon the
Premises or some portion thereof, the specific terms and conditions of such
employment being governed by that certain Agreement dated the ________ day of
________________, 19_, and
WHEREAS, EBS Building, L.L.C. ("Landlord") is Landlord of the
Premises.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt of which is
hereby acknowledged, subcontractor or material supplier does hereby waive any
right it may have to file any and all mechanic's liens, claim of lien or rights
of lien against Landlord or Landlord's interest in the Premises, provided by the
statutes of the State of Missouri, upon the above described Premises or any
portion thereof. Further, subcontractor or material supplier hereby acknowledges
that Landlord has not contracted for or agreed to pay for the work or materials
called for in the contract described above. Subcontractor or material supplier
agrees to look solely to Tenant to satisfy any mechanic's lien, right, claim or
cause of action which subcontractor or material supplier may have against Tenant
arising out of the above referenced contract.
51
EXECUTED this ______ day of ____________, 19___.
SUBCONTRACTOR OR
MATERIAL SUPPLIER:
_________________________________
By:______________________________
52
EXHIBIT G
NONDISTURBANCE AND SUBORDINATION AGREEMENT
------------------------------------------
This Nondisturbance and Subordination Agreement is made and
entered into this _____ day of ____________________, 19___ by and among STIFEL
FINANCIAL CORP., a corporation organized and existing under the laws of the
State of Delaware, and XXXXXX, XXXXXXXX & COMPANY, INCORPORATED, a corporation
organized and existing under the laws of the State of Missouri (collectively,
the "Tenant"), having as Tenant's address for notice purposes 000 Xxxxxxxxxx
Xxx., Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxxx, EBS
Building, L.L.C., a limited liability company organized and existing under the
laws of the State of Delaware (the "Landlord") having as Landlord's address for
notice purposes 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000,
Attention:___________________________, and _________________________, a
______________________, organized and existing under the laws of _______________
(the "Mortgagee"), having as Mortgagee's address for notice purposes .
_______________________________________________
WITNESSETH: That
WHEREAS, Landlord and Tenant have entered into a certain Office
Lease dated _____________________ (the "Lease"), demising to Tenant a portion of
the real estate known as the Edison Brothers Building in the City of St. Louis,
State of Missouri (the Real Estate");
WHEREAS, Mortgagee is the holder of a note and deed of trust
encumbering the Real Estate (the "Mortgage"); and
WHEREAS, the parties hereto desire to enter into this
Nondisturbance and Subordination Agreement.
NOW, THEREFORE, for and in consideration of the Premises and the
mutual covenants contained herein, the parties hereto stipulate, covenant and
agree as follows:
1. Subordination. The Lease is hereby made subject, junior and
subordinate to the Mortgage and to all renewals, modifications, consolidations,
replacements and extensions of the Mortgage so that all rights of the Tenant
under the Lease shall be subject, junior and subordinate to the rights of the
Mortgagee under the Mortgage and to all renewals, modifications, consolidations,
replacements and extensions of the Mortgage as fully as if such instruments had
been executed, delivered and recorded prior to the Lease, all on the conditions
and subject to the other provisions of this Agreement.
2. Attornment. Tenant agrees to recognize the Mortgagee or any
purchaser at a foreclosure sale involving the Mortgage as its landlord under the
Lease without the necessity of any other or further attornment than in this
paragraph contained (and this paragraph shall be considered an attornment).
Tenant hereby waives any and all rights to termination of the Lease by reason of
the foreclosure of the Mortgage, and if any court holds the Lease to be
terminated by reason of a foreclosure of the Mortgage, this Agreement shall be
deemed to be a new lease between the purchaser at such foreclosure, as landlord,
and Tenant, as tenant, for the balance of the term of the Lease for the same
demised premises at the same rental therein provided and upon the identical
terms and conditions as therein provided. Also in the event of any such holding,
at the written request of Tenant or the purchaser at the foreclosure, Tenant and
such purchaser at
53
foreclosure shall execute and deliver to each other a new lease for the balance
of the term of the Lease for the same demised premises at the same rental
therein provided and upon the same terms and conditions as therein provided.
3. Nondisturbance. Mortgagee agrees that so long as the Tenant
shall not be in default under the Lease, any foreclosure of the Mortgage (or
proceeding in respect thereof) shall not divest, impair, abrogate, modify or
otherwise adversely effect the interest and rights of Tenant under the Lease;
provided, however, that Mortgagee or any purchaser at a foreclosure sale shall
not be: (a) liable for any act or omission of a prior landlord (including the
Landlord) (b) subject to any offsets or defenses which Tenant might have against
any prior landlord (including the Landlord); (c) bound by any rent or additional
rent which the Tenant might have paid more than one month in advance of the date
due under the Lease to any prior landlord (including the Landlord for any period
beyond the month in which the foreclosure occurs; or (d) bound by any agreement
or modification of the Lease without the consent of the Mortgagee.
4. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto, their successors and assigns,
including any purchaser at a foreclosure sale.
5. Governing Law. This Agreement shall be governed by the laws of
the State of Missouri.
IN WITNESS WHEREOF, the undersigned have executed and delivered
this Nondisturbance and Subordination Agreement as of the day and year first
above written.
TENANT:
STIFEL FINANCIAL CORP.
By:_____________________________________
Title:______________________________
Date:___________________________________
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By:_____________________________________
Title:______________________________
Date:___________________________________
2
54
LANDLORD:
EBS BUILDING, L.L.C.
By:_____________________________________
Name:_______________________________
Title:______________________________
Date:___________________________________
MORTGAGEE:
By:_____________________________________
Title:______________________________
Date:___________________________________
3
55
EXHIBIT H
LEASE ESTOPPEL CERTIFICATE
--------------------------
LEASE DATE: _______________________________________
LANDLORD: EBS Building, L.L.C.
TENANT: STIFEL FINANCIAL CORP. AND XXXXXX, XXXXXXXX &
COMPANY, INCORPORATED
PREMISES: Suite _____, Edison Brothers Building
AREA: 85,000 Square Feet
MORTGAGEE/
PROSPECTIVE
PURCHASER: _______________________________________
The undersigned Tenant in the above Lease hereby certifies to
Mortgagee and to Landlord as follows:
1. That the term of the Lease commenced on _________________,
19___, and that Tenant is in full and complete possession of the Premises
demised under the Lease and has commenced full occupancy and use of the
Premises, such possession having been delivered by Landlord and having been
accepted by Tenant.
2. That the Lease calls for Monthly Base Rent Installments of
$__________ to date, and in addition, Tenant is paying an adjustment to Annual
Base Rent in the amount of $__________ per month which commenced to accrue on
_____________________, 19___.
3. That no advance rental or other payment has been made in
connection with the Lease except rental for the current month, and the Rent has
been paid to and including ____________________, 19___.
4. That all of the obligations and conditions under the Lease to
be performed to date by Landlord or Tenant have been satisfied, free of defenses
and setoffs, including all construction work in the Premises; except as follows:
5. That the Lease is a valid lease and in full force and effect
and represents the entire agreement between the parties, that there is no
existing default on the part of Landlord or Tenant in any of the terms or
conditions thereof, and no event has occurred which, with the passing of time or
the giving of notice or both, would constitute an event of default, except as
follows, and that said Lease: (check one as appropriate)
(_____) Has not been amended, modified, supplemented, extended, renewed
or assigned.
(_____) Has been amended, modified, supplemented, extended, renewed or
assigned as follows by the following described agreements:
56
6. That the Lease provides for a term of __________ months and the
term of the Lease expires on __________________, 19___.
7. There is no action, voluntary or involuntary, pending against
Tenant under the bankruptcy laws of the United States or any state thereof.
8. That this Certificate is being made knowing that the Mortgagee
and Landlord are relying upon the representations made herein.
9. This Certificate may be relied upon by the prospective
purchaser's mortgage as if addressed thereto.
IN WITNESS WHEREOF, the undersigned Tenant has executed this Lease
Estoppel Certificate as of the _____ day of ___________________, 19___.
TENANT:
STIFEL FINANCIAL CORP.
By:_____________________________________
Title:______________________________
Date:___________________________________
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By:_____________________________________
Title:______________________________
Date:___________________________________
2
57
EXHIBIT I
TWELFTH FLOOR EXPANSION
-----------------------
58
ADDENDUM NO. 1
ATTACHED TO AND MADE A PART OF
LEASE DATED SEPTEMBER 30, 1998
BETWEEN EBS BUILDING, L.L.C., AS LANDLORD,
AND STIFEL FINANCIAL CORP. AND
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED, AS TENANT
23.31. TENANT AMENITIES. Tenant shall have the right, upon prior
written notice to Landlord and subject to availability, upon the payment of an
hourly rate of Twelve and No/100 Dollars ($12.00), not to exceed One Hundred and
No/100 Dollars ($100.00) per day to Landlord, to use the Building's meeting
rooms located on the second floor of the Building and currently named the
"Harvard" and "Founders" rooms, in common with other users designated by
Landlord, as the same may be available from time to time, to be billed by
Landlord on a monthly basis and payable by Tenant within thirty (30) days of
receipt of Landlord's invoice. Throughout the Term such rooms shall be
maintained and configured in a manner reasonably determined by Landlord to
afford substantially equivalent finish and utility to the level of finish and
utility offered by such rooms as of the date of this Lease. Landlord reserves
the right to increase the foregoing hourly or per diem rate at any time and from
time to time, which increase shall not exceed three percent (3%) per year. The
use of such rooms shall be subject to such reasonable rules and regulations as
may be promulgated by Landlord at any time and from time to time (which Landlord
shall use reasonable efforts to enforce in a non-discriminatory manner). Tenant
hereby guarantees usage of at least one hundred fifty (150) "meeting room days"
per calendar year, and to the extent Tenant's usage of and payments for usage of
the meeting rooms fall below such guaranteed minimum in any calendar year during
the Term, after the end of the relevant calendar year(s) within thirty (30) days
of receipt of Landlord's invoice Tenant shall pay Landlord the per diem rate
times the number of "meeting room days" less than one hundred fifty (150) on
which Tenant shall have used and paid for usage of the meeting rooms. Tenant
shall provide written notice to Landlord and Landlord's Building manager not
less than fifteen (15) nor more than forty-five (45) days prior to each day on
which it proposes to use either or both of the "Harvard" and "Founders" rooms
pursuant to the right and license set forth in this Section 23.31; in the event
the requested room(s) are not available and are not subsequently made available
to Tenant by Landlord on the date requested by Tenant, Tenant's payment
obligation to Landlord with respect to the guaranteed minimum "meeting room
days" usage for the then current calendar year shall be reduced by the per diem
charge for each such day.
23.32. STORAGE AREA. Landlord hereby leases unto Tenant and Tenant
hereby accepts from Landlord approximately 4,200 useable square feet of storage
space located on the seventh floor of the Building, and designated as Storage
Space S-1A (the "Storage Area"), all as outlined on the floor plan attached
hereto as Exhibit A. The Storage Area shall be made available to Tenant on or
prior to April 1, 1999. The annual rent for the Storage Area shall be Thirty
Three Thousand Six Hundred Dollars ($33,600.00), payable in equal monthly
installments of Two Thousand Eight Hundred Dollars ($2,800.00) each and shall be
added to Tenant's Annual Base Rent obligations hereunder. The Storage Area shall
be delivered to Tenant in its "as is" condition. Tenant agrees that the Storage
Area may be used only for the storage (and not any use or
59
operation) of furniture, office equipment, supplies and boxes and may not be
used for storage of any dangerous or noxious materials or the operation of
computer equipment. Tenant's use of the Storage Area shall be in full compliance
with the applicable provisions of the Lease. The term of the lease of the
Storage Area shall expire concurrent with the expiration of the Term of the
Lease, unless otherwise earlier terminated by agreement of the parties. Landlord
reserves the right to relocate the Storage Area pursuant to Section 3.4 of the
Lease.
23.33. RENEWAL OPTION. Provided that this Lease is in full force
and effect and Tenant is not in default hereunder, Tenant shall have the option
to extend the Term of this Lease on the same terms, conditions and provisions as
contained in this Lease, except as otherwise expressly provided herein, for two
(2) periods of five (5) years each (each, an "Extension Period"). If exercised
in accordance herewith, the Extension Period shall commence on the first (1st)
day after such scheduled Lease Expiration Date or on the first day after the
expiration of the first Extension Period, as the case may be (hereinafter
referred to in this Section 23.33 as the "Expiration Date") and the rental rate
shall be at the then prevailing market base rent for comparable quality space in
similar class buildings in the Downtown St. Louis Business District, taking into
account all rental terms such as free rent, moving allowances, allowances for
tenant improvements, step rent structure, base years for operating expense and
tax escalation, and lease commissions, if any (the "Prevailing Market").
The renewal option may only be exercised in accordance with the
procedures set forth herein. As a prerequisite to Tenant's right so to extend
the Term of this Lease, not less than fifteen (15) months prior to the
Expiration Date, Tenant shall, by written notice to Landlord (the "Preliminary
Notice"), notify Landlord of Tenant's preliminary intent to exercise such
renewal option and request that Landlord determine the Prevailing Market rate
for the Premises as it would be during the Extension Period. Within thirty (30)
days following Landlord's receipt of the Preliminary Notice, Landlord will
notify Tenant of such Prevailing Market rate as reasonably determined by
Landlord. Not less than twelve (12) months prior to the Expiration Date, Tenant
may, by written notice to Landlord ("Extension Notice"), then elect to exercise
Tenant's option to extend the Term of the Lease. If Tenant shall fail to give
any such Extension Notice, Tenant's right to exercise such option and all
subsequent options shall cease and be void. Additionally, if the option to
extend the Lease Term is not exercised in the aforesaid manner, the Lease Term
and Tenant's rights hereunder and its rights to occupy and possess the Premises
shall expire on the Expiration Date (i.e., the scheduled Lease Expiration Date
or the end of the first Extension Period, as the case may be).
In the event Tenant disagrees with Landlord's determination of
such Prevailing Market rate, then within no more than fifteen (15) days after
Tenant receives Landlord's determination of such rate Tenant shall give Landlord
notice of its desire to arbitrate such rate, which notice shall be accompanied
by the identity of an arbitrator appointed by Tenant. Thereafter, Landlord shall
have fifteen (15) days in which to appoint its arbitrator, and within fifteen
(15) days after the appointment of Landlord's arbitrator the two arbitrators
theretofore appointed shall appoint a third arbitrator. After such third
appointment, the three arbitrators thus elected shall have thirty (30) days in
which to establish the Prevailing Market rate as defined above in dispute
between Landlord and Tenant, which determination shall be final and binding upon
the parties hereto. Each arbitrator appointed hereunder shall be a licensed real
estate broker with experience in office space leasing, and no such arbitrator
shall have any other existing contractual relationship with either party hereto.
Landlord and Tenant shall pay the fees of their respectively appointed
arbitrators and the fee of the third arbitrator shall be shared equally by
2
60
Landlord and Tenant. In the event base rental is to be paid in accordance with
the Prevailing Market rate and such Prevailing Market rate is then subject to
dispute or arbitration as provided herein, Tenant shall nevertheless pay an
amount of base rental equal to the Prevailing Market rate as determined by
Landlord during the pendency of any such dispute or arbitration; provided that
Landlord shall promptly refund any amounts subsequently determined to have been
overpaid by Tenant.
23.34. EXPANSION OPTION. Provided that this Lease is in full force
and effect and Tenant is not in default hereunder beyond any applicable cure
period, Tenant shall have the right to lease and occupy additional space in the
Building as follows:
a. SEVENTH FLOOR EXPANSION. Tenant shall have the right to
lease and occupy, during the first two (2) years of the Term of the Lease, all
or a portion of the remainder of the seventh floor of the Building "Seventh
Floor Expansion", provided that the portion of the seventh floor not leased and
occupied by Tenant after the exercise of the foregoing option must be configured
and located so as to be leaseable to third parties in accordance with customary
market terms and reasonably acceptable to Landlord (the "Seventh Floor
Expansion") and such term shall expire coterminously with the Lease. Tenant may
exercise this right only by giving Landlord at least one hundred twenty (120)
days prior written notice and Tenant shall receive possession of said additional
space upon completion of the tenant improvements for such additional space.
Annual Base Rent for the Seventh Floor Expansion shall be charged at the rate
per rentable square foot then in effect for the Premises times the number of
rentable square feet occupied by Tenant in the Seventh Floor Expansion, which
rate shall increase annually pursuant to the terms of Section 1.11 of the Lease.
Tenant's rent obligations with respect to the Seventh Floor Expansion shall
commence upon substantial completion of the improvements to be constructed by
Landlord thereto pursuant to this paragraph and the tender of possession thereof
by Landlord to Tenant. In addition, Tenant's Proportionate Share shall be
adjusted to reflect the Seventh Floor Expansion, with all other terms of the
Lease to remain the same. Landlord and Tenant hereby agree to execute an
amendment to the Lease reflecting the additional space and other adjustments set
forth in this Section 23.34.a. The number of rentable square feet encompassed by
the Seventh Floor Expansion shall be determined in accordance with the
procedures utilized in Section 1.8 of the Lease with regard to that portion of
the Premises which is situated on the Seventh Floor of the Building as of the
date of the Lease. Landlord shall provide Tenant with a tenant improvement
allowance for the Seventh Floor Expansion in an amount equal to $15.00 per
rentable square foot of the Seventh Floor Expansion. The improvements to be
constructed in the Seventh Floor Expansion shall be designed and constructed in
accordance with the procedure set forth in Exhibit C (excluding paragraph C.1.
thereof). Any costs incurred by Landlord in excess of the foregoing allowance
shall be paid by Tenant to Landlord within thirty (30) days of Tenant's receipt
of Landlord's invoice therefor. Notwithstanding the foregoing, Landlord shall,
during the first two (2) years of the Term of the Lease, have the right to lease
all or a portion of the Seventh Floor to a tenant that also makes to Landlord a
bona fide offer to lease and occupy the entire Sixth Floor of the Building;
provided, however, that Landlord shall notify Tenant, in writing, of any such
bona fide offer and Tenant shall thereafter have ten (10) business days to
exercise the option for the Seventh Floor Expansion, which Seventh Floor
Expansion shall encompass up to all rentable square footage on the Seventh Floor
but not less than the space set forth in the bona fide offer, which Tenant shall
thereafter lease from Landlord pursuant to the terms of this Section 23.34.a or
otherwise permit Landlord to lease said space free and clear of the option
granted in this Section 23.34.a. The foregoing option is a continuous option and
shall apply to each such bona fide offer received by
3
61
Landlord during the first two (2) years of the Term of the Lease. In the event
Tenant exercises such option, Landlord shall have the right to substitute
comparable space which is contiguous to that portion of the Premises which is
situated on the seventh floor of the Building for the space which was the
subject of the bona fide offer.
b. TWELFTH FLOOR EXPANSION. Tenant shall have the right to
lease and occupy approximately 5,900 rentable square feet located on the Twelfth
Floor of the Building depicted on Exhibit I to this Lease (the "Twelfth Floor
Expansion"), which option may be exercised only in writing on or before December
31, 1999, with occupancy available in its "as is" condition on May 1, 2001, and
the term for such space shall expire coterminously with the Lease. Annual Base
Rent for the Twelfth Floor Expansion shall be charged at the Prevailing Market
rate determined in accordance with the provisions of Section 23.33 above. In
addition, Tenant's Proportionate Share shall be adjusted to reflect the Twelfth
Floor Expansion, with all other terms of the Lease to remain the same. Landlord
and Tenant hereby agree to execute an amendment to the Lease reflecting the
additional space and other adjustments set forth in this Section 23.34.b. and
Landlord and Tenant hereby stipulate and agree that the Twelfth Floor Expansion
contains 5,900 rentable square feet. Any improvements to the Twelfth Floor
Expansion shall be made strictly in accordance with the provisions of Article 11
of the Lease.
23.35. BUILDING NAME CHANGE. Landlord shall, within six (6) months
of the date of the Lease, change the name of the Building to "One Financial
Plaza", subject to confirmation of the availability of the name "One Financial
Plaza", and subject to Landlord's right to take such longer time as shall be
reasonably necessary to change the signage and other Building name
identification on or in connection with the Building in a manner that shall not
conflict with the provisions of Section 23.24 of the Lease. Otherwise,
Landlord's right to change the name of the Building shall be governed by Article
10 of the Lease.
23.36. NON-COMPETE. No other tenant leasing and occupying premises
within the Building will be allowed by Landlord to advertise the sale or
issuance of securities from the first floor common areas of the Building or from
first floor leased premises visible from the first floor common areas or
exterior of the Building (provided that for purposes of this prohibition the
term "securities" shall not be considered to include certificates of deposit and
similar bank accounts customarily sold or issued in connection with retail and
commercial banking operations). No other tenant leasing and occupying premises
within the first floor of the Building will be allowed by Landlord to use its
leased premises for the sale or issuance of securities (subject to the same
proviso set forth in the preceding sentence). Except for the prohibitions
expressly set forth in the preceding two sentences and elsewhere in this Lease,
Landlord shall be unrestricted in the leasing and use of space within the
Building and in the placement of signage and advertisement in, on or about the
Building.
4
