EXHIBIT 10.7
GROUND LEASE
THIS GROUND LEASE, made and entered into as of the 18th day of
February, 2000, by and between BRIDGE DATA COMPANY, a Delaware corporation
having an address at 000 Xxxxxx Xxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 (hereinafter
sometimes referred to as "Landlord"), and SAVVIS COMMUNICATIONS CORPORATION, a
Missouri corporation having an address at 000 Xxxxxx Xxxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000 (hereinafter sometimes referred to as "Tenant").
WITNESSETH:
For and in consideration of the rent hereinafter provided, and
for and in consideration of the mutual agreements herein set forth and for other
good and valuable consideration, Landlord hereby leases and Tenant hereby takes
the premises herein described, upon and subject to the terms and conditions
herein set forth, for the term herein stated, as follows:
ARTICLE 1
DEFINITIONS
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Section 1.1 Definitions. The underscored terms set forth below
shall have the respective meanings indicated for purposes of this Lease:
Base Rent. The term "Base Rent" means the base rental, defined
as such and set forth in Article 4.
Commencement Date. The term "Commencement Date" means the date
on which the Term commences, defined as such and set forth in Article 2.
Excluded Personal Property. The term "Excluded Personal
Property" means any and all furniture, fixtures, equipment and other personal
property, including without limitation, replacements and substitutions therefor,
and all leases thereof and all rents, revenues, income, profits, royalties,
deposits and proceeds therefrom, now or hereafter owned, leased or used by or
through Tenant and/or any Excluded Property Party and their respective
successors, assigns, and /or transferees.
Excluded Property. The term "Excluded Property" means the
Improvements, Pre-Existing Improvements and all Excluded Personal Property.
Excluded Property Party. The term "Excluded Property Party"
means Tenant, any person or entity occupying or using any part of the
Improvements or Premises by or through Tenant (or its lessees, successors or
assigns) and/or any person or entity holding an ownership or security interest
in any Excluded Property.
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Gross Profits . The term "Gross Profits" means all rents,
income and profits arising from leases, permits or agreements relative to the
use of the Premises and/or Improvements by Tenant, Landlord (or its affiliates)
or by third parties.
Impositions. The term "Impositions" means the taxes,
assessments and other rates, levies and governmental charges, defined as such
and set forth in Article 5.
Improvements. The term "Improvements" means the buildings and
improvements now located on the Land, or hereafter constructed or erected on the
Land, including all improvements that were either constructed by Landlord as
agent for and for the account of Tenant or by or through Tenant for Tenant's own
account in accordance with the Plans and Specifications in anticipation of the
Lease, as well as any future additions, replacements, or alterations thereto,
and any attachments, appliances, equipment, machinery, and other fixtures
attached to said buildings and improvements or otherwise located on the Premises
other than the Pre-Existing Improvements.
Land. The term "Land" means the parcel of land described in
Exhibit A attached hereto and by this reference made a part hereof and the
easements, rights, hereditaments and other appurtenances now or hereafter
appurtenant to, benefiting or serving such parcel including the land lying in
the bed of any street, alley or highway in front of, within or adjoining the
land described in such Exhibit but not including any Improvements or
Pre-Existing Improvements.
Landlord. In addition to the meaning ascribed to the term
"Landlord" in Section 20.5 here of the term "Landlord" means the Landlord named
herein and any person, firm, corporation or other legal entity who or which
shall succeed to Landlord's legal and equitable fee simple title to the Land
(any such successor to be conclusively deemed to have assumed the obligations of
"Landlord" herein by virtue of such succession).
Landlord Mortgage. The term "Landlord Mortgage" means any
mortgage granted or made by Landlord to grant to a Landlord Mortgagee a security
interest in Landlord's interest in the Premises and/or in this Lease and shall
include whatever security instruments are used in the St. Louis metropolitan
area to secure such interests including without limitation, financing
statements, security agreements, mortgages, deeds of trust, and any other
documentation required to so secure such interest.
Landlord Mortgagee. The term "Landlord Mortgagee" means the
holder or secured party under a Landlord Mortgage.
Leasehold Mortgage. The term "Leasehold Mortgage" means any
leasehold mortgage granted or made by Tenant to grant to a Leasehold Mortgagee a
security interest in Tenant's leasehold interest in this Lease and shall include
whatever security instruments are used in the St. Louis metropolitan area to
secure the mortgagee's interest in the leasehold interest of Tenant under this
Lease without limitation, financing statements, security agreements, mortgages,
deeds of trust, and any other documentation required to so secure such interest.
Leasehold Mortgagee. The term "Leasehold Mortgagee" means the
holder or secured party under a Leasehold Mortgage.
Lease Year. The term "Lease Year" means each successive twelve
month period during the term commencing on the Commencement Date.
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Permitted Encumbrances. The term "Permitted Encumbrances"
means only the encumbrances described in Exhibit B hereto.
Plans and Specifications. The term "Plans and Specifications"
means the plans and specifications dated September 9, 1999 and prepared by
Xxxxxx/Xxxxxxx, P.C. and ACI Xxxxxx, Inc. for the project located at Phantom
Drive and X. X. XxXxxxxxx Boulevard, Hazelwood, Missouri.
Pre-Existing Improvements. The term "Pre-Existing
Improvements" means any improvements located on the Land at such time as the
Landlord acquired title to the Land (e.g., sewer lines).
Premises. The term "Premises" means the Land and any
Pre-Existing Improvements.
Tenant. In addition to the meanings ascribed to the term
"Tenant" in Section 20.5 hereof, the term "Tenant" means the Tenant named
herein, and any person, firm, corporation or other legal entity to whom or to
which Tenant's interest in this Lease shall be assigned.
ARTICLE 2
THE DEMISE FOR THE TERM
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Section 2.1 Demise. Landlord hereby leases to Tenant the
Premises situated in the City of Xxxxxxxxx, County of St. Louis, State of
Missouri, and described more fully in Exhibit A attached hereto and by this
reference made a part hereof.
TO HAVE AND TO HOLD the Premises unto Tenant and its
successors and assigns, from the Commencement Date and continuing thereafter for
the remaining term of this Lease (the "Term").
Section 2.2 Term. The parties acknowledge and stipulate that
the Commencement Date of the Term occurred on February 18, 2000, and that Tenant
unconditionally accepted the Premises on such date. Unless otherwise renewed or
sooner terminated as provided herein, the Term shall continue until, and expire
at, 11:59 p.m., Central Standard Time, on February 17, 2099 (the "Expiration
Date"). As used herein, "Term" or "term" shall mean the initial 99 year term and
any Renewal Term under Section 2.4 hereof.
Section 2.3 Lease Not Terminable Except as Provided Herein.
Except as otherwise expressly provided for herein, this Lease shall not
terminate, nor shall Tenant be entitled to any abatement, diminution, deduction,
deferment, or reduction of rent, or set-off against the Rent, nor shall the
respective obligations of Landlord and Tenant be otherwise affected by reason of
any damage to or destruction of the Premises by whatever cause; any taking by
eminent domain or eviction by paramount title (except to the extent this Lease
is effected by operation of law); any lawful or unlawful prohibition of Tenant's
use of the Premises; any interference with such use by any private person,
corporation, or other entity; any default or breach of any warranty by Landlord
under this Lease; any inconvenience, interruption, cessation, or loss of
business, or otherwise, caused directly or indirectly by any present or future
laws, rules, requirements, orders, directions, ordinances, or regulation of the
United States of America or of the state, county or city government, or any
other municipal government or lawful authority whatsoever or by priorities,
rationing, or curtailment of labor or materials or by war or any matter or thing
resulting therefrom; or for any other cause whether similar to or dissimilar
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from the foregoing, any present or future law to the contrary notwithstanding,
it being the intention of the parties that the obligations of Tenant hereunder
shall be separate and independent covenants and agreements and that the Rent and
all other payments to be made by Tenant hereunder shall continue to be payable
in all events unless the obligations to pay the same shall be terminated
pursuant to the express provisions of this Lease.
Section 2.4 Option to Extend Term. Tenant shall have the
option to extend the Term for one (1) additional period of ninety nine (99)
years (the "Renewal Term"). In order to exercise this option to extend, the
Tenant must so notify Landlord in writing not later than twelve (12) months
prior to the end of the initial Term. All terms and conditions of this Lease
shall remain in full force and effect during the Renewal Term, except for Base
Rent, which shall be adjusted as provided in Section 4.1 hereof.
Section 2.5 Option to Purchase Premises.
(a) Tenant shall be entitled to elect, and Landlord hereby
grants Tenant the option, to purchase the entirety of the Premises, to be
exercised at any time during the term of this Lease on not less than sixty (60)
days and not more than twenty-four (24) months' prior written notice to
Landlord, at a price equal to the Fair Option Value (defined below) determined
as of the date of exercise of the option. Tenant's notice of exercise of the
option shall be deemed and shall constitute an irrevocable acceptance by Tenant
of Landlord's irrevocable offer to sell and convey the Premises to Tenant.
(b) If Tenant shall exercise its option to purchase the
Premises, the closing on such option and the conveyance by Landlord to Tenant of
the Premises (the "Closing") shall take place on such date designated by Tenant
in its notice of exercise but no later than two (2) years after the date of
exercise of the option. In the event Closing shall be scheduled to occur after
expiration of the Term, the Term shall be automatically renewed on a
month-to-month basis until Closing occurs, on the same terms and conditions as
are then in effect, including the scheduled adjustment of Base Rent under
Section 4.1. On the date of Closing, Landlord shall convey the Premises to
Tenant or its designee in the amount of the Fair Option Value determined as of
the date of exercise of the option. Landlord shall convey to Tenant by quit
claim deed, all right title and interest, if any, of Landlord in and to the
Improvements, and shall further convey to Tenant the Premises by special
warranty deed , covenanting and warranting against claims of Landlord or those
claiming by, through or under Landlord, and transferring marketable fee simple
absolute title to the Premises, subject only to this Lease, to all state of
facts an accurate survey would show, to taxes and assessments, to zoning
regulations and public rights of way, the Permitted Encumbrances and to other
encumbrances placed of record with the consent of Tenant; provided however,
Landlord shall have no duty to discharge any lien or encumbrance created by,
through or under Tenant, but Landlord shall cause any and all mortgage or deed
of trust liens affecting Landlord's fee ownership of the Premises to be paid and
discharged at Closing. Landlord shall also execute and furnish Tenant with a
standard "owner's affidavit" so as to enable Tenant to obtain an owner's policy
of title insurance at Closing, without exception, as to Landlord's acts only,
for mechanic's liens, rights of parties in possession and such other matters as
may be covered under the standard title company affidavit for owners. In
connection with the closing or incidental to the conveyance of the Premises,
Tenant shall pay any and all recording costs, and Landlord and Tenant shall each
pay one-half of any escrow fees charged by Tenant's title insurance company and
closing escrow agent, but otherwise Landlord and Tenant shall pay their own
respective costs. At the option and election of Tenant to be exercised in
writing at the closing, the Lease may be terminated effective as of the
conveyance of the Premises. There shall be no adjustments for real estate taxes
and assessments or for any other costs or charges payable by Tenant under the
Lease. Closing shall occur at the offices of a national title company designated
by Tenant located in St. Louis County. All other closing matters shall be
handled in accordance with the standard closing practices of the title company.
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(c) For purposes of this option to purchase the Premises, it
is expressly understood and agreed that the term "Fair Option Value" shall mean
the greater of (x) $2,999,997 or (y) Fair Market Value of Landlord's title to
the Land comprising part of the Premises with such Fair Market Value of the Land
to be determined as if the Land were not improved and were unencumbered by this
Lease. Tenant's estimate of the Fair Market Value shall be supported by a
written appraisal prepared by an appraiser who is an Member of the Appraisal
Institute ("MAI") having not less than fifteen (15) years experience in the
appraisal of commercial real estate in St. Louis County. In the event Landlord
shall not agree with the Fair Market Value as so determined by Tenant's
appraiser, Landlord shall so notify Tenant in writing within thirty (30) days
from receipt of Tenant's advice as to the Fair Market Value (such notice to
include a written appraisal prepared by an MAI appraiser having not less than
fifteen (15) years experience in the appraisal of commercial real estate in St.
Louis County. If Landlord and Tenant are unable to reach agreement within thirty
(30) days after the date of Landlord's response to Tenant, then the issue of
Fair Market Value shall be submitted to binding arbitration conducted in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association ("AAA") or a similar arbitration mechanism if AAA is no longer in
existence. Each party shall pay the fees and expenses of its appraiser and
one-half the fees and expenses of the arbitrator.
Section 2.6 Mandatory Purchase by Tenant. In the event either
of the following events provided in this Section 2.6 occur during the first ten
(10) years of the Term (a "Put Event"), Landlord may at its option, require
Tenant to purchase the Premises at the applicable Put Price by notifying Tenant
of such requirement at any time within sixty (60) days following a Put Event (a
"Put Notice"). In such event, Tenant and Landlord shall close on such purchase
on a date to be mutually determined by the parties but in any event no earlier
than sixty (60) days after such Put Notice or later than one hundred twenty
(120) days after such Put Notice. In the event the parties cannot or do not
agree on a date for such closing, such closing shall occur on the date that is
one hundred twenty (120) days after the Put Notice or the next business day
thereafter. Such closing shall be conducted utilizing the closing procedures
applicable to a Closing under Section 2.5(b) (including delivery to Landlord of
a quit claim deed to the Improvements). The Put Event is as follows:
(x) the Improvements are damaged by fire or other casualty,
(y) Tenant either notifies Landlord that Tenant does not intend to repair the
damage and restore the Improvements or has not commenced to repair such damage
and restore the Improvements within the earlier to occur of (1) one hundred
twenty (120) days after such event, or (2) the end of the first ten (10) years
of the Term and (z) at the time of the referenced notification from Tenant or at
the end of the above referenced one hundred twenty day (120) period or the end
of the first ten (10) years of the Term (in each such case where Tenant has not
commenced to repair such damage and restore the Improvements), Tenant is in
default under this Lease (after giving effect to applicable cure periods).
As used in this Lease, the term "Put Price" means Three Million Dollars
($3,000,000.00) during the first Lease Year, reduced by Three Hundred Thousand
Dollars ($300,000.00) effective as of the beginning of each Lease Year
subsequent to the first Lease Year (for example, the Put Price during the fifth
Lease Year is $1,800,000.00). Notwithstanding anything to the contrary in this
Lease, including without limitation, Section 14.1, in the event Tenant is
obligated to purchase the Premises as aforesaid and fails to do so within twenty
(20) days after notice from Landlord to Tenant of such failure other than as a
result of a default of Landlord under this Lease, then Landlord, in addition to
its other rights and remedies hereunder, may terminate this Lease effective upon
no later than thirty (30) days' prior written notice given within ten (10) days
after the date originally scheduled for closing.
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ARTICLE 3
TITLE; QUIET ENJOYMENT
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Section 3.1 Warranty of Title. Landlord warrants that it holds
good fee simple title to the Premises, free and clear of any and all easements,
rights of way, restrictions, conditions, covenants, or encumbrances other than
the Permitted Encumbrances and any liens or encumbrances created by Tenant
subsequent to the Commencement Date.
Section 3.2 Covenant of Quiet Enjoyment. Landlord covenants
that so long as Tenant is performing its covenants and agreements herein and
observing the provisions of this Lease after giving effect to all applicable
cure periods, Tenant shall peaceably and quietly have possession of and enjoy
the Premises in accordance with the terms of this Lease, without hindrance or
molestation by Landlord or any persons claiming by, through or under Landlord.
ARTICLE 4
RENT
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Section 4.1 Base Rent. Tenant covenants to pay to Landlord,
without set-off or deduction, as a net base rental ("Base Rent") for the
Premises from and after December 1, 2000 until the end of the second (2nd) Lease
Year of the Term, the sum of $329,314.00 per annum, payable monthly in advance,
on the first business day of each month during such twenty-four (24) month
period, in equal installments of $27,443.00 each. Base Rent for each subsequent
Lease Year during the Term (including any Renewal Term) shall be increased by
two percent (2%) of the amount of the Base Rent payable during the immediately
preceding Lease Year, and Tenant shall continue to pay Base Rent, as so
increased, in twelve (12) equal monthly installments, payable monthly in
advance, on the first business day of each month during each such Lease Year.
Base Rent shall continue to be payable during the period from the exercise by
Tenant of the purchase option pursuant to Section 2.5(a) through the Closing
thereof.
Section 4.2 Proration. In the event Tenant is obligated to pay
Base Rent for a period which is less than one month, the installment of Base
Rent shall be prorated on the basis of the number of days in such period.
Section 4.3 Place of Payment. All rentals payable hereunder
shall be paid to Landlord at the address set forth at Section 19.1, unless
Tenant is otherwise instructed in writing by Landlord.
Section 4.4 Absolute Net Lease. It is the purpose and intent
of Landlord and Tenant that the Base Rent herein provided to be paid to Landlord
by Tenant be absolutely net to Landlord and that this Lease shall yield net to
Landlord without abatement, set-off or deduction therefrom the Base Rent as
herein provided, to be paid during the Term, and that all costs, expenses,
obligations, assessments or impositions of every kind or nature whatsoever which
Tenant assumes or agrees to discharge pursuant to this Lease which may arise or
become due during the Term shall be paid by Tenant as "Additional Rent", and
Landlord shall be indemnified and saved harmless by Tenant from and against the
same. However, nothing herein contained shall be deemed to require Tenant to pay
or discharge any liens or mortgages of any character whatever which may be
placed upon the Premises by the affirmative act of Landlord or any costs or
expenses required to be paid by Landlord under any Landlord Mortgage or costs or
expenses incurred by Landlord in complying with the provisions of any Landlord
Mortgage except to the extent that Tenant has expressly agreed to pay for such
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items in writing (it being agreed that the provisions of this Section 4.4 do not
constitute such agreement). As used herein, the terms "Rent" or "rent" shall
mean Base Rent and Additional Rent. Notwithstanding anything to the contrary in
this Lease, Tenant is not responsible for and is not assuming any liability for,
nor is Tenant indemnifying, holding Landlord harmless from or against or
defending Landlord against any claims, losses, liabilities, damages, costs or
expenses associated with, arising out or in connection with any income tax
consequences to which Landlord is subject as a result of this Lease.
ARTICLE 5
PAYMENT OF TAXES, ASSESSMENTS, AND OTHER IMPOSITIONS
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Section 5.1 Payment of Impositions. Tenant agrees to pay, as
Additional Rent, and prior to the imposition of any fines, penalties or interest
thereon, all real estate taxes (except as specifically provided otherwise in
Section 5.4), assessments, water rates, and other governmental charges, of any
kind and nature whatsoever, including but not limited to assessments for public
improvements or benefits (all of which taxes, assessments, water rates, levies
and other governmental charges are hereinafter sometimes referred to as
"Impositions"), which as a result of the existence of the Land or the
Improvements or both, are assessed, levied, confirmed, imposed or become a lien
upon the Land or upon the Improvements or both during the Term; provided,
however, that Landlord shall cause the tax bills or copies thereof in respect of
such Impositions to be furnished to Tenant at least fifteen (15) days in advance
of the due date of any Imposition. Any Imposition relating to a fiscal period of
the taxing authority, a part of which is included within the Term and a part of
which is included in a period of time after the expiration of the Term, shall be
adjusted as between Landlord and Tenant as of the expiration of the Term, so
that Landlord shall pay an amount which bears the same ratio to such Imposition
which that part of such fiscal period included in the period of time after the
expiration of the Term bears to such fiscal period. With respect to any
Imposition for public improvements or benefits which by law is payable, or at
the option of the taxpayer may be paid, in installments, Landlord shall pay the
installments thereof which become due and payable subsequent to the expiration
of the Term, and Tenant shall pay only those installments which become due and
payable during the Term.
Section 5.2 Place of Payment. All Impositions payable
hereunder shall be paid directly to the relevant payees of such Impositions or,
if Tenant shall so elect, to Landlord at the address set forth at Section 19.1,
unless Tenant is otherwise instructed in writing by Landlord, for remittance to
the relevant payees of such Impositions.
Section 5.3 Limitations and Right to Contest Impositions.
Nothing herein shall obligate Tenant to pay federal, state or local (i)
franchise, capital stock or similar taxes, if any, of Landlord, (ii) income,
excess profits or other taxes, if any, of Landlord, determined on the basis of
its net income, or (iii) any estate, inheritance, succession, gift or similar
tax, or (iv) any capital gains tax imposed on Landlord by the State of Missouri
in connection with the sale of the Premises or any federal capital gains tax,
unless the taxes referred to in clauses (i) and (ii) above are in lieu of or a
substitute for any other tax, assessment or other charge upon or with respect to
any of the Premises which, if such other tax, assessment or other charge were in
effect, would be payable by Tenant. In the event that any assessment against any
of the Premises may be paid in installments, Tenant shall have the option to pay
such assessment in installments; and, in such event, Tenant shall be liable only
for those installments which become due and payable during the Term. Tenant
shall pay the general and special real estate taxes and other Impositions as
enumerated in this Article 5 of the Lease prior to their becoming delinquent
and, at Landlord's request, shall deliver copies of official receipts evidencing
such payment to Landlord, at the place at which rental payments are required to
be made, prior to accrual of any penalties assessed for late payment.
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Section 5.4 Right to Contest Impositions. If Tenant shall in
good faith, desire to contest the validity of such general real estate taxes or
special assessments or other Impositions, Tenant shall have the right to do so
without being in default hereunder provided that: (i) Tenant shall give Landlord
prompt written notice of Tenant's intention to institute such legal proceedings
as are appropriate; (ii) such proceedings shall be promptly instituted and
conducted in good faith and with due diligence, and (iii) the Premises shall not
be in danger of being sold, forfeited or lost. Such written notice shall be
given by Tenant to Landlord or the appropriate governmental agency not fewer
than five (5) days before such taxes or other charges proposed to be contested
would otherwise become delinquent. Landlord agrees to cooperate with Tenant in
any such proceeding, at no cost to Landlord. All costs associated with such
contest, including attorney fees, shall be the responsibility of Tenant.
Section 5.5 Failure to Pay Impositions. If Tenant shall fail,
refuse, or neglect to make any of the payments in this Article 5 required prior
to the date when a delinquent rate would be imposed, then Landlord may, at its
option and without waiver of the default thus committed by Tenant, upon ten (10)
days' prior written notice to Tenant, pay same, and the amount of money so paid,
including reasonable attorney's fees and expenses incurred in connection with
such payments, together with interest on all of such amounts at the rate set
forth below in Section 14.3 shall be repaid by Tenant to Landlord upon demand,
and the payment thereof may be collected by Landlord in the same manner as
though said amount were an installment of rent specifically required by the
terms of this Lease to be paid by Tenant to Landlord.
ARTICLE 6
CONSTRUCTION OF IMPROVEMENTS
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Section 6.1 Improvements. Tenant, at its sole risk, cost and
expense, shall construct and develop on the Land as part of the Premises the
Improvements described in the Plans and Specifications. In addition, Tenant
shall have the right at any time during the Term to erect or install additions
to, alterations of or replacements for such initially constructed Improvements,
and to improve, alter or otherwise modify the Improvements, subject, however, to
the provisions of Section 9.2.
Section 6.2 Control of Construction. The construction and
development of the Improvements, and any and all subsequent work on or about the
Premises shall be done in compliance with applicable building and zoning laws
and all other laws, ordinances, orders, rules, regulations and requirements of
all Federal, State and municipal governments and the appropriate departments,
commissions, boards and officers thereof.
Section 6.3 Discharge of Mechanic's Liens. Tenant shall not
suffer or permit any mechanic's liens to be filed against the Landlord's title
to the Premises or against Tenant's interest in the Premises and/or Improvements
by reason of work, labor, services or materials supplied to Tenant or as a
result of an agreement with, or the assent of, Tenant, including, without
limitation, any mechanic's liens arising out of or in connection with the
construction of the Improvements contemplated under the Plans and
Specifications. If any such mechanic's liens shall at any time be filed against
the Premises or any part thereof, Tenant shall promptly cause the same to be
discharged of record or bonded over as may be necessary to prevent a foreclosure
on the Premises or any part thereof to satisfy the same in accordance with
Section 9.3 hereof.
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Section 6.4 Title to Improvements. Landlord and Tenant agree
and acknowledge that all Improvements, other than Pre-Existing Improvements,
were either constructed by Landlord as agent for and for the account of Tenant
or by or through Tenant for Tenant's own account in accordance with the Plans
and Specifications in anticipation of the Lease. Title to all Improvements,
including any and all Improvements constructed on the Premises prior to or after
the Commencement Date by or through Landlord as agent for Tenant or by or
through Tenant in accordance with the Plans and Specifications in anticipation
of this Lease, were, are and shall be deemed vested in, and such Improvements
belonged, belong and shall be deemed to belong to and were, are and shall be
deemed to be owned by Tenant for all purposes including, without limitation,
income tax purposes. Subject to Section 9.2 and unless Tenant shall purchase and
become the owner of the fee simple title to the Premises ,including without
limitation pursuant to Section 2.5 or Section 2.6 of this Lease, any
Improvements remaining on the Premises at the end of the Term or the end of
Tenant's right to remain in possession of the Premises (as a result of rights
available to Tenant as contemplated under Section 20.17 hereof), whichever
occurs later, shall then become the property of Landlord, and Landlord shall
thereupon be entitled to possession thereof. Except as otherwise provided in
Section 9.2, nothing in this Lease shall require or shall be construed to mean
that, as between Landlord and Tenant, Tenant has any obligation to cause any
Improvements to be located on the Premises at the end of the Term.
ARTICLE 7
USE AND OPERATION OF THE PREMISES
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Section 7.1 Permitted Use. Tenant shall use the Premises for
any use permitted under applicable law.
Section 7.2 Compliance With Laws and Governmental
Requirements. Tenant shall, at its sole cost and expense, obtain all
governmental permits, approvals, licenses, and authorizations needed by Tenant
to conduct its business upon the Premises, and shall maintain same during the
Term. Landlord covenants and agrees to cooperate with Tenant, at Tenant's
expense, in the obtaining of such permits, approvals, licenses, and
authorizations. Tenant covenants and agrees that it will, at its sole cost and
expense, take such actions as may be lawfully required by any public body having
jurisdiction over the Premises in order to comply with such sanitary, zoning,
and other similar requirements designed to protect the public, in effect during
the Term, applicable to the Premises or the manner of Tenant's use and occupancy
of the Premises or otherwise applicable to the Premises. Tenant shall, at
Tenant's expense, make any alterations or repairs to the Premises that may be
necessary to comply with any of the foregoing, subject to the applicable
provisions of Article 9.
ARTICLE 8
INSURANCE
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Section 8.1 Commercial General Liability Insurance. At all
times during the Term, Tenant shall provide and maintain, at Tenant's sole cost
and expense throughout the Term, commercial general liability insurance,
including blanket contractual liability coverage (or its equivalent)
specifically endorsed to provide coverage for the obligations assumed by Tenant
pursuant to this Lease, against claims and liability for personal injury, bodily
injury, death, or property damage occurring on, in, or about the Premises, with
limits of liability of not less than Five Million Dollars ($5,000,000.00) for
liability arising out of any one occurrence, Tenant shall cause such insurance
policy or policies to name Landlord as additional insured.
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Section 8.2 Employer's Liability Insurance. At all times
during the Term, Tenant shall also provide and maintain, at Tenant's sole cost
and expense, throughout the Term or any extensions hereof, worker's compensation
insurance with statutory limits of liability and employer's liability insurance
with limits of liability of not less than One Million Dollars ($1,000,000.00) in
respect of any work or other operations done or performed on or about the
Premises.
Section 8.3 Casualty Insurance. During the first ten (10)
years of the Term, Tenant will procure and maintain in effect at all times and
at Tenant's expense the following:
(i) insurance insuring Tenant against loss or damage to the
Improvements by fire, lightning, windstorm, hail, explosion, aircraft,
smoke, vandalism, malicious mischief, vehicle damage and other risks
from time to time included under a so called "Special Form Causes of
Loss" policy (or its equivalent) together with earthquake and flood
insurance. Such insurance shall provide coverage in an amount
sufficient to prevent Tenant from being a co-insurer of any loss under
the policy or policies, but in no event less than 100% of the full
replacement cost of the Improvements;
(ii) business interruption insurance in an amount of at least
Twenty Million Dollars ($20,000,000) to insure Tenant against the loss
of all or any portion of Gross Profits plus any continuing expenses for
a minimum period of one year from the date of the event resulting in
the interruption of Tenant's business at the Premises.
Section 8.4 Fuel Tank Insurance. At all times during the Term
when fuel tanks are located at or on the Premises, Tenant shall maintain so
called "Above Ground Storage Tank Third Party Liability and Cleanup" insurance
or its equivalent. Notwithstanding anything to the contrary in this Lease, such
insurance shall be on a claims made basis with a per occurrence limit of at
least One Million Dollars ($1,000,000) and a general aggregate limit of at least
One Million Dollars ($1,000,000) with reasonable deductibles and reasonable
coverage for defense costs.
Section 8.5 Blanket Policies. Tenant may effect the coverages
required above under its blanket insurance policies, and such insurance may be
effected by a combination of basic and excess or umbrella policies covering
other properties or liabilities of Tenant; provided, however, as follows: any
such policy of blanket insurance shall specify therein, or Tenant shall furnish
Landlord a written statement from the insurer under such policy so specifying,
the amount of the total insurance allocated to the Premises, which amount shall
be not less than the amount required herein; any such policy of blanket
insurance shall comply in all respects with the requirements set out herein; and
the protection afforded under any such policy of blanket insurance shall be not
less than that which would have been afforded under a separate policy or
policies relating only to the Premises. In the event the insurance required
hereunder is carried under a combination of primary insurance and excess or
umbrella coverage, said insurance shall be primary insurance as far as concerns
Tenant, and shall not call upon any other insurance effected or procured by
Landlord for defense, contribution, or payment. Tenant shall not take out
separate insurance concurrent in form or contributing in the event of loss with
that required herein to be furnished by Tenant unless Landlord is included
therein as additional insured, and as loss payee with loss payable as set out
herein. Tenant shall immediately notify Landlord whenever any such separate
insurance is taken out and shall deliver the policy or policies or duplicates
thereof, or certificates evidencing the same as provided herein.
Section 8.6 Additional Policy Requirements. All insurance
policies required hereunder shall be written and signed by reputable and
10
financially sound insurance companies admitted to do insurance business in
Missouri having a rating of not less than category A+ as listed in Bests' Rating
Guide or the equivalent rating if such rating ceases to be published or
available. All such policies shall contain an agreement by the insurer that such
policies shall not be canceled without at least thirty (30) days' prior written
notice to Landlord and Tenant. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant each hereby waives any and all rights of
recovery, claim, action or cause of action, against the other, its agents
(including partners, both general and limited), officers, directors, members,
shareholders or employees, for any loss or damage that may occur to the
Premises, or any improvements thereto, or any property of such party therein, by
reason of fire, the elements, or any other cause which could be insured against
under the terms of standard fire and extended coverage insurance policies,
regardless of cause or origin, including negligence of the other party hereto,
its agents, officers or employees, and covenants that no insurer shall hold any
right of subrogation against such other party. Landlord may require that the
interest of any mortgagee under a mortgage covering the Premises and/or the
Landlord's leasehold estate, be protected by proper endorsements to any of the
policies of insurance required hereunder.
Section 8.7 Certificates of Insurance and Payment of Premiums.
Tenant shall deliver certificates of insurance evidencing the required coverages
and limits of liability. If said certificates are not approved by Landlord,
whose consent shall not be unreasonably withheld or unduly delayed, Landlord
shall advise Tenant of its reasonable objections thereto and Tenant may either
satisfy Landlord's objection or supply duplicate originals of such policies.
Said certificates shall be so delivered immediately after the writing and
effective date of said policies but in no event less frequently than annually,
along with receipts evidencing payment of the premiums therefor; provided,
however, that Tenant may finance the premiums when the terms of said policies
are for two (2) years or more and, in such event, said receipts shall evidence
the installment premium payment having been paid before its maturity. Tenant
will pay the premiums for all insurance policies which Tenant is obligated to
carry under the terms of this Lease and will deliver to Landlord evidence of
such payment before the payment of any such premiums become in default; and
Tenant will cause renewals of expiring policies to be written and the binders
therefor to be delivered to Landlord at least thirty (30) days before the
expiration date of such expiring policies, with certificates to be delivered to
Landlord, as set out herein, promptly upon their preparation.
Section 8.8 Liability for Deductible Amounts. Tenant, as
principal named insured for all property insurance required hereunder, retains
full responsibility for payment of all deductibles under each of said policies.
Nothing herein contained shall be construed as rendering Landlord personally
liable for the payment of any such insurance premiums but if, at any time during
the Term or any extensions hereof, Tenant shall fail, refuse, or neglect to
effect, maintain, or renew any of the policies of insurance required by this
Lease, or fail, refuse or neglect to keep and maintain same in full force and
effect, or to pay premiums therefor promptly when due, or to deliver to Landlord
and/or mortgagee any of such policies or certificates, then Landlord at its sole
option but without obligation to do so, may effect, maintain or renew such
insurance, and the amount of money paid as the premium thereon, plus interest at
the rate set forth in Section 14.3 below, shall be collectible as though it were
rent then matured hereunder and due and payable forthwith.
Section 8.9 Tenant's Indemnity. Unless due to the intentional
misconduct or negligence of Landlord or Landlord's officers, agents,
contractors, employees or invitees and except as provided in the last sentence
of Section 4.4 of this Lease, Tenant will defend, indemnify, and hold harmless
Landlord, its officers, employees and agents (the "Indemnified Parties") from
and against any and all liabilities, claims, losses, damages, actions,
judgments, costs, and expenses (including without limitation reasonable
attorney's fees and expenses) of every kind imposed upon or asserted against the
Indemnified Parties or Landlord's title in the Premises arising by reason of or
in connection with (a) Tenant's possession, use, occupancy, or control of the
Premises; (b) any accident, injury to or death of persons, or loss of or damage
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to property occurring on or about the Premises or adjoining public passageways;
(c) the possession, operation, use, misuse, maintenance, or repair of the
Premises; or (d) any failure on the part of Tenant to perform or comply with any
of the terms of this Lease. If it becomes necessary for Landlord to defend any
action seeking to impose any such liability, Landlord may elect to notify Tenant
and tender defense of such action to Tenant. Tenant shall accept such tender of
defense (with counsel reasonably acceptable to the Landlord) and Tenant will pay
all costs, expenses, and reasonable attorney's fees incurred in effecting such
defense, in addition to any other sums which Landlord may be called upon to pay
by reason of the entry of a judgment against Landlord in the litigation in which
such claim is asserted. Landlord shall not be responsible for the loss of or
damage to property or injury to or death of persons occurring in or about the
Premises by reason of any future condition, defect, matter, or thing in the
Premises, or for the acts, omissions, or negligence of other persons or tenants
in and about the Premises, and Tenant agrees to defend (with counsel reasonably
acceptable to the Landlord), indemnify, and hold the Indemnified Parties
harmless from and against all claims and liability for same.
Section 8.10 In addition to insurance otherwise required to be
maintained by Tenant pursuant to Sections 8.1, 8.2, 8.3 and 8.4, Tenant will,
during the first ten (10) years of the Term, obtain and maintain such additional
type of insurance and/or, as to the insurance to be maintained under this Lease,
maintain such insurance in each case in such increased amounts as Landlord may
reasonably require consistent with currently reasonable standards for similarly
situated properties leased on similar terms, provided, Landlord may not request
such changes more frequently than three times during such ten (10) year period.
ARTICLE 9
CONDITION OF IMPROVEMENTS
-------------------------
Section 9.1 No Landlord Obligation. Landlord shall not under
any circumstances be required to furnish any services or facilities or to make
any repairs, replacements or alterations of any nature or description in or to
the Premises whether ordinary or extraordinary, structural or non-structural,
foreseen or unforeseen, or to make any expenditure whatsoever in connection with
this Lease or to maintain the Premises in any way. Tenant hereby waives the
right to make repairs at the expense of Landlord pursuant to any law in effect
at the time of the execution of this Lease or thereafter enacted, and assumes
the full and sole responsibility for the condition, operation, repair,
replacement, maintenance, and management of the Premises.
Section 9.2 Alteration of Improvements. Tenant will not commit
any waste of the Premises; provided, however, Tenant may, in its sole
discretion, demolish and/or remove any and all Improvements from the Premises it
being agreed and understood that Tenant shall have no obligation to restore such
Improvements or to cause any Improvements to be located on the Premises at the
end of the Term. Except in the event the Term ends as a result of the exercise
of eminent domain, Tenant shall either remove all Improvements (including
foundations) from the Premises such that the Land is free of debris and from
mechanic's liens arising out of such removal or Tenant shall deliver the
Improvements to Landlord at the end of the Term or the end of Tenant's right to
remain in possession of the Premises (as a result of rights available to Tenant
as contemplated under Section 20.17 hereof), whichever occurs later, free from
mechanic's liens arising by or through Tenant and in reasonably good and working
condition such that the existence and condition of the Improvements does not
diminish the then current value of the Land as if unimproved. Tenant shall have
the right to effect any alterations, improvements or additions to the Premises
desired by Tenant provided that Tenant shall advise Landlord in advance
regarding any proposed alterations, improvements or additions affecting the
structure of the Improvements. In connection with any such alterations,
improvements or additions of a structural nature, Landlord may impose such
reasonable conditions with respect thereto as Landlord deems appropriate in
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order to assure that no liens will attach to the Premises, including, without
limitation, requiring Tenant to furnish Landlord with security for the payment
of all costs to be incurred in connection with such work, as reasonably
determined by Landlord. The work necessary to make any alterations, improvements
or additions to the Premises shall be done at Tenant's expense by employees of
or contractors hired by Tenant. Tenant shall promptly pay to Tenant's
contractors, as the case may be, when due, the cost of all such work and of all
decorating required by reason thereof, and upon completion deliver to Landlord
evidence of payment, contractors' affidavits and full and final waivers of all
liens for labor, services or materials, and Tenant shall defend and hold
Landlord and the Premises harmless from all costs, damages, liens and expenses
related thereto. All work done by Tenant or its contractors pursuant to this
Section 9.2 shall be done in a first-class workmanlike manner using only good
grades of materials and shall comply with all applicable insurance requirements
and all applicable laws and ordinances and rules and regulations of governmental
departments or agencies. All required permits shall be promptly obtained by
Tenant at Tenant's expense.
Section 9.3 Liens. Tenant will pay or cause to be paid all
charges for all work done by Tenant, including without limitation all labor and
materials for all repairs, alterations, additions, and/or demolition work to or
upon the Premises during the Term, including such work or portion thereof as is
required by any governmental entity having jurisdiction or is otherwise required
by applicable law, and will not suffer or permit any mechanic's, materialman's,
or similar liens for labor or materials furnished to the Premises during the
Term or any extensions hereof to be filed against the Premises and/or the
Improvements; and if any such lien shall be filed, Tenant will either pay the
same or procure the discharge thereof by giving security or in such other manner
as may be required or permitted by law within sixty (60) days after such filing
or within such shorter time period as may be required by law; provided, however,
such "sixty (60) day or shorter time period" requirement shall not apply to any
mechanic's liens arising out of or in connection with the initial Improvements
constructed based on the Plans and Specifications. Tenant shall have the right,
however, at its sole cost and expense, in its name or in the name of Landlord or
in the name of both, to contest any such lien, provided the existence of such
lien pending such contest shall not jeopardize Landlord's interest in the
Premises. Tenant shall indemnify Landlord against, and save Landlord harmless
from, any and all loss, damage, claims, liabilities, judgments, interest, costs,
expenses, and attorney's fees arising out of the filing of any such lien.
Tenant's indemnification obligation pursuant to the preceding sentence shall
survive the expiration or termination of this Lease. Nothing contained herein
shall constitute any consent or request by Landlord, express or implied, to or
for the performance of any labor or services or the furnishing of any materials
or other property in respect of the Premises nor as giving Tenant any right,
power, or authority to contract for or permit the performance of any labor or
services or the furnishing of any materials or other property in such fashion as
would permit the making of any claim against Landlord or the Premises in respect
thereto. Tenant shall have no right to encumber or cause to be encumbered the
title or interest of Landlord in the Premises in any manner whatsoever.
Section 9.4 Environmental Matters.
A. The term "Environmental Laws" shall mean and include the
Resource Conservation and Recovery act, as amended by the Hazardous and
Solid Waste Amendments of 1984, the Comprehensive Environmental
Response, Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Toxic Substances Control Act, the Federal
Insecticide, Fungicide and Rodenticide Act and all applicable state and
local environmental laws, ordinances, rules, requirements, and
regulations, as any of the foregoing may have been or may be from time
to time amended, supplemented or supplanted and any and all other
federal, state or local laws, ordinances, rules, requirements and
regulations, now or hereafter existing, relating to the preservation of
the environment or the regulation or control of toxic or hazardous
substances or materials; and
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B. The term "Regulated Substance" shall mean and include any,
each and all substances or materials now or hereafter regulated
pursuant to any Environmental Laws, including, but not limited to, any
such substance or material now or hereafter under any Environmental Law
defined as or deemed to be a "regulated substance," pesticide,
"hazardous substance" or "hazardous waste" or included in any similar
or like classification or categorization thereunder.
Tenant shall not cause or permit any Regulated Substance to be
placed, held, located, released, transported or disposed of on, under, at or
from the Premises in violation of any Environmental Laws or permit any Regulated
Substance to otherwise adversely affect the Premises and/or the Improvements in
violation of any Environmental Laws. Tenant shall, at its own cost and expense,
contain at or remove from the Premises and/or the Improvements or perform any
other necessary remedial action regarding any Regulated Substance in any way
affecting the Premises and/or the Improvements if such containment, removal or
other remedial action is required of the owner and/or operator of the Premises
and/or the Improvements under any Environmental Laws and, to the extent Tenant
takes any remedial action with respect to any Regulated Substance whether or not
so required, Tenant shall perform any containment, removal or remediation of any
kind involving any Regulated Substance in any way affecting the Premises and/or
the Improvements in compliance with the requirements of all Environmental Laws.
Tenant shall provide Landlord with written notice (and a copy as may be
applicable) of any of the following within thirty (30) days thereof. (i)
Tenant's obtaining knowledge or notice of any kind of the presence, or any
actual or threatened release, of any Regulated Substance in any way affecting
the Premises and/or the Improvements; (ii) Tenant's receipt or submission, or
Tenant's obtaining knowledge or notice of any kind, of any report, citation,
notice or other communication from or to any federal, state or local
governmental or quasi-governmental authority regarding any Regulated Substance
in any way affecting the Premises and/or the Improvements; or (iii) Tenant's
obtaining knowledge or notice of any kind of the incurrence of any cost or
expense by any federal, state or local governmental or quasi-governmental
authority or any private party in connection with the assessment, monitoring,
containment, removal or remediation of any kind of any Regulated Substance in
any way affecting the Premises and/or the Improvements, or of the filing or
recording of any lien on the Premises and/or the Improvements or any portion
thereof in connection with any such action or Regulated Substance in any way
affecting the Premises and/or the Improvements.
Tenant shall defend all actions against the Landlord and
Landlord's mortgagee and pay, protect, indemnify and save harmless Landlord, its
directors, officers, employees and agents and the mortgagee from and against any
and all liabilities, losses, damages, costs, expenses (including, without
limitation, reasonable attorneys' and consultant's fees, response and cleanup
costs, court costs, and litigation expenses), causes of action, suits, claims,
demands or judgments of any nature relating to any action brought against
Landlord arising out of or in any way relating to any violation or claimed
violation of Environmental Laws by Tenant and/or the Premises and/or the
Improvements other than in connection with a Pre-Term Condition. If at the
expiration or other termination of this Lease any response or clean up of a
condition involving Regulated Substances is required of Tenant and/or the
Premises and/or the Improvements by any federal, state or local governmental
authority and such condition first arose during the Term as a result of Tenant's
acts or omissions, then Tenant shall remain solely responsible for such
requirement and Landlord's damages for breach hereof may include consequential
loss of rent. The foregoing indemnity shall survive the expiration or earlier
termination of this Lease. Notwithstanding anything to the contrary in this
Lease, Landlord, and not Tenant, is responsible for any remediation of the
Premises required as a result of any environmental condition of the Premises
which existed prior to Commencement Date (a "Pre-Term Condition").
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ARTICLE 10
DAMAGE OR DESTRUCTION
---------------------
Section 10.1 No Abatement of Rent. Notwithstanding any
contrary law, Rent shall not be suspended or abated as a result of any damage or
destruction to, and/or during any restoration or rebuilding of, the Premises
and/or the Improvements.
ARTICLE 11
SUBLETTING AND ASSIGNMENT
-------------------------
Section 11.1 Transactions Requiring Landlord's Consent. Except
as permitted in Section 15.2 in connection with or arising out of a grant by
Tenant of a Leasehold Mortgage, Tenant shall not, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld or
conditioned and shall be given or denied (and if denied with reasons therefor)
within thirty (30) days after a request for such consent from Tenant, (a) assign
this Lease or any interest hereunder, or (b) permit any assignment of this Lease
by operation of law. Tenant may sublet the Premises or any part thereof and may
permit the use or occupancy of all or any part of the Premises by any parties
other than Tenant, its agents, employees and invitees without the consent of
Landlord.
Section 11.2 Transactions Excluded from Consent Requirement.
Notwithstanding anything to the contrary in Section 11.1 above, Tenant shall
have the right, without the prior consent of Landlord, to assign this Lease to
any of Tenant's subsidiaries, affiliates or any parent or controlled corporation
of Tenant or to any third party purchasing all or substantially all of the
assets of Tenant in a bona fide transaction and not in liquidation, as a result
of which such successor shall continue to operate the business of Tenant from
the Premises as a going concern. The merger of Tenant into or with another
entity shall not be deemed an assignment of Tenant's interest in this Lease, nor
shall any change of control of Tenant resulting from the sale or transfer of
corporate stock of Tenant be deemed an assignment; provided the surviving or
successor entity shall continue to operate the business of Tenant from the
Premises as a going concern.
Section 11.3 Effectiveness of Assignment/Sublease; No
Avoidance of Liability. Except as permitted in Section 15.2 in connection with
or arising out of a grant by Tenant of a Leasehold Mortgage, Tenant shall give
Landlord written notice of any proposed assignment or subletting under Section
11.1 and of any transaction contemplated under Section 11.2, which notice shall
contain the proposed principal terms thereof. Except as permitted in Section
15.2 in connection with or arising out of a grant by Tenant of a Leasehold
Mortgage, no assignment of this Lease shall be effective unless the assignee
shall execute an appropriate instrument assuming all of the obligations of
Tenant hereunder and unless Tenant acknowledges therein its continued liability
under this Lease. Landlord's consent to any proposed assignment (when such
consent is required pursuant to Section 11.1), shall not constitute a waiver of
Landlord's right reasonably to approve or disapprove of any subsequent
assignment.
Section 11.4 Assignment by Landlord. Landlord shall cause any
transferee of Landlord's interest in the Premises to assume Landlord's
obligations under this lease.
15
ARTICLE 12
CONDEMNATION
------------
Section 12.1 Temporary Taking by Eminent Domain. If, during
the Term, the temporary use of the whole or any portion of the Premises shall be
taken as a result of the exercise of the power of eminent domain, Tenant shall
be entitled to the entire compensation and award for any and all damage, loss or
injury suffered as a result of such temporary taking, and this Lease shall
continue in full force and effect without any abatement of the rental or other
payments required to be made by Tenant hereunder.
Section 12.2 Total Taking of Whole or Affecting Whole by
Eminent Domain. If, during the Term, all of the Premises shall be permanently
taken as a result of the exercise of the power of eminent domain, or a portion
of the Premises shall be taken as a result of the exercise of eminent domain
with resulting damages to any Improvements and the award made in such
proceedings shall be based on a determination that the portion of the Premises
not taken is worthless and cannot practicably be rehabilitated, then Tenant may
terminate this Lease effective on the date of vesting of title with the
condemning authority or its designees. The total award shall be apportioned
between Landlord and Tenant as follows:
FIRST, Landlord shall receive such portion of the award as
shall represent compensation for the fair market value of the Land and
Pre-Existing Improvements taken, considered as vacant and unimproved and
unencumbered by this Lease and such portion of such award, if separately stated
in the award or decree as shall represent consequential damages, if any, to the
portion of the Land and Pre-Existing Improvements not taken, considered as
vacant and unimproved and unencumbered by this Lease, plus an amount equal to
the then estimated cost of demolition and removal of the untaken portion of any
Improvements (unless such cost shall have been included in the consequential
damages above mentioned);
SECOND, Tenant's leasehold Mortgagee, if any, shall receive a
sum equal to the unpaid principal balance of any Leasehold Mortgage, or so much
thereof as the balance of the award is sufficient to pay;
THIRD, Tenant shall receive the entire balance of the award,
if any.
Section 12.3 Substantial Taking Not Affecting Whole. If,
during the Term, a portion of the Premises shall be taken as a result of the
exercise of eminent domain with resulting damage to any Improvements and the
amount of the award made is based on a determination that the portion of the
Premises not so taken is of value and can practicably be rehabilitated, then
unless Tenant, within sixty (60) days after the vesting of title to the land in
the condemnor and issuance of the award, shall elect at its option, to cancel
this Lease and surrender the Premises to Landlord, this Lease shall upon vesting
of title in such proceedings terminate only as to that portion of the Premises
so taken, Base Rent shall xxxxx from and after vesting of title in such
proceedings in the proportion that the area taken bears to the area of the
entire Premises, and the total award shall be deposited into a construction
disbursing escrow for application against Tenant's cost of repair and
restoration of the Improvements which Tenant shall effect in such manner as it
deems appropriate. In the event Tenant elects not to effect such restoration or
is unable to do so, the award shall be shared between Landlord and Tenant on
such equitable basis as the parties shall determine. In the event the parties
are not so able to determine the disposition of such award, the parties shall
submit such determination to binding arbitration conducted in accordance with
the Commercial Arbitration Rules of the American Arbitration Association ("AAA")
or a similar arbitration mechanism if AAA is no longer in existence. Each party
shall pay the fees and expenses of its appraiser and one-half the fees and
expenses of the arbitrator.
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Section 12.4 Voluntary Transfers in Lieu of Condemnation.
Landlord shall not voluntarily transfer all or any part of the Premises or
Landlord's interest therein in lieu of the actual exercise of the power of
eminent domain without the prior written consent of Tenant which Tenant may
withhold in its reasonable discretion it being understood that, among other
reasons which may be the basis for the withholding of consent in Tenant's
reasonable discretion, Tenant may withhold consent if such proposed transfer
would in effect materially and adversely affect Tenant's rights under this Lease
or the operation by Tenant of its business at the Premises).
ARTICLE 13
UTILITIES; EASEMENTS; LANDLORD'S ACCESS
---------------------------------------
Section 13.1 Payment of Public Utility Charges. Tenant shall
pay or cause to be paid all charges for gas, water, sewer, electricity, light,
heat or power, telephone or other communication service used, rendered or
supplied upon in connection with the Improvements.
Section 13.2 Easements. Landlord agrees, upon request of
Tenant at any time and from time to time, and at the sole cost of Tenant, to
join in the grant of new easements and rights of way or alteration of existing
easements and rights of way upon, under or over the Premises for public
utilities, public purposes, access to public facilities, roads and ways,
parking, and reciprocal easements, provided such grant or grants are reasonably
necessary for the operation of the Premises for the uses herein permitted.
Landlord will not grant any easements, licenses or other rights which would
permit any third party to obtain rights to the Premises (other than mortgages or
deeds of trust granted by Landlord pursuant to Article 15) or modify any of the
Permitted Encumbrances other than the First Deed of Trust.
Section 13.3 Landlord's Access to Premises. Other than in the
event of an emergency involving an imminent threat to persons or property, in
which event Landlord may gain such access to the Premises and Improvements as is
necessary to protect such persons and/or property, Landlord may not have any
entry or access to the Premises or Improvements (i) without at least twenty four
(24) hours' prior notice to Tenant, (ii) except at reasonable times, (ii)
without being accompanied by a representative authorized by Tenant to permit
such entry by Landlord, (iv) other than in accordance with Tenant's reasonable
security arrangements, or (v) in any manner which interrupts, interferes with or
diminishes the operations of Tenant in the demised premises or would cause
Tenant to incur costs or expenses that Tenant would not have incurred but for
such entry. Any such access shall only be for the limited purposes of showing
the Premises to a prospective purchaser or lender.
ARTICLE 14
DEFAULT PROVISIONS
------------------
Section 14.1 Tenant's Default. Tenant shall be in default
under this Lease if (i) default shall be made in the payment of the Rent or any
installment thereof or in the payment of any other sum required to be paid by
Tenant under this Lease and such default shall continue for thirty (30) days
after written notice to Tenant, (ii) if default shall be made in the observance
or performance of any of the other covenants or conditions in this Lease which
Tenant is required to observe and perform and such default shall continue for
thirty (30) days after written notice to Tenant, unless such default cannot
reasonably be cured within such thirty (30) day period, in which event Tenant
shall have such additional reasonable period of time as is necessary to cure
17
such default provided it is diligently pursing such a cure during such
additional period of time, (iii) if a hazardous condition exists on or about the
Premises and/or the Improvements which Tenant is required to eliminate and such
condition is not eliminated within a reasonable period of time after written
notice from Landlord, (iv) if the interest of Tenant in this Lease shall be
levied on under execution or other legal process and the same is not dismissed,
stayed or vacated within sixty (60) days thereafter other than in connection
with the exercise by a Leasehold Mortgagee of its rights under a Leasehold
Mortgage, then Landlord may treat the occurrence of any one or more of the
foregoing events as a breach of this Lease, and thereupon at its option may,
with or without further notice or demand of any kind to Tenant or any other
person, be entitled to exercise any rights and remedies provided at law or in
equity; provided, however, subject to Section 2.6 above, in no event shall any
breach of this Lease by Tenant or the occurrence of any of the foregoing events
in this Section 14.1 provide a basis for termination of, or of Tenant's right of
possession under, this Lease by Landlord and Landlord shall not attempt to
terminate or to cause the termination of Lease or in any way seek to terminate
this Lease or Tenant's right of possession under this Lease as a result of any
such breach it being agreed and understood that Landlord's sole remedies in the
event of any such breach shall be limited to the recovery of damages and
obtaining equitable relief, including specific performance of Tenant's covenants
hereunder. Any and all damages whether paid or otherwise unpaid but incurred by
Landlord as a result of Tenant breaching any part of this Lease shall be deemed
to be Rent due pursuant to this Lease.
Section 14.2 Landlord's Cure of Tenant's Default. If Tenant
shall default in the performance or observance of any agreement or condition of
this Lease other than an obligation to pay money to Landlord and shall not cure
such default within the applicable cure period under Section 14.1, Landlord, at
its option, without waiving any claim for breach of this Lease, may at any time
thereafter cure such default for the account of Tenant, and any amount paid or
any contractual liability incurred by Landlord in so doing shall be deemed paid
or incurred for the account of Tenant, and Tenant shall reimburse Landlord
therefor or save Landlord harmless therefrom; provided, however, that Landlord
may cure any such default as aforesaid prior to the expiration of said waiting
period but after notice to Tenant, if the curing of such default prior to the
expiration of said waiting period is reasonably necessary to protect the
Premises or Landlord's interest therein, or to prevent injury or damage to
persons or property. If Tenant shall fail to reimburse Landlord upon demand for
any amount paid for the account of Tenant hereunder, said amount shall be added
to and become due as a part of the next payment of rent due hereunder. Tenant
hereby agrees to pay Landlord interest on such amount at the rate described
below in Section 14.3. Notwithstanding anything to the contrary contained
herein, in the case of emergency, notices required pursuant to this Section 14.2
may be given verbally or in any other reasonably due and sufficient manner
having regard to the emergency and the attending circumstances. If any such
notice shall not be given in the manner described in Article 19 of this Lease,
then, as soon thereafter as practicable, such notice shall be followed up by
notice given in the manner prescribed in said Article 19. No entry by Landlord
in accordance with the provisions of this Section 14.2 shall be deemed to be an
eviction of Tenant.
Section 14.3 Interest on Unpaid Sums. Tenant hereby
acknowledges that late payment by Tenant to Landlord of Rent due hereunder will
cause Landlord to incur costs not contemplated by this Lease, the exact amount
of which will be difficult to ascertain. Such costs include, but are not limited
to, processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any mortgage or trust deed encumbering the Premises.
Accordingly, if any installment of Rent due from Tenant shall not be received by
Landlord or Landlord's designee within fifteen (15) days after the date on which
such sum is due, Tenant shall pay to Landlord interest on said rent at a rate
(the "Over Due Rate") equal to two percent (2%) per annum above the prime rate
of interest publicly announced from time to time by The Bank of America or its
successor (provided that if said Bank shall cease to announce its prime rate,
then the prime rate shall mean the like rate of interest as publicly announced
by another bank determined by Landlord) (but in no event at a rate which is more
18
than the highest rate which is at the time lawful in the State of Missouri) from
the date such Rent was due. Acceptance of interest by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount, nor
prevent Landlord from exercising any of the other rights and remedies granted
hereunder.
Section 14.4 Default by Landlord. If any act or omission by
Landlord would give Tenant the right to xxx for damages from Landlord or to
claim any rights with respect to this Lease, Tenant will not xxx for such
damages or exercise any such rights until (i) it shall have given written notice
of the act or omission to Landlord and (ii) it shall have complied with the
provisions of Section 14.5. In no event shall any breach of this Lease by
Landlord provide a basis for termination of this Lease by Tenant and Tenant
shall not attempt to terminate this Lease or to cause the termination of this
Lease or in any way seek to terminate this Lease as a result of any such breach,
it being understood and agreed that Tenant's sole remedies in the event of any
such breach shall be limited to the recovery of damages and obtaining equitable
relief, including specific performance of Landlord's covenants hereunder.
Section 14.5 Landlord Mortgagee's Right to Cure. In the event
that Landlord shall default in the performance or observance of any of the
terms, conditions or agreements in this Lease, Tenant shall give written notice
thereof to each Landlord Mortgagee at the notice address provided to Tenant by
Landlord or by such Landlord Mortgagee, and Landlord Mortgagee shall have the
right (but not the obligation) to cure such default. Tenant shall not take any
action with respect to such default under this Lease, for a period of thirty
(30) days after receipt of such written notice by Landlord Mortgagee with
respect to any such default capable of being cured by the payment of money and
for a period of forty five (45) days after receipt of such written notice by
Landlord Mortgagee with respect to any other default (provided that in the case
of any default which cannot be cured by the payment of money and cannot with
diligence be cured within such forty (45) day period because of the nature of
such default or because Landlord Mortgagee requires time to obtain possession of
the Premises in order to cure the default, if Landlord Mortgagee shall proceed
promptly to obtain possession of the Premises, where possession is required, and
to cure the same and thereafter shall prosecute the curing of such default with
diligence and continuity, then the time within which such default may be cured
shall be extended for such period as may be necessary to complete the curing of
the same with diligence and continuity). Upon the written request of any such
mortgagee or prospective mortgagee, and for the exclusive benefit of said
mortgagee, Tenant will promptly deliver to said mortgagee such form of Tenant's
consent and waiver as may be reasonably required to assure such mortgagee that
Tenant will comply with this Section 14.5.
Section 14.6 Leasehold Mortgagee's Right to Cure. Concurrent
with any notice from Landlord to Tenant of a failure, breach or default by
Tenant in the performance or observance of any of the terms, conditions or
agreements in this Lease, Landlord shall give written notice thereof to each
Leasehold Mortgagee, and each such Leasehold Mortgagee shall have the right (but
not the obligation) to cure such default. Landlord shall not take any action
with respect to such failure, breach or default for a period of thirty (30) days
after receipt of such written notice by each Leasehold Mortgagee with respect to
any such default capable of being cured by the payment of money and for a period
of forty (45) days after receipt of such written notice by each such Leasehold
Mortgagee with respect to any other default (provided that in the case of any
default which cannot be cured by the payment of money and cannot with diligence
be cured within such forty five (45) day period because of the nature of such
default or because any such Leasehold Mortgagee requires time to obtain
possession of the Premises in order to cure the default, if each such Leasehold
Mortgagee shall proceed promptly to obtain possession of the Premises, where
possession is required, and to cure the same and thereafter shall prosecute the
curing of such default with diligence and continuity, then the time within which
such default may be cured shall be extended for such period as may be necessary
to complete the curing of the same with diligence and continuity). Upon the
written request of any Leasehold Mortgagee or prospective Leasehold Mortgagee,
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and for the exclusive benefit of said Leasehold Mortgagee, Landlord will
promptly deliver to said Leasehold Mortgagee such form of Landlord's consent and
waiver as may be reasonably required to assure such mortgagee that Landlord will
comply with this Section 14.6. Landlord shall accept any cure by a Leasehold
Mortgagee of a default by Tenant under this Lease as if the same had been
performed by Tenant; provided, however, no Leasehold Mortgagee shall be
obligated to cure any default by Tenant or any other matter .
ARTICLE 15
FINANCING
---------
Section 15.1 Landlord's Financing. Notwithstanding anything to
the contrary in this Lease, this Lease and Tenant's interest therein shall not
be subordinate or deemed to be subordinate to any deed of trust or other
security instrument (or to the lien created by any such deed of trust or
security instrument) which first encumbers the Premises or any portion thereof
after February 18, 2000, other than the First Deed of Trust, unless and until
Landlord delivers to Tenant in recordable form a "subordination, non-disturbance
and attornment agreement" duly executed by the ground lessor under any such
ground lease, the secured party under any such security instrument and/or the
beneficiary under any such deed of trust in substantially the form attached
hereto as Exhibit C. Landlord shall use its best efforts to obtain the
non-disturbance agreement contemplated under Section 6(b) of that certain Deed
of Trust by Landlord in favor of Xxxxxx Trust and Savings Bank dated July 28,
2000 (the "First Deed of Trust") in the form attached hereto as Exhibit C.
Landlord agrees that no Landlord Mortgage shall encumber, nor shall Landlord
permit any Landlord Mortgage to encumber, any Excluded Property nor shall any
Excluded Property be subject or subordinate to any Landlord Mortgage and upon
the from time to time request of Tenant, Landlord will use its best efforts to
cause any Landlord Mortgagee to execute and deliver to Tenant such written
confirmations of such exclusion and non-subordination in substantially the form
attached hereto as Exhibit D. Each Landlord Mortgage shall provide (i) that the
Landlord Mortgagee shall provide copies of any notices of default by Landlord
under such Landlord Mortgage, and any other notices required to be given under
the Landlord Mortgage, to Tenant and each and every Leasehold Mortgagee at the
addresses provided to such Landlord Mortgagee by Tenant and or any such
Leasehold Mortgagee; (ii) that the Landlord Mortgagee shall accept performance
by Tenant and/or any Leasehold Mortgagee of any term, covenant, agreement,
provision or condition of the Deed of Trust required to be performed by Landlord
under such Landlord Mortgage as though performed and observed by Landlord,
provided such performance by said Tenant and/or, Leasehold Mortgagee shall occur
within the time prescribed therefore in the Landlord Mortgage, plus an
additional period of thirty (30) days thereafter; provided, however, neither
Tenant nor any Leasehold Mortgagee shall be obligated to perform any term,
covenant, agreement, provision or condition of any Landlord Mortgage which is
required to be performed by Landlord; and (iii) for the release of the Premises
from such Landlord Mortgage and all other security interests in favor of
Landlord Mortgagee upon payment to Landlord Mortgagee of the lesser of (x) the
outstanding amount then owed by Landlord to Landlord Mortgagee and secured by
the Landlord Mortgage (y) the Fair Option Value or Put Price, as the case may
be.
Section 15.2 Tenant's Financing. Tenant shall have the right,
at any time and from time to time, in addition to any other rights herein
granted and without any requirement to obtain Landlord's consent to encumber any
Excluded Property or to mortgage or grant a security interest in Tenant's
leasehold interest in this Lease, any space leases and any other subleases,
under one or more Leasehold Mortgages, and/or to assign this Lease and any
subleases as collateral security for such Leasehold Mortgages. Tenant
acknowledges that so long as any Leasehold Mortgage shall remain unsatisfied of
20
record or until written notice of satisfaction is given by the holder to
Landlord, the following provisions shall apply in respect of such Leasehold
Mortgagee notwithstanding any other provisions of this Lease to the contrary:
(i) Other than a cancellation or termination of this
Lease as a result of the acquisition of the Premises pursuant to
Section 2.5 or Section 2.6, there shall be no cancellation,
termination, surrender, acceptance of surrender, amendment or
modification of this Lease by joint action of Landlord and Tenant, nor
shall Landlord recognize any such action by Tenant alone, without in
each case the prior consent in writing of any Leasehold Mortgage (which
shall not be unreasonably withheld, delayed or conditioned). Nor shall
any merger result from the acquisition by, or devolution upon, any
person or entity of both the fee estate in the Premises and the
leasehold estate created by this Lease. Any attempted cancellation,
termination, surrender, amendment, modification or merger of this Lease
without the prior written consent of all Leasehold Mortgagees (which
shall not be unreasonably withheld, delayed or conditioned) shall be of
no force or effect;
(ii) Each Leasehold Mortgagee shall be given notice
of any arbitration or action, suit or other proceeding or dispute
between the parties and shall have the right to intervene therein and
be made a party thereto if Tenant fails to do so. In any event, each
Leasehold Mortgagee shall receive notice, and a copy, of any award,
decision or judgment rendered in such arbitration, action, suit or
other proceeding.
(iii) If there is a condemnation or taking by eminent
domain in respect of the Premises, any award of payment which are to be
paid to Tenant shall, if required under any Leasehold Mortgage, be paid
instead to the Leasehold Mortgagees in accordance with the priority of
their liens and in accordance with the terms of the applicable
Leasehold Mortgage. If a condemnation or taking by eminent domain
results in a termination of this Lease, Tenant's portion of the award
or payment shall be paid to the Leasehold Mortgagees in accordance with
the priority of their liens and the provisions of their respective
Leasehold Mortgages.
(iv) No payment made to Landlord by any Leasehold
Mortgagee shall constitute agreement that such payment was, in fact,
due under the terms of this Lease; and the Leasehold Mortgagee having
made any payment or portion thereof to Landlord pursuant to Landlord's
wrongful, improper or mistaken notice or demand shall be entitled to
the return of any such payment or portion thereof provided it shall
have made demand therefor not later than one (1) year after the date of
its payment.
(v) In connection with the rights of a Leasehold
Mortgagee to cure Tenant's defaults under this Lease and to protect its
security, Landlord and Tenant hereby expressly grant to each Leasehold
Mortgagee, and agree that each Leasehold Mortgagee shall have, the
absolute and immediate right to enter in and upon the Premises or any
part thereof to such extent and as often as the Leasehold Mortgagee, in
its sole discretion, deems necessary or desirable in order to prevent
or to cure any such default by Tenant, without any obligation to do so.
(vi) In the event any right granted to a Leasehold
Mortgagee under this Section 15.2 shall by its nature only be
exercisable by one Leasehold Mortgagee and more than one Leasehold
Mortgagee desires to exercise such right, then in that event only the
Leasehold Mortgagee holding the most senior Leasehold Mortgage among
the Leasehold Mortgagees desiring to exercise such right, shall be
entitled to do so.
21
(vii) In the event a Leasehold Mortgagee or its
designee (by foreclosure, conveyance in lieu of foreclosure or
otherwise), or the purchaser at a foreclosure sale or the assignee or
designee of such purchaser, acquires Tenant's interest in this Lease,
the Leasehold Mortgagee or its designee shall not be bound by any
modification or amendment to this Lease not otherwise previously
approved by the Leasehold Mortgagee.
(viii) In the event a Leasehold Mortgagee or its
designee (by foreclosure, conveyance in lieu of foreclosure or
otherwise), or the purchaser at a foreclosure sale or the assignee or
designee of such purchaser, acquires Tenant's interest herein, such
party shall thereupon become Tenant under this Lease and hereby agrees
to perform each and all of Tenant's obligations and covenants hereunder
(including the payment of past due Rent); provided, however, that any
defaults by Tenant under this Lease which do not involve the payment of
money and which cannot be satisfied or cured by such party shall be
deemed waived.
(ix) Nothing in this Section 15.2 shall be deemed or
construed to create or impose any obligation, covenant or liability,
whatsoever, upon a Leasehold Mortgagee: (a) for the payment of Base
Rent and Additional Rent or any additional monetary sums due under this
Lease; (b) for the performance of any of Tenant's covenants and
agreements hereunder; or (c) to cure any default by the Tenant under
this Lease, and neither Tenant nor Landlord shall have any claims
against a Leasehold Mortgagee for its failure to make any payment or
take any action which it is entitled to take under this Section 15.2
until such time as such Leasehold Mortgagee assumes possession of the
Premises or acquires the Tenant's interest in the Lease, and then only
for as long as it remains in possession or the owner of the leasehold
estate created thereby, and Landlord expressly waives any and all such
claims.
(x) The liability of any Leasehold Mortgagee, its
successors and assigns, shall be limited in all respects to its
interest in this Lease and the leasehold estate created hereby and such
Leasehold Mortgagee shall have no personal liability hereunder and no
judgment or decree shall be enforceable beyond the interest of such
Leasehold Mortgagee in the leasehold estate created under this Lease or
shall be sought or entered in any action or proceeding brought in
connection with this Lease.
(xi) Notwithstanding anything to the contrary
contained in this Lease, if a Leasehold Mortgagee or its designee shall
acquire title to Tenant's interest in this Lease, by foreclosure of its
Leasehold Mortgage thereon or by assignment in lieu of foreclosure,
such Leasehold Mortgagee or designee may freely assign this Lease and
shall thereupon be released from all liability for the performance or
observance of the covenants and conditions in this Lease contained on
tenant's part to be performed and observed from and after the date of
such assignment; provided, however, that the assignee shall have
assumed the obligations of Tenant under the Lease that accrue from and
after the date of such assumption; and provided further, however, that
such assignee shall have a "net worth" which is no less than the "net
worth" of Tenant as of the Commencement Date.
(xii) Subject to the terms of its Leasehold Mortgage
and to the extent permitted therein, should a Leasehold Mortgagee be
entitled to the appointment of a receiver for all or any part of the
Premises (a "Receiver"), without regard to whether such Leasehold
Mortgagee has commenced an action to foreclose the lien of its
Leasehold Mortgage and without regard to the nature of the action in
which the appointment of a receiver is sought, Landlord agrees that it
will not oppose any such appointment, whether or not entitled by the
terms of this Lease to do so. Notwithstanding anything to the contrary
contained in this Lease, the appointment of the Receiver for the
22
Premises by any court at the request of a Leasehold Mortgagee or by
agreement between Tenant and such Leasehold Mortgagee, or the entering
into possession of the Premises by such Receiver, shall not be deemed
to make such Leasehold Mortgagee a It mortgagee-in-possession" or
otherwise liable in any manner with respect to the Premises and shall
not, in and of itself, constitute default under this Lease.
(xiii) Tenant and Landlord agree that the provisions of this
Section 15.2 are for the benefit of and shall be enforceable by each
Leasehold Mortgagee, its respective successors and assigns who comply
with the provisions of this Section 15.2.
(xiv) Each Leasehold Mortgage shall expressly provide that,
the rights granted by Tenant to the Leasehold Mortgagee respecting all
rights and interests of Tenant under this Lease, other than as to the
Excluded Property, are at all times subject and subordinate to the
rights and interests of Landlord and to the holder of the First Deed of
Trust and any renewals, modifications, replacements, and extensions of
such First Deed of Trust thereof and to any future Landlord Mortgage
after the date of this Deed of Trust. Further, each Leasehold Mortgage
shall provide that the Leasehold Mortgagee will execute such reasonable
agreements and instruments as may be required by Landlord and/ or its
lenders to further evidence such subordination.
ARTICLE 16
HOLDING OVER AND SURRENDER
--------------------------
Section 16.1 Surrender. At the termination of this Lease by
lapse of time or otherwise, and subject to the provisions of Section 9.3, Tenant
shall yield up immediate possession of the Premises in accordance with Article 9
and, failing so to do, Tenant hereby agrees to pay to Landlord an amount equal
to 150% of the amount of Base Rent plus the actual amount of Additional Rent,
then being paid by Tenant, plus any other damages prescribed by law.
ARTICLE 17
PROPERTY OF TENANT
------------------
Section 17.1 Personal Property, Trade Fixtures and Equipment.
Tenant may, at its sole cost and expense, install any trade fixtures, equipment,
and other personal property of a temporary or permanent nature used in
connection with its business on or at the Premises, and Tenant shall have the
right at any time during the Term to remove any and all such trade fixtures,
equipment, and other personal property that it may have stored or installed upon
or at the Premises. Landlord hereby waives any contractual, statutory or common
law "landlord's lien" as to all Excluded Property and Landlord agrees to deliver
a confirmation of such waiver from time to time as requested by Tenant in
substantially the form attached as Exhibit E.
Section 17.2 Abandonment of Property. In case Tenant shall
decide not to remove any part of its trade fixtures, equipment, or other
personal property upon expiration or earlier termination of this Lease, Tenant
shall notify Landlord in writing not fewer than ninety (90) days prior to the
scheduled expiration of the Term, or within thirty (30) days after the earlier
termination of this Lease, specifying those items of trade fixtures, equipment,
installations made pursuant to Section 17.2, or other personal property that
Tenant has decided not to remove. If, within thirty (30) days after service of
such notice, Landlord shall request Tenant to remove any of said trade fixtures,
equipment, or other personal property, Tenant shall, at its own expense, at or
before the scheduled expiration of the Term, or within ninety (90) days after
23
the earlier termination of this Lease, remove said trade fixtures, equipment,
and other personal property and, in case of damage by reason of such removal,
restore the Premises to good order and condition. Any of Tenant's trade
fixtures, equipment, and other personal property not removed by Tenant upon the
expiration or earlier termination of this Lease shall be considered abandoned by
Tenant, ("Abandoned Property") and may be appropriated, sold, destroyed, or
otherwise disposed of by Landlord without liability or obligation on Landlord's
part to pay or account for, same. Tenant will pay all reasonable costs and
expenses incurred by Landlord in removing, sorting, or disposing of Tenant's
trade fixtures, equipment, and other personal property and repairing all damage
to the Premises caused by removal of Tenant's trade fixtures, equipment, and
other personal property which Tenant has failed to remove despite Landlord's
request therefor. At the request of Landlord, Tenant will, at such time,
execute, acknowledge, and deliver to Landlord a xxxx of sale or other
appropriate conveyance document evidencing the transfer to Landlord of all
right, title and interest of Tenant in and to the Abandoned Property.
ARTICLE 18
ESTOPPEL CERTIFICATES
---------------------
Section 18.1 Estoppel Certificates. Landlord and Tenant each
agree to furnish, at any time and from time to time, so long as this Lease shall
remain in effect, upon not less than thirty (30) days prior written request by
the other party, a statement in writing certifying (i) that this Lease is
unmodified and in full force and effect (or if there have been modifications
that the same is in full force and effect as modified, stating the
modifications), (ii) that the dates to which the Rent and other charges have
been paid in advance, if any, (iii) that to the best knowledge of Tenant, there
are no defaults under the Lease by Landlord or Tenant, as the case may be,
except such defaults as may be specified in such statement, and (iv) that, in
the case of Landlord to its best knowledge, it is not in default under any
mortgage or deed of trust encumbering the Premises and that in the case of
Tenant, to its best knowledge it is not in default under any leasehold mortgage
encumbering Tenant's leasehold interest under this Lease, it being intended that
any such statement delivered pursuant to this Article may be relied upon by any
prospective purchasers of Landlord's or Tenant's respective interests or any
prospective mortgagee, holder of any mortgage, or assignee of any mortgage upon
Tenant's interest in the Premises.
ARTICLE 19
NOTICES
-------
Section 19.1 Manner of Making Notices. In every case where
under any of the provisions of this Lease or in the opinion of either Landlord
or Tenant, or otherwise, it shall or may become necessary or desirable to make
or give any declaration, approval or notice of any kind, it shall be sufficient
if a copy of any such declaration, approval or notice is hand delivered or sent
by registered or certified mail, return receipt requested, postage prepaid,
properly addressed to Landlord or Tenant (as the case may be) at the following
address (or such other address as may hereafter be given in writing as the
address for notice hereunder by one party to the other):
If to Landlord: Bridge Data Company
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
If to Tenant: Savvis Communications Corporation
24
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
Copies of all notices shall be given to Landlord's mortgagee and Tenant's
mortgagee at the address provided by Landlord and Tenant or by Landlord's
mortgagee or Tenant's mortgagee, as the case may be.
Section 19.2 When Notice Deemed Given. Whenever a notice which
is required by this Lease to be given by either party hereto to the other party,
the notice shall be considered as having been given on the day on which the
notice was hand delivered or placed in the United States mails as provided by
this Article.
ARTICLE 20
MISCELLANEOUS
-------------
Section 20.1 Covenants to Run with the Land. All the
covenants, agreements, conditions and undertakings in this Lease shall extend
and inure to and be binding upon the successors and permitted assigns of each of
the parties hereto, the same as if they were in every case named and expressed,
and the same shall be construed as covenants running with the land. Wherever in
this Lease reference is made to any of the parties hereto, it shall be held to
include and apply to, wherever applicable, also the successors and permitted
assigns of each such party, the same as if in each and every case so expressed.
Section 20.2 Survival of Indemnity and Payment Obligations.
Each obligation to indemnify, defend and hold harmless provided for in this
Lease and to pay any amounts accruing under this Lease prior to the date of
expiration or termination of this Lease shall survive the expiration or
termination of this Lease.
Xxxxxxx 00.0 Xx Xxxxxx xx Xxxxxxx. There shall be no merger of
this Lease or the leasehold estate created by this Lease with any other estate
or interest in the Premises by reason of the fact of the same person, firm,
corporation (including the Tenant), or other entity acquiring or owning or
holding, directly or indirectly, this Lease or the leasehold interest created by
this Lease or any interest in this Lease, and any such other estate or interest
in the Premises or any part thereof, and no such merger shall occur unless and
until all corporations, firms, and other entities having an interest (including
a security interest) in this Lease or the leasehold interest created by this
Lease and any such other estate or interest in the Premises or any part thereof,
shall join in a written instrument effecting such merger and shall duly record
the same.
Section 20.4 Relationship of Parties. Neither anything in this
Lease nor any acts of the parties shall be construed or deemed by the parties,
or by any third person, to create the relationship of principal and agent, or of
partnership, or of joint venture, or of any association between the parties.
Section 20.5 Successors and Assigns. The words "Landlord" and
"Tenant" and the pronouns referring thereto, as used in this Lease, shall mean,
where the context requires or permits, the persons named herein as Landlord and
as Tenant, respectively, and their respective heirs, legal representatives,
successors, and assigns, irrespective of whether singular or plural, or
masculine, feminine, or neuter. The agreements and conditions in this Lease
contained on the part of Landlord to be performed and observed shall be binding
upon Landlord and its heirs, legal representatives, successors, and assigns, and
shall enure to the benefit of Tenant and its heirs, legal representatives,
successors, and assigns; and the agreements and conditions on the part of Tenant
25
to be performed and observed hereunder shall be binding upon Tenant and its
heirs, legal representatives, successors, and assigns, and shall enure to the
benefit of Landlord and its heirs, legal representatives, successors, and
assigns.
Section 20.6 Entire Agreement. This Lease (including all
Exhibits) contains the entire and only agreement between the parties, and no
oral statements or representations or prior written matter or negotiations not
contained in this Lease shall have any force or effect. This Lease shall not be
modified, amended, canceled, surrendered, or terminated in any way except by a
writing, subscribed by authorized representatives of the party against whom it
is to be enforced, which writing shall contain the written consent of Landlord's
mortgagee and Tenant's mortgagee.
Section 20.7 Force Majeure Occurrences. In the event that
Landlord or Tenant are delayed or prevented from performing any of their
respective obligations during the Term because of strikes, lockouts, labor
troubles, inability to procure materials, failure of power, governmental
restrictions, casualty or reasons of a like nature not the fault of the party
delayed in the performance of such obligation, then the period of such delays
shall be deemed added to the time herein provided for the performance of any
such obligation and the defaulting party shall not be liable for losses or
damages caused by such delays; provided, however, that this Section 20.7 shall
not apply to the payment of any rent required to be paid by Tenant hereunder.
Section 20.8 Memorandum of Lease. Landlord and Tenant shall,
concurrently with the execution of this Lease, execute a memorandum of this
Lease in form acceptable to Tenant for recording in the chain of title of the
Land, setting forth the parties hereto, the date hereof, the term hereof, any
option to extend hereunder, and any options or rights of purchase or first
refusal, and said memorandum shall be promptly recorded by Tenant.
Section 20.9 Invalidity of Provisions. If any provision of
this Lease or the application thereof to any person or circumstances shall to
any extent be invalid or unenforceable, the remainder of this Lease, or the
application of such provision to persons or circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby, and each
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
Section 20.10 Remedies Cumulative. No remedy herein or
otherwise conferred upon or reserved to Landlord or Tenant shall be considered
exclusive of any other remedy, but the same shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute; and every power and remedy given by this Lease
to Landlord or Tenant may be exercised from time to time and as often as
occasion may arise or as may be deemed expedient by Landlord or Tenant, as the
case may be. No delay or omission of Landlord or Tenant to exercise any right or
power arising from any default shall impair any such right or power, nor shall
it be construed to be a waiver of any such default or an acquiescence therein.
Section 20.11 Waiver of Remedies Not to be Inferred. No waiver
of any breach of any of the covenants or conditions of this Lease shall be
construed to be a waiver of any other breach or to be a waiver of, acquiescence
in, or consent to any further or succeeding breach of the same or similar
covenant or condition.
Section 20.12 Modification. None of the covenants, terms or
conditions of this Lease to be kept and performed by Landlord or Tenant shall in
any manner be waived, modified, changed or abandoned except by a written
instrument, duly signed and acknowledged by Landlord and Tenant.
26
Section 20.13 Singular and Plural. Any word contained in the
text of this Lease, including but not by way of limitation "Tenant" and
"Landlord", shall be read as the singular or the plural and as the masculine,
feminine or neuter gender as may be applicable in the particular context.
Section 20.14 Captions. The captions of this Lease are for
convenience and reference only and in no way define, limit or describe the scope
or intent of this Lease.
Section 20.15 Law. This Lease shall be construed and enforced
in accordance with the laws of the State of Missouri.
Section 20.16 Attorneys' Fees. In the event of a dispute
between the parties resulting in litigation, the prevailing party shall have the
right to recover its reasonable attorneys' fees and expenses from the
non-prevailing party.
Section 20.17 Landlord Bankruptcy. Notwithstanding anything
herein, should the Lease be rejected by Landlord (and its assigns) pursuant to
an order of the U.S. Bankruptcy Court, Tenant will continue to have all of its
rights of election provided for in 11 USC 365 (h) (i) (A) (2) as well as any
other rights available to it under applicable federal or state bankruptcy or
non-bankruptcy law.
Section 20.18 Contingencies. Landlord is the subject of a
Chapter 11 bankruptcy proceeding currently pending in the United States
Bankruptcy Court for the Eastern District of Missouri (the "Bankruptcy Court"),
said proceeding being styled In re Bridge Information Systems Inc., et al., Case
No. 00-00000-000 (the "Bankruptcy Proceeding"). The parties acknowledge and
agree that this Lease Agreement is subject to the approval of the Bankruptcy
Court, after notice and an opportunity for a hearing afforded to creditors and
parties-in-interest. If the Bankruptcy Court does not approve this Lease for any
reason or no reason, this Agreement shall be without any legal or evidentiary
effect. Landlord convenants and agrees to promptly and diligently seek the
Bankruptcy Court's approval of this Lease Agreement and, in conjunction
therewith, to provide due and proper notice and opportunity for a hearing to
creditors and parties-in-interest in the Bankruptcy Proceeding.
Section 20.19 Counterparts. This Lease may be executed in one
or more counterparts, with signatures to one being deemed signatures to each
such counterpart, each of which shall be deemed one and the same instrument. The
parties agree that signature pages sent by facsimile shall be deemed originals.
ARTICLE 21
EXHIBITS AND ADDENDA TO LEASE
-----------------------------
Section 21.1 Exhibits and Addenda to Lease. Attached to this
Lease, and incorporated into and made a part of this Lease by this reference,
are the following:
(a) EXHIBIT A - Legal Description of the Land
(b) EXHIBIT B - Permitted Encumbrances
(c) EXHIBIT C - Subordination, Non-Disturbance and
Attornment Agreement
(d) EXHIBIT D - Mortgagee Waiver
27
(e) EXHIBIT E - Landlord Waiver
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Lease, effective as of the day and year first above written;
provided, however, as of the date on which each party executes the Lease as
indicated under their respective signatures below, and each party acknowledges
and confirms that the other party is not in default under the Lease as of said
date.
THIS LEASE CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
LANDLORD: TENANT:
BRIDGE DATA COMPANY SAVVIS COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
---------------------------- -----------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Chief Restructuring Officer Title: Vice President, General
Counsel
Date: 5/11/01 Date: 5/11/01
---------------------------- -----------------------------
28
EXHIBIT A
Legal Description of Land
Fee: Xxx 0 xx Xxxxxxxxxxxx XX Xxxxxx according to the plat thereof recorded
in Plat Book 347 page 548 of the St. Louis County Records.
Appurtenant Easements: Easement for vehicular and pedestrian ingress and
egress according to easement agreement recorded
September 10, 1999 in Book 12278 page 7.
Easement for sanitary sewer according to easement
agreement recorded September 10, 1999 in Book 12278
page 7.
Temporary slope, grading and construction license
according to easement agreement recorded September
10, 1999 in Book 12278 page 7.
29
EXHIBIT B
Permitted Encumbrances
1. All assessments and taxes for the year 2000 and all subsequent years for the
County of St. Louis and City of Xxxxxxxxx.
2. Easements for constructing and maintaining highway slopes, embankments and
drainage facilities, etc., and reservations, according to instruments recorded
in Book 4204 page 379 and Book 4205 page 499.
3. Terms and provisions of an agreement with Missouri Bottoms Sewer Company as
to treatment and disposal of sanitary sewage, together with annual maintenance
assessments according to instrument recorded in Book 6275 page 1381.
4. Perpetual roadway maintenance improvements and utility easement granted St.
Louis County, Missouri according to instruments recorded in Book 6814 page 1503
and Book 6995 page 2012.
5. Terms and conditions of "License Agreement" between Avon Capital Corporation
and XxXxxxxxx Xxxxxxx Corporation, according to instrument recorded in Book 7643
page 1397.
6. Terms and provision of Restrictive Covenant Agreement recorded September 9,
1999 in Book 12275 page 1603.
7. Building line according to plat recorded in Plat Book 347 page 548.
8. Terms and provisions of access agreement according to instrument recorded in
Book 12278 page 7.
9. Easement granted to Union Electric Company d/b/a Ameren UE by instrument
recorded in Book 12298 page 1673.
10. Terms and provisions of the Maintenance Agreement with The Metropolitan St.
Louis Sewer District, including a provision for sewer assessments, recorded in
Book 12420 page 1974.
11. Easement granted to The Metropolitan St. Louis Sewer District by instrument
recorded in Book 12438 page 2498.
12. Easement granted for permanent sidewalk, sewer and utility by instrument
recorded in Book 12451 page 1403.
13, In favor of Xxxxxx Trust and Savings Bank dated July 28, 2000 in Book 12634
page 186 in the records of the office of St. Louis County Recorder of Deeds.
30
EXHIBIT C
Subordination, Non-Disturbance and Attornment Agreement
THIS NON-DISTURBANCE AGREEMENT made and entered into as of
this _____ day of _____ ____, by and between
______________________________________ (hereinafter referred to as "Lender"),
_________________________________________ (Landlord"), and
________________________________________ (hereinafter called "Tenant"),
WITNESSETH:
WHEREAS, Lender is the Beneficiary under that certain Deed of
Trust dated as of _____________ , recorded in Book _______, Page __, St. Louis
County Records (the "Deed of Trust") encumbering certain real property located
in St. Louis County, Missouri, as described therein and in Exhibit A attached
hereto;
WHEREAS, Tenant has entered into a certain Lease dated
__________________ (together with any further extensions, renewals or
modifications thereof, the "Lease") with Landlord, demising certain premises
therein described and situated on the real property identified in Exhibit A
attached hereto (the "Premises");
WHEREAS, Tenant has requested Lender to recognize Tenant's
right to the Premises demised by the Lease in the event of foreclosure of the
Deed of Trust,
NOW THEREFORE, for and in consideration of the premises and
the mutual covenants hereof, the parties hereto stipulate, covenant, and agree
as follows:
1. Lender agrees that so long as Tenant shall not be in
default under the Lease after the expiration of any applicable notice and cure
period, (a) Tenant's rights under the Lease, including without limitation
Tenant's rights of possession and enjoyment of the Premises demised by the Lease
and Tenant's right and/or obligation to acquire the Premises as provided in
Sections 2.5 and 2.6 of the Lease shall be and remain undisturbed and unaffected
by any foreclosure or other proceedings involving the Deed of Trust, and (b)
upon any transfer of title to the Premises by a foreclosure sale involving the
Deed of Trust or a transfer in lieu of such foreclosure, the purchaser at such
foreclosure sale in connection with any transfer in lieu of such foreclosure
sale shall recognize Tenant as Tenant under the Lease and perform all of the
obligations of Landlord under the Lease in accordance with the terms of the
Lease, except as expressly limited by this Agreement. In the event Tenant
exercises its right to acquire the Premises or is obligated to acquire the
Premises pursuant to Section 2.5 or 2.6 of this Lease, as the case may be,
Lender shall release the Premises from the Deed of Trust and all other security
interests in favor of Lender upon the payment to Lender of the lesser of (x) the
outstanding amount then owed by Landlord to Lender and secured by the Deed of
Trust and (y) the Fair Option Value or Put Price (as may be as such terms are
defined in the Lease).
2. Tenant agrees with Lender that if the interest of Landlord
in the Premises shall be transferred to and owned by Lender by reason of
foreclosure or other proceeding brought by it, or in any other manner, or shall
be conveyed thereafter by Lender or shall be conveyed pursuant to a foreclosure
sale of the Premises, Tenant shall be bound to Lender under all of the terms,
covenants and conditions of the Lease for the balance of the term thereof
remaining and any extensions or renewals thereof which be effected in accordance
with any option therefor in the Lease, with the same force and effect as if
Lender were the landlord under the Lease, and Tenant does hereby attorn to
Lender as its landlord, said attornment to be effective and self-operative
31
without the execution of any further instruments on the part of any of the
parties hereto immediately upon Lender succeeding to the interest of Landlord in
the Premises. Tenant agrees, however, upon the election of and written demand by
Lender promptly to execute an instrument in confirmation of the foregoing
provisions, reasonably satisfactory to Lender, in which Tenant shall acknowledge
such attornment and shall set forth the terms and conditions of its tenancy.
Tenant hereby waives any and all rights to terminate the Lease by reason of any
foreclosure of the Deed of Trust, and if any court holds the Lease terminated by
reason of a foreclosure of the Deed of Trust, this Agreement shall be deemed a
new lease for the balance of the term of the Lease at the same rental therein
provided, and upon the same terms and conditions as therein provided.
3. Neither Lender nor any purchaser at foreclosure
shall, at any time after, be:
(a) liable for any act or omission of a prior
landlord, except that Lender, upon succeeding to Landlord's
interest and while in privity of estate with Tenant, and only
during such period, will remain obligated to cure any on-going
defaults;
(b) subject to any offsets or defenses which Tenant
might have against any prior landlord except such offsets and
defenses as are expressly provided for in the Lease and arise
out of Landlord defaults of which Tenant notified Lender at
the time of the alleged default;
(c) bound by any prepayment of rent or additional
rent which Tenant might have paid to any prior landlord more
than thirty (30) days prior to the due date of such
installment;
(d) liable for the return of any security deposit
which Tenant under the Lease has paid to any prior landlord
under the Lease which has not been paid to Lender or such
purchaser;
(e) personally liable for any default under the Lease
or any covenant or obligation on its part to be performed
thereunder as landlord, it being acknowledged that Tenant's
sole remedy in the event of such default shall be to proceed
against Landlord or purchaser's or Lender's interest in the
Premises;
(f) bound by any notice of termination not provided
for in the Lease given by Landlord to Tenant without Lender's
written consent thereto;
(g) bound by any provision in the Lease which
obligates the Landlord to erect or complete any building or to
perform any construction work or to make any improvements to
the Premises or to expand or rehabilitate any existing
improvements or, except as expressly provided in the Lease. to
restore any improvements following any casualty or taking,
except for repair and maintenance obligations as provided in
the Lease.
4. Subject to the provisions hereof, Tenant agrees that the
Lease as it may hereafter be amended, renewed, modified, replaced, substituted
or extended, from time to time, shall in all respects be, and is hereby
expressly made, subject, subordinate and inferior at all times to the lien of
the Deed of Trust and to all advances and/or payments made or to be made
thereunder, as it may have been or may hereafter be amended, increased, renewed,
modified, consolidated, replaced, combined, substituted, severed, split, spread,
32
refinanced, recast or extended, whether or not such Deed of Trust also covers
other lands and/or buildings and/or leases. Furthermore, nothing contained in
this Agreement shall in any way impair or affect the lien(s) created by the Deed
of Trust.
5. In the event that Landlord shall default in the performance
or observance of any of the terms, conditions or agreements in the Lease, Tenant
shall give written notice thereof to Lender, and Lender shall have the right
(but not the obligation) to cure such default. Tenant shall not take any action
with respect to such default under the Lease, including, without limitation, any
action in order to terminate, rescind or void the Lease or to withhold any
rental thereunder, for a period of 30 days after receipt of such written notice
by Lender with respect to any such default capable of being cured by the payment
of money and for a period of 45 days after receipt of such written notice by
Lender with respect to any other default (provided that in the case of any
default which cannot be cured by the payment of money and cannot with diligence
be cured within such 45 day period because of the nature of such default or
because Lender requires time to obtain possession of the Premises in order to
cure the default, if Lender shall proceed promptly to obtain possession of the
Premises, where possession is required, and to cure the same and thereafter
shall prosecute the curing of such default with diligence and continuity, then
the time within which such default may be cured shall be extended for such
period as may be necessary to complete the curing of the same with diligence and
continuity).
6. Landlord has agreed in the Deed of Trust that the rentals
payable under the Lease shall be paid directly by Tenant to Lender upon the
occurrence of an Event of Default under the Credit Agreement or upon the
occurrence of a default by Landlord under the Deed of Trust which remains
uncured after expiration of the applicable grace period under the Deed of Trust.
Accordingly, after notice is given by Lender to Tenant that the rentals under
the Lease should be paid to Lender, Tenant shall pay to Lender, or in accordance
with the directions of Lender, all rentals and other moneys due and to become
due to Landlord under the Lease. Tenant shall have no responsibility to
ascertain whether such demand by Lender is permitted under the Deed of Trust.
Landlord hereby waives any right, claim or demand it may now or hereafter have
against Tenant by reason of such payment to Lender, and any such payment to
Lender shall discharge the obligations of Tenant to make such payment to
Landlord.
7. This Agreement shall run with the land and shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns including any Leasehold Mortgagee (as such term is
defined in the Lease) or person or entity who acquires Tenant's interest in the
Lease through the enforcement of any Leasehold Mortgage (as such term is defined
in the Lease). All references to Lender in this Agreement shall include the
Lender herein specifically named any of its successors and assigns and anyone
who shall have succeeded to Landlord's interest in the Premises or acquired
possession thereof, by, through, under or on as a result of a foreclosure of the
Deed of Trust, or by any other manner of enforcement of the Deed of Trust.
8. This Agreement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of
which shall constitute together but one and the same agreement.
9. Tenant shall have the right, at Tenant's sole cost, to
record this Agreement in the St. Louis County Records.
10. This Agreement shall be governed by Missouri law.
11. In every case where under any of the provisions of this
Agreement it shall or may become necessary or desirable to make or give any
33
declaration, approval or notice of any kind, it shall be sufficient if a copy of
any such declaration, approval or notice is hand delivered or sent by registered
or certified mail, return receipt requested, postage prepaid, properly addressed
to Lender, Landlord or Tenant (as the case may be) at the following address (or
such other address as may hereafter be given in writing as the address for
notice hereunder by one party to the other):
If to Landlord: _______________________
_______________________
_______________________
If to Tenant: _______________________
_______________________
_______________________
If to Lender: _______________________
_______________________
_______________________
Whenever a notice which is required by this Agreement to be
given by any party hereto to any other party, the notice shall be considered as
having been given on the day on which the notice was hand delivered or placed in
the United States mails as provided by this Section 11.
12. Lender hereby acknowledges that it has no security
interest in any Excluded Property (as defined in the Lease) nor is Tenant's
interest in the Excluded Property or any portion thereof or the interest of any
Excluded Property Party (as defined in the Lease) in the Excluded Property or
any portion thereof subordinate or subject to the Deed of Trust or any security
interest in favor of Lender from Landlord.
13. The Agreement may not be amended except with the prior
written approval of all parties hereto.
IN WITNESS WHEREOF, the undersigned have executed and
delivered this instrument as of the day and year first above written.
-----------------------------------------
By:
--------------------------------------
Name:
Title:
-----------------------------------------
By:
--------------------------------------
Name:
Title:
34
-----------------------------------------
By:
--------------------------------------
Name:
Title:
35
STATE OF _____________ )
) SS:
OF __________ )
___________
On this day of _____________, before me appeared
_____________________, to me personally known, who, being by me duly sworn,
did say that he is the _____________________ of _________________________,
a _______________________, and that said instrument was signed on behalf of
said __________________, by authority of its Board of Directors; and said
_________________________ acknowledged said instrument to be the free act and
deed of said _________________.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed
my official seal in the ______________________ and State aforesaid, the day and
year first above written.
_______________________
Notary Public
My Commission Expires:
_________________________
STATE OF MISSOURI )
) SS:
COUNTY OF ST. LOUIS )
On this ________ day of ____________________, before me
appeared _____________________________, to me personally known to be the person
described in and who executed the foregoing instrument and who being by me duly
sworn, did say that he is the _____________ of _________________________, a
corporation organized and existing under the laws of the State of
______________; and said ____________________ acknowledged said instrument to
be his free act and deed and the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed
my official seal in the City and State aforesaid, the day and year first above
written.
________________________
Notary Public
My Commission Expires:
___________________________
36
EXHIBIT D
MORTGAGEE WAIVER
----------------
To: [insert name of lender]
________________ (the "Mortgagor"), is the mortgagor of the premises
known as [street address] (the "Premises"), more fully described in that certain
[name of mortgage document], recorded on [date mortgage document recorded] at
Recorder's File No. ______ in the real estate records of [jurisdiction of
recordation of mortgage document] (the "Mortgage"), a copy of which is attached
hereto as Exhibit A and made a part hereof.
The Mortgagor has leased the Premises to _______________, a ____________
corporation (the "Company") as tenant pursuant to that certain Lease Agreement,
dated as of _______________, between the Company and the Mortgagor (capitalized
terms not otherwise defined herein shall have the meaning ascribed to such
capitalized terms in the Lease).
[insert name of Excluded Premises User] has entered into a certain
[insert description of applicable credit/loan/security agreement] with _________
("Lender") and, as a condition precedent to the advances and other financial
accommodations being made available and continuing to be made available to the
Borrower, Lender requires, among other things, first priority liens on all of
the Collateral (as defined below) located at the Premises (as defined in the
Lease).
[The Company and the undersigned have entered into a Subordination,
Non-Disturbance and Attornment Agreement, dated _________________.]
"Collateral" means all Excluded Premises described Schedule 1 hereto.
The undersigned hereby acknowledges the financing arrangements set
forth above, and for other good and valuable consideration, the undersigned
hereby agrees that:
(i) it will not assert against any of the Collateral
any liens, including, without limitation, statutory or
possessory liens, rights of levy or distraint for rent, all of
which it hereby waives, or exercise any rights or remedies
with respect to any security interests it may have in the
Collateral, which security interests, if any, are hereby
subordinated to the Lender's security interests in the
Collateral;
(ii) none of the Collateral shall be deemed to be
part of the realty constituting the Premises, whether or not
attached to the real estate;
(iii) if, for any reason whatsoever, the undersigned
deems itself entitled to take possession of the Premises from
the Company under the Mortgage during the term of the Lease
Agreement, the undersigned will notify the Lender fifteen (15)
days before taking such action; and
(v) if Lender undertakes to enforce its security
interest in the Collateral, subject to the provisions of the
Lease Agreement and the Subordination, Non-Disturbance and
Attornment Agreement, the undersigned will permit the Lender
to have access to the Premises for the removal of the
Collateral from the Premises (and shall so permit such
37
removal) The undersigned will not hinder the Lender's actions
in enforcing its liens on the Collateral, provided the Lender
repairs, or reimburses the undersigned for the cost of repairs
to the Premises occasioned by such removal.
Any notice(s) required or desired to be given hereunder shall
be directed by certified mail to the party to be notified at the address stated
herein.
The agreements contained herein shall continue in force until the earlier to
occur of (i) satisfaction in full of all of Borrower's obligations and
liabilities to Lender and all financing arrangements between the Lender and
Borrower have been terminated, (ii) Lender has removed its Collateral; (iii)
thirty days after termination of the Lease; or (iv) termination of the Mortgage.
The undersigned will notify all of its successor owners,
transferees, purchasers and mortgagees of the existence of this waiver. The
agreements contained herein may not be modified or terminated orally and shall
be binding upon the successors, assigns and personal representatives of the
undersigned, upon any successor owner or transferee of the Premises, and upon
any purchasers, including any mortgagee, from the undersigned.
Executed and delivered this ___ day of __________, _____.
Witness: _______________________________
__________________________________ _______________________________
Print Name:_______________________ By:____________________________
Title: ________________________
__________________________________
Print Name:_______________________ Address:_______________________
_______________________________
STATE OF __________________ )
) SS
COUNTY OF ____________ ______)
On this ____ day of ___________, ____, before me
___________________, personally appeared __________________, _______________ of
_________________, and that he, as such, being authorized so to do, executed the
foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
______________________________
Notary Public
My commission expires: ______
38
EXHIBIT E
LANDLORD WAIVER
To: [Insert name of lender )
[Insert name of Excluded Premises User] ("Borrower"), is the [insert
status of Excluded Premises User] at [of] the premises known as
[____________________, _______________, _______________ ](the "Premises"), more
fully described in the lease (as the same may hereafter be amended,
supplemented, amended and restated, renewed or otherwise modified from time to
time, the "Lease") attached hereto as ________ and made a part hereof
(capitalized terms not otherwise defined herein shall have the meaning ascribed
to such capitalized terms in the Lease). The undersigned is the sole owner of
the Premises and Borrower has certain of its assets located at the Premises.
Borrower has entered into a certain [insert description of applicable
credit/loan/security agreement] with ______________ (the "Lender"), and, as a
condition precedent to the advances and other financial accommodations being
made available and continuing to be made available to the Borrower, the Lender
requires among other things, first priority liens on all Excluded Premises
described on Schedule 1 hereto (the "Collateral").
To induce the Lender to enter into and continue said financing
arrangements, and for other good and valuable consideration, the undersigned
Landlord under the Lease hereby agrees that:
(i) it will not assert against any of the Collateral
any statutory or possessory liens, including, without
limitation, rights of levy or distraint for rent, all of which
it hereby waives;
(ii) none of the Collateral shall be deemed to be
part of the Premises, whether or not attached to the real
estate;
(iii) it or its beneficiaries will notify Lender if
Savvis Communications Corporation, as Tenant under the Lease,
defaults on its obligations under the Lease to the undersigned
and will allow the Lender fifteen (15) days from the
undersigned's sending of notice in which to cure or cause
Tenant to cure any such default;
(iv) if, for any reason whatsoever, the undersigned
either deems itself entitled to redeem or to take possession
of the Premises during the term of the Lease, the undersigned
will notify the Lender fifteen (15) days before taking such
action; and
(v) if Borrower defaults on its obligations to
Lender, and, as a result, the Lender, undertakes to enforce
its security interest in the Collateral, the undersigned will
permit Lender to have access to the Premises at reasonable
times for the removal of the Collateral from the Premises (and
shall so permit such removal) The undersigned will not hinder
the Lender's actions in enforcing its liens on the Collateral,
provided the Lender repairs, or reimburses the undersigned for
the cost of repairs to the Premises occasioned by such
removal.
39
Any notice(s) required or desired to be given hereunder shall be
directed by certified mail to the party to be notified at the address stated
herein.
The agreements contained herein shall continue in force until the
earlier to occur of (i) satisfaction in full of all of Borrower's obligations
and liabilities to Lender and all financing arrangements between the Lender and
Borrower have been terminated, (ii) Lender has removed its Collateral; or (iii)
thirty days after termination of the Lease.
The undersigned will notify all successor owners, transferees,
purchasers and mortgagees of the Premises of the existence of this waiver. The
agreements contained herein may not be modified or terminated orally, shall run
to the benefit of the Lender and their successors and assigns, and shall be
binding upon the successors, assigns and personal representatives of the
undersigned, upon any successor owner or transferee of the Premises, and upon
any purchasers, including any mortgagee, from the undersigned.
Executed and delivered this ________ day of ______________, _____,
at _____________, _____________.
Witness: Landlord:
______________________________ ___________________________________
PRINTED NAME__________________
______________________________
PRINTED NAME__________________ By:________________________________
Its:_______________________________
Address:___________________________
STATE OF ____________ )
) SS
COUNTY OF ___________ )
On this _____ day of _______________, ____, before me
__________________, personally appeared , known to me to be the _______________
of the above named ______________________, and that , as such
____________________, being authorized so to do, executed the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
[SEAL] ___________________________________
Notary Public
My commission expires:
40
EXHIBIT A
----------
TO
--
LANDLORD WAIVER
---------------
[Lease Attached]
41
Document Name: Ground Lease - Xxxxxxxxx
Author/Owner: Xxxxxxxxxx, Xxxxx X.
Revisions Requested by:
--------------------------------------------
Client #: 3999
Client Name: Xxxxxxxx Xxxxxx
Matter #: 1
Matter Name: New Clients/Matters [temporary]
PCDocs #: 1556125
Version #: 8
Typist/User Name: Xxxxx, Xxxxxx X.
Application: MS Word
Today's Date: May 2, 2001
Abstract:
DO NOT DISCARD THIS PAGE
42
