OFFICE LEASE
Exhibit 10.11
The
terms
and conditions in the text of this Lease and the Exhibits thereto modify,
supplement and qualify the information on the Basic Lease Data portion of
this
Lease.
BASIC
LEASE DATA:
1. Lease
Date: October 10, 2005.
2. Landlord:
NorthPark Partners ESI, LLC, a Missouri limited liability company.
3. Tenant:
Express Scripts, Inc., a Delaware corporation.
4. The
term
"Building" shall mean an office building containing approximately 315,000
rentable square feet (RSF) on three (3) floors plus a lower level that Landlord
shall construct in the development to be known as “University Place/NorthPark,
University of Missouri-St. Louis Business,
Technology and Research Park” (the “Park”). The Park will be situated on the
northern portion of the University of Missouri at St. Louis ("UMSL") campus
as
shown on the Site Plan attached hereto as Exhibit
A.
The
exact square footage of the Building will be determined by BOMA measurement
as
provided in Section 1.E.
5. The
term
"Property" shall mean the land that is being ground leased by Landlord from
the
Ground Lessor (as defined below) and on which the Building will be constructed
(the “Land”), together with (i) all improvements on the Land, including the
Building, and (ii) any and all rights, appurtenances, easements and amenities
appertaining to the Land to the extent the same are leased to Landlord under
the
Ground Lease. A legal description of the Land is attached hereto as Exhibit
A-1.
The
Land is subject to adjustment as described in Section 55 hereof. The Land
initially comprising the Property contains 14.883 acres.
6. The
term
"Premises" means the premises being leased by Tenant hereunder, which initially
includes the entire Property, as the same may be expanded pursuant to Section
49, and which may later be reduced as a result of the exercise of Tenant’s “give
back rights” in Section 40. The Premises is also subject to adjustment as
described in Section 55 hereof.
7. Permitted
Use: any lawful use, subject to the restrictions in Section 1B.
8. Address
of Landlord for notices and for payment of Rent (and see Section 23 of the
Lease):
NorthPark
Partners ESI, LLC
0000
Xxxxxxxxx Xxxxxxx Xxxxx, Xxxxx 000
X’Xxxxxx,
Missouri 63368
Attn:
Xxxxxxxxxxx X. XxXxx
Telecopy
No.:
000-000-0000
9. Address
of Tenant for notices before Commencement Date (and see Section 23 of the
Lease):
Express Scripts, Inc.
0000
Xxxx 00xx Xxxxxx
Bloomington, MN 55439
Attn:
Xxx
Xxxxxxxxx, Vice President, Facilities
Telecopy
No.:
(000)
000-0000
With
a
copy to:
Express
Scripts, Inc.
00000
Xxxxxxxxx Xxxxx
Maryland
Heights, Missouri 63043
Attn:
Xxxxxx Xxxxxxxx
Telecopy
No.: (000)
000-0000
10. Address
of Tenant for notices after Commencement Date (and see Section 23 of the
Lease):
Express
Scripts, Inc.
0000 Xxxx 00xx Xxxxxx
Bloomington, MN 55439
Attn: Xxx Xxxxxxxxx, Vice President, Facilities
Telecopy No.: (000)
000-0000
With
a
copy to:
Express
Scripts, Inc.
University
Place Drive
St.
Louis, Missouri 63121
Attn:
Xxxxxx Xxxxxxxx
Telecopy
No.: (000)
000-0000
11. Initial
Lease Term: approximately ten (10) years and six (6) months from the
Commencement Date, ending as per Section 4 of this Lease.
12. Commencement
Date: upon
the
later of (i) March 1, 2007 (the “Scheduled Date”); or (ii) upon Substantial
Completion (as defined in Sections 4.B), and subject to adjustment as provided
in Section 4.C.
13. Expiration
Date: the date approximately ten (10) years and six (6) months after the
Commencement Date - the exact date determined as per Section 4.A of this
Lease.
14. Renewal
Options: two (2) additional terms of five (5) years each. See Section
37.
15. Annual
Base Rent During Initial Term: see Exhibit
B.
16. Annual
Base Rent During Each Renewal Term, if applicable: See Section 37.B of this
Lease.
17. Monthly
Installments of Base Rent: one-twelfth (1/12th) of applicable annual Base
Rent.
18. Taxes:
Details in Section 6. Tenant pays 50% of the amount that would be due as
Taxes
during years 2007 through 2016 if Taxes had not been abated, and 100% of
Taxes
commencing in 2017.
19. Tenant's
Repair Obligations: Tenant shall maintain the Premises as per Section 9 of
this
Lease.
20. Landlord's
Repair Obligations: See Section 7.A of this Lease.
21. Utilities:
Tenant provides all utilities at Tenant's expense.
22. Services:
Landlord provides services as per Sections 7 and 51 of this Lease. Tenant
provides all other services. Services are subject to change if Tenant exercises
its give back rights. See Section 40.B.
23. Security
Deposit: none.
24. Tenant's
Required Liability Insurance coverage: $2,500,000 See Section 8.B of this
Lease.
Worker's compensation insurance required also as per Section 8.C.
25. Tenant's
Required Casualty Insurance coverage: all risk, full replacement cost on
Tenant's property and on all leasehold improvements. See Section 8.B of this
Lease.
26. Landlord's
Required Insurance: See Sections 8.A and 8.C.
27. Xxxxxxxx's
Broker or Agent: none.
28. Tenant's
Broker or Agent: Xxxxx
& Xxxxx Company.
29. Guarantor(s):
none.
30. Signage:
See Section 31.
31. Parking:
at no charge, on an unreserved basis, according to the ratio stated in Section
30. All
parking is onsite on the Premises. Landlord’s current building design includes
920 covered parking spaces in a parking structure of 1,440 spaces. The balance
of the parking is on surface lots. The parking areas are subject to adjustment.
See Sections 30 and 55.
32. Subletting
and Assignments: See Section 14.
33. Landlord
Improvements: As per Section 2, Landlord at Landlord’s expense shall complete
the work described on the Outline Plans and Specifications listed on
Exhibit C.
34. Tenant
Improvements: As per Section 3 of the Lease, Landlord will perform the Tenant
Improvements. The Tenant Improvement Allowance shall be provided by Landlord
to
be applied toward the cost of the Tenant Improvements, and if the cost of
the
Tenant Improvements exceeds said Allowance, the excess shall be paid by
Xxxxxx.
35. Tenant
Improvement Allowance: An allowance of forty-one dollars ($41.00) per rentable
square foot, which may be used at Tenant’s discretion for any expense related to
the Premises. The Tenant Improvement Allowance is subject to adjustment for
Xxxxxx requested change orders. See Section 3 for additional details.
36. Critical
Milestone Dates: See Section 4.E.
37. Obligation
to Reimburse Capital Expenditures Upon Expiration: See Section 39.
38. Tenant
Option to Reduce Space: See Section 40.
39. Tenant's
Early Termination Option: See Section 41.
40. Landlord
Obligation Relating to Tenant's Old Premises: See Section 42.
41. Alternative
Dispute Resolution: See Section 46 and Exhibit
G.
42. Ground
Lease Contingency: See Section 48.
43. Tenant
Condemnation Contingency: See Section 49.
44. Economic
Incentives: See Section 50.
45. Pricing
Re Property Management Services: See Section 51.
Attachments:
This Lease is supplemented by the following Exhibits or Addenda, which are
part
of the Lease and which are incorporated by reference into the
Lease:
| Exhibit A | SITE PLAN |
| Exhibit A-1 | LEGAL DESCRIPTION OF LAND |
| Exhibit B | BASE RENT DURING INITIAL TERM |
| Exhibit C | OUTLINE PLANS AND SPECIFICATIONS |
| Exhibit D | BUILDING RULES AND REGULATIONS |
|
Exhibit E
|
FORM OF SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT |
| Exhibit F | ROOF LICENSE AGREEMENT |
| Exhibit G | ALTERNATIVE DISPUTE RESOLUTION PROCEDURES |
Initials:
L__________
T__________
THIS
OFFICE LEASE is made as of the Lease Date set forth in the Basic Lease Data
Section, by and between NorthPark Partners ESI, LLC, a Missouri limited
liability company (hereinafter referred to as "Landlord"), and Express Scripts,
Inc., a Delaware corporation (hereinafter referred to as "Tenant").
WITNESSETH:
A. The
Curators of the University of Missouri, a public corporation ("Ground Lessor")
owns the Property;
B. Ground
Lessor and Landlord are parties to a 99 year Ground Lease for the Property
(the
"Ground Lease");
X. Xxxxxxxx
and Tenant desire for Landlord to construct a building and other improvements
on
the Property, and to sublease the Property, as so improved, to Tenant, on
terms
set forth in this Lease.
NOW,
THEREFORE, Landlord and Tenant, in consideration of the premises and of the
mutual duties and obligations undertaken by Landlord and Xxxxxx as hereinafter
set forth, hereby agree as follows:
1. Lease
of
Premises; Use.
A. Subject
to the terms, covenants and conditions of this Lease, Landlord hereby leases
the
Premises to Tenant, and Tenant hereby leases the Premises from Landlord.
B. Any
lawful use is acceptable;
provided that Landlord’s
consent shall be required for any utilization of the Premises that would
substantially increase Landlord’s insurance or maintenance obligations above
those relating to use of the Premises as an office building or pharmaceutical
distribution center.
If the
Building becomes multi-tenant, any change of use by Tenant will also require
Landlord’s approval to ensure that the changed use is compatible with general
office use. Landlord’s foregoing consent or approval such not be unreasonably
withheld, conditioned or delayed. Notwithstanding any provision in this Lease
to
the contrary, Tenant shall not use, and shall not permit any subtenants to
use
the Premises for: (i) any uses that are prohibited by the Ground Lease, (ii)
any
uses prohibited by any recorded restrictions applicable to the Property,
and
(iii) any uses prohibited by applicable law. All uses of the Premises by
Tenant
shall be in accordance with all applicable zoning laws and shall not require
parking beyond the number of parking spaces allocated to Tenant under this
Lease. Tenant may not use the Premises in any manner not permitted in this
Section 1.B. Tenant at Tenant's expense shall obtain all permits, licenses
and
other consents required for Tenant's use and occupancy of the Premises
(excluding building permits for the Landlord Improvements and Tenant
Improvements, which shall be obtained by Landlord).
X. Xxxxxx's
rights under this Lease are subject to all restrictions, Protective Covenants,
covenants, easements, rights-of-way of record, if any, and applicable zoning
regulations. Without limiting the foregoing, Landlord and Tenant acknowledge
that the Premises and Xxxxxx’s rights under this Lease are subject to protective
covenants covering the Park that Landlord and Xxxxxx participated in drafting
with the University (the “Protective Covenants”).
D. Promptly
after the necessary information is available, Landlord and Tenant shall execute
a written memorandum setting forth the Commencement Date, the expiration
date,
the number of rentable square feet in the Premises, the Base Rent, Tenant's
acceptance of the Landlord Improvements, and such other factual matters as
Landlord or Tenant shall reasonably request (the "Lease
Memorandum").
E. Once
sufficient information is available, the Project Architect shall determine
the
RSF for the Building and for the Premises in accordance with BOMA standards
(including ANSI/BOMA Z65.1-1996 standard) and report the results of such
calculations to Landlord and Tenant (the "BOMA Measurement"). Tenant's Base
Rent
as calculated pursuant to Exhibit
B
to this
Lease, shall be based on the RSF numbers determined by the BOMA
Measurement.
2. Landlord
Improvements.
A. Attached
hereto as Exhibit
C is a schedule of the plans and specifications comprising the
outline specifications (“Outline Plans and Specifications”) for the improvements
to be constructed on the Property by Landlord (the “Landlord Improvements”). The
Building will have three (3) wings, each with three (3) floors and one with
a
lower level, and will contain a total of approximately 315,000 rentable square
feet (RSF), as shown on the drawings included within the Outline Specifications.
The Landlord Improvements include the construction of a building shell,
which will include all improvements to the ceiling and above, including
sprinkler system, HVAC, lighting, ceiling grid and tile, all in conformance
with
Tenant's space plan and as outlined in the Outline Plans and Specifications.
Landlord shall be solely responsible for the costs of the Landlord Improvements,
including, but not limited to, design, architectural fees, permit fees, and
the
amounts due the “Contractor” (as hereinafter defined).
B. Landlord
will retain Xxxxxxxxx, Inc. as lead architect for the Landlord Improvements
(the
“Project Architect”) for a net (no engineering) fee of two and one-half percent
(2.5%) of the cost of the Landlord Improvements and otherwise in accordance
with
the terms and conditions of a mutually acceptable service contract between
Landlord and Xxxxxxxxx, Inc.
C. Landlord
intends to hire or has hired a joint venture consisting of Paric Corporation
("Paric") and Clayco Construction Company, Inc. ("Clayco") (said joint venture
is referred to as "Contractor") as the general contractor to construct the
Landlord Improvements.
D. Subject
to the next paragraph, the Outline Plans and Specifications are hereby approved
by Landlord and Tenant.
X. Xxxxxxxx
and Tenant shall work with the Project Architect, Contractor and Ground Lessor
(for code compliance purposes only) to develop a final set of construction
plans
consistent with the Outline Plans and Specifications. Said construction plans
once approved by Landlord, Tenant, the Project Architect, Contractor and
Ground
Lessor are referred to as the "Final LI Plans." The parties acknowledge that
Tenant must provide its interior space plan by February 1, 2006 in order
for the
Tenant to be able to meet the Scheduled Date (as hereinafter defined).
X. Xxxxxxxx
and Tenant shall cooperate with the Project Architect and the Contractor
to
obtain the issuance of a building permit from the Ground Lessor as soon as
possible. If the Ground Lessor requires any changes to the Final LI Plans,
Landlord and Tenant, shall work together with the Contractor and the Project
Architect to promptly resolve any issues that may arise concerning the changes
requested by the Ground Lessor.
G. Landlord
shall cause the Contractor to make its books and records pertaining to
construction of the Landlord Improvements and the Tenant Improvements available
for Tenant’s review at any time during normal business hours upon reasonable
advance notice at a location in St. Louis or St. Xxxxxxx County, Missouri.
The
terms of any agreement between Landlord and the Contractor shall be consistent
with the foregoing, and shall provide for the work to be completed on open
book
basis. Neither Landlord nor the Contractor shall approve any changes in the
Final LI Plans or request any change directive without Xxxxxx’s prior written
approval, and neither Landlord nor the Contractor shall execute any change
orders or change directives without the prior written consent of
Xxxxxx,
such
consent not to be unreasonably withheld.
Tenant
shall respond in writing to any requests made by Landlord or Contractor for
changes in the Final LI Plans within ten (10) days after Xxxxxx’s receipt of
same. If Tenant does not consent to any requested change order, Xxxxxx’s written
response shall specify Tenant’s reasons for such non-consent. Notwithstanding
the foregoing, Tenant shall have the right, in its discretion, to deny any
request for a change order or change directive that (i) in Tenant’s reasonable
opinion materially and adversely affects the Premises; or (ii) results in
any
increased cost payable by Xxxxxx.
H. Landlord
shall cause the Contractor to (i) proceed diligently to complete the
Landlord
Improvements, (ii) provide
to Landlord and Tenant, prior to the start of construction, a copy of the
construction schedule, and (iii) keep Landlord and Xxxxxx advised of any
changes
to the construction schedule.
I. During
construction of the Landlord Improvements, Landlord or the Contractor shall
carry builder's risk insurance on the Landlord Improvements.
J. Landlord
shall cause the Contractor to construct the Landlord Improvements in a good
and
workmanlike manner, in accordance with all applicable laws and in substantial
compliance with the Final LI Plans.
K. Once
the
Final LI Plans are developed, Landlord shall advise Tenant of the estimated
cost
of constructing the Landlord Improvements pursuant to such Final LI Plans
(the
“Estimated LI Cost”). From time to time during the course of construction of the
Landlord Improvements, Tenant may request changes to the Final LI Plans (each
a
“Tenant LI Change Order Request”, and collectively the “Tenant LI Change Order
Requests”). Any Tenant LI Change Order Request shall be subject to the approval
of Landlord, not to be unreasonably withheld. Within five (5) business days
after receipt of a Tenant LI Change Order Request, Landlord shall notify
Tenant
in writing whether it is willing to approve the subject Tenant LI Change
Order
Request and if Landlord is not willing to approve such Request, such notice
shall include Landlord’s reasons therefor. If Landlord advises Tenant that it is
willing to approve the subject Tenant LI Change Order Request, Xxxxxxxx’s notice
shall include a memorandum setting forth the impact on cost and schedule
resulting from such Tenant LI Change Order Request (each a “Tenant LI Change
Order Memorandum”). Tenant shall, within five (5) business days following
Xxxxxx’s receipt of a Tenant LI Change Order Memorandum, either (i) execute and
return the Tenant LI Change Memorandum, in which case the project budget
and
construction schedule shall be deemed modified automatically without further
action from either party to take account of such Tenant LI Change Order Request;
or (ii) retract its Tenant LI Change Order Request. Landlord shall provide
Tenant with a statement summarizing all agreed-upon TI Change Order Memoranda
and their cumulative effect on the Estimated LI Cost and the project schedule.
If, after taking all agreed-upon Tenant LI Change Memoranda into account,
the
cost to construct the Landlord Improvements will exceed the Estimated LI
Cost,
the amount of such increase shall be deducted from the amount of the “Allowance”
(as defined below). If, after taking all agreed-upon Tenant LI Change Memoranda
into account, the cost to construct the Landlord Improvements will be less
than
the Estimated LI Cost, the amount of such decrease shall be added to the
amount
of the “Allowance” (as defined below).A Tenant LI Change Order Request shall not
become part of the Landlord Improvements unless a written Tenant LI Change
Order
Memorandum is signed by Landlord, Tenant, Architect and the Contractor approving
the change. Once a Tenant LI Change Order Memorandum has been signed by
Landlord, Tenant, the Contractor and Project Architect (and Ground Lessor
approval of the change has been obtained if required), the Final LI Plans
are
deemed modified by the signed LI Tenant TI Change Order Memorandum.
L. Tenant
shall have access to the Premises at reasonable times during construction
for
the purpose of monitoring the construction work, and Landlord and Tenant
shall
promptly inform each other in writing if either discovers any defects in
or
other problems with Contractor's construction work. Tenant shall comply with
any
rules and procedures adopted by the Contractor regulating Landlord Improvements
site visits.
M. Not
less
than five (5) business days prior to the anticipated Substantial Completion
of
the Landlord Improvements (as defined in Section 4.B), Landlord, Tenant,
Contractor and Project Architect shall participate in a joint inspection
of the
Landlord Improvements and identify those items, if any, that are incomplete
or
do not conform to the Final LI Plans. At such inspection, Landlord, Tenant,
Contractor and Project Architect shall also develop a schedule of “Punchlist
Items”, which shall be those incomplete or nonconforming items the
non-completion or non-correction of which will not cause the Landlord
Improvements from being Substantially Complete (as defined in Section
4.B).
N. Possession
of the Premises shall be delivered to Tenant on the Commencement Date (see
Basic
Lease Data Section of this Lease for the manner in which the Commencement
Date
is determined), notwithstanding that there may be Punchlist Items to be
completed.
O. Landlord
shall cause the Contractor to complete any Punchlist Items within 45 days
after
the Punchlist Items schedule is approved in writing by Landlord and Tenant,
except that Punchlist Items that cannot be completed until the weather is
appropriate (such as landscaping) shall be completed within a reasonable
period
of time after the weather becomes suitable for completion of such items.
If
requested by Landlord, Tenant shall participate in any inspections made by
Landlord to verify that Punchlist Items have been completed and shall
acknowledge in writing that such Punchlist Items have been
completed.
P. Landlord
hereby agrees to (i) warrant all work performed with respect to the Landlord
Improvements for a period of twenty-four (24) months from the Substantial
Completion of the Landlord Improvements (the “Warranty Period”) and to correct
all defects in such work (at Landlord’s sole cost and expense) of which Landlord
receives written notice from Tenant during the Warranty Period; and (ii)
to
correct all defects and perform all repairs to the portion of the Landlord
Improvements during the Warranty Period, at Xxxxxxxx’s sole cost and expense.
Landlord shall assign to Tenant all warranties (extended or otherwise) that
apply to any systems servicing the Landlord Improvements which Tenant is
responsible for maintaining under the terms of the Lease, or if such warranties
are non-assignable, Landlord shall enforce said warranties on Tenant’s behalf.
Landlord’s warranty obligations shall not apply to defects or damages to any
items subject to such warranties arising from or caused by Tenant’s neglect or
misuse or arising from or caused by Tenant’s failure to comply with its
obligations under this Lease.
Q. Landlord
agrees to build and fund an entire arterial
road
from University
Blvd.
to
Xxxxxx Road
(the
"Road Improvements"),
at no
cost to Tenant
in
accordance with this Section 2.Q.
Landlord
guarantees that (i)
Phase
I
of the Road Improvements from University
Blvd.
to the
MetroLink
tracks
with a connection to Lauderdale Road will be completed by March
1,
2007; and (ii) Phase II of the Road
Improvements
from the
MetroLink tracks to Xxxxxx Road will be completed by December 31, 2007 subject
to right-of-way acquisition delays; provided, however, Landlord agrees to
use
diligent and good faith efforts to avoid such delays. Said
deadlines shall be subject to delays caused by Force Majeure Events. Landlord’s
inability to obtain public funding or reimbursement for all or a portion
of the
cost of the Road Improvements shall not constitute a Force Majeure Event.
Landlord agrees that if a retaining wall is required along the south boundary
of
the right-of-way for the Road Improvements east of the MetroLink tracks,
then
the plans and specifications for any such wall shall be subject to the prior
written approval of Tenant. Tenant acknowledges that (i) the Road Improvements
are being constructed by Landlord in cooperation with Ground Lessor and St.
Louis County, and (ii) provided Tenant’s rights and obligations under this Lease
are not materially and adversely affected, this Lease may need to be modified
to
accommodate the funding structure for the Road Improvements, as more
particularly provided in Section 50 hereof.
X. Xxxxxxxx
shall seek to configure the right-of-way for the Road Improvements to allow
for
the placement of a monument sign at the intersection of University Blvd.
and
University Place. To the extent permitted under the Protective Covenants
and
applicable regulations, Tenant shall have the right, at Tenant’s expense, to
erect a monument sign at such location. For so long as Tenant occupies more
than
fifty percent (50%) of the office space on the Property, Tenant shall have
the
sole right to use such sign. If, and when, Tenant occupies less than fifty
percent (50%) of the office space on the Property, Landlord shall have the
right
to offer space on the monument sign to tenants at the Property occupying
in
excess of 50,000 square feet of space. In such event, available space on
the
monument sign shall be assigned to tenants on the Property on a proportionate
basis allocated to the space occupied by such tenants (and the cost of
maintaining and repairing such sign shall be allocated among Tenant and such
other tenants on the same proportionate basis).
S. As
part
of the Landlord Improvements, the
Building will be outfitted with a standard, computerized proximity card reader
system at all exterior doors, which will be provided at Landlord’s expense. The
Tenant will have full access to the system to control ingress and egress
to
various portions of the Building. Tenant shall be responsible for providing
such
security staffing as it may desire.
3. Tenant
Improvements.
A. Landlord
shall be responsible for installation of the Tenant Improvements and will
use
Contractor for such purposes, at a cost
to
Tenant equal to the cost of installing the Tenant Improvements plus an agreed
upon overhead and profit percentage of four and one-half percent (4.5%).
Landlord will not add on any supervisory fees.
Tenant
may apply the “Allowance” (as defined in Section 3.C) against the cost of
installing the Tenant Improvements. Tenant shall reasonably cooperate with
Landlord and Contractor in connection with all aspects of planning and
construction of the Tenant Improvements. Without limiting the foregoing,
the
following provisions shall apply:
(i) Landlord
and Tenant shall work with the Project Architect, Contractor and Ground Lessor
(with respect to code compliance only) to develop a final set of construction
plans for the Tenant Improvements consistent with Tenant’s space plan. Said
construction plans once approved by Landlord, Tenant, the Project Architect,
Contractor and Ground Lessor (with respect to code compliance only) shall
be
referred to as the "Final TI Plans”.
(ii) Landlord,
Tenant, the Project Architect and the Contractor shall cooperate to obtain
the
issuance of a building permit from the Ground Lessor for the Tenant Improvements
as soon as possible. If the Ground Lessor requires any changes to the Final
TI
Plans, Landlord, Tenant, the Contractor and the Project Architect shall work
together to promptly resolve any issues that may arise concerning the changes
requested by the Ground Lessor.
(iii) Landlord
shall cause the Contractor to make its books and records pertaining to
construction of the Tenant Improvements available for Tenant’s review in the
same manner as applicable to the Landlord Improvements.
(iv) Landlord
shall cause the Contractor to (aa) proceed diligently to complete the
Tenant
Improvements in an efficient manner as it constructs the Landlord Improvements,
(bb) combine
the construction schedule for the Tenant Improvements with the construction
schedule for the Landlord Improvements, and to provide Landlord and Tenant
with
a copy of such combined schedule, and (cc) keep Landlord and Tenant advised
of
any changes to the construction schedule.
(v) During
construction of the Tenant Improvements, Landlord or the Contractor shall
carry
builder's risk insurance on the Tenant Improvements.
(vi) Landlord
shall cause the Contractor to construct the Tenant Improvements in a good
and
workmanlike manner, in accordance with all applicable laws and in substantial
compliance with the Final TI Plans.
(vii) From
time
to time during the course of construction of the Tenant Improvements, Tenant
may
request changes to the Final TI Plans and Specifications (each a “Tenant TI
Change Order Request”, and collectively the “Tenant TI Change Order Requests”).
Any Tenant TI Change Order Request shall be subject to the approval of Landlord,
not to be unreasonably withheld. Within five (5) business days after receipt
of
a Tenant TI Change Order Request, Landlord shall notify Tenant in writing
whether it is willing to approve the subject Tenant TI Change Order Request
and
if Landlord is not willing to approve such Request, such notice shall include
Landlord’s reasons therefor. If Landlord advises Tenant that it is willing to
approve the subject Tenant TI Change Order Request, Xxxxxxxx’s notice shall
include a memorandum setting forth the impact on cost and schedule resulting
from such Tenant TI Change Order Request (each a “Tenant TI Change Order
Memorandum”). Tenant shall, within five (5) business days following Xxxxxx’s
receipt of a Tenant TI Change Order Memorandum, either (i) execute and return
the Tenant TI Change Memorandum, in which case the cost of such TI Change
Order
Request shall be deemed approved and the construction schedule shall be deemed
modified automatically, all as set forth in the Tenant TI Change Order
Memorandum, without further action from either party to take account of such
Tenant TI Change Order Request; or (ii) retract its Tenant TI Change Order
Request. A Tenant LI Change Order Request shall not become part of the Tenant
Improvements unless a written Tenant TI Change Order Memorandum is signed
by
Landlord, Tenant, Architect and the Contractor approving the change. Once
a
Tenant TI Change Order Memorandum has been signed by Landlord, Tenant, the
Contractor and Project Architect (and Ground Lessor approval of the change
has
been obtained if required), the Final TI Plans are deemed modified by the
signed
TI Tenant TI Change Order Memorandum.
(viii) Tenant
shall have access to the Premises at reasonable times during construction
for
the purpose of monitoring the construction of the Tenant Improvements, and
Landlord and Tenant shall promptly inform each other in writing if either
discovers any defects in or other problems with Contractor's construction
work
related to the Tenant Improvements. Tenant shall comply with any reasonable
rules and procedures adopted by the Contractor regulating Tenant Improvements
site visits.
(ix) The
procedures applicable to the Landlord Improvements for determining Substantial
Completion, the development of a punchlist and completion of Punchlist Items,
shall also apply to the Tenant Improvements.
(x) Landlord
agrees to (i) warrant all work performed with respect to the Tenant Improvements
for a period of twenty-four (24) months from the Substantial Completion of
the
Tenant Improvements (the “Warranty Period”) and to correct all defects in such
work (at Landlord’s sole cost and expense) of which Xxxxxxxx receives written
notice from Tenant during the Warranty Period; and (ii) to correct all defects
and perform all repairs to the portion of the Landlord Improvements during
the
Warranty Period, at Landlord’s sole cost and expense. Landlord shall assign to
Tenant all warranties (extended or otherwise) that apply to any systems
servicing the Tenant Improvements which Tenant is responsible for maintaining
under the terms of the Lease, or if such warranties are non-assignable, Landlord
shall enforce said warranties on Tenant’s behalf. Landlord’s warranty
obligations related to the Tenant Improvements shall not apply to defects
or
damages to any items subject to such warranties arising from or caused by
Xxxxxx’s neglect or misuse or arising from or caused by Tenant’s failure to
comply with its obligations under this Lease.
C. Landlord
will provide a Tenant Improvement Allowance ("Allowance") of forty-one dollars
($41.00) per rentable square foot which amount is included in the Base Rent
and
may be used at Tenant’s discretion for any expense incurred by Tenant related to
the Premises, including, but not limited to, design, space planning,
construction documents, construction, computer flooring, moving expenses,
telephone and data cabling, systems furniture, kitchen equipment, high density
filing systems, emergency generators, supplemental HVAC equipment or other
soft
costs. Notwithstanding the foregoing, Tenant acknowledges that the Allowance
is
subject to reduction pursuant to Section 2.K. The Allowance shall be first
applied toward payment of all costs incurred by Landlord in connection with
installation of the Tenant Improvements, and any remaining balance shall
be
applied to reimburse Tenant for any Tenant Improvement costs incurred by
Tenant
that have not been paid by Landlord. If the cost of Xxxxxxxx’s construction of
the Tenant Improvements is less than the amount of the Allowance, Landlord
shall
pay Tenant the difference within the later of (i) thirty (30) days following
the
Substantial Completion Date, or (ii) five (5) business days following the
date
Tenant provides Landlord with a written breakdown of the expenses incurred
by
Tenant related to the Premises to which Tenant will apply such Allowance
payment. If the cost of Landlord’s construction of the Tenant Improvements is
greater than the amount of the Allowance, Tenant shall pay Landlord the
difference within the later of (i) thirty (30) days following the Substantial
Completion Date, or (ii) five (5) business days following the date Landlord
provides Tenant with a written breakdown of the costs of installing the Tenant
Improvements.
D. Landlord
shall permit Tenant and its representatives access to the Premises and the
improvements prior to the Commencement Date to examine and inspect
same.
Tenant
will be able to enter the Building
ninety (90) days prior to the Commencement Date
to
prepare the Building for occupancy.
Any
early access will be at no cost to the Tenant. Access to the Building
shall only be granted to installation companies that are compatible with
Landlord’s union work force. The parties acknowledge that Xxxxxx will have to
work concurrently with Landlord to prepare the Premises for occupancy by
the
Commencement Date. Tenant and its representatives shall use diligent good
faith
efforts to avoid interfering with the work of Landlord and its contractors
at
the Premises. Tenant shall indemnify Landlord from all losses caused by the
actions or negligence of Tenant and/or its representatives following such
entry.
Prior to entering upon the Premises, Tenant shall provide Landlord with evidence
of the insurance coverages required to be maintained by Tenant under this
Lease.
The foregoing indemnity obligations shall not apply to the activities of
the
Contractor in its performance of the Tenant Improvements.
4. Term.
A. The
initial term of this Lease shall be for the Initial Lease Term as described
on
the Basic Lease Data section, commencing on the Commencement Date described
on
the Basic Lease Data section. The term of this Lease shall expire at 11:59
p.m.
on the day immediately prior to the ten year and six month anniversary of
the
Commencement Date; provided that in the event the ten year and six month
anniversary of the Commencement Date falls on a date other than the last
day of
a calendar month, then the initial Lease Term shall extend from the Commencement
Date through the last day of the calendar month during which said ten year
and
six month anniversary of the Commencement Date occurs. Notwithstanding the
date
set for the Commencement Date, the terms, provisions, covenants and conditions
of this Lease (except Tenant’s obligation to pay Rent which shall not commence
until the Commencement Date) shall apply and be binding upon Landlord and
Tenant
from and after the date hereof. For purposes of this Lease, the term “Lease
Term” shall mean the Initial Lease Term, plus any extensions of such Initial
Lease Term pursuant to this Lease.
B. The
term
“Substantial Completion” or “Substantially Complete” means that (i) the Landlord
Improvements and Tenant Improvements are complete in all material respects
in
accordance with the Final LI Plans and the Final TI Plans (with only such
changes as were approved by Tenant in writing); (ii) approval of occupancy
has
been issued by Ground Lessor; (iii) the Project Architect and the Contractor
have each executed and delivered to Tenant a Certificate of Substantial
Completion with respect to the Landlord Improvements and the Tenant
Improvements; (iv) the Landlord Improvements and Tenant Improvements are
available for Tenant’s uninterrupted use and operation for the permitted use
with all plumbing systems, electrical systems, heating, ventilating and air
conditioning systems and equipment in good working order such
that
there would be no material interference with Tenant’s use and occupancy of the
Landlord
Improvements
and Tenant Improvements caused by any incomplete work of Landlord required
hereunder;
and (v)
the roadway from University Blvd. to Lauderdale Road has been completed
substantially in accordance with all design and construction requirements
of St.
Louis County for public dedication of the said road, together with a temporary
through connection to Xxxxxx Road via Lauderdale Road and Xxxxxx Road. Landlord
covenants and agrees that the remaining portion of road from Lauderdale Road
to
Xxxxxx Road shall be brought to County standards as soon as possible after
acquisition of the right-of-way for same. The date on which the Landlord
Improvements and Tenant Improvements are Substantially Complete pursuant
to the
foregoing is referred to as the "Substantial Completion Date". Notwithstanding
the foregoing, as provided in Section 55 hereof, it is possible that Landlord
may be delayed in completing a certain parking area and/or a certain parking
facility serving the Building, and the non completion of such parking area
and/or parking facility shall not be considered in determining whether the
Landlord Improvements are Substantially Complete.
C. If
Substantial Completion has not been achieved by the Scheduled Date,
then
the
Commencement Date and expiration date of the Lease shall be adjusted by the
length of any such delay and Tenant
shall be entitled to the following remedies, provided, however, that any
delays
caused by a
“Tenant
Delay” (defined below) or a “Force Majeure Event” (defined below), shall be
excused:
(i) Tenant
will receive two (2) days free rent for every calendar day
from the
Scheduled Date until Substantial Completion is achieved (“Additional Free
Rent”);
(ii) If
Substantial Completion has not occurred by the date that is ninety (90) days
after the Scheduled Date, Tenant shall have the right to assume control over
construction of the Landlord Improvements and the Tenant Improvements, upon
thirty (30) days prior written notice to Landlord (the “Assumption Notice”);
provided, that if the Project Architect certifies that Substantial Completion
is
possible within (90) days following the date the Assumption Notice is delivered
to Landlord, and Landlord provides reasonable evidence of its ability to
achieve Substantial Completion within such 90-day period, then Tenant’s right of
assumption shall not be exercisable unless Substantial Completion has not
occurred by the end of such 90-day period. In the event that Tenant elects
to
assume control over construction of the Landlord Improvements and the Tenant
Improvements pursuant to this Section 4.E(ii), Tenant shall diligently and
in
good faith pursue Substantial Completion. The assumption by Tenant of control
over construction of the Landlord Improvements and the Tenant Improvements
shall
not stop liquidated damages (i.e., the Additional Free Rent) from continuing
to
accrue until Substantial Completion has been achieved nor shall it relieve
Landlord of any liability for such liquidated damages; provided, however,
that
Tenant fulfills its obligation to proceed diligently and in good faith in
pursuing Substantial Completion; and
(iii) If
Substantial Completion has not been achieved by the date that is one hundred
twenty (120) days after the Scheduled Date, and Xxxxxx has not previously
assumed control over construction, then Tenant shall have the right to terminate
the Lease upon written notice to Landlord (“Termination Notice”).
Notwithstanding the foregoing, if within three (3) business days after receipt
of a Termination Notice, this Lease shall not terminate and the parties’ rights
and obligations hereunder shall remain in full force and effect if Landlord
provides written notice to Tenant in which Landlord agrees to pay Tenant
all
holdover rent and other amounts payable by Tenant over and above the base
rent
and additional rent payable by Tenant as of the expiration date under the
lease(s) for its current locations intended to be vacated upon completion
of the
Premises (which payment shall be in addition to the Additional Free Rent).
If
Xxxxxxxx agrees to pay Xxxxxx’s holdover rent and other amounts pursuant to the
immediately preceding sentence, then upon the request of Tenant, Landlord
shall
agree to amend this Lease or provide or written assurances reasonably
satisfactory to Tenant confirming the foregoing obligations of
Landlord.
D. As
used
herein, the term “Tenant Delay” shall mean any delay in the completion of the
Landlord Improvements or Tenant Improvements caused by Tenant, including,
without limitation, (i) Tenant's failure to meet any time deadlines specified
in
this Lease or to timely respond to any submittal or request requiring Tenant’s
approval; (ii) change orders, but only to the extent any resulting delay
is
agreed upon by Landlord and Tenant and documented in writing pursuant to
Sections 2.K or 3.A; and (iii) Tenant’s requirements for special work or
materials, finishes or installations that are not readily available to Landlord
and which are delivered at a time that causes a delay (Landlord will endeavor
to
identify any such items described in the Outline Plans and
Specifications).
X. Xxxxxxxx
and Xxxxxx acknowledge that to ensure that the Scheduled Date is achievable,
the
following critical milestones need to be reached by the respective dates
provided below:
(i) Plans
and
specifications for the Building and the other Landlord Improvements need
to be
sufficiently completed by October 24, 2005 to a point that allows Xxxxxxxx
to
commence site work by November 1, 2005;
(ii) The
Final
LI Plans, consistent with the Outline Plans and Specifications described
on
Exhibit
C,
need to
be substantially completed and approved by Landlord (such
consent not to be unreasonably withheld, delayed or conditioned) and Ground
Lessor (with respect to code compliance only) on or before December 31,
2005;
(iii) All
required permits from governmental agencies and utilities having jurisdiction
over the Premises (including, but not limited to, the Metropolitan Sewer
District of St. Louis and the applicable fire protection district) required
for
construction of the Landlord Improvements shall be obtained prior to January
31,
2006 (it being acknowledged that Landlord shall have primary responsibility
for
obtaining such permits);
(iv) Tenant’s
interior finish plan needs to be completed by Xxxxxx and the Project Architect
by February 15, 2006, and approved by Landlord
(such
consent not to be unreasonably withheld, delayed or conditioned);
and
(v) All
required permits from governmental agencies and utilities having jurisdiction
over the Premises (including, but not limited to, the Metropolitan Sewer
District of St. Louis and the applicable fire protection district) required
for
construction of the Tenant Improvements shall be obtained prior to April
1, 2006
(it being acknowledged that Landlord shall have primary responsibility
for
obtaining such permits).
Landlord
and Tenant shall proceed diligently and in good faith to attempt to complete
the
aforesaid matters by the above milestone dates, with each party responding
promptly with comments, changes and feedback. In addition, Landlord and Xxxxxx
shall proceed diligently and in good faith in working with the Project Architect
in developing and agreeing upon the Final LI Plans and
the
Final TI Plans.
In the
event that any of the aforesaid matters have not been completed by the
applicable milestone date, despite the parties’ diligent and good faith efforts,
the Scheduled Date, Commencement Date and expiration date of the Lease shall
be
extended by the number of days the applicable milestone date has been delayed.
The Scheduled Date shall also be extended by the number of days that
construction of Landlord Improvements or Tenant Improvements is delayed by
Force
Majeure Events as defined in Section 29. Notwithstanding the foregoing, in
the
event of such delay, Landlord and Tenant shall cooperate with one another
to
accelerate the project schedule, to the extent practicable, to make up for
lost
time.
5. Rent
Commencement and Base Rent.
X. Xxxxxx's
obligation to pay Rent (as hereinafter defined) under this Lease shall commence
and accrue upon the Commencement Date, except that Xxxxxxxx agrees that the
first $2,123,000.00 in Base Rent due shall be abated. All Rent shall be paid
to
Landlord at the address set forth for payment of Rent in the Basic Lease
Data
Section of this Lease, subject to Landlord's right to change such address
from
time to time by notice to Tenant.
B. The
annual base rent (hereinafter referred to as the "Base Rent") payable for
each
Lease Year (as hereinafter defined) shall be paid in monthly installments
in the
amount(s) determined per Exhibit
B
and set
forth in the Lease Memorandum, in advance and without any set off or deduction
(except as otherwise provided in Section 45), beginning on the Commencement
Date, and continuing on the first day of each calendar month during this
Lease
Term. Base Rent shall be prorated for any partial calendar month that Tenant
leases the Premises.
C. As
used
herein, the term "Rent" shall mean and refer both to the Base Rent provided
hereunder and Additional Rent. The term "Additional Rent" shall mean any
and all
payments to be made by Tenant under this Lease, other than Base Rent, including
but not limited to Tenant's share of Taxes (as described in Section 6), Xxxxxx's
share of the cost of the Tenant Improvements (if owed to Landlord), interest,
late charges, attorney's fees and any amounts or costs expended or incurred
by
Landlord in curing or by reason of any default of Tenant. Additional Rent
shall
be deemed for the purpose of securing the collection thereof to be additional
rent hereunder, whether or not the same be designated as such, and shall
be due
and payable at the time provided in this Lease, and if no such time is provided
it shall nevertheless be collectible as additional rent on demand or together
with the next succeeding installment of Base Rent, whichever shall first
occur;
and Landlord shall have the same rights and remedies upon Tenant's failure
to
pay the same as for the non-payment of the Base Rent.
D. As
used
herein, the term "Lease Year" shall mean and refer to the periods of twelve
(12)
consecutive calendar months commencing on the Commencement Date (provided
that
if the Commencement Date falls on a date other than the first day of a calendar
month, then the first Lease Year shall consist of the partial calendar month
in
which the Commencement Date occurs plus the 12 full calendar months thereafter),
and the remaining Lease Years shall be the successive periods of 12 full
calendar months following the expiration of the first Lease Year, and continuing
until the expiration or termination of this Lease Term. Notwithstanding the
foregoing, the 11th
Lease
Year shall mean the 6-month period extending from the 1st
day
following the expiration of the 10th
Lease
Year through the date that is the last day of the 6th
full
calendar month thereafter.
E. If
Tenant
shall fail to pay to Landlord any Rent or other charge due Landlord hereunder
on
the due date thereof, and such failure continues for two (2) business days
following Landlord’s notice to Tenant of such failure, Tenant shall be assessed
a late fee in an amount equal to five percent (5%) of the delinquent amount
owed
Landlord. Notwithstanding the foregoing, Landlord shall not be required to
provide such written notice on more than two (2) occasions during any
consecutive twelve (12) month period. The late charge is a one time charge
that
can be added by the Landlord to each applicable payment and is intended to
compensate Landlord for the extra time and trouble it incurs in dealing with
late payments. Pursuant to Section 15.E of the Lease, the Landlord may charge
interest on late payments, in addition to charging a late fee on such late
payments (such interest compensates Landlord for money that Landlord could
have
earned on Xxxxxx's payment if Xxxxxx's payment had been paid when it was
due).
6. Taxes.
A. As
provided in further detail in Section 50 hereof, in connection with Xxxxxxxx’s
commitment under this Lease to construct the Road Improvements, Landlord
intends
to seek municipal financing benefits under the Missouri Transportation
Development District Act (“TDD”) and/or other economic development programs to
assist Landlord and St. Louis County in the funding of the Road Improvements.
Xxxxxx agrees to cooperate with Xxxxxxxx’s efforts to obtain such benefits,
subject to the provisions of Section 50. As part of Landlord’s efforts to obtain
such benefits, and as part of Tenant’s cooperation obligations in this Section A
and in Section 50, Landlord and Tenant agree to the provisions of Sections
6.B
through 6.J below.
B. For
the
tax years 2007 through 2016, Tenant shall pay to Landlord, as additional
rent,
fifty percent (50%) of the real and personal property Taxes (defined below)
that
would otherwise be payable to each taxing jurisdiction had the Premises and
Xxxxxx’s personal property in the Premises not otherwise been exempt from
taxation using as the basis for such calculation either the assessed value
of
the Premises as determined by the St. Louis County Tax Assessor (“Assessor”)
(subject to Tenant’s right to appeal such assessment) or the assessed value as
determined by the appraisal procedure set forth in subparagraph F below.
All
such amounts attributable to personal property taxes shall be timely paid
by
Landlord to the St. Louis County Collector of Revenue as a payment in lieu
of
taxes (“PILOT”) for distribution to the taxing jurisdictions in the same manner
and in the same proportion as taxes on the Tenant’s personal property in the
Premises would have been distributed in each year had the Premises not been
exempt from taxation.
C. For
tax
years 2017 and beyond, Tenant shall pay to Landlord, as additional rent,
one
hundred percent (100%) of the real and personal property Taxes that would
otherwise be payable to each taxing jurisdiction had the Premises not otherwise
been exempt from taxation using as the basis for such calculation either
the
assessed value of the Premises as determined by the Assessor (subject to
Tenant’s right to appeal such assessment) or the assessed value as determined by
the appraisal procedure set forth in subparagraph F below. At least fifty
percent (50%) of all such amounts attributable to personal property taxes
shall
be timely paid by Landlord to the St. Louis County Collector of Revenue as
a
PILOT for distribution to the taxing jurisdictions in the same manner and
in the
same proportion as taxes on Tenant’s personal property in the Premises would
have been distributed in each year had the Premises not been exempt from
taxation.
D. Landlord
shall apply the above additional rent payments attributable to real property
taxes to TDD assessments or similar assessments against the Premises. If
the
Premises is subject to TDD assessments or similar assessments over and above
such additional rent payments, Landlord shall pay such excess amounts without
reimbursement from Tenant.
E. Commencing
in tax year 2007 and continuing in all
subsequent years until the Ground Lease is terminated, Landlord shall obtain
from the St. Louis County Assessor, as soon as reasonably available, (i)
a list
of each taxing jurisdiction within whose boundaries the Property is situated
and
the current tax levy of each such taxing jurisdiction; and (ii) the Assessor’s
most recent assessed valuation of the real and personal property comprising
the
Premises in accordance with Article X, Section 4(b) of the Missouri Constitution
and Section 137.115, RSMo, as amended. Landlord shall notify Tenant of such
assessed valuation in writing promptly following Landlord’s receipt thereof, and
shall provide copies of any supporting documentation provided by the Assessor
to
Landlord relating to such valuation.
F. If
Tenant
does not agree with the assessed valuation for any particular year, as
determined by the Assessor and provided to Tenant pursuant to subparagraph
D
above, and so notifies Landlord in writing by the deadline for appealing
such
valuation, Tenant, at Tenant's expense, may appeal such assessment to the
County
Board of Equalization and the State Tax Commission, as applicable, in the
manner
provided under Missouri law, and Landlord agrees to lend Tenant all reasonable
cooperation in connection with said contest. Pending resolution of the contest,
Tenant shall have the right to make payments in respect of Taxes or increases
challenged by Tenant “under protest”. If the term of this Lease terminates
during any time such a contest is pending and, thereafter, such contest results
in a refund, then Tenant shall be entitled to receive the amount of any such
refund to the extent it relates to the periods preceding such termination
of the
term of this Lease.
G. If
(i)
the Board of Equalization or the State Tax Commission determines that, because
the Premises is exempt from ad
valorem taxation,
they do not have jurisdiction to hear Tenant’s appeal pursuant to Section 6.F
above, or (ii) for any reason the Assessor has not made available an assessed
valuation for the Premises not later than ten (10) business days prior to
the
deadline for appealing valuations in St. Louis County, the following procedures
shall apply:
(1) In
each
reassessment year, Landlord and Tenant shall meet in an effort to negotiate
in
good faith the assessed valuation of the Premises for the current and following
tax years it being the intent of the parties to reassess the Premises on
the
same timeframe as reassessments are performed in St. Louis County which at
the
present time occurs in each odd-numbered year.
(2) If
Landlord and Tenant have not agreed upon the assessed valuation of the Premises
by July 1 of any calendar year, then Landlord and Tenant shall attempt to
agree
on a single appraiser to determine the assessed value of the Premises. If
Landlord and Tenant have not been able to agree on a single appraiser by
July 1,
then Landlord and Tenant shall each, by July 15, appoint an appraiser licensed
by the State of Missouri to perform real estate appraisals (each of whom
shall
also be a member of the Appraisal Institute carrying the designation of
“M.A.I.”), and, if the personal property assessment is challenged, a qualified
equipment appraiser. Each party shall notify the other party in writing of
the
appraiser(s) appointed pursuant to this subparagraph. If either party fails
to
appoint an appraiser by the date specified, the remaining appraiser(s) shall
carry out the duties imposed upon them pursuant to this
subparagraph.
(3) The
appraisers shall, by September 1, examine the Premises and each render an
opinion in writing to each party regarding the assessed valuation of the
Premises, using the same methodology and taking into account all factors
considered by the Assessor of St. Louis County in his assessment of the same
class of property during the applicable tax year.
(4) If
the
appraisals of the Premises prepared by the appointed appraisers are within
ten
percent (10%) of the lower appraisal, then the assessed value of the Premises
shall be the average of the two appraisals. If the appraisals of the Premises
prepared by the appraisers are not within ten percent (10%) of the lower
appraisal, and if the appraisers cannot agree as to the assessed valuation
of
the Premises by September 1, then they collectively shall appoint a licensed
real estate appraiser and an additional qualified equipment appraiser if
the
personal property assessment is challenged. The appraisers shall notify each
party of their appointment(s) by October 1. The appraiser(s) appointed under
this paragraph shall, by December 1, render an opinion in writing to each
party
regarding the assessed valuation of the respective real or personal property
portion of the Premises. If such appraisers cannot agree on an assessed
valuation, and if the reason for the appointment of the appraisers is that
the
Assessor has not made available an assessed valuation for the Premises for
the
year in question, then the third appraiser appointed shall unilaterally render
such an opinion by December 10.
(5) Landlord
and Tenant shall pay the fees and expenses of appraiser(s) appointed by them
pursuant to Section 6.G(2) and shall each pay fifty percent (50%) of the
fees of
the appraiser appointed pursuant to Section 6.G(4) incurred by such appraisers
in carrying out their duties under the Ground Lease.
X. Each
party agrees to cooperate in all respects to enable the appraisers to undertake
the duties specified herein within the dates specified. Nevertheless, if
the
appraisers appointed pursuant to Section 6.G above have not determined an
assessed valuation by the dates specified therein, and if the reason for
the
appointment of the appraisers is the Board of Equalization or the State Tax
Commission determined that they do not have jurisdiction to hear Tenant’s appeal
as provided above, then the valuation of the Premises determined by the Assessor
pursuant to Section 6.E above shall be the assessed valuation for such year.
However, if the reason for the appointment of the appraisers is that the
Assessor has not made available an assessed valuation for the Premises for
the
year in question, then the opinion of the third appraiser rendered pursuant
to
Section 6.E(4) shall govern for purposes of the payment required pursuant
to
Section 6.A above.
I. “Taxes"
(as such term is used herein) shall include, without limitation, any tax,
assessment or similar governmental charge imposed against the Property
(including any tax or special assessment assessed against Landlord's leasehold
estate under the Ground Lease, and any tax or special assessment that Landlord
is obligated to pay pursuant to the terms of the Ground Lease). Taxes, as
herein
contemplated, are predicated on the present system of taxation in the State
of
Missouri. Therefore, if due to a future change in the method of taxation,
any
rent, franchise, use, profit or other tax shall be levied against Landlord
in
lieu of any charge which would otherwise constitute a Tax, such rent, franchise,
use, profit or other tax shall be deemed to be a Tax for the purposes herein.
In
the event Landlord is assessed with a Tax which Landlord, in its sole
discretion, deems excessive, Landlord may (but is not obligated to) challenge
said Tax or may defer compliance therewith to the extent legally permitted.
“Taxes” (as used herein) shall also include any tax, assessment or similar
charge assessed by the Assessor against Xxxxxx’s personal property situated in
the Premises. Notwithstanding
the foregoing, Taxes shall not include income or other taxes measured or
determined based upon Landlord's income, or on income derived from mortgages
or
deeds of trust encumbering the Premises, or on any gain realized by Landlord
in
connection with the sale of the Premises (except to the extent the same may
be
assessed or levied in substitution for ad valorem real estate
taxes).
X. Xxxxxx's
share of Taxes shall be payable to Landlord in monthly installments, in advance,
due on the first of each month, in an amount reasonably estimated from time
to
time by Landlord. Not later than ninety (90) days following the end of each
calendar year, Landlord shall deliver a statement to Tenant setting forth
Tenant's actual obligation for Taxes for the preceding calendar year, and
the
total amount of monthly payments paid by Tenant to Landlord. In determining
Tenant’s obligation for Taxes for the preceding calendar year, the assessed
value as determined by the Assessor, or the appraised value determined in
accordance with Section 6.G, shall be determinative as to the amount of Taxes
due and payable. In the event Tenant's actual obligation exceeds Tenant's
payments, Tenant shall pay the difference to Landlord on the date which is
the
later of: (i) ten (10) days after receipt of Landlord's statement, or (ii)
with
the next installment(s) of Additional Rent due under this Lease after receipt
of
Landlord's statement. Conversely, in the event Tenant's total payments exceed
Tenant's actual obligation, Landlord shall credit the overpayment against
the
next installment(s) of Rent due under this Lease. Tenant shall have sixty
(60)
days from receipt of Landlord’s statement within which to accept or contest said
Xxxxxxxx’s statement. Absent written notice from Tenant to Landlord within such
60-day period, Xxxxxxxx’s statement shall be deemed accepted by Xxxxxx and the
amount shown thereon shall be paid or credited by Landlord to Tenant or paid
to
Landlord by Xxxxxx, as the case may be. If Xxxxxx makes any objection(s)
to
Landlord’s said statement as aforesaid, Landlord or Tenant, as the case may be,
shall pay all non-disputed sums to the other in the manner set forth above,
and
Landlord and Tenant promptly commence good faith negotiations to resolve
any
remaining differences between them.
K. Notwithstanding
the foregoing provisions of this Section 6, Tenant acknowledges that Landlord
and Ground Lessor contemplate establishing an escrow administered by a third
party escrowee to receive and apply the additional rent payments made by
Tenant
pursuant to this Section 6. Landlord and Ground Lessor may jointly notify
Tenant
in writing that such an escrow has been established, in which event such
notice
shall be accompanied by a copy of the escrow agreement governing such escrow.
Such escrow agreement, and any amendments thereto, shall be subject to the
review and approval of Tenant, not to be unreasonably withheld, conditioned
or
delayed. In no event shall the terms of any such escrow agreement materially
expand Tenant’s obligations or diminish Tenant’s rights under this Section 6.
Following Xxxxxx’s receipt of a notice of the establishment of such an escrow
and Xxxxxx’s approval of the escrow agreement governing such escrow (all
pursuant to the foregoing provisions of this Section 6.K), Xxxxxx agrees
to make
the payments required under this Section 6 to the third party escrowee
designated by Landlord and Ground Lessor in such notice. If such escrow is
established and the additional rent payments under this Section 6 are made
to
such escrow pursuant to this Section 6.K, Landlord and Tenant agree that
neither
of them may thereafter change the manner in which Xxxxxx’s additional rent
payments under this Section 6 are made, except pursuant to a written agreement
executed by Landlord and Ground Lessor and reasonably acceptable to
Tenant.
7. Common
Areas. So
long
as Tenant is leasing all of the space in the Building, Tenant shall have
the
exclusive right to use the entire Premises, subject to the provisions of
this
Lease and subject to the rights of access of Landlord under this Lease. If,
however, Tenant exercises any of its “give back rights” under this Lease, then
Landlord shall have the right to reasonably designate “Common Areas”, which
shall mean all areas, space, facilities, equipment and signs made available
by
Landlord in the Building or on the Property for the common and joint use
and
benefit of Tenant and other tenants and permittees of Landlord, and their
respective employees, agents, subtenants, concessionaires, licensees, customers,
and other invitees, and may include the sidewalks, parking areas, driveways,
yard area, landscaped areas, lobbies, restrooms, stairs, ramps, elevators,
exits
and/or service corridors, to the extent not contained within any area
exclusively appropriated for the use of any occupant. If Common Areas are
designated by Landlord, then Landlord also reserves the right to impose
reasonable rules and regulations relating to use of the Common Areas; to
construct, maintain and operate lighting and other facilities, equipment
and
signs on all of the Common Areas; and to close temporarily all or any portion
of
the Common Areas for the purpose of making repairs or changes thereto. If
Common
Areas are designated by Landlord, Tenant is hereby given a license (in common
with all others to whom Landlord has or may hereafter grant rights) to use,
during the Lease Term, the Common Areas as they may now or at any time during
the Lease Term exist; provided, however, that if the size, location or
arrangement of such Common Areas or the type of facilities at any time forming
a
part thereof are changed or diminished, Landlord shall not be subject to
any
liability therefor, nor shall Tenant be entitled to any compensa-tion or
diminution or abatement of Rent therefor, nor shall such change or diminution
of
such areas be deemed a constructive or actual eviction.
8. Landlord's
Repairs and Services. Throughout
the Term, Landlord
shall be responsible for providing the
following services at Landlord’s sole cost and expense which expenses shall not
be included in the calculation of Additional Rent hereunder: all
exterior building repairs
(including sub-surface water penetration),
maintenance and replacement of roof, roofing systems, exterior walls, windows,
structural members, footings and foundations, floors, gutters and downspouts,
trunk utility lines (until accepted for dedication by applicable utility
companies), sidewalks and curbs and parking facilities
(excepting any damage caused by the
negligence or willful misconduct of Tenant or Tenant's employees, agents
or
invitees). If Xxxxxx observes a need for any repairs or maintenance required
to
be performed by Landlord under this Lease, it shall promptly notify Landlord.
In
the event that Xxxxxx gives back space to Landlord pursuant to Section 40,
Landlord may have additional responsibilities to provide services as described
in Sections 40 and 51.
9. Services
and Utilities. Subject
to Section 9.E below, throughout the Term, Tenant
shall be responsible for providing the following items at its sole cost and
expense:
A. Landscaping,
snow removal, trash pick up and collection, and any other outside maintenance
not included by the Landlord.
B. Janitorial.
C. Utilities,
including
HVAC and utility services used by Tenant at the Premises, such as electricity,
gas, water and sewer. Tenant
shall contract directly with the utility companies for all utility services
it
requires, and Landlord shall install separate meters for the Premises to
measure
Tenant's usage of such services. Except to the extent utility interruptions
occur as a result of the negligence or willful misconduct of Landlord, Landlord
shall not be liable for the quality, quantity, failure or interruption of
utility services to the Premises, nor shall any interruption in utility services
affect Tenant's obligations to pay Rent hereunder. In
the
event a utility interruption occurs due to Landlord’s
negligence or willful misconduct, and
as a
result thereof, the Premises becomes untenantable (meaning that Tenant is
unable
to use the Premises in the normal course of its business) for more than three
(3) consecutive business days after receipt of notice (which may be verbal
if
communicated to Landlord's property manager for the Building) from Tenant,
Base
Rent shall xxxxx on a per diem basis for each day after such three (3) business
day period during which the Premises remains untenantable.
D. Interior
maintenance including inside surfaces, ceilings, doors, and lighting,
mechanical, electrical and plumbing systems.
E. In
the
event that Xxxxxx gives back space to Landlord pursuant to Section 40, there
may
be modifications to this Section made pursuant to a written amendment to
this
Lease signed by Landlord and Tenant as required by Section 40.
X. Xxxxxx
shall have access to the Premises on a twenty-four (24) hours per day, seven
(7)
days per week basis.
10. Insurance.
A. Throughout
the Term, Landlord
will maintain (a) a so called "all-risk" property insurance policy covering
the
Property (at its full replacement cost) including such other charges deemed
necessary by the Landlord, but excluding Tenant's personal property, with
a
deductible which will not exceed $250,000 and (b) commercial general public
liability insurance covering Landlord for claims arising out of liability
for
bodily injury, death, personal injury, advertising injury and property damage
occurring in and about the Property and otherwise resulting from any acts
and
operations of Landlord, its agents and employees, with minimum limits of
$2,500,000 per occurrence and $2,500,000 general aggregate and (c) rent loss
insurance, with limits that are required by any lender(s) of Landlord, or
as are
otherwise reasonably determined by Landlord (collectively, “Landlord’s
Policies”). All Landlord's Policies will (a) be issued by an insurance company
with a Best rating of A-:VIII or better and otherwise reasonably acceptable
to
Tenant and will be licensed to do business in the state where the Premises
is
located; (b) provide that said insurance will not be canceled or materially
modified unless 30 days' prior written notice will have been given to Tenant
and
(c) otherwise be in such form, and include such coverage’s, as Tenant may
reasonably require. Landlord will provide Certificates of Insurance, in a
form
reasonably acceptable to Tenant, evidencing said Xxxxxxxx's Policies, to
Tenant
upon commencement of the Lease and renewals thereof will be delivered at
least
10 days prior to the expiration of each Policy.
B. Tenant
will purchase, at its own expense, and keep in force at all times during
this
Lease (a) "all-risk" property insurance policy covering Tenant's personal
property and all tenant improvements, at its full replacement cost, with
a
deductible that will not exceed $250,000 and (b) commercial general liability
insurance, including personal injury and property damage, in the amount of
not
less than $2,500,000 per occurrence and $2,500,000 general aggregate, and
(c)
comprehensive automobile liability insurance covering Tenant against any
losses
arising out of liability for personal injuries or deaths of persons and property
damage occurring in or about the Premises or Property in the amount of not
less
than $1,000,000, combined single limit (collectively, “Tenant's Policies”). The
Tenant's Policies will name Landlord, Xxxxxxxx's property manager, Xxxxxxxx's
lender and any party holding an interest to which this Lease may be subordinated
as additional insureds. All Tenant's Policies will (a) be issued by an insurance
company with a Best rating of A-:VIII
or
better and otherwise reasonably acceptable to Landlord and will be licensed
to
do business in the state where the Premises is located; (b) provide that
said
insurance will not be canceled or materially modified unless 30 days' prior
written notice will have been given to Landlord and (c) otherwise be in such
form, and include such coverage’s, as Landlord may reasonably require. Tenant
will provide Certificates of Insurance, in a form reasonably acceptable to
Landlord, evidencing said Xxxxxx's Policies, to Landlord upon commencement
of
the Lease and renewals thereof will be delivered
prior to
the expiration of each Policy.
C. Both
Landlord and Tenant will purchase and maintain, throughout the Term, workers'
compensation insurance per the applicable state statutes covering all its
employees.
D. To
the
extent permitted by law, and without affecting the coverage provided by
insurance required to be maintained hereunder, Landlord and Xxxxxx each waive
any right to recover against the other, and
any
right to recover against the property manager for the Property, or against
the
officers, directors, shareholders, partners, joint venturers, employees,
agents,
managers, clients or business visitors of
either
party for (a) damages to property, (b) damages to all or any portion of either
or both of the Premises and the Property, (c) claims arising by reason of
the
foregoing, to the extent such damages and claims are insured against, or
required to be insured against, by Landlord or Tenant under this Lease or
(d)
claims paid by Landlord or Xxxxxx's workers' compensation carrier. This
provision is intended to waive, fully and for the benefit of each party,
any
rights and/or claims which might give rise to a right of subrogation by any
insurance carrier. The coverage obtained by each party pursuant to this Lease
will include, without limitation, a waiver of subrogation by the carrier
which
conforms to the provisions of this section.
E. In
the
event Tenant's use of the Premises shall result in an increase in Landlord's
insurance premiums, Tenant shall pay to Landlord within fifteen (15) days
after
demand, as Additional Rent, an amount equal to such increase in insurance,
provided this Section 10.E shall not be applicable so long as Tenant is only
using the Premises for general office use.
11. Damage
or Destruction.
A. If
at any
time prior to the Commencement Date, the Premises are damaged or destroyed
by
casualty Landlord shall give Tenant written notice ("Landlord's Pre-Commencement
Repair Notice") within thirty (30) days after the damage occurs advising
Tenant
whether or not, in Landlord's reasonable opinion, the damages from such casualty
will delay the Substantial Completion Date by more than one hundred eighty
(180)
days beyond the then-current scheduled Substantial Completion Date. If
Landlord’s Pre-Commencement Repair Notice states that in Landlord's reasonable
opinion, the damages from such casualty will so delay the then-current scheduled
Substantial Completion Date, then (i) Landlord may terminate this Lease,
provided Landlord notifies Tenant of such termination within the same 30-day
period that Landlord’s Pre-Commencement Repair Notice is to be given, and (ii)
if Landlord has not elected to so terminate this Lease, Tenant may terminate
this Lease by giving Landlord written notice thereof within thirty (30) days
following the its receipt of Landlord’s Pre-Commencement Repair Notice. If at
any time after the Commencement Date, the Premises are damaged or destroyed
by
casualty Landlord shall give Tenant written notice ("Landlord's
Post-Commencement Repair Notice") within thirty (30) days after the damage
occurs advising Tenant whether or not, in Xxxxxxxx's reasonable opinion,
the
damages from such casualty can be repaired within one hundred eighty (180)
days
from the date of said casualty. If Landlord’s Post-Commencement Repair Notice
states that in Landlord's reasonable opinion, the damages from such casualty
cannot be repaired within such 180-day period, then (i) Landlord may terminate
this Lease, provided Landlord notifies Tenant of such termination within
the
same 30-day period that Landlord’s Post-Commencement Repair Notice is to be
given, and (ii) if Landlord has not elected to so terminate this Lease, Tenant
may terminate this Lease by giving Landlord written notice thereof within
thirty
(30) days following the its receipt of Landlord’s Post-Commencement Repair
Notice.
B. In
the
event that a casualty occurring after the Commencement Date renders the Premises
untenantable or prevents access to the Premises for any period, the Rent
due for
such period shall be abated; and in the event only a portion of the Premises
is
rendered untenantable and access to the Premises is not prevented, Tenant's
Rent
shall be equitably abated in proportion to that portion of the Premises which
is
rendered untenantable, provided that no abatement shall be allowed pursuant
to
this sentence unless the conditions making the Premises fully or partially
untenantable exist for at least three (3) consecutive business days. Abatement
shall continue until Landlord has substantially completed its repair and
restoration obligations pursuant to Section 11.D or Section 11.E below,
whichever is applicable.
C. If
this
Lease is not terminated by either party due to a pre-Commencement Date casualty
pursuant to the terms of Subsection A above, this Lease shall remain in full
force and effect, and Landlord shall proceed with all due diligence to repair,
restore and/or rebuild and complete the Landlord Improvements and the Tenant
Improvements. Notwithstanding the foregoing, if Landlord does not substantially
complete such obligations under this Section 11.C (“Landlord’s Section 11.C
Restoration Obligations”) within one hundred eighty (180) days beyond the date
that was the scheduled Substantial Completion Date on the date of the casualty,
plus any additional days that such construction is delayed due to force majeure
(as defined in Section 29), Tenant
shall have the right to assume control over Landlord’s Section 11.C Restoration
Obligations, upon thirty (30) days prior written notice to Landlord. In the
event that Tenant elects to assume control over Landlord’s Section 11.C
Restoration Obligations, (i) Tenant shall diligently and in good faith pursue
substantial completion of Landlord’s Section 11.C Restoration Obligations, (ii)
all insurance proceeds for such restoration shall be made available to Tenant
for such purpose, and (iii) Landlord shall be liable for all costs reasonably
incurred by Tenant (over and above available insurance proceeds) in undertaking
such restoration.
D. If
this
Lease is not terminated by either party due to a post-Commencement Date casualty
pursuant to the terms of Subsection A above, this Lease shall remain in full
force and effect, and Landlord shall proceed with all due diligence to repair
and restore the Premises (except as otherwise provided in this Lease)
substantially to the condition thereof immediately prior to such damage or
destruction (exclusive of the Tenant Improvements and other tenant improvements
made by Tenant, Xxxxxx's trade fixtures, equipment, decorations, signs,
inventory and contents), subject to the terms, conditions, requirements and
provisions hereinafter set forth in this Section 11. Tenant shall be solely
responsible for restoring the Tenant Improvements and other leasehold
improvements made by Tenant. Notwithstanding the foregoing, if Landlord does
not
substantially complete its restoration obligations under this Section 11.D
(“Landlord’s Section 11.D Restoration Obligations”) within two hundred forty
(240) days from the date of the subject casualty, plus any additional days
that
such restoration is delayed due to force majeure (as defined in Section 29),
Tenant
shall have the right to assume control over Landlord’s Section 11.D Restoration
Obligations, upon thirty (30) days prior written notice to Landlord. In the
event that Tenant elects to assume control over Landlord’s Section 11.D
Restoration Obligations, (i) Tenant shall diligently and in good faith pursue
substantial completion of Landlord’s Section 11.D Restoration Obligations, (ii)
all insurance proceeds for such restoration shall be made available to Tenant
for such purpose, and (iii) Landlord shall be liable for all costs reasonably
incurred by Tenant (over and above available insurance proceeds) in undertaking
such restoration.
E. Notwithstanding
the provisions of Sections 11.A and 11.D above, if during the final year
of the
Lease Term, (i) the Premises are damaged or destroyed by casualty, and (ii)
at
least one third (1/3rd)
of the
Premises are made untenantable as a result of such casualty, Landlord shall
give
Tenant written notice ("Landlord's Final Year Repair Notice") within five
(5)
business days after the damage occurs, advising Tenant whether or not, in
Landlord's reasonable opinion, the damages from such casualty can be repaired
within an amount of time from the date of said casualty equal to or less
than
ten percent (10%) of the number of days remaining in the Lease Term from
the
date of said casualty. If Landlord’s Final Year Repair Notice states that in
Landlord's reasonable opinion, the damages from such casualty cannot be repaired
within such 10% time frame, then (i) Landlord may terminate this Lease, provided
Landlord notifies Tenant of such termination within the same 5-business day
period that Landlord’s Final Year Repair Notice is to be given, and (ii) if
Landlord has not elected to so terminate this Lease, Tenant may terminate
this
Lease by giving Landlord written notice thereof within five (5) business
days
following the its receipt of Landlord’s Repair Notice. However, if Landlord
elects to so terminate this Lease during the final year of the Lease Term,
Tenant may nullify such termination if Tenant has one or more renewal options
remaining and elects to exercise said option within fifteen (15) days after
Xxxxxxxx’s termination notice. If this Lease is not terminated by either party
pursuant to the terms of this Section 11.E, this Lease shall remain in full
force and effect, and Landlord shall proceed with all due diligence to repair
and restore the Premises substantially to the condition thereof immediately
prior to such damage or destruction (exclusive of the Tenant Improvements
and
other tenant improvements made by Tenant, Tenant's trade fixtures, equipment,
decorations, signs, inventory and contents) subject to the terms, conditions,
requirements and provisions hereinafter set forth in this Section 11. Tenant
shall be solely responsible for restoring the Tenant Improvements and other
leasehold improvements made by Tenant. However, if Landlord does not
substantially complete its restoration obligations under this Section 11.E
(“Landlord’s Section 11.E Restoration Obligations”) within such 10% time frame,
plus any additional days that such restoration is delayed due to force majeure
(as defined in Section 29), Tenant
shall have the right to terminate this Lease upon written notice to Landlord.
Notwithstanding the foregoing provisions of this Section 11.E, if pursuant
to
the foregoing provisions of this Section 11.E,
Xxxxxx
has nullified Landlord’s termination of this Lease by exercising one of Tenant’s
renewal options, the
provisions of Section 11.D shall apply to Landlord’s and Tenant’s respective
restoration obligations.
F. If
any
damage or destruction of the Premises is covered by insurance, then Tenant
and
Landlord shall fully cooperate in filing all necessary proofs of claim with
insurance companies. If pursuant to Section 11.C, 11.D or 11.F, Landlord
is
obligated to perform Landlord’s Section 11.C Restoration Obligations, Landlord’s
Section 11.D Restoration Obligations or Landlord’s Section 11.E Restoration
Obligations, as applicable, and if pursuant to Section 11.D or 11.F, Tenant
is
required to restore the Tenant Improvements and its other leasehold
improvements, then all proceeds of insurance shall be deposited into escrow
with
a title insurance company or other construction escrow disbursing agent
reasonably satisfactory to Landlord and Tenant and such insurance proceeds
may
only be used to pay for the costs of restoration, with any unused proceeds
for
Landlord’s Section 11C Restoration Obligations, Landlord’s Section 11.D
Restoration Obligations or Landlord’s Section 11.E Restoration Obligations, as
applicable, being payable to Landlord and any unused proceeds for restoration
of
the Tenant Improvements being payable to Tenant. Insurance
proceeds payable with respect to property that is to be repaired or replaced
shall be made available to the party that is responsible for repairing or
replacing said property, provided that the disbursement of such insurance
proceeds shall be subject to a disbursement agreement reasonably acceptable
to
Landlord, Tenant and the title company holding the insurance proceeds.
Notwithstanding the foregoing, if the documents governing Landlord’s financing
of the Premises require that the lender control the disbursement of the
insurance proceeds for Landlord’s
Section 11.C Restoration Obligations, Landlord’s
Restoration Section 11.D Obligations or
Landlord’s Section 11.E Restoration Obligations, as applicable,
then
such documents shall govern such disbursement of such proceeds, provided
they
are reasonable and require the insurance proceeds for Landlord’s
Section 11.C Restoration Obligations, Landlord’s
Section 11.D Restoration Obligations or
Landlord’s Section 11.E Restoration Obligations, as applicable, be
applied toward completing the applicable restoration obligations of
Landlord.
G. In
the
event either party should elect to terminate this Lease pursuant to Section
11.A
above or Section 11.E above, as applicable, the effective date of such
termination shall be the later of: (i) the date of said casualty, or (ii)
the
date Tenant vacates the Premises in the event that Tenant continues to use
part
of the Premises after the date of the casualty. In the event this Lease is
terminated, the parties shall have no further obligations to the other, except
for those obligations accrued through the effective date of such termination
and
except for obligations which survive termination of this Lease as per Section
33.O; and, upon such termination, Tenant shall immediately surrender possession
of the Premises to Landlord.
H. Notwithstanding
any provision of this Section 11 to the contrary, if Landlord reasonably
determines that the proceeds from Landlord’s insurance available for performing
Landlord’s Section 11.C Restoration Obligations, or Landlord’s Section 11.D
Restoration Obligations or Landlord’s Section 11.E Restoration Obligations, as
applicable, are insufficient by more than Two Hundred Fifty Thousand Dollars
($250,000.00) to pay the costs of such Obligations (excluding any applicable
deductible), whichever applicable, and such shortfall is not attributable
to
Landlord’s failure to discharge its obligations under Section 10 of this Lease,
Landlord shall have the right to terminate this Lease upon written notice
to
Tenant given within thirty (30) days after the damage occurs, which notice
shall
state the amount that such insurance proceeds are insufficient; provided,
however, that Tenant shall have the right to nullify such termination if
Tenant
agrees to pay the amount of such insufficient proceeds in excess of $250,000.00.
If Tenant so nullifies Landlord’s termination, Landlord shall be required to
supplement its insurance proceeds referenced in Section 11.F by $250,000.00,
and
Tenant shall be required to supplement Landlord’s insurance proceeds referenced
in Section 11.F by the amount of the insufficiency in excess of $250,000.00
(as
provided in Landlord’s termination notice).
12. Landlord's
Rights.
A. Landlord
may close the Property, or portions thereof, in emergency situations as
reasonably determined by Landlord, and during periods of general construction,
during which times admittance may be gained only under such reasonable
regulations as may be prescribed by Landlord.
B. Landlord
may enter the Premises at reasonable times following reasonable advance notice
to Tenant, to examine or show the same to existing or prospective fee owners
or
third party tenants, ground lessors, mortgagees, or Landlord's insurance
carriers and by request of any governmental agency.
C. Upon
reasonable advance written notice to Tenant (except in an “Emergency” when no
notice shall be required), Landlord may enter the Premises for inspection
purposes, or perform any maintenance, repairs, replacements or alterations
for
the benefit of the Property or any other tenant. To this end, Landlord retains
such license or easement in and through the Premises as shall be reasonably
required by Landlord. Landlord retains an easement above the drop ceiling,
below
the floor and inside the walls of the Premises to install, repair, operate
and
replace such pipes, duct work, conduits, utility lines, wires and other items
as
Landlord may install from time to time to serve the Building and other tenants
in the Building (if applicable). For purposes of this Lease, an “Emergency”
shall mean a condition that creates an immediate threat of material damage
to
person or property. Except in the event of an Emergency, all entries onto
the
Premises by Landlord shall be made in accordance with a schedule that Landlord
and Tenant have approved prior to such entry. Landlord shall use good faith,
reasonable efforts to cause all inspection and maintenance work to be performed
in such a manner as to minimize any interference with Xxxxxx’s business at the
Premises.
D. Landlord
may temporarily close portions of the Property or may temporarily suspend
certain building services to facilitate the proper maintenance and repair
of the
Property; provided however, that except in the case of an Emergency, any
temporary closure of any portion of the Premises or temporary suspension
of
building services to facilitate the proper maintenance and repair of the
Property shall be coordinated in advance with Tenant to minimize any disruption
to Tenant’s operations at the Premises..
X. Xxxxxxxx
has established certain Rules and Regulations with respect to the Property,
as
more fully set forth on Exhibit
D,
attached hereto and made a part hereof. Landlord reserves the right to establish
additional Rules and Regulations, or make amendments thereto, from time to
time
if, in Landlord's reasonable opinion, Landlord determines the same to be
necessary for the orderly operation of the Property. Tenant shall comply
with
such Rules and Regulations; provided they are applied in a manner that does
not
unfairly discriminate against Tenant.
F. Notwithstanding
any provision of this Section 12 to the contrary, Tenant shall have the right
to
have its representative accompany Landlord during any entry by Landlord or
its
designees on the Premises (except in an Emergency, as to which entry may
occur
if a representative of Tenant is not then present), and access to any special
security areas created by Tenant shall comply with all applicable laws and
regulations of any governmental authority having jurisdiction over such areas,
including without limitation, the regulations of the United States Food and
Drug
Administration and Drug Enforcement Agency, and shall occur only with a
representative of Tenant present at all times and shall be subject to such
regulations.
13. Tenant's
Alterations and Repairs.
A. Except
for Landlord's obligations under Section 8, Tenant shall keep the Property
in
good repair, without expense to Landlord; and, subject to the provisions
of
Sections 11 (regarding casualty) and 19 (regarding condemnation), upon the
termination of this Lease, Tenant shall return the Property to Landlord,
together with all of Tenant's keys, in the same condition as when received,
reasonable wear and tear excepted. In
the
event Tenant should fail to make any repairs that Tenant is required to make
pursuant to the terms of this Lease promptly and adequately within thirty
(30)
days after Landlord's written demand, Landlord may make such repairs, whereupon
Tenant shall reimburse to Landlord the cost of such repairs, as Additional
Rent,
payable within ten (10) business days after Xxxxxx's receipt of Landlord's
invoice therefor;
provided,
however, that if the nature of Tenant's default is such that more than thirty
(30) days are reasonably required to cure, then such default shall be deemed
to
have been cured if Tenant commences such performance within said 30-day period
and thereafter diligently completes the required action within a reasonable
time. Notwithstanding the foregoing, in the event Tenant should fail to make
any
repairs that Tenant is required to make pursuant to the terms of this Lease
and
such repairs are necessary to xxxxx an Emergency, Landlord shall have the
right
to make such repairs without the obligation to give Tenant the above notice
and
cure rights, and Tenant shall be responsible for the cost thereof. Tenant
shall
not allow any waste or misuse of the Premises or the Building or of the
utilities therein; and, in the event thereof, Tenant shall pay for all loss,
expense and damage suffered by Landlord caused by any such waste or misuse
by
Xxxxxx.
B. Tenant
may make alterations to the Premises, subject to Landlord's approval, not
to be
unreasonably withheld, delayed or conditioned. Tenant may make alterations
costing not more than one hundred thousand dollars ($100,000) in the aggregate
per year, without Landlord's consent, provided such alterations do not affect
systems, structure or exterior appearance of the Building, and provided Tenant
advises Landlord in writing what changes are being made. If
Landlord reasonably determines that a proposed alteration may not be usable
upon
the expiration of the Lease, Landlord may also condition its approval upon
Tenant agreeing to remove the subject alteration and restore the Premises
upon
expiration of the Lease Term. Landlord shall notify Tenant of such condition
within 10 business days following Xxxxxxxx’s receipt of Xxxxxx’s request for the
subject alteration. However, Landlord may waive such condition at a later
time
if Landlord then determines that the subject alteration may be useful following
the termination of the Lease. If Tenant makes an alteration without having
obtained Landlord’s required consent, Landlord shall have the right in addition
to all other rights and remedies of Landlord arising from such failure, to
require Tenant to remove the subject alteration and restore the Premises
to its
condition prior to the installation of the subject alteration. In
the
event that such alteration, addition, change or improvement is of such a
nature
as to require the preparation of plans and specifications, Tenant shall provide
complete and final copies of such plans and specifications to Landlord. In
the
event Landlord consent is required, Landlord
may condition such consent upon such matters as Landlord reasonably deems
appropriate, including, without limitation, Landlord's approval of the
contractor, and Xxxxxx's delivery to Landlord of such things as insurance
certificates, building permits and lien waivers for all work performed and
materials supplied. In addition, all such work performed in regard to any
such
alterations, additions, change or improvements to the Premises by Tenant
shall
be performed in compliance with all Applicable Laws (defined below), and
Tenant
shall be solely liable for any fines, charges or other costs arising from
any
failure to comply with said requirements, and Xxxxxx is solely responsible
for
paying for and installing any additional improvements that may be required
by
governmental authorities in order for them to issue a building permit to
Tenant
for the work it wants to do. Tenant shall promptly pay all contractors and
materialmen for any work done or caused to be done by Tenant in respect to
the
Premises and in the event any lien is filed, Tenant shall discharge or bond
over
the same within ten (10) business days thereafter, subject to Tenant's rights
to
contest the lien pursuant to Section 19 of this Lease.
C. Upon
the
expiration or earlier termination of this Lease, Tenant shall remove from
the
Premises all of its personal property and its trade fixtures, and Tenant
shall
have the right to remove said personal property and its trade fixtures from
the
Premises. Notwithstanding anything to the contrary in the foregoing, Tenant
shall not be required to remove the Tenant Improvements or any other alterations
made in accordance with the terms of this Lease, expect to the extent Landlord
has previously required the removal thereof in accordance with Subsection
13.B.
With respect to all removals from the Building, including but not limited
to
Tenant's required removal of personal property and trade fixtures, Xxxxxx's
removal rights are conditioned on Tenant, at Tenant's cost, and Xxxxxx agrees
to: (i) promptly repair any damage caused to the Building and/or the Premises
as
a result of such removal, (ii) restore such areas to the condition they were
in
prior to installation of Tenant's property (subject to the provisions of
Sections 11 (regarding casualty) and 19 (regarding condemnation)), and (iii)
such repairs and restoration shall be performed in a good and workmanlike
manner, in compliance with all Applicable Laws, and in a manner and with
such
materials so as to maintain the quality of the Building.
14. Subletting
and Assigning.
A. Tenant
may assign
all or a portion of the Premises at any time with Landlord's consent, which
consent
shall not
be
unreasonably withheld or delayed. Notwithstanding the foregoing, Xxxxxxxx’s
consent shall not be required in connection with an assignment (i) to an
affiliate of Tenant where Xxxxxx remains primarily liable under the lease;
(ii)
to an assignee with a credit rating as judged by Standard and Poor’s, Xxxxx’x,
or some similar agency, equal to Xxxxxx’s rating upon execution of this Lease,
in which event Tenant shall be released from all liability hereunder from
and
after the date of such assignment or (iii) to the surviving or acquiring
entity
in connection with a merger or sale of substantially all of Tenant’s assets.
Notwithstanding the foregoing, Landlord’s consent shall be required in the event
that the proposed use of the Premises following such assignment will
substantially increase Landlord’s insurance or maintenance obligations under the
Lease; provided, however, such consent shall not be required if Xxxxxx agrees
to
reimburse Landlord for any such increase in Landlord’s maintenance costs and/or
insurance premiums, as applicable.
B. Tenant
shall have an unlimited right to sublease all or any part of the Premises
at any
time, without Landlord’s consent, provided that Tenant shall remain fully liable
for each of Tenant’s obligations under the Lease, and further provided that the
uses under such sublease do not substantially increase Landlord’s insurance or
maintenance obligations under the Lease.
C. Except
as
otherwise expressly provided in Section 14.A, in no event shall Landlord's
consent to any sublease or assignment constitute a release of Tenant from
the
full performance of Tenant's obligations under this Lease, Tenant shall remain
liable for all obligations under this Lease notwithstanding any such assignment
or sublease, and Tenant, and such assignee shall all be primarily liable
for all
obligations under this Lease, and Landlord at its option may enforce its
claims
against either of them or both of them. Tenant shall reimburse Landlord for
Landlord's reasonable attorney's fees to review and/or draft all documents
Landlord reasonably requires in connection with the transfer of Xxxxxx's
interests. As a condition precedent to any assignment being effective
(regardless of whether such assignment requires the approval of Landlord),
the
assignor and assignee shall execute and deliver to Landlord written
confirmation, in a form reasonably satisfactory to Landlord, that the assignee
has accepted an assignment of all of Tenants rights and obligations under
this
Lease, and has agreed to assume such obligations. In addition, as a condition
precedent to any assignment contemplated by parts (i), (ii) or (iii) of Section
14.A, being effective, the assignor and assignee shall also provide Landlord
with documentation reasonably satisfactory to Landlord that evidences that
such
assignment is the result of a transaction that permits the assignment of
this
Lease without the consent of Landlord.
D. In
no
event shall Tenant be required to share with Landlord any profit received
by
Tenant from a sublease or an assignment.
In the
event Landlord procures a subtenant or assignee for Tenant, Tenant shall
pay the
commission of Landlord’s leasing agent.
15. Tenant
Default.
A. The
occurrence of any of the following events shall be deemed to be an event
of
default on Tenant's part under this Lease (a "Default"):
(i) Tenant
fails to pay when due any Rent or other amount due to Landlord under this
Lease,
and such failure continues for two (2) or more business days after written
notice thereof to Tenant; or
(ii) Tenant
fails to carry or renew any insurance required to be maintained by Tenant
under
this Lease or fails to remedy or correct any hazardous condition, and such
failure is not corrected within two (2) business days after written notice
thereof to Tenant, provided that if it reasonably takes longer than 2 business
days to remedy or correct such hazardous condition, then Tenant shall have
the
amount of time that it reasonably takes to cure such default, on condition
that
Tenant has commenced curing the default within 2 business days after the
default
notice was given and is continuing diligent efforts to cure the default;
or
(iii) Tenant
fails to comply with any other term, provision or covenant of this Lease
(meaning one not described in clauses (i) or (ii) above), and such failure
continues for thirty (30) days or more after written notice thereof to Tenant,
provided that if it reasonably takes longer than 30 days to cure such default,
then Tenant shall have the amount of time that it reasonably takes to cure
such
default, on condition that Tenant has commenced curing the default within
30
days after the default notice was given and is continuing diligent efforts
to
cure the default; or
(iv) Tenant
fails to vacate the Premises immediately upon termination of this Lease,
by
lapse of time or otherwise, or upon termination of Tenant's right to possession
only; or
(vi) The
leasehold interest of Xxxxxx is levied upon under execution or is attached
by
process of law and Tenant fails to contest diligently the validity of any
lien
or claimed lien and give sufficient security reasonably satisfactory to Landlord
to insure payment thereof, or fails to satisfy any judgment rendered thereon
and
have the same released within sixty (60) days thereafter; or
(vii) Tenant
becomes insolvent, admits in writing its inability to pay its debts generally
as
they become due, files a petition in bankruptcy or a petition to take advantage
of any insolvency statute, makes an assignment for the benefit of creditors,
makes a transfer in fraud of creditors, applies for or consents to the
appointment of a receiver of itself or of the whole or any substantial part
of
its property, or files a petition or answer seeking reorganization or
arrangement under the federal bankruptcy laws, as now in effect or hereafter
amended, or any other applicable law or statute of the United States or any
state thereof; or
(viii) A
court
of competent jurisdiction enters an order, judgment or decree adjudicating
Tenant, a bankrupt, or appointing a receiver of Tenant, or of the whole or
any
substantial part of its property, without the consent of Tenant, or approves
a
petition filed against Tenant, seeking reorganization or arrangement of Tenant
under the bankruptcy laws of the United States, as now in effect or hereafter
amended, or any state thereof, and such order, judgment or decree is not
vacated, set aside or stayed within sixty (60) days from the date of entry
thereof, or Tenant consents to or otherwise ceases to contest such order,
judgment or decree.
B. (1) Subject
to the limitations in Section 15.B(2) below, upon the occurrence of a Default
on
Tenant's part, Landlord may either (a) terminate this Lease, or (b) terminate
Tenant's right of possession to the Premises without terminating this Lease.
In
either event, Landlord shall have the right to dispossess Tenant, or any
other
person in occupancy of the Premises, together with their property, and re-enter
the Premises. Upon such re-entry, Tenant shall be liable for all expenses
incurred by Landlord in recovering the Premises, including, without limitation,
Tenant's obligations under Sections 13.C and 15, clean-up costs, legal fees,
removal, storage or disposal of Tenant's property, and restoration
costs.
(2) Notwithstanding
any provision in this Lease to the contrary, in no event shall Landlord’s
remedies include a right of termination of this Lease or of Tenant’s right of
possession of the Premises if Xxxxxx’s failure to perform is the result of a
good faith dispute as to Tenant’s rights and/or obligation(s) under the terms of
the Lease; provided further that if a default by Xxxxxx would have otherwise
entitled Landlord to a termination right, such termination right shall be
available if such default remains uncured for more than ten (10) days following
written notice from Landlord following a final decision made in an adversary
proceeding.
C. Subject
to Section 15.B(2) above, in the event Landlord elects not to terminate this
Lease, but only to terminate Tenant's right of possession to the Premises,
Landlord may re-enter the Premises without process of law if Xxxxxx has vacated
the Premises or, if Tenant has not vacated the Premises, by an action for
ejection, unlawful detainer, or other process of law. No such dispossession
of
Tenant or re-entry by Landlord shall constitute or be construed as an election
by Landlord to terminate this Lease, unless Landlord delivers written notice
to
Tenant specifically terminating this Lease. Tenant shall remain liable for
all
past due Rent and late fees, plus all other obligations of Tenant under this
Lease, including but not limited to the aforesaid expenses incurred by Landlord
to recover possession of the Premises. In addition, Tenant shall be liable
for
all Rent thereafter accruing under this Lease, payable monthly as such Rent
accrues, in an amount equal to the Rent payable under this Lease less the
rent
(if any) collected from any reletting. In the event the Premises are relet,
Tenant shall also be liable for all reasonable costs of reletting, including,
without limitation, any brokers' fees, legal fees, and/or tenant finish costs
required to be paid in connection with any reletting, plus an amount equal
to
the Tenant Allowance.
D. No
action
by Xxxxxx after final judgment for possession of the Premises shall reinstate
this Lease or Xxxxxx's right of possession of the Premises, and Tenant waives
any and all rights of redemption in the event Tenant is judicially dispossessed.
Should Landlord elect not to exercise any of its rights in the event of a
Default, it shall not be deemed a waiver of such rights as to subsequent
Defaults. All of the aforesaid rights of Landlord shall be in addition to
any
remedies which Landlord may have at law or in equity.
E. If
Tenant
defaults on paying any monetary obligation to Landlord, Xxxxxx agrees to
pay
interest to Landlord on the amount owed at a rate equal to the lower of:
(i) the
maximum rate allowed by law, or (ii) a floating rate equal to two percent
(2%)
per annum above the interest designated
from time to time in The
Wall Street Journal's
Money
Rate Table as the "prime rate" (“Default Rate”),
from
the date due until paid.
F. Landlord
shall use commercially reasonable efforts to mitigate Landlord's damages
as a
result of Xxxxxx's Default which shall not exceed such efforts as Landlord
or
its affiliates generally use to lease similar space in premises similar to
the
Building. Landlord will not be deemed to have failed to mitigate if Landlord
leases any other premises owned by Landlord or its affiliates before reletting
all or any portion of the Premises.
16. Expiration
or Termination of Lease; Holdover.
A. Subject
to holdover rights under Section 16.B, and subject to the provisions of Sections
11 (regarding casualty) and 19 (regarding condemnation), upon the expiration
or
earlier termination of this Lease, Tenant shall surrender the Premises to
Landlord, without demand, in as good condition as when delivered to Tenant,
reasonable wear and tear excepted, and shall remove all of Tenant's trade
fixtures, movable equipment, furniture, other personal property and all
leasehold improvements (to the extent required by Section 13.C), and shall
comply with Section 13.C of this Lease. Tenant shall repair any damage caused
by
such removal in a good and workmanlike manner and in compliance with all
applicable Laws.
B. Tenant
will have the right to holdover for a period of up to four (4) months following
the expiration of the Lease Term, or any extension thereof, at the same Rent
as
in effect during the last month of the previous Lease Term, provided Xxxxxx
gives Landlord twelve (12) months notice of Xxxxxx’s intent to hold over.
Thereafter, the holdover Rent will be at one hundred fifty percent (150%)
of the
Rent in effect during the last month of the previous Lease Term, and the
Lease
will be deemed a month-to-month lease. During the first four (4) month holdover
period, Tenant will not be liable for any holdover damages or penalties beyond
said Rent. Payment
of such holdover rent does not entitle Tenant to remain in possession after
the
first
four (4) month holdover period,
and
Landlord at its option may exercise its rights to evict Tenant. Payment of
such
holdover rent does not preclude Landlord from recovering from Tenant any
other
damages incurred by Landlord that Landlord may be legally entitled to recover
as
a result of such holdover, provided that this sentence shall not apply to
the
first
four (4) month holdover period.
C. Subject
to holdover rights under Section 16.B, should any of Tenant's property remain
within the Premises after Tenant vacates the Premises, it shall be deemed
abandoned, and Landlord shall have the right to place such property in storage
on or off of the Premises, to remove such property and to dispose of it at
Tenant's sole risk, cost and expense. Xxxxxx agrees to pay all storage charges
if such property is placed in storage, and Xxxxxx agrees to indemnify and
hold
Landlord harmless with respect to all liability and expense, including
Landlord's attorney's fees that Landlord may incur in connection with removing,
storing and disposing of Tenant's property. Any person storing Tenant's property
shall have a lien against Xxxxxx's property for such storage charges, and
shall
have the right to enforce such lien to satisfy said storage charge
obligations.
17. Right
to Cure Tenant's Default. If
Tenant
is in Default (the term "Default", as defined in Section 15 above, means
that
Landlord has already given any required default notice to Tenant with respect
to
such default, and it also means that Tenant has not cured such default within
the cure period, if any, allowed by this Lease) under any provision of this
Lease, other than for the payment of Rent, Landlord may (but shall not be
obligated to) cure such Default on behalf of Tenant, at Tenant's expense.
Landlord may also perform any obligation of Tenant, without notice to Tenant
(or
with fewer days notice than otherwise required by this Lease), should Landlord
deem such performance to be an emergency. If Landlord incurs any reasonable
expense, including reasonable attorney's fees, in instituting, prosecuting
and/or defending any action or proceeding by reason of any emergency or Default,
Tenant shall reimburse Landlord for same, as Additional Rent, within fifteen
(15) days after receipt of Landlord's invoice therefor, together with the
interest, if any, Landlord may be entitled to charge thereon pursuant to
the
terms of Section 15.E.
18. Hold
Harmless.
A. Subject
to the provisions of Sections 10.D and 54 hereof, Xxxxxx hereby agrees to
indemnify, defend and hold Landlord and the Property Manager for the Building
(including, without limitation, their respective members, managers, officers,
directors, agents and employees) (all of the foregoing are referred to as
the
"Landlord Indemnified Parties") harmless from and against all actions, claims,
causes of action, demands, damages, penalties and expenses of any kind
(including, without limitation, attorneys' fees and litigation costs) which
may
be brought against the Landlord Indemnified Parties by any person or entity
whatsoever, or which the Landlord Indemnified Parties may pay or incur with
respect to any person or entity (including, without limitation, Tenant, its
agents, employees, contractors, customers and invitees) as a result of and
caused by: (i) any negligent act or omission of Tenant or its agents, employees,
contractors, customers or invitees in or about the Property, or (ii) any
breach
or default on the part of Tenant in the performance of any of its obligations
under this Lease, or (iii) the use or occupancy of the Premises by Tenant,
or
(iv) Tenant's use of any equipment, facilities or property in, on, or about
the
Property, or (v) any personal injury or property damage occurring on the
Premises, but excluding from this indemnity, claims arising from the Landlord
Indemnified Parties' negligence or willful misconduct.
B. Subject
to the provisions of Sections 10.D and 54 hereof, Landlord hereby agrees
to
indemnify, defend and hold Tenant (including, without limitation, Tenant’s,
officers, directors, agents and employees) (all of the foregoing are referred
to
as the "Tenant Indemnified Parties") harmless from and against all actions,
claims, causes of action, demands, damages, penalties and expenses of any
kind
(including, without limitation, attorneys' fees and litigation costs) which
may
be brought against the Tenant Indemnified Parties by any person or entity
whatsoever, or which the Tenant Indemnified Parties may pay or incur with
respect to any person or entity (including, without limitation, Landlord,
its
agents, employees, or contractors) as a result of and caused by: (i) any
negligent act or omission of Landlord or its agents, employees, or contractors,
in or about the Property, or (ii) any breach or default on the part of Landlord
in the performance of any of its obligations under this Lease, but excluding
from this indemnity, claims arising from the Tenant Indemnified Parties'
negligence or willful misconduct.
C. The
provisions of this Section 18 shall survive the expiration or earlier
termination of this Lease.
19. Condemnation. If
all or
any substantial part of the Premises shall be acquired by the exercise of
eminent domain, and as a result thereof, the remaining Premises will not,
in the
reasonable opinion of Tenant, be usable by Tenant, or if it is not economically
feasible to restore the Premises, as determined by Landlord in its reasonable
discretion, then either party may terminate the Lease by giving written notice
to the other on or before the date that actual possession thereof is so taken.
If the Lease is not terminated as aforesaid by Landlord or Tenant as a result
of
such taking, then rent payable under the Lease shall be equitably abated
taking
into account the size of the Premises originally leased compared to the space
not taken, and Landlord, at Landlord’s expense, shall proceed to restore the
Premises as nearly as possible to the condition that existed prior to the
taking; provided that Landlord shall not be required to restore any leasehold
improvements made by Tenant at Tenant’s expense. All damages awarded in
connection with any taking shall belong to Landlord; provided, however, that
(i)
any awards shall be applied to restoration of the Premises notwithstanding
anything to the contrary in any mortgage or deed of trust affecting the Premises
and (ii) so long as the award to Landlord is not reduced thereby, Tenant
may
seek a separate award for the value of any improvements made by Tenant at
Tenant’s cost and any other damages suffered by Tenant arising from such
taking.
20. Subordination. Tenant
shall, at the written request of Landlord, execute a Subordination,
Non-Disturbance and Attornment Agreement, substantially in the form attached
hereto as Exhibit K, from any lender holding a Mortgage on the Property from
time to time, with such changes to such form as may reasonably be requested
by
such lender and reasonably acceptable to Tenant. In the event any existing
or
future lender, holding a mortgage, deed of trust or other commercial paper,
requires a modification of this Lease which does not materially change any
right
or obligation of Tenant hereunder, Xxxxxx agrees to execute appropriate
instruments to reflect such modification, upon request by Landlord.
21. Liens. Tenant
shall not mortgage or otherwise encumber or allow to be encumbered its leasehold
interest in the Premises without obtaining the prior written consent of Landlord
which consent may be withheld in Landlord's sole discretion. Should Tenant
cause
or permit any mortgage, lien or other encumbrance (hereinafter singularly
or
collectively referred to as "Encumbrance") to be filed, against the Premises
or
the Property without Landlord's consent, Tenant shall dismiss or bond (pursuant
to a bond reasonably satisfactory to Landlord, which bond shall be payable
to
and shall be delivered to Landlord) against same within twenty (20) days
after
the filing thereof. If Tenant fails to remove or bond over said Encumbrance
within said twenty (20) days, Landlord shall have the right, but no obligation,
to remove said Encumbrance by whatever measures Landlord shall deem convenient
including, without limitation, payment of such Encumbrance, in which event
Tenant shall reimburse Landlord immediately upon receipt of Landlord's invoice
therefor, as Additional Rent, for all costs expended by Landlord, including
reasonable attorneys' fees, in removing said Encumbrance. All of the aforesaid
rights of Landlord shall be in addition to any remedies which either Landlord
or
Tenant may have available to them at law or in equity. Tenant may only bond
over
an Encumbrance in lieu of removing it if it is diligently contesting the
Encumbrance in good faith and only if Tenant complies with the requirements
of
the next sentence. In order for Tenant to have the right to contest an
Encumbrance, Tenant shall: (i) notify Landlord in writing of the existence
of
the Encumbrance, and provide Landlord with a copy of the Encumbrance, and
a
statement that Tenant intends to diligently contest the Encumbrance, along
with
a brief description of the dispute, (ii) provide the bond required by the
preceding sentence, (iii) keep Landlord informed of the status of the contest
and provide Landlord with such information related thereto as Landlord may
request from time to time, (iv) diligently pursue the contest at Tenant's
sole
cost and expense, and (v) cause the Encumbrance to be released and discharged
by
the earlier of: (a) 30 days after there is a final resolution of such contest
by
final judgment or settlement, or (b) at least two business days prior to
the
date on which a foreclosure or other sale is scheduled to enforce the
Encumbrance. Notwithstanding
any provision of the foregoing to the contrary, Tenant shall be permitted
to
mortgage or otherwise encumber any personal property of Tenant located on
the
Premises.
22. Compliance
with Laws.
X. Xxxxxxxx
will ensure that the Premises, and the Building, are in compliance with all
federal, state and local laws and regulations, including but not limited
to the
Americans with Disabilities Act (ADA) in effect at the time of Substantial
Completion. The Landlord shall not be responsible for lack of compliance
due to
the acts of
Tenant
or any improvements made by Tenant.
B. Subject
to Landlord's obligations under Section 22.A, Tenant
shall comply with all applicable federal, state and local statutes, ordinances,
rules, regulations, orders and decisions (collectively "Applicable Laws")
in
connection with its activities at the Premises and in connection with Tenant's
use, maintenance, repair and alteration of the Premises. In addition, Tenant
shall comply with any reasonable requirements of Landlord's insurance carrier
with respect to Xxxxxx's use of the Premises which does not materially change
any right or obligation of Tenant hereunder.
C. Landlord
will at the time of delivery of the Premises
ensure
the Premises
complies
with all applicable health and safety standards, as well as ensure
that no
known hazardous or toxic substances are present in the Building or Premises.
Landlord shall not be responsible for hazardous materials or toxic substances
generated as a result of Tenant’s
activities
with respect to the Premises.
Tenant shall not have any liability to Landlord resulting from any conditions
existing, or events occurring, or any hazardous substances existing or
generated, at, in, on, under or in connection with the Premises prior to
the
Commencement Date.
D. Tenant
shall not use, store, manufacture, dispose of or discharge any "Hazardous
Materials" (as hereinafter defined) from or on the Premises or any other
portion
of the Building or Property, except as permitted by subsection 22.E.
X. Xxxxxx
is
permitted to handle Hazardous Materials that are incidental to the Permitted
Uses authorized in the Basic Lease Data Section of this Lease, if any (referred
to as "Permitted Hazardous Materials"), provided that: (i) such Permitted
Hazardous Materials are stored, handled and disposed of in compliance with
all
Applicable Laws, and (ii) such Permitted Hazardous Materials are stored,
handled
and disposed of at all times in a manner which does not endanger the health
of
Building occupants or other persons.
F. Landlord
reserves the right, from time to time, but not more than once per year, to
require Tenant to provide reasonable proof, reasonably satisfactory to Landlord,
that Tenant is complying with the covenants and obligations set forth in
this
Section 22. Landlord acknowledges and agrees that a certified statement from
Tenant (i) listing Permitted Hazardous Materials then-currently in use at
the
Premises, and (ii) confirming that all such Permitted Hazardous Materials
are
being used in conformity with applicable laws and regulations shall constitute
“reasonable proof” under this subsection F.
X. Xxxxxx
agrees to defend, indemnify and hold harmless Landlord, any mortgagee of
Landlord, and their respective agents and employees, from and against any
and
all claims, demands, costs and expenses of every kind and nature (including,
without limitation, expert fees, penalties, fines, removal, clean-up,
transportation, disposal and restoration expenses; consultants' fees and
attorneys' fees), arising out of any injury or damage to any person, property
or
business, including that of Landlord, resulting from any use, storage, disposal,
discharge or existence of Hazardous Materials (including Permitted Hazardous
Materials) upon the Premises, but only to the extent the placement thereof
upon
the Premises was caused by Tenant, or Tenant’s employees, agents, contractors or
invitees. Further, upon the expiration or earlier termination of this Lease,
Tenant shall return the Premises to Landlord free from all Hazardous Materials
introduced to the Premises by Tenant, and in conformance with all Applicable
Laws related to Hazardous Materials. All of the obligations, duties and
indemnifications set forth in this Section 22 shall survive the expiration
or
earlier termination of this Lease. Notwithstanding anything in this Section
22
to the contrary, Tenant
shall not have any liability to Landlord resulting from any conditions existing,
or events occurring, or any Hazardous Materials existing or generated, at,
in,
on, under or in connection with the Premises prior to the Commencement
Date.
H. For
purposes of this Lease, the term "Hazardous Materials" shall be defined as
all
substances presently designated or hereafter designated as being hazardous
substances under any Applicable Laws, and all other wastes and substances,
now
or hereafter defined as hazardous, toxic, dangerous or otherwise regulated
under
federal, state or local environmental law or regulation, including (but not
limited to) explosives, radioactive materials, polychlorinated biphenyls
(PCBs),
petroleum products, asbestos containing materials, biohazards, hazardous
chemicals and radon gas.
23. Notices. All
notices that are required or permitted to be given hereunder shall be in
writing, addressed to the parties hereto at their respective addresses set
forth
in the Basic Lease Data Section of this Lease, and delivered by (a) United
States registered or certified mail, with postage prepaid, (b) a commercial
package courier/delivery service, (c) hand delivery, or (d) sent by facsimile
to
the facsimile numbers set forth in the Basic Lease Data Section of this Lease.
A
copy of notices sent to Landlord shall also be sent to Landlord's attorneys
at
the following address:
Stone,
Leyton & Xxxxxxxx,
A
Professional Corporation
0000
Xxxxxxx, Xxxxx 000
Clayton,
Missouri 63105
Attn:
Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxxx
Telecopy
No.: 314/721-8660
A
notice
sent by certified or registered mail shall be effective as of the third business
day following the day it is deposited in the mail, whether or not it is
received. A notice sent by courier or hand delivery is effective on delivery.
A
notice sent by facsimile is effective on the first business day following
transmission of the facsimile, if the sender's facsimile machine prints a
confirmation that the recipient received the facsimile transmission and if
a
copy of the notice is also mailed by first class mail to the party that was
to
receive the notice accompanied by a note that it confirms a facsimile notice
previously given. Either party may designate a different address or addresses
by
giving the other party written notice of its new address(es).
24. Liability
of Landlord.
A. Notwithstanding
anything to the contrary in this Lease, the term "Landlord", as used herein,
is
defined as the current owners, from time to time, of the Building. In the
event
the Building is transferred, the party conveying same is automatically released
on the date the Building transfer becomes effective, from all liability with
respect to any obligations thereafter occurring or covenants thereafter to
be
performed by the Landlord or its agents; provided,
(i) such transfer shall be subject to the rights of Tenant hereunder; and
(ii)
all transferees expressly assume and agree to perform all of Landlord’s
obligations under this Lease. Without limiting the generality of the foregoing,
any transfer by Landlord of title to the Building shall be subject to the
Option
to Extend described in Section 37, without the necessity of any further written
instrument to that effect.
B. Except
to
the extent of their contributory negligence, Landlord and its property manager
shall not be liable or responsible for the act of any third party (including
but
not limited to tortious and criminal acts), including other tenants of the
Building, or the employees, agents, servants, invitees or contractors of
such
tenants, or other third parties.
C. It
is
expressly under-stood and agreed that none of Landlord's covenants under
this
Lease are personal in nature, and that Xxxxxx agrees to look solely to the
estate and property interest of Landlord in the Property for the satisfaction
of
Xxxxxx's remedies or the collection of any judgment or other judicial process
requiring the payment of money by Landlord, and no other property or assets
of
Landlord (or any of Landlord' members) shall be subject to levy, execution
or
other enforcement procedure for the satisfaction of Xxxxxx's remedies.
25. Estoppel
Certificates and Other Information.
A. Within
ten (10) days after a party's request, the nonrequesting party shall execute
and
return to the requesting party or its designee a statement in a form reasonably
requested by the requesting party certifying, to the extent true, that this
Lease is unmodified and in full force and effect, the status of any defaults
hereunder, the dates to which the Rent and other charges have been paid,
and any
other information reasonably requested by the requesting party. Any such
statement delivered pursuant to this Section may be relied upon by any person
that has an interest in the Property or which is acquiring an interest in
the
Property.
B. Upon
Landlord's written request from time to time, Tenant shall provide Landlord
with
a copy of Xxxxxx’s most current audited financial statements, subject to
reasonable confidentiality conditions imposed by Tenant with respect thereto;
provided, however, that Tenant shall not have any such obligation to provide
such information as long as such information is publicly available.
26. Brokerage. Landlord
will compensate Xxxxx & Xxxxx Company as Tenant's agent in this transaction
in the amount of three percent (3%) of the aggregate value of the Base Rents
during months 7-66 of the initial Lease Term,
and
one
and one-half percent (1.5%) of the aggregate value of the Base Rents during
months
67-126
of the
initial Lease Term. Said commission will be payable, fifty percent (50%)
within
thirty (30) days of Lease execution, and the remaining fifty percent (50%)
upon
Tenant's occupancy of the Premises. Except
as
otherwise provided in this Section, Xxxxxxxx agrees to indemnify, defend
and
hold harmless Tenant from and against any and all liability and expense arising
from all claims for commission arising out of the execution and delivery
of this
Lease, if the person claiming the commission claims to have been hired by
Landlord. Except with respect to the above commission to be paid to Xxxxx
&
Xxxxx Company by Landlord, Xxxxxx agrees to indemnify, defend and hold harmless
Landlord from and against any and all liability and expense arising from
all
claims for commission arising out of the execution and delivery of this Lease,
if the person claiming the commission claims to have been hired by
Xxxxxx.
27. Severability. In
the
event any provision of this Lease is found to be invalid or unenforceable,
the
same shall not affect or impair the validity or enforceability of any other
provision.
28. Personal
Property Taxes. In
the
event any of Xxxxxx's personal property is assessed with the personal property
of Landlord, Tenant shall pay to Landlord an amount equal to Tenant's share
of
such taxes in accordance with the provisions of Section 6 hereof. Xxxxxxxx
and
Xxxxxx agree to cooperate in good faith to have their separate personal property
separately assessed.
29. Force
Majeure. Landlord
and Tenant each shall be excused from performing any obligation or undertaking
in this Lease (specifically excepting, however, Tenant's obligation to pay
Rent
and any other monetary obligation required under this Lease) in the event
and/or
so long as the performance of any such obligation is prevented or delayed,
by
fire, earthquake, flood, explosion, war, invasion, insurrection, riot, mob
violence, sabotage, inability to procure equipment, facilities, materials,
or
supplies in open market, failure of power, failure of transportation, strikes,
lockouts, action of labor unions, condemnation, or any other cause, not within
the reasonable control of the party asserting such delay (collectively, "Force
Majeure Events"), and any deadlines for performance shall be extended by
the
number of days that performance has been delayed by Force Majeure Events.
If
Landlord has notice of any event of force majeure or any other material delay
in
the construction of the Landlord Improvements and the Tenant Improvements,
then
Landlord shall promptly provide written notice to Tenant describing the reason
for the delay and the anticipated delay, if any, in the Substantial Completion
of said improvements.
30. Parking. Parking
shall be available on an unreserved basis to all Building tenants. It is
currently contemplated that parking
for the entire Tenant complex will be at a ratio of five and a half (5.5)
spaces
per 1,000 rentable square feet; however, Landlord and Tenant will consider
whether less parking spaces may be appropriate. Parking
will be provided without any separate parking fee or charge. Notwithstanding
the
foregoing, if Tenant exercises its “give back rights” pursuant to Section 40,
but continues to occupy more than 50% percent of the space in the Premises,
Tenant shall have the exclusive right to utilize a proportionate number of
spaces reserved for guest parking near the entrance to Tenant’s then-current
Premises; provided that the specific location of such spaces shall be designated
by Landlord and reasonably acceptable to Tenant. Landlord and Tenant acknowledge
that certain areas currently designated for parking may change as contemplated
by Section 55 hereof.
31. Signage. Tenant
may install exterior signage on the Premises at its sole cost. Such signage
will
be provided and installed by Tenant, and will be considered to be part of
the
Tenant Improvements. Landlord reserves the right to review and approve all
signage and installation techniques, such approval not to be unreasonably
withheld, conditioned or delayed. All signage must be in compliance with
relevant laws, ordinances, and the Protective Covenants. Landlord will provide
building standard interior signage at Landlord's sole cost. Notwithstanding
the
foregoing, if Tenant exercises any of its give back rights pursuant to Section
40, (i) Landlord shall have the right to provide exterior signage on the
Building to accommodate other tenants occupying at least ninety thousand
(90,000) square feet of space in the Building, provided that the exterior
Building signage granted to such other tenants shall correspond with the
amount
of space leased to such other tenant and the amount of space then leased
by
Tenant, and (ii) Landlord shall have the right to provide exterior signage
on
the entrance monument for the Premises to accommodate no more than six (6)
other
tenants each occupying at least fifteen thousand (15,000) square feet of
space
in the Building, provided that as long as Tenant is occupying the most amount
of
space of all tenants in the Building, Tenant’s name shall be on the top of such
monument. The parties acknowledge that Landlord has certain rights under
the
Ground Lease to install a sign in the median island of University Place Drive
at
its intersection with University Boulevard that identifies the Park and Tenant.
At any time Tenant is occupying space in the Building, then upon request
of
Tenant, Landlord shall exercise such right, provided that the installation
and
cost of such median signage shall be borne by Tenant.
32. Assignment
or Transfer by Landlord. Landlord
may at all times assign all or part of its interest in this Lease, or may
sell
or transfer all or part of its interest in the Property. Upon receipt of
written
confirmation that Xxxxxxxx’s purchaser or assignee expressly assumes and agrees
to perform all of Landlord’s obligations under this Lease, Xxxxxx agrees to
attorn to such purchaser or assignee. Without limiting the generality of
the
foregoing, any transfer by Landlord shall be subject to the option to extend
described in Section 37 without the necessity of any further written instrument
to that effect.
33. Miscellaneous.
A. All
of
the covenants of Landlord and Tenant hereunder shall be deemed and construed
to
be "conditions" as well as "covenants", as though both words were used in
each
separate instance within this Lease.
B. The
Section headings appearing in this Lease are inserted only as a matter of
convenience, and in no way define or limit the scope of any
Section.
C. All
of
the terms of this Lease shall extend to and be binding upon the parties hereto
and their respective heirs, executors, administrators, successors and
assigns.
D. This
Lease and the parties' respective rights hereunder shall be governed by the
laws
of the State of Missouri. In the event of litigation, suit shall be brought
in
St. Louis County, Missouri.
E. Each
party hereto has participated in the drafting of this Lease, and expressly
acknowledges such joint participation, to avoid application of any rule
construing contrac-tual language against the party which drafted such
language.
F. This
Lease is modified and affected by the Exhibits which are attached hereto
and
made a part hereof.
G. Submission
of this Lease by Landlord shall not be deemed to be a reservation of the
Premises. Landlord shall not be bound hereby until a copy of this Lease has
been
fully signed by Landlord and Tenant and delivered to each party.
H. Time
is
of the essence in this Lease and all of its provisions. If the date provided
for
the performance of any act hereunder occurs on a Saturday, Sunday or a holiday
observed by national banks in the State of Missouri, then the time for the
performance of such act shall be deemed extended to the next following business
day.
I. Each
party represents and warrants that: (i) such party is duly organized and
validly
existing as the type of entity described in the first paragraph of this Lease,
(ii) such party is in good standing under the laws of the state in which
it is
organized, (iii) such party has the power to enter into this Lease, (iv)
the
person or persons executing this Lease on behalf of such party is/are duly
authorized to execute this Lease on behalf of such party, and (v) this Lease
is
binding on such party.
J. In
the
event of any litigation or other proceedings (including, but not limited
to
arbitration and bankruptcy proceedings) between Landlord and Tenant concerning
the Lease or the Premises, the non-prevailing party shall pay to the prevailing
party all court costs and reasonable attorneys' fees and costs of such
litigation or other proceeding, if any, incurred by the prevailing party
in
connection with such litigation or other proceeding.
K. INTENTIONALLY
DELETED
L. This
Lease and the exhibits hereto constitute the entire agreement between Landlord
and Tenant concerning Xxxxxx's lease of the Premises, and said Lease and
exhibits supersede in their entirety all prior agreements, including all
letters
of intent.
M. No
amendment to this Lease shall be binding on a party hereto unless the amendment
is in writing and signed by the party to be bound.
N. No
waiver
shall be binding on a party unless the waiver is in writing and signed by
the
party to be bound. Delay in enforcing rights shall not constitute a waiver
of
the right to enforce such rights. Failure to strictly enforce the terms of
this
Lease shall not constitute a waiver of Landlord's rights to at any time
thereafter strictly enforce the terms of this Lease. Acceptance by Landlord
of
part of a payment due under this Lease shall not constitute a waiver of
Landlord's rights to enforce a default resulting from failure to make the
full
payment due, and shall not constitute an accord and satisfaction, unless
both
Landlord and Tenant sign a separate written agreement (meaning separate from
any
writing on any check tendered to Landlord) expressly setting forth the terms
of
the waiver or accord and satisfaction. The parties agree that Landlord shall
not
be bound by any agreements or language on any checks tendered to Landlord
by or
on behalf of Tenant.
O. The
following obligations of the parties under this Lease shall survive any
expiration or earlier termination of this Lease for any reason: (i) all Landlord
and Tenant indemnification obligations, (ii) Tenant's obligation to keep
the
Premises free of liens, (iii) all obligations Tenant has to maintain the
Premises in the condition required by this Lease, (iv) all obligations Tenant
has at the termination of this Lease to remove Tenant improvements, to restore
the Premises as required by this Lease and to repair damage caused by the
removal of property from the Premises, (v) all unpaid monetary obligations
of
Landlord and Tenant which pertain to periods prior to the date this Lease
terminated, (vi) Tenant’s obligation to confirm that its rights under this Lease
have terminated, (vii) all damages due Landlord and Tenant as a result of
any
default under this Lease, and (viii) all obligations of Tenant pursuant to
Sections 15, 33.J and 45 of this Lease.
P. For
purposes of this Lease, the term "normal business hours", shall mean Monday
through Friday from 7:00 a.m. to 6:00 p.m., Saturdays from 8:00 a.m. to 1:00
p.m., excluding Sundays and holidays.
Q. Tenant's
officers, employees, invitees and customers shall have access to the Premises
at
all times (including hours other than normal business hours); provided, however,
that after normal business hours Landlord may elect to impose reasonable
security precautions to restrict access to the Premises by other persons,
and
further provided that Landlord may reasonably restrict access to the Building
pursuant to Section 12 above. Notwithstanding any provision in this paragraph
to
the contrary, this Section shall only apply after Tenant has given back space
in
the Building to Landlord pursuant to Section 40.
34. INTENTIONALLY
DELETED.
35. Recording. If
requested by Xxxxxx, Xxxxxxxx will execute a memorandum of lease in recordable
form, in a form mutually agreeable to Landlord and Tenant, which may be recorded
by Xxxxxx in the St. Louis County real estate records. Upon the termination
of
this Lease or upon any information in such memorandum becoming inaccurate,
Tenant shall, upon request of Landlord, promptly execute an instrument in
recordable form that states that the Lease has terminated, or that corrects
any
inaccurate information, as the case may be.
36. INTENTIONALLY
DELETED.
37. Renewal
Option.
A. Tenant
shall have the right and option to extend the term of this Lease for the
number
of renewal periods set forth in the Basic Lease Data section, each such renewal
period to be for the term of years set forth in the Basic Lease Data section,
upon the following additional terms and conditions:
(1) No
Default by Xxxxxx has occurred hereunder and is continuing beyond any applicable
cure period at the time the applicable renewal option is exercised; provided,
however, that this condition shall not apply if, at the time the applicable
renewal option is exercised, Tenant is disputing in good faith that a Default
by
Tenant has occurred, and cures such Default within ten days following an
adjudication finding that such Tenant Default has in fact occurred.
(2) Tenant
shall give to Landlord written notice of the exercise of the applicable option
not less than twelve (12) months prior to the expiration of the initial term
that immediately precedes such renewal term. If Landlord does not receive
Tenant's notice on or before the beginning of the applicable 12 month period,
Tenant shall be deemed to have waived all remaining renewal options to renew
this Lease. Time is of the essence with respect to exercise of each renewal
option, and Landlord may treat the renewal option as lapsed and rent all
or any
part of the Premises to other persons for all or any part of that period
(and
later periods) if the Landlord has not received Tenant's written renewal
notice
at least twelve (12) months prior to commencement of the renewal
term.
B. All
provisions of this Lease shall apply to Tenant's leasing of the Premises
during
each renewal term, except the Base Rent payable by Tenant to Landlord during
each renewal period shall be the greater of: (i) ninety-five percent (95%)
of
the then "Fair Market Rental Rate" as determined in the manner set forth
in
Subsection C below, or (ii) the
average or the “effective” lease rate over the preceding lease
term.
C. As
used
in this Lease, the term "Fair Market Rental Rate" shall mean the Base Rent
determined pursuant to the procedure set forth in this Subsection C. The
determination of the Fair Market Rental Rate for the Premises under this
Lease
shall be based upon the base rentals being received, at the time in question,
by
landlords of Class A suburban office buildings located in St. Louis County.
Other considerations to be taken into account in determining the Fair Market
Rental Rate for the Premises shall include (i) the term of this Lease, (ii)
the
size of the applicable space, (iii) the pass through obligations under this
Lease, (iv) the amenities offered by the Park, and (v) the location of the
Building. If the Fair Market Rental Rate is to be determined by Qualified
Appraisers (defined below) pursuant to the provisions of this Subsection
C, then
the Qualified Appraisers shall be entitled to also take into account any
and all
other factors they deem relevant in determining the base rental for the space
in
question. For a period of thirty (30) days following (i) Tenant's exercise
of
Tenant's renewal option under Section A above, Landlord and Tenant shall
diligently
and in good faith negotiate
the Base
Rent for the space in question, apply-ing the foregoing standards. If Landlord
and Xxxxxx are able to agree in writing upon such Base Rent, then such agreed
upon Base Rent shall represent the Base Rent for the space in question. If,
however, Landlord and Tenant are unable to agree in writing upon such Base
Rent
within the foregoing 30-day period, then
(i)
Tenant may rescind any exercise of its option to renew by written notice
to
Landlord within 2 business days after expiration of said 30 day period; or
(ii)
if no such rescission notice is given within said 2 business days, then within
10 business days after the 30 day period expires, each party shall select
a
Qualified Appraiser familiar with similar properties located in the St. Louis
market area, the Fair Market Rental Rate
for the
Premises shall be determined according to the following procedure:
(1) Tenant
and Landlord shall each appoint a real estate appraiser that satisfies the
following criteria ("Qualified Appraiser"): (i) the appraiser must be an
MAI
appraiser, (ii) the appraiser must have at least ten (10) years experience
in
appraising commercial property comparable to the Premises in the St. Louis,
Missouri metropolitan area, and (iii) the appraiser must be currently licensed
as an appraiser. In case either Tenant or Landlord shall fail to appoint
a
Qualified Appraiser within
10
business days after the 30 day period expires following
Landlord's receipt of notice that Tenant elects to renew the Lease, then
the
Qualified Appraiser appointed by the party not failing to make such appointment
shall appoint a Qualified Appraiser for and on behalf of the party so failing
to
appoint a Qualified Appraiser. Each
appraiser shall make its determination of Fair Market Rate and together shall
present such determination to Landlord and Tenant. If such Appraisers are
unable
to agree, the Appraisers shall jointly select a third Appraiser to establish
a
Fair Market Rental Rate. In
case
said Qualified Appraisers shall refuse or are unable to agree upon a third
Qualified Appraiser, then such third Qualified Appraiser shall be appointed
by
the then acting president of the St. Louis Chapter of the Appraisal Institute,
or its successors or assigns, or if such President shall be unwilling to
make
such appointment, then such third Qualified Appraiser shall be selected by
drawing from a pool of two (2) or more Qualified Appraisers which such President
deems qualified, and provided such President shall appoint (or designate
for the
pool of eligible candidates) only persons who are deemed to be neutral to
the
parties (i.e. who have no potential conflict of interest that might favor
Landlord or Xxxxxx). The
Fair
Market Rental Rate selected by the two initial Qualified Appraisers shall
be the
Fair Market Rental Rate for the Premises if they are able to agree on an
amount,
and if the two initial appraisers are not able to agree on an amount, then
the
Fair Market Rental Rate determined by the third appraiser shall be the Fair
Market Rental Rate for the Premises (to be used in the formula in Section
37.B).
(2) Each
party shall bear the fee charged by the Qualified Appraiser appointed by
it in
connection with performing the services required by this Section, and if
the
third Qualified Appraiser is appointed, the fee charged by such third Qualified
Appraiser for its services under this Section shall be divided equally between
the parties. The parties acknowledge and agree that the Base Rent for the
space
in question may be expressed as an amount which is subject to periodic increases
based on fixed amounts, or a fixed percentage, or any one of the indexes
published by the United States Department of Labor, Bureau of Statistics,
and
referred to as the "Consumer Price Index", or some other generally recognized
index.
D. The
parties agree to be bound by the Base Rent for the Premises determined in
accordance with the foregoing procedure.
38. INTENTIONALLY
DELETED.
39. Reimbursement
for Certain Capital Expenditures Upon Expiration of Lease. If
during
the Lease Term, Tenant makes a capital expenditure (as determined by GAAP)
to
the Premises and the useful life of the capital expenditure exceeds the term
of
the Lease, then, upon expiration of the Lease, Landlord shall pay to Tenant
an
amount equal to the depreciated value of the capital expenditure at the time
of
the expiration of the Lease on a straight-line basis, amortized over the
useful
life of the subject capital improvement. Except as provided in the following
sentence, no such capital improvement shall be made without Landlord’s prior
approval, granted or withheld in Landlord’s discretion. If such a capital
expenditure is required to permit Tenant to continue to occupy the Improvements
as a single tenant-occupant for general office use, then Landlord shall not
withhold its consent to the making of such a capital expenditure, provided
that
Landlord is given reasonable approval rights as to the cost, quality and
functionality of the subject capital improvement.
40. Option
to Reduce Space.
A. Pursuant
to the terms of this Section 40, effective on each of the following three
(3)
dates (any of such dates to be sometimes referred to as a “Give Back Date”): (i)
the first day of the seventy-ninth (79th)
full
calendar month following the Commencement Date (the “First Give Back Date”);
(ii) the first day of the ninety-first (91st)
full
calendar month following the Commencement Date (the “Second Give Back Date”);
and (iii) the first day of the one hundred third (103rd)
full
calendar month following the Commencement Date (the “Third Give Back Date”),
Tenant shall have the right to "give back" one full floor of space in the
west
wing of the Building, provided that the one full floor space given back shall
be
in the following sequence (the one full floor, west wing space given back
to be
hereinafter called the “Give Back Space”):
(i) 3rd
Floor of
West Wing;
(ii) 2nd
Floor of
West Wing; and
(iii) 1st
Floor of
West Wing;
The
parties acknowledge and agree that Xxxxxx’s rights to give back space under this
Section 40 are limited to one full floor of west wing space per Give Back
Date,
even if Tenant chooses not to exercise such rights during any previous Give
Back
Date.
B. In
order
to exercise Tenant’s give back rights effective as of any particular Give Back
Date, Tenant must give Landlord written notice at least one hundred eighty
(180)
days in advance of the applicable Give Back Date (a “Give Back Notice”). Upon
the timely delivery of a Give Back Notice, Tenant shall be obligated to
surrender
the applicable one full floor of Give Back Space to Landlord (in the sequence
stated in Section 40.A) no later than the applicable Give Back Date, without
demand, in as good condition as when delivered to Tenant, reasonable wear
and
tear excepted, and shall remove all of Tenant's trade fixtures, movable
equipment, furniture, other personal property and all leasehold improvements
(to
the extent required by Section 13.C), and shall comply with Section 13.C
of this
Lease with respect to the applicable full floor Give Back Space.
C. In
addition to Tenant’s obligations in Section 40.C, upon surrender of the
applicable full floor Give Back Space, Tenant shall pay to the Landlord the
sum
of (i) the actual
cost
incurred by Landlord in converting the Building
to a multi-tenant building
(provided such amount shall not exceed Four Dollars ($4.00) per RSF of the
final
full floor Give Back Space); and (ii) a termination fee calculated as follows:
First
Give Back Date:
$18.00
per RSF;
Second
Give Back Date: $12.00
per RSF; and
Third
Give Back Date:
$6.00
per
RSF.
D. The
termination fee described in Section 40.C for any Give Back Space shall be
due
and payable no later than the Give Back Date for such Give Back Space. The
conversion costs described in Section 40.C for any Give Back Space shall
be due
and payable within thirty (30) days following Xxxxxx’s receipt of Landlord’s
invoice for such costs, which invoice shall provide documentation, in reasonable
detail, that the conversion costs for which Landlord is being invoiced (subject
to the $4.00 per square foot limit) were in fact incurred by
Landlord.
E. Certain
provisions set forth in Section 51 shall also apply following the exercise
by
Tenant of its give back rights. Following the exercise by Tenant of any of
its
give back rights: (1) subject to rights reserved by Tenant in Section 30,
any
tenants for the give back space shall have nonexclusive rights to use all
parking facilities that serve the Building, (2) Landlord may create such
common
areas in the Building and on the Property as are reasonably necessary to
provide
such tenants with reasonable access to the give back space, and (3) Landlord
and
Tenant shall execute an amendment to this Lease reflecting such changes as
need
to be made to this Lease as a result of such give back, which changes might
include, but are not limited to, provisions for Landlord to provide additional
Building services, and pass through obligations whereby Tenant would pay
its pro
rata share of the expenses incurred by Landlord in providing additional Building
services. In addition, Landlord reserves the right to install such HVAC systems,
wiring, utilities and other equipment in the Building and on the Property
as may
be needed to serve the needs of the tenants in the give back space.
41. Early
Termination. Upon
eighteen
(18) months prior written notice to Landlord, Tenant shall have the right
to
terminate the Lease and the entire remaining Lease Term, effective as of
the
first day of the one hundred third (103rd)
full
calendar month following the Commencement Date. On the termination date,
Tenant
shall pay to Landlord a termination fee equal to the sum of $4.66 per RSF
of the
space then comprising the Premises, plus (i) the unamortized portion of the
leasing commission paid by Landlord pursuant to Section 26, plus (ii) the
unamortized portion of the Allowance (said commission and Allowance to be
amortized on a straight-line basis over the original Lease Term).
42. Existing
Lease Extension. Landlord
shall cause the landlord at 00000 Xxxxxxxxx Xxxxx to extend the term of Tenant’s
occupancy to March 15, 2007. If further extensions are needed, provided the
landlord of 00000 Xxxxxxxxx Xxxxx is given at least nine (9) months written
notice prior to the above stated extended expiration date, Landlord will
obtain
a commitment from the landlord at 00000 Xxxxxxxxx Xxxxx to extend Xxxxxx’s
occupancy in one month increments not to exceed six (6) additional months.
During any of the above extension periods, the fixed monthly rent (without
other
charges or pass thorough charges) will be sixty-six thousand five hundred
dollars ($66,500.00) per month. All other terms and conditions of the present
lease now existing shall continue to apply during any extension period.
Notwithstanding the foregoing, if the Commencement Date is delayed for reasons
other than Tenant’s Delay or Force Majeure Events, Landlord shall be responsible
for any and all holdover rent penalties and other penalties payable by Tenant
to
the landlord of 00000 Xxxxxxxxx Xxxxx as a result of such delay in the
Commencement Date.
43. Roof
Access and Usage. Tenant,
subject to Landlord's approval, may, at anytime during its lease term, locate
and install one or more satellite dishes, microwave antennae and other equipment
on the roof of the building. The Tenant must do so under a separate license
agreement substantially in the form attached hereto as Exhibit
F,
with
such changes as may be approved by the parties hereto, that contains customary
terms, including requirements for code compliance and ensuring that the
Landlord's roof warranty is not invalidated. Tenant will have access at any
time
to the roof, equipment rooms, telephone rooms, and other areas in which Tenant's
equipment may be placed, subject to the terms of such license
agreement.
44. Waiver
of Landlord Lien. Landlord
shall waive any and all rights available to Landlord under Missouri law to
lien
or attach the property of Tenant or any other party located in the Premises.
In
order to facilitate any leasehold or inventory financing required by Xxxxxx,
Xxxxxxxx agrees to execute and deliver to Tenant and Xxxxxx’s lender, from time
to time, a form of “Landlord Waiver and Consent” confirming the foregoing and
permitting such lender to enter upon the Premises in the event of a default
by
Xxxxxx and recover any goods financed by such lender, and containing other
customary and reasonable provisions as may be requested by such lender, as
well
as customary and reasonable provisions to protect the interests of
Landlord.
45. Landlord
Default.
A. It
shall
be a “Landlord Default” if Landlord
fails to
comply with any term, provision or covenant of this Lease, and such failure
continues for thirty (30) days or more after written notice thereof to Landlord,
provided that if it reasonably takes longer than 30 days to cure such default,
then Landlord shall have the amount of time that it reasonably takes to cure
such default, on condition that Landlord has commenced curing the default
within
30 days after the default notice was given and is continuing diligent efforts
to
cure the default.
B. If
a
Landlord Default occurs, Tenant may (but shall not be obligated to) cure
such
Landlord Default on behalf of Landlord, at Xxxxxxxx’s expense. If Tenant incurs
any expense (including reasonable attorney's fees), or suffers any damages,
as a
result of a Landlord Default, Landlord shall reimburse or pay Tenant for
such
expenses or damages within fifteen (15) days after receipt of Landlord's
invoice
therefor, together with the interest at the Default Rate (as defined in Section
15.E). Without limiting the foregoing, if a Landlord Default arises from
the
failure by Landlord to make a payment of money required to be paid by Landlord
to Tenant under this Lease, the amount of such required payment shall accrue
interest at the Default Rate from the date such amount was required to be
paid
through the date such amount is paid.
C. If
Tenant
claims a Landlord Default has occurred and has demanded payment from Landlord
as
a result thereof, and if Landlord notifies Tenant that it disputes such claim,
and/or and fails or refuses to pay the amount demanded by Xxxxxx to satisfy
such
claim within the15-day period provided in Section 45.B, Tenant may serve
Landlord with written notice advising that Tenant intends to set-off the
amount
Tenant claims is due from the Base Rent next payable (a “Set-Off Notice”).
Within
ten (10) days of Xxxxxxxx’s receipt of a Set-Off Notice, Landlord
may notify Tenant in writing that Landlord will initiate the expedited dispute
resolution procedure
described on Exhibit
G
hereto
to
determine whether a Landlord Default has occurred and if so, the extent of
Xxxxxx’s damages resulting therefrom. If
Landlord does not timely notify Tenant of its intent to initiate an expedited
dispute resolution procedure, Tenant may deduct (set off) from the next payment
of Base Rent the lesser of (i) the amount of damages Tenant claims it has
suffered, or (ii) 25% of the next payment of Base Rent due. If Landlord timely
notifies Tenant of its intent to initiate an expedited dispute resolution
procedure, then the parties shall submit the resolution of Tenant’s claim to
expedited resolution procedure described on Exhibit
G
and
shall not be entitled to exercise its set off rights during the pendency
of the
dispute resolution procedure;
provided however, if the expedited dispute resolution procedure is not resolved
within 120 days (subject to extension for any Tenant caused delays), Tenant
shall be entitled to deduct (off-set) the
lesser of (i) the amount of damages Tenant claims it has suffered, or (ii)
25%
of the next payment of Base Rent due
until
final resolution of the expedited dispute resolution procedure. If an expedited
dispute resolution procedure is triggered and results in a decision in favor
of
Xxxxxx, Tenant shall be entitled to set off from Base Rent without limitation,
to the extent consistent with the outcome of the expedited dispute resolution
procedure.
X. Xxxxxx's
set-off rights
herein
shall be non-exclusive and in addition to any other remedies available to
Tenant
in the Lease, at law or in equity; provided, however, in no event shall Tenant's
remedies include a right of termination if Landlord’s failure to perform is the
result of a good faith dispute as to Landlord’s rights and/or obligation(s)
under the terms of the Lease; provided further, that if a default by Xxxxxxxx
would have otherwise entitled Tenant to a termination right, such termination
right shall be available if such default remains uncured for 30 days following
a
final decision made in an adversary proceeding. Xxxxxxxx’s decision to not
trigger an expedited dispute resolution procedure in response to a claim
by
Xxxxxx of a Landlord Default, shall not constitute a waiver by Landlord of
any
rights Landlord may have at law or equity to dispute Xxxxxx’s claim (including
disputing any set off actions taken pursuant to Section 45.C
hereof).
46. Dispute
Resolution. Any
decision made pursuant to the expedited dispute resolution procedure described
in Exhibit
G
shall be
final, binding and conclusive on all of the parties. Judgment upon the award
may
be entered in any court having jurisdiction thereof. The parties may by mutual
agreement submit any other disputes to resolution pursuant to the dispute
resolution procedure set forth on Exhibit
G
hereto,
however, neither party is required to submit any other disputes to such
resolution procedure.
47. Landlord
Representations. Landlord
makes the following representations: (i) the zoning for the Premises will
permit
Tenant to utilize the Premises as an office building or pharmaceutical
distribution center without the necessity of obtaining a zoning variance
or a
conditional or special use permit; (ii) an occupancy permit authorizing the
use
of the entire Premises by Tenant will be issuable to Tenant upon Substantial
Completion of the Tenant Improvements; (iii) except for those improvements
to be
constructed by Tenant, all improvements located on the Premises will comply
in
all respects material to the agreed-upon Final Plans and Specifications,
all
applicable zoning and building codes, subdivision or Protective Covenants
restrictions, ordinances and regulations, and all applicable fire,
environmental, occupational safety and health standards and similar standards
established by law; (iv) there is no pending or, to the knowledge of Landlord,
threatened litigation, mechanic's liens or claims of liens, condemnation
proceedings (except as described in Section 49) , administrative actions
or
judicial proceedings of any material nature relating to the Leased Premises,
including, without limitation, disputes with subcontractors or material
suppliers, owners of adjacent properties, governmental authorities or prior
owners of the Premises that will affect the Tenant’s ability to occupy the
premises undisturbed (provided, however, that Landlord shall have the right
to
bond over or provide other reasonable security with respect to such disputes);
(v) there are no leases, subleases, licenses, concessions or other agreements,
written or oral, granting to any person or entity other than Tenant the right
to
use or occupy any portion of the Premises; (vi) to the best of Landlord's
knowledge, all improvements constructed by Landlord will be completed in
a good
and workmanlike manner and in accordance with the Final LI Plans and Final
TI
Plans and will be in proper working order and will not require any repairs
or
replacements which have not been made as of the Commencement Date; (vii)
to the
best of Landlord's knowledge, the roof, walls, floor and other structural
components of the building will be structurally sound and free of any material
defects and do not require any repairs or replacements which have not been
made;
and (viii) to the best of Landlord's knowledge, no hazardous substances will
be
incorporated by Landlord into the Building, or located on or under, or affect
the Premises. If requested by Xxxxxx, Landlord shall issue a Certificate
to
Tenant upon Substantial Completion confirming that the representations in
this
Section are true and correct as of said date.
48. INTENTIONANLLY
DELETED.
49. Condemnation
Contingency. Landlord
acknowledges that two (2) existing homeowners within the Property are subject
to
eminent domain proceedings initiated by Ground Lessor. The Ground Lessor’s need
to acquire these properties (the “Condemned Parcels”) shall not delay the
Commencement Date so long as Ground Lessor diligently pursues such condemnation,
and acquires title and control of the Condemned Parcels by April, 2006.
Notwithstanding any other provision of this Lease to the contrary, Tenant
shall
have the right to terminate the Lease by written notice (the “Termination
Notice”) to Landlord given no earlier than November 14, 2005 and no later than
November 15, 2005, if all of the following terms and conditions are
satisfied:
A. The
University has not (i) acquired title to the Condemned Parcels; or (ii) entered
into binding and non-contingent (but subject to Board of Curator approval)
contracts to purchase the Condemned Parcels.
B. Tenant
shall pay to Landlord within thirty (30) days after receipt of Landlord’s
Expense Documentation (as defined below), fifty percent 50% of Landlord’s actual
out-of-pocket expenses (“Landlord’s Expenses”) incurred with respect to the
Premises and the transaction under this Lease for the period commencing on
August 12, 2005 and continuing until the date of the Termination Notice,
Xxxxxx's liability under this paragraph not to exceed five hundred thousand
dollars ($500,000.00).
C. Promptly
after receipt of the Termination Notice, Landlord shall provide to Tenant
an
itemization of Landlord’s actual out-of-pocket expenses and such other
documentation reasonably requested by Tenant (collectively, “Landlord’s Expense
Documentation”).
Upon
compliance with the foregoing provisions, including payment of Landlord’s
Expenses, the Lease shall terminate and neither Landlord nor Tenant shall
have
any further rights or obligations thereunder.
Notwithstanding
the foregoing right of termination, if Landlord provides written confirmation
to
Tenant within ten (10) business days after the date of the Termination Notice
that (i) Landlord has agreed to accept full responsibility for acquiring
title
to the Condemned Parcels; (ii) acquisition of the Condemned Parcels will
be
completed in a manner so as to not delay the Commencement Date; (iii) all
penalties applicable under Section 4.C of this Lease shall be applicable
for any
delay in the Commencement Date resulting from a failure to obtain the Condemned
Parcels in a timely manner; (iv) any delay in acquisition of the Condemned
Parcels shall not constitute an event of Force Majeure and (v) Landlord and
Tenant have agreed upon a written plan setting forth Landlord’s plan to acquire
the Condemned Parcels and/or modify the Outline Plans and Specifications
to
address a scenario where the Condemned Parcels are not acquired by a date
certain, then Xxxxxx’s termination of the Lease shall be rescinded and the Lease
shall continue in full force and effect subject to the conditions set forth
above.
Provided
this Lease is not terminated by Tenant pursuant to this Section 49, the Premises
shall be expanded to include the Condemned Parcels as and when they are acquired
by Ground Lessor and the residents thereof have been relocated.
50. Economic
Incentives.
X. Xxxxxxxx
acknowledges and agrees that Xxxxxx has negotiated agreements to receive
the
following economic incentives: (i) exemption from withholding tax and tax
credits for new and retained jobs under the Missouri Quality Jobs Program
as
described in more detail in the Proposal from the Missouri Department of
Economic Development, dated August 29, 2005 (the “State Incentives”); and (ii) a
commitment from St. Louis County to provide fifty percent (50%) abatement
of
real and personal property taxes for a period of ten (10) years and sales
tax
abatement on all or a substantial portion of construction materials for the
construction of the Premises under Chapter 100 or an alternative program
with
equivalent impact (collectively, the “Local Incentives”). Landlord covenants and
agrees to cooperate with Xxxxxx in obtaining the full benefit of the foregoing
incentives and shall enter into such agreements that may be required to
effectuate said incentives (so long as Tenant reimburses Landlord for any
reasonable out-of-pocket incurred by Landlord with respect to the State
Incentives). Without limiting the foregoing, Xxxxxx agrees that if
necessary to effectuate tax abatement with respect to Xxxxxx’s personal
property, Tenant, upon receipt of written request from Landlord, shall convey
Tenant’s personal property to a tax-exempt entity designated by Landlord
pursuant to the terms of a sale-leaseback transaction upon such terms and
conditions reasonably acceptable to Tenant. The parties acknowledge and agree
that (i) the Rent provided hereunder assumes that Landlord will not pay any
sales tax on construction materials for the Landlord Improvements; provided,
however, that if any sales tax is payable on construction materials for the
Landlord Improvements, the payment thereof shall be the sole responsibility
of
Landlord without any adjustment in the Rent; and (ii) the Allowance provided
hereunder assumes that the Contractor will not pay any sales tax on construction
materials for the Tenant Improvements; provided, however, that if any sales
tax
is payable on construction materials for the Tenant Improvements, the payment
thereof shall be the sole responsibility of Landlord without any adjustment
in
the Allowance.
B. In
light
of Landlord’s commitment and obligation to construct the Road Improvements,
Landlord intends to seek benefits under a TDD and/or other economic development
program to assist Landlord and St.
Louis
County
in
funding the Road Improvements. As Landlord requires flexibility in structuring
economic incentive programs to meet Xxxxxxxx’s financial obligations with
respect to the Road Improvements, Landlord and Tenant agree to cooperate
with
Xxxxxxxx’s efforts related to obtaining such benefits, subject to the
following:
(1) Landlord
covenants and agrees that except as contemplated by that certain Road Agreement
among Landlord, Ground Lessor and St. Louis County, Missouri, of even date
herewith related to the Road Improvements (the “Road Agreement”), it will not
seek any additional economic incentives or consent to the creation of any
tax
increment financing, community improvement district, transportation improvement
district or the imposition of other special assessment affecting Tenant,
the
Premises or any adjacent land under option by Tenant (the “Option Premises”)
without the prior written consent of Tenant, such consent not to be unreasonably
withheld, delayed or conditioned.
(2) With
the
exception of real property and personal property ad valorem taxes, the Premises
and the Option Premises shall not be subject to any special assessments or
other
tax levies the proceeds of which directly or indirectly fund the cost of
the
Road Improvements. Notwithstanding the foregoing or any other provision of
this
Lease to the contrary, Tenant shall reimburse Landlord for Taxes in the amount
and the manner described in Section 6. All other taxes, special assessments
and
levies against the Premises, the Option Premises and this Lease shall be
the
sole responsibility of Landlord.
(3) Landlord
shall pay all transactional expenses incurred to facilitate the Local
Incentives; provided, however, Tenant shall pay the fees and expenses of
its
attorneys and other consultants.
(4) Landlord
shall have flexibility in implementing the structure of Local Incentives,
including the incentive programs under which such Local Incentives are realized
by Tenant; provided, however, any such programs shall not reduce the amounts
previously awarded to Tenant under the Local Incentives or adversely affect
Xxxxxx’s eligibility under any of the economic incentives previously awarded to
Tenant.
(5) Tenant
shall receive the full benefit of the economic incentives previously negotiated
by Xxxxxx. If the incentive structure implemented by Landlord results in
a
reduction of the benefits that Tenant would have received Landlord shall,
at
Tenant’s election, reimburse Tenant for all such amounts in cash or in the form
of reduced rent payable in the manner and time in which the foregoing benefits
would have been paid to Tenant.
51. Property
Management Services. As
long as
Tenant has not exercised any of its “give back” rights (described in Section
40), Tenant shall pay Landlord a management fee of twenty thousand dollars
($20,000) per year, which will increase at the same times and at the same
percentages as base rent. For example, in year 4 both the management fee
and
base rent will increase 5.65%. If Tenant exercises its “give-back” rights, then
management of the Premises shall be turned over to Landlord (provided that
Tenant will retain the right to continue to contract for its own janitorial
service), and Landlord may charge Tenant a market rate management fee of
up to
5% of the base rent. In the latter situation, Xxxxxxxx will provide evidence
to
Tenant that the management fee Landlord proposes to charge is consistent
with
the market for managing similar Class A buildings in the metropolitan St.
Louis
area (the "Market Rate Management Fee"). If Landlord and Xxxxxx are unable
to
agree on the Market Rate Management Fee to be charged by Landlord within
30
days, either party may by written notice to the other party require that
the
Market Rate Management Fee be determined pursuant to the procedure described
in
this Section. Each party shall appoint a neutral, senior executive of a property
management company experienced in managing Class A office buildings in the
St.
Louis, Missouri metropolitan area (a “Property Manager”), to determine the
Market Rate Management Fee. If said two Property Managers are able to agree
on
the Market Rate Management Fee, then the rate they agree on shall be the
Market
Rate Management Fee for the Premises. If said two Property Managers are unable
to agree on a Market Rate Management Fee, then they shall each provide the
parties in writing their opinion of the management fee that they each believe
represents a Market Rate Management Fee for the Premises. Said Property Managers
shall also, by mutual agreement, appoint a third Property Manager who shall
also
provide his/her determination of the Market Rate Management Fee for the
Premises, and the Market Rate Management Fee recommended by the Property
Managers that is neither the highest nor lowest shall be the Market Rate
Management Fee for the Premises. Each party shall pay any fees charged by
the
Property Manager appointed by it, and the parties shall share equally in
any
fees charged by a third Property Manager.
52. Ground
Lease. If
either
Landlord or Tenant receive a default notice under the Ground Lease, the party
receiving such default notice shall promptly forward a copy of the same to
the
other party. With respect to any default under the Ground Lease, Tenant may
exercise any cure rights that are granted to the lessee under the Ground
Lease
within any cure period allowed under the Ground Lease for such
default.
53. Consequential
or Punitive Damages. Neither
party hereunder be liable to the other party for consequential or punitive
damages as a result of breach of a party’s obligations under this
Lease.
54. Property
Due Diligence. Landlord
shall complete the following studies related to the Property: (i) geo-tech/soil
borings; (ii) wetlands study; (iii) archeological study; (iv) environmental
audit; (v) land survey; and (vi) title search (collectively, the “Property Due
Diligence”). All Property Due Diligence shall be performed at Landlord’s sole
cost and expense, with copies of the final reports related to the Property
Due
Diligence (collectively, the “Property Due Diligence Reports”) made available to
Tenant no later than November 9, 2005. Xxxxxxxx acknowledges and agrees that
completion and delivery of the foregoing items shall not delay the Commencement
Date. The parties’ obligations under this Lease shall be contingent on their
review and approval of the Property Due Diligence on or before the date that
is
three (3) business days following the date the Property Due Diligence Reports
are delivered to Tenant (the “Property Due Diligence Contingency Date”). If
Landlord or Tenant are not satisfied with the Property Due Diligence, then
either party shall have the right to terminate this Lease upon the delivery
or
written notice thereof to the other party on or before the Property Due
Diligence Contingency Date. If such notice of termination is not delivered
by
either party as provided above, then the Lease shall continue in full force
and
effect. Notwithstanding the foregoing, neither party shall have the right
to
terminate this Lease pursuant to this Section 54 due to any defect, condition
or
matter that is to be corrected or otherwise addressed by Landlord pursuant
to
the Road Agreement or as may be necessary to Substantially Complete the Landlord
Improvements and Tenant Improvements as required under the terms and conditions
of this Lease.
55. Adjustment
to Premises.
X. Xxxxxxxx
and Xxxxxx acknowledge and agree that the Premises shall
be
subject to adjustment as follows:
(1) The
Premises shall be expanded to include the Condemned Parcels as provided in
Section 49 hereof,
(2) The
detention basin for the Premises is currently expected to comprise the area
referred to on Exhibit
A-1
as the
“Detention Basin Area”. Such detention basin may require reconfiguration. If
reconfigured, the Premises shall be adjusted for the reconfigured detention
basin area.
(3) The
northern edge of the right of way for the Road Improvements may require
reconfiguration. If reconfigured, the boundary of the Premises abutting such
reconfigured right of way shall be adjusted accordingly.
(4) Bi-State
Development Agency of the Missouri-Illinois Metropolitan District, d/b/a
Metro
(“Metro”) owns property that abuts part of the western boundary of the Property
(the “Metro Property”) and it is desirable that Landlord acquire a fee interest
in the Metro Property or a perpetual easement right to use the Metro Property
for purposes of adding it to the Premises so that it can be used as parking
area. The Ground Lease provides for the possibility of the Metro Property
becoming part of the Demised Premises thereunder. If and when the Metro Property
becomes part of the Demised Premises under the Ground Lease, it shall also
become part of the Premises under this Lease. The parties acknowledge that
one
of the ways contemplated by the Ground Lease for the Metro Property to become
part of the Demised Premises under the Ground Lease is by exchanging certain
portions of the Property for the Metro Property. If such exchange occurs,
then
the portion of the Property exchanged for the Metro Property shall be eliminated
from the Premises.
(5) The
Ground Lease contemplates that if Landlord is unable to cause the Metro Property
to become part of the Demised Premises thereunder, Landlord may require Ground
Lessor to make a portion of the Option Premises part of the Demised Premises
under the Ground Lease to accommodate the parking requirements under this
Lease.
If and when such a portion of the Option Premises becomes part of the Demised
Premises under the Ground Lease, it shall also become part of the Premises
under
this Lease.
(6) If
pursuant to part (5) above, a parking area and/or a parking facility for
the
Premises need(s) to be constructed on a portion of the property currently
included within the Option Area, then any delay in completing such
parking area and/or parking facility shall not be considered in determining
whether the Landlord Improvements are Substantially Complete. Nevertheless,
Landlord shall be required to complete the construction of any such parking
area
and/or parking facility with diligence.
(7) If
the
Premises and/or the Outline Specifications require(s) adjustment pursuant
to any
provision of this Section 55, the parties shall execute an amendment to this
Lease reflecting such adjustment.
(8) Notwithstanding
any other provision of this Section 55 to the contrary, any adjustment to
the
Premises (i) shall not increase or decrease the Base Rent; (ii) with the
exception of relocating a parking area and/or parking facility, shall not
materially affect the Final LI Plans; (iii) shall not reduce the parking
ratio
below 5.5 spaces per 1,000 rentable square feet unless Landlord and Tenant
both
agree to a lower parking ratio; and (iv) shall be subject to the prior approval
of Tenant, which approval shall not be unreasonably withheld, conditioned
or
delayed; provided, however, no such approval shall be required for a
reconfiguration made pursuant to subsection (1) of this Section 55.
[next
page is signature page]
SECTIONS
37 AND 45.C AND 51 OF THIS LEASE CONTAIN A BINDING ARBITRATION PROVISION
WHICH
MAY BE ENFORCED BY THE PARTIES.
WHEREFORE,
Landlord and Xxxxxx have respectively executed this Lease as of the day and
year
first above written.
|
TENANT:
EXPRESS
SCRIPTS, INC.
By
/s/
Xxxxx X. Xxxxxxxxx
Xxxxx
X. Xxxxxxxxx,
Chief
Operating Officer
|
LANDLORD:
NORTHPARK
PARTNERS ESI, LLC, a Missouri limited liability company
By
McEagle NorthPark Partners ESI, LLC, a Missouri limited liability
company,
its Manager
By
/s/
Xxxx X. XxXxx, Xx.
Name:
Xxxx
X. XxXxx, Xx.
Title:
Manager
|
EXHIBIT
A - SITE PLAN SHOWING AREA COMPRISING THE PARK
EXHIBIT
A-1
LEGAL
DESCRIPTION OF THE LAND
A
tract
of land being Part of Lots 18, 19, 28, 29, 30, 31, 33 and 34, and Part of
the
Right-of-Way of North Avenue and Xxxxxx Road of Xxxxxx Heights, according
to the
plat recorded in Plat Book 7, Page 47 of St. Louis County records, Part of
U.S.
Surveys 2502, 2503, and 3082, Township 46 North, Range 6 East of the Fifth
Principal Meridian, St. Louis County, Missouri, more particularly described
as
follows:
Beginning
at the Northeast corner of a tract of land conveyed to the Bi-State Development
Agency by deed recorded in Book 8818, page 147 of said records, said corner
also
being the Northeast corner of dedicated right-of-way conveyed to St. Louis
County, according to the plat recorded in Plat Book 326, Pages 24 through
26 of
said records; thence along the prolongation North of the East line of said
tract
and along the East line of dedicated right-of-way conveyed to St. Louis County
according to the aforementioned plat and along the East line of a tract of
land
conveyed to the Bi-State Development Agency by deed recorded in Book 9815,
Page
2406 of said records, North 14 degrees 02 minutes 50 seconds Wets, 241.92
feet;
thence continuing along said East line of the Bi-State Development tract,
North
83 degrees 16 minutes 35 seconds East, 15.23 feet; thence North 16 degrees
40
minutes 16 seconds East, 81.24 feet to the centerline of North Avenue (40
feet
wide), also known as Xxxxxx Avenue; thence along said centerline, North 66
degrees 08 minutes 44 seconds West, 368.77 feet; thence leaving said centerline,
North 23 degrees 51 minutes 16 seconds East, 20.00 feet to the intersection
of
the South right-of-way line of Interstate Highway 70 (variable width); thence
along said line, North 83 degrees 08 minutes 26 seconds East, 289.59 feet;
thence South 89 degrees 59 minutes 32 seconds East, 102.87 feet; thence South
83
degrees 44 minutes 46 seconds East, 261.76 feet; thence North 83 degrees
20
minutes 29 seconds East 295.54 feet; thence North 87 degrees 55 minutes 10
seconds East, 246,24 feet; thence South 74 degrees 55 minutes 21 seconds
East,
141.38 feet to the intersection of said right-of-way line with the centerline
of
a creek; thence along said centerline, South 46 degrees 57 minutes 37 seconds
West, 28.36 feet; thence South 12 degrees 37 minutes 12 seconds West, 49.15
feet; thence South 34 degrees 24 minute 24 seconds Wets, 204.09 feet; thence
South 32 degrees 34 minutes 00 seconds West 81.86 feet; thence South 20 degrees
32 minutes 25 seconds West 140.20 feet; thence South 42 degrees 45 minutes
57
seconds West, 68.25 feet; thence South 21 degrees 18 minutes 56 seconds West,
162.06 feet to the North right-of-way line of the Proposed Relocation of
Xxxxxx
Road (70 feet wide); thence along said line, South 70 degrees 28 minutes
18
seconds West, 631.20 feet to the East line of a tract of land conveyed to
the
Bi-State Development Agency by deed recorded in Book 8909, Page 470 of said
records; thence along said line, North 14 degrees 02 minutes 44 seconds West,
172.26 feet to the Southwest corner of the aforementioned Bi-State Development
tract conveyed by deed recorded in Book 8818, Page 147 of said records; thence
along the South line of said tract, North 75 degrees 57 minutes 16 seconds
East,
55.00 feet; thence along the East line of said tract, North 14 degrees 02
minutes 44 seconds West, 77.17 feet; thence North 44 degrees 02 minutes 44
seconds West 10.20 feet; thence North 14 degrees 02 minutes 50 seconds West,
100.00 feet to the POINT
OF BEGINNING,
containing 14.612 acres in gross area, however, LESS AND EXCEPTING a tract
of
land conveyed to Xxxxxx X. Xxxxxx by deed recorded in Book 9863, Page 1560
of
said records, containing 0.299 acre, AND LESS AND EXCEPTING a tract of land
conveyed to Xxxxxxx X. Xxxxxx, etal by deed recorded in Book 9863, page 1560
of
said records, containing 0.430 acres, leaving a net area of 13.883 acres
per
calculations by Stock & Associates Consulting Engineers, Inc. during
September, 2005.
Together
with the following “Detention Basin Area”
[INSERT
LEGAL DESCRIPTION OF DETENTION BASIN.]
EXHIBIT
B
BASE
RENT DURING INITIAL TERM
|
LEASE
YEARS
|
ANNUAL
BASE
RENT
PER RSF
|
|
1*
|
$14.15*
|
|
2
|
$14.15
|
|
3
|
$14.15
|
|
4
|
$14.95
|
|
5
|
$14.95
|
|
6
|
$14.95
|
|
7
|
$16.00
|
|
8
|
$16.00
|
|
9
|
$16.00
|
|
10
|
$16.00
|
|
11**
|
$16.00
|
*
As
provided in Section 5.A of the Lease, Xxxxxxxx agrees that the first
$2,123,000.00 in Base Rent due pursuant to the foregoing Table is
abated.
**
The
Initial Term of the Lease is Ten and one half years, so Tenant will pay Base
Rent at the Year No. 11 rate for only the first half of Lease Year No. 11
(and
thereafter the rate applicable during the renewal period shall apply if Tenant
has exercised its renewal option).
EXHIBIT
C
OUTLINE
PLANS AND SPECIFICATIONS
The
Outline Plans and Specifications shall consist of:
1) The
plans
and renderings presented to Express Scripts by NorthPark Partners on July
26,
2005, comprising of site plan, typical floor plans, and two exterior renderings.
The project includes 315,000 rentable square feet of office space and parking
for 1732 cars. However, pursuant to Section 30 of this Lease, Landlord and
Tenant will consider whether less parking may be appropriate.
2) Building
outline specifications describing the quality of materials and construction
were
submitted on July 31, 2005, and amended on August 17, 2005 to reflect the
architects’ request for clarification.
Landlord
and Tenant acknowledge that, while the building design will evolve through
the
normal design sequence, the above referenced presentation and documents,
referred to as the Concept Building Plans and Specifications, represent the
benchmark for building scale and quality.
EXHIBIT
D
BUILDING
RULES AND REGULATIONS
(1) Each
tenant's interior signage shall be provided by Landlord at the tenant's sole
cost; and all such signage so placed shall be the tenant's risk. Each tenant
shall cause the removal of all such signage from the Property at the end
of its
lease term, or Landlord may cause such removal at the tenant's expense.
(2) A
tenant
shall not alter any lock or install a new or additional or replacement lock
or
bolt on any door of its premises and shall not permit any duplicate keys
to be
made without the prior consent of Landlord. Each tenant shall be fully
responsible for the security of all keys to its premises except for those
keys
retained by Landlord. All keys furnished to a tenant by Landlord shall be
surrendered to Landlord at the end of the term of the tenant's
lease.
(3) Landlord
retains the power to prescribe the weight and proper position and installation
of safes, mechanical equipment, and any other bulky or excessively weighty
objects installed by a tenant in its premises. All such equipment and objects
shall be moved into or out of a tenant's premises under the prior written
consent and supervision of Landlord and at such times and according to such
regulations as may be designated from time to time by Landlord. Landlord
shall
not be responsible for loss of, or damage to, any such equipment or objects.
Notwithstanding such supervision, each tenant shall be responsible for all
damage to the Building caused by such tenant maintaining or moving any such
equipment or objects.
(4) No
tenant
shall use any method of heating or air-conditioning other than that supplied
by
Landlord. If a tenant requires telegraphic, telephonic, burglar alarm or
similar
services, the tenant shall first obtain, and comply with, Landlord's
requirements regarding installation.
(5) All
sidewalks, corridors and common areas shall not be obstructed by any tenant
or
used for any purpose other than for ingress and egress. No tenant shall place
objects outside its premises except as approved by Landlord. The common areas
of
the Building may not be used for any commercial purpose by any tenant.
(6) No
tenant
shall install any window treatments other than existing treatments or otherwise
obstruct the windows of its premises without Landlord's prior written consent.
The bathrooms shall not be used for any purpose other than those for which
they
were constructed, and no rubbish shall be thrown or disposed of therein.
(7) Each
tenant assumes full responsibility for protecting its premises from theft,
robbery and pilferage. Landlord reserves the right to exclude from the Building
all disorderly persons, persons under the influence of alcohol or a controlled
substance, idlers and peddlers, solicitors, and persons entering in crowds
or in
such unusual numbers as to cause inconvenience to the tenants of the Building.
After business hours, each tenant shall lock the doors and windows to its
premises.
(8) No
tenant
shall place in any trash box or receptacle any material which cannot be disposed
of in the ordinary and customary manner of trash and garbage disposal, except
Tenant at its expense will make its own arrangements for the handling, storage
and disposal of medical waste (if applicable), and Tenant agrees to comply
with
all Applicable Laws in connection with handling, storage and disposal of
such
medical waste (if applicable). All garbage and refuse disposal shall be
performed in accordance with directions issued from time to time by Landlord.
No
tenant shall store in its premises any waste paper, sweepings, rags, rubbish
or
other combustible matter, nor shall any tenant bring into its premises any
hazardous wastes, kerosene, oil or other highly combustible
material.
(9) Landlord
reserves the right to place into effect a "no smoking" policy within all
or
selected portions of the Building and the Property. A tenant and its employees
and agents shall not be allowed to smoke in any location where smoking is
prohibited, and they shall not dispose of any smoking material including,
without limitation, matches, ashes and cigarette butts on the floors of the
Building, about the grounds of the Property, or in any receptacle other than
a
specifically designated receptacle for smoking.
EXHIBIT
E
FORM
OF SNDA
[Space
above this line for Recorder’s use]
SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This
Subordination, Non-Disturbance and Attornment Agreement (the “Agreement”)
is
entered into by and between _______________________________, a
____________________________ (“Lender”)
and
Express Scripts, Inc., a Delaware corporation (“Tenant”),
as of
the ______ day of __________, 20__ (the "Effective Date"), with reference
to the
following facts:
A. NorthPark
Partners ESI, LLC, a Missouri limited liability company (“Landlord”)
and
Tenant have entered into that certain Office Lease dated as of _____________
__,
2005 (the “Lease”)
pursuant to which Tenant has leased from Landlord certain property owned
by
Landlord located at ______________________________________________________
(the
“Property”),
which
Property is described on Exhibit
A
attached
hereto.
X. Xxxxxx
has made or will make a loan to Landlord secured by a mortgage or deed of
trust
on the Property (the “Deed
of Trust”).
X. Xxxxxx
has requested that any transferee (including, without limitation, Lender)
of the
interest of Landlord as a result of a Transfer, and such transferee’s successors
and assigns (“Purchaser”)
not
disturb Tenant’s tenancy under the Lease upon any transfer of Landlord’s
interest in the Property by foreclosure, trustee’s sale, or other action or
proceeding for the enforcement of the Deed of Trust or by deed in lieu thereof
(a “Transfer”).
X. Xxxxxx
and Xxxxxx desire to enter into this Agreement to provide for a non-disturbance
arrangement between Tenant and Lender and to provide for the attornment of
Tenant to Lender, or its successor or assign, as applicable, in the event
of
foreclosure under the Deed of Trust or any other acquisition of the
Property.
E. All
capitalized terms not defined herein shall have the meaning they are given
in
the Lease.
NOW
THEREFORE, for valuable consideration, Xxxxxx, Xxxxxx and Landlord agree
as
follows:
1. Subordination.
Subject to the terms and conditions set forth in Paragraph 2 below, the Lease
is
and shall be subject and subordinate to the Deed of Trust, and to all renewals,
modifications, consolidations, replacements and extensions thereof and to
all
future advances made thereunder.
2. Non-Disturbance.
In
the
event Lender or Purchaser acquires title or right of possession of the Property
under the Deed of Trust through foreclosure, or otherwise,
then:
(a) Tenant
shall not be named or joined in any foreclosure, trustee’s sale or other
proceeding to enforce the Deed of Trust unless the joinder is required by
Law in
order to perfect such foreclosure, trustee’s sale or other proceeding; and
(b) The
enforcement of the Deed of Trust shall not terminate the Lease or disturb
Tenant
in the possession and use of the Property.
3. Leasehold
Not Affected.
The leasehold estate granted by the Lease shall not be affected in any manner
by
any Transfer or any other proceeding instituted or action taken under or
in
connection with the Deed of Trust or by Xxxxxx’s taking possession of the
Property or the Property in accordance with any provision of the Deed of
Trust.
4. Attornment
by Tenant.
If any Transfer should occur, then Purchaser shall be bound to Tenant and
Tenant
shall be bound to Purchaser under all of the terms, covenants, and conditions
of
the Lease for the balance of the term of the Lease and any extensions or
renewals of the Lease that may then or later be in effect under any validly
exercised extension or renewal option in the Lease, all with the same force
and
effect as if Purchaser had been the original landlord under the Lease. Tenant
does hereby attorn to Purchaser (including Lender if it should become the
Purchaser) as the landlord under the Lease. Without
limiting the foregoing, if at the time a Transfer occurs, Tenant is in default
of any of its obligations under the Lease, Purchaser shall have the right
to
avail itself of all remedies of the Landlord under the Lease arising from
such
default, provided Tenant is given, or has been given, any notices of such
default and opportunities to cure such default required under the Lease before
such remedies are exercised.
5. Lease
Amendments.
Nothing contained in Paragraph 7 below shall be deemed to prevent Landlord
and
Tenant from entering into any amendment or modification to the Lease that
shall
be binding and enforceable solely as between Landlord and Tenant.
6. Landlord’s
Default.
Provided Tenant is provided with a written request from Lender or Landlord,
Tenant shall give Lender a copy of any notice of default which Tenant is
required to give to Landlord pursuant to the terms of the Lease. Tenant shall
accept a cure of any default by Landlord performed by Xxxxxx, or at Xxxxxx’s
direction, provided that such cure is completed within the period provided
for
such cure to be carried out by Landlord pursuant to the terms of the
Lease.
7. Limitation
on Lender’s Performance.
Nothing in this Agreement shall be deemed or construed to be an agreement
by
Xxxxxx to perform any covenant of Landlord as landlord under the Lease unless
and until Xxxxxx obtains title to the Property as Purchaser or obtains
possession of the Property under the terms of the Deed of Trust, and then
only
during the time when Xxxxxx holds title to the Property.
8. Tenant’s
Covenants.
Xxxxxx agrees that during the term of the Lease, without Xxxxxx’s prior written
consent, Tenant shall not:
(a) pay
any
rent or additional rent more than one month in advance of the due date to
any
landlord (including Landlord); or
(b) enter
into any material amendment, modification, or other agreement relating to
the
Lease, or
(c) to
extent
required under the Lease, assign or sublet any portion of the Lease or the
Property.
Xxxxxx
agrees that with respect to parts (b) and (c) of this Section 8, Xxxxxx’s
consent shall not be unreasonably conditioned, delayed or withheld. Xxxxxx
further agrees that if any request for Xxxxxx’s approval of an amendment,
modification or other agreement relating to this Lease, or for Xxxxxx’s approval
of any assignment or subletting of the Lease or the Property, is not objected
to
in a written statement of Xxxxxx delivered to Tenant within thirty (30) days
after Xxxxxx receives such request in writing, such request shall be deemed
approved by Xxxxxx. Any written statement objecting to any proposed amendment,
modification, or other agreement of this Lease or any assignment or subletting
of the Lease or the Property shall set forth in reasonable detail Lender’s
objections to such request.
9. Successors.
This Agreement shall be binding upon and inure to the benefit of Xxxxxx and
Xxxxxx and their respective successors and assigns.
10. Notices.
All notices given under any of the provisions of this Agreement shall be
in
writing and served on the parties at the following addresses:
To
Lender: _____________________________
_____________________________
_____________________________
Attn: _________________________
To
Tenant:
Express
Scripts, Inc.
_____________________________
_____________________________
Attention: _____________________
Any
such
notices shall, unless otherwise provided herein, be given or served (i) by
depositing the same in the United States mail, postage paid, certified and
addressed to the party to be notified, with return receipt requested, and
such
notice shall be effective on the third business day after such deposit; (ii)
by
overnight delivery using a nationally recognized overnight courier, and such
notice shall be effective on the next business day after such deposit; or
(iii)
by personal delivery, and such notice shall be immediately effective. Notice
given in any other manner shall be effective only if and when received by
the
party to be notified between the hours of 8:00 a.m. and 5:00 p.m. of any
business day, with delivery made after such hours to be deemed received the
following business day. A party’s address may be changed by written notice to
the other party; provided, however, that no notice of a change of address
shall
be effective until actual receipt of such notice. Copies of notices are for
informational purposes only, and a failure to give or receive copies of any
notice shall not be deemed a failure to give notice.
11. Lien
Waiver.
Lender hereby expressly waives and releases any and all contractual liens
and
security interests or constitutional and statutory liens and security interests
(arising by operation of law or under the Lease, the Deed of Trust or any
other
agreement Lender has which affects the Property or Tenant or Landlord) to
which
Lender might now or hereafter be entitled on any of the personal property
of
Tenant. Xxxxxx
agrees
to execute and deliver to Tenant and Xxxxxx’s lender, from time to time, a form
of “Waiver and Consent” confirming the foregoing and permitting such lender to
enter upon the Property in the event of a default by Xxxxxx and recover any
personal property financed by such lender, and containing other customary
and
reasonable provisions as may be requested by such lender, as well as customary
and reasonable provisions to protect the interests of Lender.
12. Insurance
Proceeds and Condemnation Proceeds.
If the terms of the Deed of Trust pertaining to the disbursement or use of
insurance proceeds and/or the disbursement or use of condemnation proceeds
conflict with the terms of the Lease, the provisions in the Lease shall
control.
13. Access.
If the terms of the Deed of Trust permit Lender to enter the Property, Xxxxxx’s
access rights shall not be greater than Landlord’s access rights under the
Lease, and the restrictions in the Lease regarding Landlord’s access to the
Property shall apply to Lender as well, notwithstanding anything to the contrary
in the Deed of Trust.
14. Choice
of Law; Headings; Attorneys’ Fees.
This Agreement shall be governed by and interpreted under the laws of the
state
or commonwealth in which the Property is located. The headings to paragraphs
of
this Agreement are for convenient reference only, do not in any way limit
or
amplify the terms of this Agreement, and shall not be used in interpreting
this
Agreement. If any party institutes an action or proceeding to enforce its
rights
under this Agreement, the prevailing party in such action or proceeding shall
be
entitled to recover from the other party or parties reasonable attorneys’ fees
and costs in addition to any other relief awarded by the court.
15. Integration.
This Agreement integrates all of the terms and conditions of the parties’
agreement regarding the subjection and subordination of the Lease and the
leasehold estate created by it, together with all rights and privileges of
Tenant under it, to the lien or charge of the Deed of Trust. This Agreement
supersedes and cancels all oral negotiations and prior and other writings
with
respect to such subjection and subordination, including, without limitation,
any
provisions of the Lease which provide for the subjection or subordination
of the
Lease and the leasehold estate thereby created to a deed or deeds of trust
or to
a mortgage or mortgages. This Agreement is intended by the parties as the
final
expression of the agreement, and as the complete and exclusive statement
of the
terms agreed to by the parties, with respect to such subordination and
subjection, to the extent specified in the foregoing sentence. This Agreement
may not be modified or amended except by a written agreement signed by the
parties or their respective successors in interest.
16. Modifications
to Loan.
Tenant
agrees that the Deed of Trust and the indebtedness secured thereby may be
increased, rearranged, renewed, extended, consolidated and modified from
time to
time by agreement between Landlord and Lender, and Lender may exercise any
one
or more of its rights under the Deed of Trust from time to time at Lender's
discretion, all without notice to or consent of Tenant, and this Agreement
shall
continue in full force and effect as to all such renewals, extensions,
increases, rearrangements, consolidations and modifications and all such
exercises of rights.
17. Counterparts.
This Agreement may be executed in several counterparts, all of which are
identical, and all of which counterparts together shall constitute one and
the
same instrument.
Executed
as of the Effective Date.
|
TENANT:
EXPRESS
SCRIPTS, INC.
By:
______________________
Title:
_____________________
|
LENDER:
____________________________________
By:
Title:
|
STATE
OF
MISSOURI )
)
ss.
COUNTY
OF
ST. XXXXX )
On
this
_____ day of ________________, 2005, before me personally appeared
_____________________________, to me personally known, who, being by me duly
sworn, did say that __________________ is the ________________________ of
Express Scripts, Inc., a Delaware corporation, and that said instrument was
signed on behalf of said corporation by the authority of its Board of Directors,
and said _______________________ acknowledged said instrument to be the free
act
and deed of said corporation.
IN
TESTIMONY WHEREOF, I have hereunto set my hand and affixed my seal in the
County
and State aforesaid, the day and year last above written.
__________________________________________
Notary
Public
__________________________________________
(Printed
Name)
(SEAL)
My
Commission Expires:
STATE
OF
_____________ )
)
ss.
COUNTY
OF
______________ )
On
this
_____ day of ________________, 2005, before me personally appeared
_____________________________, to me personally known, who, being by me duly
sworn, did say that __________________ is the ________________________ of
_____________________________, a ________________________, and that said
instrument was signed on behalf of said ________________ by the authority
of its
___________________, 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 seal in the
County
and State aforesaid, the day and year last above written.
__________________________________________
Notary
Public
__________________________________________
(Printed
Name)
(SEAL)
My
Commission Expires:
EXHIBIT F
LICENSE
AGREEMENT
This
License Agreement (“Agreement”) made this ____ day of ____________, 2005, by and
between NorthPark
Partners ESI, LLC, a Missouri limited liability company
(hereinafter called “Licensor”) and Express
Scripts, Inc., a Missouri corporation
(hereinafter called “Licensee”).
W
I T N E
S S E T H
I. Certain
Definitions. The
following
terms shall have the following meanings when used in this
Agreement.
(a) "Building"
shall mean that building located at ________________.
(b) "Lease"
means that Lease between Licensor and Licensee dated as of ___________, 2005
whereby Licensee has leased the Premises from Licensor.
(c) "Premises"
means the space within the Building leased by Licensee pursuant to the
Lease.
(d) "Roof"
means the Roof on the Building.
(e) "Roof
Equipment" means any equipment that is placed on the Roof by or on behalf
of
Licensee for Licensee's use, including but not limited to such things as
satellite dishes, antenna, and HVAC units.
Licensee
shall not place any equipment of any kind on the Roof without the prior written
consent of Licensor in each instance, and compliance by Licensee with all
requirements of this Agreement. Roof Equipment which Licensor has authorized
Licensee to place on the Roof shall only be placed at those locations on
the
Roof which have been approved in writing by Licensor.
Pursuant
to this Agreement, Licensor consents to Licensee placing on the Roof the
Roof
Equipment described on Exhibit
A
hereto
at the location on the Roof described on Exhibit
A.
Licensee shall comply with all requirements of this Agreement in connection
with
the installation, operation, maintenance and removal of said Roof
Equipment.
In
the
event that Licensee desires to add additional Roof Equipment to the Roof
at a
future date, Licensor and Licensee shall execute an additional agreement
for
such additional Roof Equipment or an addendum to this Agreement.
This
Agreement is for a term that commences and expires at the same time as the
aforesaid Lease, unless sooner terminated as provided herein. In the event
that
the Lease contains renewal options, and such renewal options are exercised,
the
term of this Agreement shall automatically be extended to coincide with such
renewal term. Licensee's rights to occupy any portion of the Roof pursuant
to
this Agreement shall automatically terminate on the date the Lease terminates
for any reason.
Licensee
shall use the Roof only for its own use and shall not have the right to allow
other companies to use the Roof,
Licensor
reserves the right to use those portions of the Roof that are not being used
by
Licensee.
II. The
size,
location and placement of the Roof Equipment shall be as specifically described
in Exhibit
“A”,
attached hereto and by reference, made a part hereof, or at such other location
as approved by Licensor in writing.
III. Licensee
shall not be required to pay rent or a fee to Licensor as consideration for
this
Agreement. Licensee shall pay for all gas, electricity and other utilities
required in order to operate said Roof Equipment
IV. With
respect to the installation of the Roof Equipment on the Roof portion of
the
Building, Licensee agrees to contract with Licensor's roofing contractor
in
order to determine if any additional support to the Roof is required in order
to
install the Roof Equipment. If any such support is required, Licensee shall
retain the services of Licensor's roofing contractor at Licensee's sole cost
and
expense to install such support, and Licensee agrees to comply with any
suggestions or recommendations of Licensor's roofing contractor so that the
installation, maintenance and repair of the Roof Equipment will not affect
any
warranties which Licensor has on said Roof. Licensee shall further have the
right to access such conduits or other access ways within the Building from
the
Premises to the Roof to allow Licensee to install such cabling as is necessary
in connection with the installation of the Roof Equipment, provided that
Licensee shall install cabling or other equipment only is such locations
as are
approved by Licensor in writing, such approval not to be unreasonably withheld,
conditioned or delayed. The location of all such cabling shall be included
in
the plans and specifications provided in Section VI as hereinafter set
forth.
No
Roof
penetrations shall be made without the prior written consent of Licensor.
Licensor may require that Licensee hire Licensor's roofing contractor to
make
all such Roof penetrations. All such Roof penetrations shall only be made
in
compliance with all requirements of Licensor's roofing contractor.
Licensee
shall notify Licensor when installation is completed and within thirty (30)
days
after such notification, Licensor shall cause the Roof or other affected
portions of the Building and Premises to be inspected and shall, within such
time period, notify Licensee if there is any damage resulting from the
installation. If Licensor so notifies Licensee, Licensee shall cause such
damage
to be repaired at its expense provided such damage was not caused by Licensor,
its employees or agents. In the event of such damage, and Licensee shall
incur
such expense, Licensee may seek reimbursement from any third party responsible
for such damage, and Licensor shall cooperate with Licensee in such
endeavor.
Licensee
shall have the right to terminate this Agreement forthwith and without further
obligation in the event modifications to the structure required by Licensor's
Roofing contractor are determined in the sole discretion of Licensee to make
the
use of Licensor's facilities uneconomical.
V. Licensee
shall bear the sole cost and responsibility for the installation, maintenance,
repair and removal of the Roof Equipment, including all necessary gas and
electrical service and any and all other costs associated therewith. All
such
items shall be done in a good and workmanlike manner. Licensee shall maintain
all of said items in a good and safe condition through-out the remainder
of the
term of this Agreement at Licensee's sole cost and expense. It is understood
and
agreed that Licensor shall have no responsibility nor obligation for the
maintenance and repair of the Roof Equipment, and any equipment or other
items
installed by Licensee in connection therewith and shall have no liability
for
any damage done to same or caused by same except to the extent same was caused
by Licensor, its employees or agents.
Without
limiting the preceding paragraph, Licensor is not bringing any utility services
to the Roof or making any other improvements of any kind on the Roof. Licensee
at Licensee's sole cost and expense is responsible for bringing to the Roof
any
electrical, gas, water, drainage or other service lines needed to operate
the
Roof Equipment, and for providing and installing anything needed on the Roof
in
connection with such Roof Equipment, all of which must be approved in writing
by
Licensor.
VI. Licensee
shall submit plans and specifications for the construction and installation
of
all the items to be in-stalled by Licensee hereunder for Licensor's prior
approval. The manner and method of installation and removal of all such
equip-ment shall be subject to the written approval of Licensor, which approval
shall not be unreasonably withheld or delayed.
VII. Licensee,
at its own expense, shall, prior to the installation of its equipment, secure
and at all times thereafter maintain all required approvals and permits of
the
Federal Communications Commission and all other governmental bodies having
jurisdiction over its business, including its communica-tions, operations
and
facilities. Licensee shall at all times comply with all applicable laws in
connection with installation, operation and removal of the Roof
Equipment.
VIII. Licensee,
at its expense, shall be solely responsible for and shall maintain its equipment
in a safe, structural, sound, clean and sightly condition and shall indemnify
and hold harmless Licensor against all liens and claims of mechanics and
materialmen furnishing labor and materials in the construction and maintenance
of its equipment.
IX. Licensor
hereby grants unto Licensee the right to enter upon the Roof of the Building
or
other such areas of the Building where Licensee’s improvements in connection
herewith may be installed for the sole purpose of gaining access to Licensee's
installation. Licensor further grants right of access at all times to the
areas
where such connecting equipment is located for the purposes of maintaining,
repairing, testing and replacing the connecting equipment; provided, however,
if
Licensee is not the sole tenant in the Building, then Licensee shall notify
Licensor each time Licensee requires such access other than in the event
of an
emergency and provided further that such access and installations do not
cause
damage to or interfere with the operations or maintenance of any part of
the
Building or with any other tenants located in the Building. All such entries
on
the Roof and work performed thereon shall be done in accordance with Licensor’s
guidelines established to prevent any Roof warrantees from being voided.
Any
damages done to the Roof shall be repaired at Licensee’s sole cost and expense
and Licensee shall remain responsible to maintain any portion of the Roof
for
which the warranty therefore has been voided due to the activities of Licensee,
its employees, agents and contractors on the Roof. Licensee shall be given
all
necessary keys for the purpose of gaining such access.
During
any period in which Licensee is not the sole tenant in the Building, Licensee
shall attempt to notify Licensor each time Licensee desires to enter upon
the
Roof of the Building other than in the event of an emergency, and Licensee
shall
enter upon the Roof only at such times and under such circumstances which
shall
not cause endangerment of life or limb. Licensee shall promptly reimburse
Licensor for the costs or repairs of any damage to the Building directly
or
indirectly caused by Licensee's installations or the maintenance
thereof.
X. The
license hereby granted to Licensee shall give to Licensee the exclusive right
to
use the Roof or tower of the Building and Licensor shall not grant a license
or
licenses to any party to use space on the Roof. Notwithstanding the foregoing,
during any period in which there are other tenants in the Building, Licensor
may
grant a license or licenses to other tenants to use space of the Roof; provided,
however, the rights of other licensees shall be exercised without causing
objectionable interference with the activities being carried on at the same
time
by Licensee in accordance with its license. Similarly, the license of Licensee
shall be exercised without causing objectionable interference with the
activities being carried on at the same time by other licensees in accordance
with their respective licenses. Notwithstanding the provisions of the preceding
sentence to the contrary, in the event that action cannot be taken to eliminate
any objectionable interference between installations after reasonable efforts
to
eliminate such interference have been taken by Licensee and any other
licensee(s), then in such event Licensee’s right to install and operate its Roof
Equipment shall be superior to the rights of any other licensee(s) or tenant(s),
and Licensor shall take such actions as are necessary to remove or modify
any
other installation which causes objectionable interference with Licensee’s
installation. Licensee shall not change or materially alter the installation
agreed to herein without the prior written approval of Licensor, which approval
shall not be unreasonably conditioned, delayed or withheld.
XI. Licensee
agrees to indemnify and hold harmless Licensor and to assume all liability
for
death of or injury to any persons and all liability for loss, damage or injury
to any property incurred or sustained by Licensor or Licensee arising from,
growing out of or resulting from Licensee's use of the Roof of the Building,
or
any other areas in the Building where Licensee's connecting equipment is
located, including costs, attorneys' fees and other expenses incurred by
Licensor in defending any such claim, unless and to the extent such loss,
damage
or injury is due to the negligence or willful misconduct of Licensor, its
employees, agents or invitees.
XII. Licensee
hereby waives and releases all claims against Licensor, its officers, directors,
agents, employees and servants and agrees that they shall not be liable for
any
injury to or death of persons, or damage to property sustained by Licensee
or by
any occupant of the Building, or any other person occurring in or about the
Building resulting directly or indi-rectly from any existing or future
condition, defect, matter or thing in the Building, or any part of it, or
from
equipment or appurtenance becoming out of repair, or from any occurrence,
act or
from the negligence or omission of any tenant or occupant of the Building,
or of
any other person, except for the gross negligence or omission by Licensor,
its
officers, directors, agents, employ-ees and servants.
XIII. Licensor
shall have the right to terminate this Agreement upon written notice to Licensee
in the event that: (a) the Lease is terminated or Licensee’s right to possession
under the Lease is terminated; (b) Licensee shall default in the performance
of
any obligations imposed upon it hereunder and shall not, within thirty (30)
days
after being notified by Licensor of the existence of such default, immediately
take all reasonable steps to cure same and diligently prosecute such work
to
completion; (c) it shall be determined that such installation does not comply
with all building codes, ordinances and the Protective Covenants for the
jurisdiction in which the Building is located; (d) it is found by a public
authority having jurisdiction in the Building that such installation and
use
constitute a nuisance or hazard to the public or the occupants of the Building;
or (e) the use of such Roof Equipment is changed from that originally approved
in a manner which interferes with the use of any other tenant's equipment
or
data processing machines in the Building. Notwithstanding the foregoing,
Licensor shall not have the right to terminate this Agreement pursuant to
subclauses (c) or (d) above if Licensee is contesting any such determination
or
finding.
Licensee
shall have the right to terminate this Agreement upon written notice to Licensor
in the event that: (a) the use of such installation by Licensee is deemed
in
violation of any ordinance, state statute, federal statute or governmental
regulation and such violation cannot be reasonably cured; (b) the use of
such
installation by Licensee does not serve Licensee's intended purpose due to
changes in environmental conditions outside the control of Licensee; or (c)
Licensee desires to do so for any cause or for no cause.
In
the
event of termination by either party, Licensee shall remove its equipment,
provided said removal complies with the provisions of Section XV below. Any
such
termination shall have no impact on the rights and obligations of Licensee
and
Licensor under the Lease nor shall it cause a termination of the
Lease.
XIV. No
notice
or demand related to or required by this Agreement shall be effective unless
same is in writing and delivered pursuant to the Lease terms.
XV. At
the
termination of this Agreement by lapse of time or otherwise, the Roof Equipment
and the connecting equipment installed under the terms of this Agreement
shall
be removed by Licensee upon the request of Licensor, and, subject
to the provisions of Sections 11 of the Lease (regarding casualty) and 19
(regarding condemnation),
the
area of the Building where they were installed shall be restored by Licensee
in
as good condition as existed immediately prior to installation of such
installations and connecting equipment, ordinary wear and tear
excepted.
XVI. This
Agreement shall be binding upon the successors and assigns of the parties
hereto
provided that Licensee shall not assign or transfer this Agreement to anyone
other than an assignee of Licensee’s interest under the Lease that has been
approved or permitted under the Lease.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
|
LICENSEE:
EXPRESS
SCRIPTS, INC.
By_____________________________
Name:
__________________________
Title:
___________________________
|
LICENSOR:
NORTHPARK
PARTNERS ESI, LLC, a Missouri limited liability company
By
McEagle NorthPark Partners ESI, LLC, a Missouri limited liability
company,
its Manager
By_____________________________
Name:
__________________________
Title:
___________________________
|
EXHIBIT G
ALTERNATIVE
DISPUTE RESOLUTION PROCEDURES
The
parties recognize that from time to time a dispute may arise relating to
either
party’s rights or obligations under this Agreement. The parties agree that any
such dispute shall be resolved by the Alternative Dispute Resolution (“ADR”)
provisions set forth in this Exhibit, the result of which shall be binding
upon
the parties.
To
begin
the ADR process, a party first must send written notice to the other party
advising that the notifying party desires to initiate an ADR proceeding to
resolve the subject dispute in the manner provided herein. The parties shall
have the right to be represented by counsel in such a
proceeding.
1. To
begin
an ADR proceeding, a party shall provide written notice to the other party
of
the issues to be resolved by ADR. Within fourteen (14) days after its receipt
of
such notice, the other party may, by written notice to the party initiating
the
ADR, add additional issues to be resolved within the same
ADR.
2. Within
twenty-one (21) days following the initiation of the ADR proceeding, the
parties
shall select a mutually acceptable neutral to preside in the resolution of
any
disputes in this ADR proceeding. If the parties are unable to agree on a
mutually acceptable neutral within such period, either party may request
the
Director of ADR, United States Arbitration & Mediation, 000 Xxxxx Xxxxxx,
Xxxxx 0000, Xx. Xxxxx, XX 00000 (“ADR Entity”), to select a neutral pursuant to
the following procedures:
(a) The
ADR
Entity shall submit to the parties a list of not less than five (5) candidates
within fourteen (14) days after receipt of the request, along with a
Curriculum
Vitae
for each
candidate. No candidate shall be an employee, director, or shareholder of
either
party or any of their subsidiaries or affiliates.
(b) Such
list
shall include a statement of disclosure by each candidate of any circumstances
likely to affect his or her impartiality.
(c) Each
party shall number the candidates in order of preference (with the number
one
(1) signifying the greatest preference) and shall deliver the list to the
ADR
Entity within seven (7) days following receipt of the list of candidates.
If a
party believes a conflict of interest exists regarding any of the candidates,
that party shall provide a written explanation of the conflict to the ADR
Entity
along with its list showing its order of preference for the candidates. Any
party failing to return a list of preferences on time shall be deemed to
have no
order of preference.
(d) If
the
parties collectively have identified fewer than three (3) candidates deemed
to
have conflicts, the APR Entity immediately shall designate as the neutral
the
candidate for whom the parties collectively have indicated the greatest
preference. If a tie should result between two candidates, the APR Entity
may
designate either candidate. If the parties collectively have identified three
(3) or more candidates deemed to have conflicts, the APR Entity shall review
the
explanations regarding conflicts and, in its sole discretion, may either
(i)
immediately designate as the neutral the candidate for whom the parties
collectively have indicated the greatest preference, or (ii) issue a new
list of
not less than five (5) candidates, in which case the procedures set forth
in
subparagraphs 2(a) - 2(d) shall be repeated.
3. No
earlier than twenty-eight (28) days or later than fifty-five (55) days after
selection, the neutral shall hold a hearing to resolve each of the issues
identified by the parties. The ADR proceeding shall take place at a location
agreed upon by the parties. If the parties cannot agree, the neutral shall
designate a location in the metropolitan St. Louis area.
4. At
least
seven (7) days prior to the hearing, each party shall submit the following
to
the other party and the neutral:
(a) a
copy of
all exhibits on which such party intends to rely in any oral or written
presentation to the neutral;
(b) a
list of
any witnesses such party intends to call at the hearing, and a short summary
of
the anticipated testimony of each witness;
(c) a
proposed ruling on each issue to be resolved, together with a request for
a
specific damage award or other remedy for each issue. The proposed rulings
and
remedies shall not contain any recitation of the facts or any legal arguments
and shall not exceed one (1) page per issue. The parties agree that neither
side shall seek as part of its remedy any punitive damages.
(d) a
brief
in support of such party’s proposed rulings and remedies, provided that the
brief shall not exceed twenty (20) pages. This page limitation shall apply
regardless of the number of issues raised in the ADR
proceeding.
Except
as
expressly set forth in subparagraphs 4(a) - 4(d), no discovery shall be required
or permitted by any means, including depositions, interrogatories, requests
for
admissions, or production of documents.
5. The
hearing shall be conducted on two (2) consecutive days and shall be governed
by
the following rules:
(a) Each
party shall be entitled to five (5) hours of hearing time to present its
case.
The neutral shall determine whether each party has had the five (5) hours
to
which it is entitled.
(b) Each
party shall be entitled, but not required, to make an opening statement,
to
present regular and rebuttal testimony, documents or other evidence, to
cross-examine witnesses, and to make a closing argument. Cross-examination
of
witnesses shall occur immediately after their direct testimony, and
cross-examination time shall be charged against the party conducting the
cross-examination.
(c) The
party
initiating the ADR shall begin the hearing and, if it chooses to make an
opening
statement, shall address not only issues it raised but also any issues raised
by
the responding party. The responding party, if it chooses to make an opening
statement, also shall address all issues raised in the ADR. Thereafter, the
presentation of regular and rebuttal testimony and documents, other evidence,
and closing arguments shall proceed in the same sequence.
(d) Except
when testifying, witnesses shall be excluded from the hearing until closing
arguments.
(e) Settlement
negotiations, including any statements made therein, shall not be admissible
under any circumstances. Affidavits prepared for purposes of the ADR hearing
also shall not be admissible. As to all other matters, the neutral shall
have
sole discretion regarding the admissibility of any evidence.
6. Within
seven (7) days following completion of the hearing, each party may submit
to the
other party and the neutral a post-hearing brief in support of its proposed
rulings and remedies, provided that such brief shall not contain or discuss
any
new evidence and shall not exceed ten (10) pages. This page limitation shall
apply regardless of the number of issues raised in the ADR
proceeding.
7. The
neutral shall rule on each disputed issue within fourteen (14) days following
completion of the hearing. Such ruling shall adopt in its entirety the proposed
ruling and remedy of one of the parties on each disputed issue but may adopt
one
party’s proposed rulings and remedies on some issues and the other party’s
proposed rulings and remedies on other issues. The neutral shall not issue
any
written opinion or otherwise explain the basis of the ruling.
8. The
neutral shall be paid a reasonable fee plus expenses. These fees and expenses,
along with the reasonable legal fees and expenses of the prevailing party
(including all expert witness fees and expenses), the fees and expenses of
a
court reporter, and any expenses for a hearing room, shall be paid as
follows:
(a) If
the
neutral rules in favor of one party on all disputed issues in the ADR, the
losing party shall pay 100% of such fees and expenses.
(b) If
the
neutral rules in favor of one party on some issues and the other party on
other
issues, the neutral shall issue with the rulings a written determination
as to
how such fees and expenses shall be allocated between the parties. The neutral
shall allocate fees and expenses in a way that bears a reasonable relationship
to the outcome of the ADR, with the party prevailing on more issues, or on
issues of greater value or gravity, recovering a relatively larger share
of its
legal fees and expenses.
9. The
rulings of the neutral and the allocation of fees and expenses shall be binding,
non-reviewable, and non-appealable, and may be entered as a final judgment
in
any court having jurisdiction.
10. Except
as
provided in paragraph 9 or as required by law, the existence of the dispute,
any
settlement negotiations, the ADR hearing, any submissions (including exhibits,
testimony, proposed rulings, and briefs), and the rulings shall be deemed
Confidential Information. The neutral shall have the authority to impose
sanctions for unauthorized disclosure of Confidential Information.
11. All
ADR
hearings shall be conducted in the English language.
