Exhibit 10.17
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LEASE
BETWEEN
XXXXXXXXX OFFICE CENTER SOUTH, L.L.C.,
A MISSOURI LIMITED LIABILITY COMPANY,
AS LANDLORD
AND
XXXXXX X. XXXXX & CO., L.P.,
A MISSOURI LIMITED PARTNERSHIP,
AS TENANT
(BUILDING III)
(LOT 1)
LEASE
THIS LEASE AGREEMENT (the "Lease") is made and entered into on the
3rd day of February, 2000, between Xxxxxxxxx Office Center South, L.L.C., a
Missouri limited liability company ("Landlord"), and Xxxxxx X. Xxxxx & Co.,
L.P., a Missouri limited partnership ("Tenant").
W I T N E S S E T H
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1. DEFINITIONS.
1.1. "AAA" shall be as defined in Section 47.1 hereof.
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1.2. "Accounting" shall be as defined in Paragraph 11(b)
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of Exhibit A attached hereto and incorporated herein.
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1.3. "ADA" shall mean the Americans with Disabilities Act.
1.4. "Additional Rent" shall be as defined in Section 3.4
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hereof.
1.5. "Additional Work" shall be as defined in Section 6.2
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hereof.
1.6. "Adjacent Property" shall mean Lot II and Lot III of
the Office Center.
1.7. "Adjacent Property Owner" shall mean the owner or
owners from time to time of the Adjacent Property.
1.8. "Advance Occupancy" shall be as defined in
Section 2.5 hereof.
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1.9. "Approved Subcontractors" shall be as defined in
Paragraph 6(a) of Exhibit A attached hereto and incorporated herein.
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1.10. "Arbitration" shall be as defined under Section 47
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hereof.
1.11. "Architect" shall be as defined in Paragraph 6(a)
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of Exhibit A attached hereto and incorporated herein.
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1.12. "Base Rent" shall mean those amounts set forth in
Section 3.1 hereof, payable in equal monthly installments.
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1.13. "Base TI Allowance" shall be as defined in
Paragraph 7(a) of Exhibit A attached hereto and incorporated herein.
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1.14. "Building" or "Building III" shall mean the office
building to be constructed as Building III on Lot I of the Office Center, which
is calculated to contain 218,057 RSF and to contain 228,000 construction gross
square feet.
1.15. "Building I" shall mean that certain office building
located on the Adjacent Property known as Building I.
1.16. "Building II" shall mean that certain office building
located on the Adjacent Property known as Building II.
1.17. "Building III Option" shall be as defined in
Section 44 hereof.
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1.18. "Building Grade" shall mean the type, brand and/or
quality of materials Landlord designates from time to time to be the minimum
quality to be used in the Building or the exclusive type, grade or quality of
material to be used in the Building.
1.19. "Building Manager" shall be as defined in
Section 5.1(b)(vii) hereof.
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1.20. "Cafeteria" shall be as defined in Section 5.6
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hereof.
1.21. "Commencement Date" means the day after the date
(but no earlier than the Substantial Completion Date) upon which (a) the
Premises are Substantially Completed; and (b) St. Louis County has issued
any temporary or permanent occupancy permits which are necessary and allow
the Tenant to occupy the Premises to conduct the Tenant's business therein;
provided, however, if the Architect and the Tenant Architect do not agree as
to Substantial Completion, the Tenant shall begin to pay Base Rent at
one-half of the required amount until such time as both the Tenant Architect
and the Architect agree that the Premises are Substantially Complete; and
thereafter, the parties shall attempt to negotiate in good faith to resolve
such disagreement. If the parties are unable to negotiate such disagreement,
the parties shall submit the issue to Arbitration or a court of competent
jurisdiction for a declaratory judgment and, upon completion of such action,
the appropriate Commencement Date shall be determined and any appropriate
adjustments in Rent shall be made with interest accruing at the Prime Rate
for any adjusted amounts from the date such payment should have been paid
until the date paid. The Tenant shall begin to pay full Additional Rent at
the same time full or partial Base Rent is to be paid. The Commencement Date
may be earlier than the date provided in Subparagraphs (a) and (b) above
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pursuant to Section 2.2(b) hereof.
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1.22. "Construction Period" shall mean that period
beginning on the date of execution of this Lease and continuing through
11:59 p.m. on the day immediately prior to the Commencement Date.
1.23. "Contractor" shall be as defined in Paragraph 8 of
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Exhibit A attached hereto and incorporated herein.
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1.24. "Construction Schedule" shall be as defined in
Paragraph 3 of Exhibit A attached hereto and incorporated herein.
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1.25. "Core and Shell" shall be as defined in
Paragraph 1(a) of Exhibit A attached hereto and incorporated herein.
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1.26. "Core and Shell Plans" shall be as defined in
Paragraph 1(a) of Exhibit A attached hereto and incorporated herein.
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1.27. "CPI Index" shall mean the Consumer Price Index
for All Urban Consumers, as revised for U.S. City Average, issued by the
Bureau of Labor Statistics of the United States Department of Labor or any
successor agency, or any other measure hereafter employed by that Bureau or
any successor agency in lieu of such CPI Index that measures the cost of
living in the United States. If the CPI Index is hereafter converted to a
different standard reference base or otherwise revised, the determination of
the percentage increase shall be made either with the use of such conversion
factor, formula or table converting the CPI Index as may be published by the
Bureau or any successor agency, or if no such conversion factor, formula or
table is published, then by using such other index as is then generally
recognized and accepted for similar determinations of purchasing power in
Landlord's reasonable discretion.
1.28. "Cybertel" shall mean Cybertel Cellular Telephone
Company, a Missouri partnership.
1.29. "Cybertel Lease" shall mean that certain Lease dated
November 30, 1990, executed by Cybertel and Manchester 270 Partnership, as
amended by First Amendment to Lease Agreement dated as of July 15, 1996,
Second Amendment to Lease Agreement dated as of January 15, 2000 and as it
may be later amended.
1.30. "Declining Response" shall be as defined in
Section 2.6(c)(ii) hereof.
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1.31. "Delay Expenses" shall mean any excess construction
period interest, loan related costs, delay in the payment of any Rent,
Taxes, additional insurance premiums, utilities, similar costs or other
Operating Expenses.
1.32. "Design Team" shall be as defined in Paragraph 6(a)
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of Exhibit A attached hereto and incorporated herein.
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1.33. "Design Work" shall be as defined in Paragraph 6(a)
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of Exhibit A attached hereto and incorporated herein.
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1.34. "Evaluation Period" shall be as defined in
Section 15.5 hereof.
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1.35. "Excess TI Costs" shall be as defined in
Paragraph 7(a) of Exhibit A attached hereto and incorporated herein.
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1.36. "Excluded Costs" shall be as defined in
Section 4.1(a) hereof.
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1.37. "Excusable Construction Delay" shall mean any delay
in the then current Construction Schedule for the Premises as a result of
Force Majeure, changes in Core and Shell Plans or Tenant Work Plans
requested by the Tenant which results in a delay of the construction of the
Premises, or any act or omission of the Tenant which results in a delay in
the construction of the Premises.
1.38. "Execution Date" shall be the date by which both
(a) this Lease has been executed by the Tenant and the Landlord and (b) a
copy signed by the Tenant has been received by the Landlord.
1.39. "Expense Statement" shall be as defined in
Section 4.1(b) hereof.
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1.40. "Event of Default" shall be as defined in Section 23
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hereof.
1.41. "First Party" shall be as defined in Section 47.4
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hereof.
1.42. "Food Service Contractor" shall be as defined in
Section 5.6 hereof.
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1.43. "Force Majeure" shall be as defined in
Section 36.1(a) hereof.
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1.44. "Hazardous Materials" shall be as defined in
Section 37.1 hereof.
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1.45. "HVAC" shall be as defined in Section 5.1(b)(ii)
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hereof.
1.46. "Initial Period" shall be as defined in Section 4.2
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hereof.
1.47. "Initial Term" shall mean a term of at least
twenty (20) years, but less than two hundred forty-one (241) months,
beginning on the Commencement Date and ending on the last day of the month
in which the twentieth anniversary of the day before the Commencement Date
occurs.
1.48. "Insurance Coverage Amount" shall be as defined in
Section 10.2 hereof.
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1.49. "Xxxxxx" shall be as defined in Section 29 hereof.
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1.50. "Landlord Change Order" shall be as defined in
Paragraph 9(c)(i) of Exhibit A attached hereto and incorporated herein.
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1.51. "Landlord Default" shall be as defined in
Section 23.8(b) hereof.
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1.52. "Landlord Expenses" shall be as defined in
Section 4.8 hereof.
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1.53. "Late Charge" shall be as defined in Section 3.1
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hereof.
1.54. "Late Delivery Payment" shall be as defined in
Section 2.3(a)(iii) hereof.
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1.55. "Lease Year" shall mean a consecutive period of
twelve (12) months provided the first Lease Year shall begin on the
Commencement Date and end on the last day of the twelfth (12th) full
calendar month following thereafter and each subsequent Lease Year shall be
twelve (12) full calendar months.
1.56. "Leasehold Deed of Trust" shall be as defined in
Section 48 hereof.
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1.57. "Lender" shall mean the holder of any mortgage or
deed of trust lien upon the Premises from time to time.
1.58. "Liability Policy" shall be as defined in
Section 10.2 hereof.
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1.59. "Lot I" or "Lot 1" shall mean Lot I of the Office
Center as depicted on Exhibit B-1 attached hereto and incorporated herein.
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The landscaped areas that are adjacent to Lot 1 will be maintained by the
Landlord at Tenant's expense (as an Operating Expense) and are hachured on
Exhibit B-1.
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1.60. "Major Casualty" shall be as defined in
Section 15.2(b) hereof.
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1.61. "Major Taking" shall be as defined in Section 16.2(a)
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hereof.
1.62. "Management Fee" shall mean the following sums:
Lease Years 1-5 $ .75 per RSF of the Building
Lease Years 6-10 $ .83 per RSF of the Building
Lease Years 11-15 $ .93 per RSF of the Building
Lease Years 16-20 $1.02 per RSF of the Building
Lease Years 21-25 $1.12 per RSF of the Building
Lease Years 26-30 $1.23 per RSF of the Building
Lease Years 31-35 $1.35 per RSF of the Building
Unless adjusted upward pursuant to Section 5.5
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hereof.
1.63. "Monetary Default" shall mean an Event of Default
by the Tenant hereunder resulting from the failure to pay Rent which has
been outstanding for a period of thirty (30) days or more.
1.64. "Mortgage" shall be as defined in Section 24.1
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hereof.
1.65. "Office Center" shall mean that development on
Xxx X, Xxx XX xxx Xxx XXX xx Xxxxxxxxxx/000 Office Center. The land upon
which the Office Center is situated is legally described on Exhibit B
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attached hereto and incorporated herein.
1.66. "Operating Expenses" shall be as defined in
Section 4.1(a) hereof.
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1.67. "Option Notice" shall be as defined in Section 2.6(b)
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hereof.
1.68. "Option Terms" shall be as defined in Section 2.6(a)
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hereof.
1.69. "Option TI Allowances" shall be as defined in
Section 2.7 hereof.
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1.70. "Option TI Improvements" shall be as defined in
Section 2.7(a)(ii) hereof.
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1.71. "Parking Garage" shall mean that parking garage
situated on Lot I of the Office Center exclusively serving Building III and
possibly Cybertel pursuant to the Cybertel Lease, as described in Section 17
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hereof.
1.72. "Plan Modifications" shall be as defined in
Paragraph 1(b) of Exhibit A, attached hereto and incorporated herein.
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1.73. "Position Paper" shall be as defined in Section 47.5
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hereof.
1.74. "Premises" shall mean Lot I and the improvements
to be constructed on Lot I pursuant to this Lease, including the Parking
Garage and surface parking provided for in the Core and Shell Plans.
1.75. "Prime Rate" shall mean the from time to time
publicly announced prime rate of interest of Bank of America (or any successor
bank).
1.76. "Punch-List" shall be as defined in Paragraph 14
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of Exhibit A attached hereto and incorporated herein.
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1.77. "Rent" shall be as defined in Section 3.4 hereof.
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1.78. "RSF" shall mean a rentable square foot of the
Building as calculated using the definition of ANSI/BOMA Z65.1-1996,
STANDARD METHOD FOR MEASURING FLOOR AREA IN OFFICE BUILDINGS, dated: June 7,
1996 and published by the Building Owners and Managers Association
International (BOMA), 0000 Xxx Xxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X.
00000.
1.79. "Second Party" shall be as defined in Section 47.4
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hereof.
1.80. "SNDA" shall be as defined in Section 24.1 hereof.
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1.81. "Space Plans" shall be as defined in Paragraph 8(a)
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of Exhibit A attached hereto and incorporated herein.
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1.82. "Substantially Completed" or "Substantial Completion"
shall mean the date upon which the Tenant Architect and the Architect have
confirmed in writing to the Landlord and Tenant that the Premises are
"substantially completed," as such phrase is defined
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under AIA Form 704 prepared by the American Institute of Architects,
in accordance with the Tenant Work Plans and the Core and Shell Plans.
1.83. "Substantial Completion Date" shall mean
December 31, 2001.
1.84. "Tax" or "Taxes" shall be as defined in
Section 4.7(a) hereof.
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1.85. "Tenant Architect" shall be as defined in
Paragraph 6(a) of Exhibit A attached hereto and incorporated herein.
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1.86. "Tenant Change Order" shall be as defined in
Paragraph 9(b) of Exhibit A attached hereto and incorporated herein.
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1.87. "Tenant Change Order Cost" shall be as defined in
Paragraph 9(b) of Exhibit A attached hereto and incorporated herein.
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1.88. "Tenant Engineer" shall be as defined in
Paragraph 6(a)(2) of Exhibit A attached hereto and incorporated herein.
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1.89. "Tenant Work" shall be as defined in Paragraph 7(b)
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of Exhibit A attached hereto and incorporated herein.
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1.90. "Tenant Work Plans" shall be as defined in
Paragraph 1(c) of Exhibit A attached hereto and incorporated herein.
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1.91. "Tenant Work Schedule" shall be as defined in
Paragraph 7(c) of Exhibit A attached hereto and incorporated herein.
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1.92. "Term" shall mean the Initial Term and any Option
Term which may be exercised by Tenant pursuant to this Lease.
1.93. "Term Extension" shall be as defined in
Section 2.6(g) hereof.
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1.94. "Work Letter" shall mean the terms and provisions
set forth as Exhibit A attached hereto and made a part hereof.
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2. LEASE TERM AND TENANT OPTION ALLOWANCES.
2.1. The Landlord hereby leases to the Tenant the
Premises subject to the terms, conditions and covenants of this Lease, and
the Tenant hereby accepts the leasing of the Premises subject to the terms,
conditions and covenants of this Lease. This Lease shall continue in force
during a period beginning on the date hereof and continuing until the
expiration of the Initial Term, unless this Lease is sooner terminated or
extended to a later date under an Option Term or under any other term or
provision of this Lease.
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2.2. (a) The Landlord shall use good faith efforts to
deliver initial occupancy of the Premises to the Tenant on or before the
Substantial Completion Date pursuant to the Work Letter, subject to
Excusable Construction Delays.
(b) If the completion of all or any portion of
the Premises is delayed due to the failure of Tenant to comply with its
obligations hereunder, all obligations of the Tenant under this Lease shall
commence, including, without limitation, the obligation to pay Rent at the
time the Premises would have been completed, but for Tenant's failure, but
in no event earlier than the Substantial Completion Date. If the Tenant's
failure results in a delay in Substantial Completion of the Premises, the
Commencement Date shall be the date the Commencement Date would have
occurred, but for Tenant's failure hereunder, but in no event earlier than
the Substantial Completion Date.
2.3. (a) If, however, the Premises are not Substantially
Completed (for reasons other than an Excusable Construction Delay) by the
Substantial Completion Date, then as Tenant's sole remedy for the delay in
Tenant's occupancy of the Premises:
(i) The Commencement Date shall be delayed;
(ii) Rent hereunder shall not commence until
Substantial Completion of the Premises; and
(iii) The Landlord shall pay to Tenant an
amount equal to Five Thousand and 00/100 Dollars
($5,000.00) for each of the first thirty (30) days
that the Commencement Date is delayed, beyond
January 31, 2002 and Ten Thousand and 00/100 Dollars
($10,000.00) for each day of the second thirty (30)
days thereafter that the Commencement Date is
delayed, but in no event shall such payments exceed
Four Hundred Fifty Thousand and 00/100 Dollars
($450,000.00) ("Late Delivery Payment"). The Late
Delivery Payment shall be paid upon the
Commencement Date. In the event of an Excusable
Construction Delay, the number of days between
January 31, 2002 and the Commencement Date used in
calculating the Late Delivery Payment shall be
reduced by the number of days of Excusable
Construction Delay. The amount of such Late Delivery
Payment has been determined by Landlord and Tenant
to be reasonable and adequate to compensate Tenant
for Landlord's failure to deliver possession of the
Premises on the date so provided herein, and shall
not be construed as a penalty, it being impossible
to ascertain exactly the damages which such
failure to deliver may entail.
(b) In the event that the Substantial Completion
Date has not occurred prior to December 31, 2002, the Tenant may, at any
time thereafter (prior to the Substantial Completion Date occurring),
terminate this Lease by written notice to the Landlord.
(c) Within ten (10) business days after the
occurrence of the Commencement Date, Landlord and Tenant shall execute a
Declaration of Lease Commencement in the form attached hereto as Exhibit C.
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(d) Notwithstanding any provision of this Lease or
the Work Letter attached as Exhibit A to the Lease to the contrary, the
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Landlord acknowledges and agrees that it shall be responsible for the
payment of any and all costs of the construction of the Core and Shell, the
Parking Garage and all associated site work for the Premises as set forth in
the Core and Shell Plans, and all costs associated with delays whether due
to weather, labor disputes or material shortages and costs associated with
loans, insurance and increased interest rates. The Tenant shall have no
responsibility for the construction of the Core and Shell improvements,
provided Delay Expenses and costs related to Tenant requested change orders
to the Core and Shell Plans shall remain the responsibility of the Tenant
hereunder.
2.4. There shall be no other remedies against or to
Landlord for failure to complete the Premises or deliver possession thereof
prior to the Substantial Completion Date. In the event of any Excusable
Construction Delay, the Substantial Completion Date shall be automatically
extended by the number of days of such Excusable Construction Delay.
2.5. The Landlord shall take reasonable efforts to permit
the Tenant to have the right and privilege to enter onto the Premises to
complete interior decoration work (i.e. the installation of fixtures,
furniture and equipment that is not included within the Tenant Work) and
prepare the Premises for occupancy ("Advance Occupancy"), subject to the
following terms and conditions:
(a) Tenant's Advance Occupancy shall not in any way
interfere with or delay the completion of construction of the Core and Shell
or the Tenant Work;
(b) The Tenant and all contractors employed by the
Tenant shall comply with all rules and regulations promulgated by the Landlord
and the Contractor;
(c) The Tenant and all of its contractors shall
maintain and provide evidence to the Landlord of liability insurance in form
and amount acceptable to the Landlord;
(d) If any of the Tenant's contractors use non-union
employees and such employees create any work stoppage or other disruption of
construction of the Premises by the Landlord, the Tenant shall immediately
terminate the use of such contractor;
(e) The Tenant shall be responsible for any
additional security costs and any costs of clean-up of trash or rubbish as a
result of the Advance Occupancy. In the event that Advance Occupancy results
in any delay of the Commencement Date, the Tenant shall indemnify and hold the
Landlord harmless from any and all Delay Expenses incurred by the Landlord or
the Contractor;
(f) The Landlord shall have no responsibility or
liability whatsoever for any loss or damage to any of Tenant's leasehold
improvements, fixtures, equipment or any other materials installed or left
within the Premises, except as a result of the Landlord's gross negligence
or willful misconduct;
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(g) Except as expressly provided herein, no Rent
shall be payable or accrue to the Landlord during the period of Tenant's
Advance Occupancy; and
2.6. (a) So long as no Monetary Default is outstanding,
Tenant shall have three (3) options of five (5) years each to extend the
then effective Term of this Lease ("Option Terms") upon written notice to
Landlord as provided below. The terms and provisions of this Lease shall
apply to any such Option Term.
(b) Landlord agrees to give the Tenant eighteen
(18) months prior written notice of the expiration of the Initial Term and
each of the first two Option Terms that such Term ("Option Notice") shall
expire within eighteen (18) months, unless the Tenant exercises its Option
Term (and, in the case of the Initial Term, its option to purchase the
Premises under the Building III Option) upon the later of:
(i) six (6) months after receipt of the
Option Notice; or
(ii) the first day of the last Lease Year.
(c) If the Landlord fails to provide an Option
Notice to the Tenant at least eighteen (18) months prior to the expiration
of the then current Term:
(i) the Tenant's six (6) month period
within which to exercise the next Option Term (and
the Purchase Option during the Initial Term) shall
be extended to the date which is six (6) months
from the date of receipt of the Option Notice; and
(ii) If the Tenant responds to the Option
Notice by written notice to the Landlord declining
to exercise the Purchase Option and declining to
exercise an Option Term ("Declining Response") on
a date upon which there are less than twelve (12)
months remaining on the then current Term, such
Term shall be extended to a date twelve (12)
months from the date of the Declining Response.
(d) In the event that the Landlord has failed to
provide an Option Notice to the Tenant during the period from the date
eighteen (18) months from the end of the then current Term through the date
which is six (6) months from the end of the then current Term, the Tenant
may, during such period, terminate this Lease by written notice to the
Landlord with such termination to be effective upon the end of such current
Term.
(e) In the event that the Landlord has failed to
provide an Option Notice to the Tenant as of the date six (6) months before
the end of the current Term, at any time thereafter prior to the receipt of
an Option Notice, the Tenant may terminate this Lease by written notice to
the Landlord specifying a termination date which is six (6) months from the
date of such notice.
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(f) If the then current Term is extended pursuant
to this Section 2.6, the Base Rent shall automatically be adjusted as
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provided in Article III. For example, if a Term Extension extends the length
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of the Initial Term beyond a period of twenty (20) Lease Years, the Base
Rent shall be increased as of the commencement of the twenty-first (21st)
Lease Year to the amounts set forth in Section 3.1 next to the phrases
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"Lease Years 21-25".
(g) Any extension of the Term of this Lease provided
in this Section 2.6 is referred to as a "Term Extension". In the event that
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the Initial Term or any Option Terms are extended as a result of a Term
Extension and subsequently the next Option Term is exercised, the length of
the next Option Term shall be reduced by the number of days in the Term
Extension.
2.7. In the event that the Tenant exercises any of the
Option Terms, the Landlord shall provide to the Tenant the following tenant
improvement allowances ("Option TI Allowances"). The Option TI Allowances
shall be in the following amounts for each option period:
$5.00 per RSF of the Building for the First
Option Term
$5.50 per RSF of the Building for the Second
Option Term
$6.05 per RSF of the Building for the Third
Option Term
(a) The Option TI Allowances shall be paid by the
Landlord to the Tenant so long as the following conditions are satisfied:
(i) There is no outstanding Event of
Default hereunder;
(ii) Tenant shall provide to the Landlord
a cost breakdown for Option TI Allowances
improvements ("Option TI Improvements");
(iii) Any such Option TI Improvements shall
be undertaken in accordance with provisions of
Section 6 hereof regarding Additional Work;
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(iv) The Tenant shall submit to the Landlord
copies of paid receipts and mechanics lien waivers
from all contractors and subcontractors for work
previously paid for in conjunction with any
request for reimbursement by the Tenant sent to
the Landlord; and
(v) The Tenant shall provide for a
certificate from the Tenant Architect confirming
that the work for which payment is requested has
been completed.
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3. RENT.
3.1. Tenant shall, commencing on the Commencement Date,
pay to Landlord as Base Rent, in legal tender, at Landlord's office at 000
Xxxx Xxxx Xxxxxx, X.X. Xxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, or as directed
from time to time by Landlord's notice, the annual sum specified below,
payable in the equal monthly payments specified below (subject to adjustment
upon final determination of RSF) on the first day of every calendar month of
the Term, without demand, the same being hereby waived, and without any
set-off or deduction whatsoever. Notwithstanding the above, in the event the
Commencement Date occurs on a date other than the first day of the calendar
month, the Tenant shall make a Rent payment on the Commencement Date
prorated from the Commencement Date through the end of the calendar month.
Annually:
Lease Years 1-5 $21.25 per RSF of the Building
Lease Years 6-10 $23.38 per RSF of the Building
Lease Years 11-15 $25.72 per RSF of the Building
Lease Years 16-20 $28.29 per RSF of the Building
Lease Years 21-25 $31.12 per RSF of the Building
Lease Years 26-30 $34.23 per RSF of the Building
Lease Years 31-35 $37.65 per RSF of the Building
Annually:
Lease Years 1-5 $4,633,711.25
Lease Years 6-10 $5,098,172.66
Lease Years 11-15 $5,608,426.04
Lease Years 16-20 $6,168,832.53
Lease Years 21-25 $6,785,933.84
Lease Years 26-30 $7,464,091.11
Lease Years 31-35 $8,209,846.05
Monthly:
Lease Years 1-5 $386,142.60
Lease Years 6-10 $424,847.72
Lease Years 11-15 $467,368.84
Lease Years 16-20 $514,069.38
Lease Years 21-25 $565,494.49
Lease Years 26-30 $622,007.59
Lease Years 31-35 $684,153.84
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The foregoing payments are based on the
Building containing 218,057 RSF.
Tenant shall pay a per diem charge calculated at the rate of one
and one-half percent (1 1/2%) per month (with interest beginning to accrue
as of the sixth (6th) day of the month) of any overdue Rent payment not made
by the fifth (5th) day of the calendar month until such overdue Rent is paid
in full. In the event any installment of Rent is paid more than five (5)
days after the date due, the Tenant shall pay the Landlord a late charge of
two and one-half percent (2 1/2%) of the delinquent installment ("Late
Charge"). Notwithstanding the above, the two and one-half percent (2 1/2%)
Late Charge shall be waived by the Landlord for the first delinquent Rent
payment made in any twelve (12) month period, provided the Tenant makes such
delinquent payment within five (5) days after receipt of written notice from
the Landlord of such delinquency. In the event any subsequent Rent payment
is not made by the fifth (5th) day of the calendar month within twelve (12)
months after a prior delinquent payment, the two and one-half percent
(2 1/2%) Late Charge shall apply with or without notice from the Landlord.
Provided, further, in the event of any delinquent Rent payment, the one and
one-half percent (1 1/2%) per month interest shall not begin to accrue until
the date upon which a Late Charge has become due and payable.
3.2. Within thirty (30) days following the Commencement
Date, the RSF shall be calculated by the Architect and certified to the
Tenant and Tenant Architect. If the Tenant Architect disagrees with such
calculation, within fifteen (15) days after receipt of such calculation, the
Tenant shall notify the Landlord and the parties shall work together in
order to promptly resolve any differences concerning RSF. In the event that
the parties finally conclude that RSF is either greater or less than 218,057
RSF, the annual and monthly Base Rent shall be adjusted and any overpayments
or underpayments prior to the date of such calculation shall be adjusted
equitably by the parties. Until such time as the parties have concluded that
the RSF for the Building is greater or less than 218,057, Base Rent shall be
payable assuming that the RSF is 218,057.
3.3. The parties agree that prior to the construction
of the Building, the Core and Shell Plans indicate that the Building shall
contain not less than 218,057 RSF. In the event that in designing the Tenant
Work, the Tenant Work results in a reduction of the RSF of the Building,
utilizing the BOMA standards for such items, as a result of changes to such
items as interior stairwells, vertical ventilation of the cafeteria and
similar items, the final calculation of the RSF of the Building shall ignore
any reductions resulting from the Tenant Work.
3.4. In addition to paying the Base Rent hereunder,
the Tenant shall pay to the Landlord, as additional rental ("Additional
Rent") hereunder, all Operating Expenses during the Initial Term and any
Option Terms as provided in Section 4 hereof and any other sums due from
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Tenant to Landlord hereunder. Base Rent and Additional Rent together shall
be referred to herein as "Rent".
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4. OPERATING EXPENSES.
4.1. For the purposes of this Section, the following
definitions and provisions apply:
(a) "Operating Expenses" means all direct and
indirect costs and expenses whether or not of a capital nature (provided,
however, in no event shall any expenses designated as Landlord Expenses in
Section 4.8 below, whether or not of a capital nature, be included in the
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definition of Operating Expenses) in each calendar year of the Term of
operating, maintaining, insuring, securing, repairing, replacing, restoring,
licensing and managing all elements and components of the Premises
(including, but not limited to, the cost of the Management Fee to be paid to
the Building Manager), real estate and personal property taxes, merchant
license taxes and assessments of the Premises, as well as any and all
payments in lieu of taxes, other than Landlord Expenses and also excluding
the following items ("Excluded Costs"):
(i) Any amounts incurred for labor,
materials or services that are not employed or used
in the performance of Landlord's obligations
hereunder;
(ii) Any cost or expense for which the
Landlord is reimbursed by a third party;
(iii) Any income, estate or inheritance taxes
of Landlord (provided, however, that the foregoing
exclusions shall not release or modify Tenant's
obligation to pay Taxes as provided in Section
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4.7 hereof);
---
(iv) Costs or expenses resulting from the
Landlord's negligence or breach of its obligations
under this Lease;
(v) Interest, principal payments and other
costs of any indebtedness encumbering the Premises;
(vi) Legal fees, architectural fees,
engineering fees, real estate commissions and
marketing and advertising expenses incurred in
connection with the development, leasing, design and
construction of the Core and Shell, and Tenant Work.
To the extent the Tenant is obligated to reimburse
the Landlord for such items under this Lease, such
reimbursement shall not be deemed to be Operating
Expenses;
(vii) Costs of selling, syndicating,
financing, mortgaging or hypothecating any of
Landlord's interest in the Premises;
(viii) Wages of employees who do not devote
the majority of their time to the performance of the
Landlord's obligations hereunder;
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provided, however, the costs associated with such
employees who do not devote the majority of their
time to the Landlord's obligations hereunder may be
prorated and an equitable amount shall be
included as an Operating Expense to the extent
such employees devote their time to the
performance of the Landlord's obligations
hereunder;
(ix) The cost of utility installation and
tap-in charges;
(x) Any cost or expense arising from or
relating to Hazardous Materials existing in, on or
under the Premises prior to the Commencement Date or
at any time introduced to the Premises by an act or
omission of the Landlord;
(xi) Any cost or expense to the extent that
such cost or expense exceeds the prevailing market
rate for such product or service; and
(xii) Any fee or xxxx-up of an Operating
Expense for overhead or administrative costs (it
being understood that such services are included in
the payment of the Management Fee).
(b) "Expense Statement" means a statement from the
Landlord setting forth the Operating Expenses for the prior calendar year.
(c) The Landlord agrees that during the Term, it
will take diligent efforts (including pursuing litigation if it is prudent
to do so) to require the Contractor or all subcontractors to undertake any
repairs, maintenance or replacements covered by warranties obtained during
the construction for the Core and Shell and Tenant Work and to the extent
Landlord is able to do so, the costs thereof shall not be deemed to be
Operating Expenses. In the event that the Landlord brings litigation to
pursue any warranty claims for the Core and Shell or Tenant Work, all
attorneys' fees and expenses incurred by the Landlord shall be paid for by
the Landlord and shall not be Operating Expenses hereunder. Recovery of any
funds by the Landlord (other than any portion of a judgment specifically
designated as attorneys fees), either in settlement of a claim or as a
result of obtaining a judgment against any party providing a warranty, will
be credited to the Tenant against future Operating Expenses promptly after
the recovery.
4.2. Prior to the Commencement Date, for the period from
the Commencement Date through the first December 31 ("Initial Period") of
the Term hereof, and on or before November 1 of each subsequent calendar
year, Landlord shall deliver to Tenant an estimate of Operating Expenses for
such upcoming calendar year, based in part on the Expense Statement for the
prior calendar year. Tenant shall have the right to review and approve such
estimate, such approval not to be unreasonably withheld, conditioned or
delayed. Beginning on the Commencement Date and on January 1 of each
subsequent calendar year, Tenant shall pay to Landlord by the first day of
each month such estimated amount as amortized over the number of
15
months in such Initial Period or the calendar year (or portion thereof
during the last calendar year of the Term).
4.3. If Tenant's obligations for Operating Expenses for
a prior calendar year as shown on the Expense Statement is greater than the
estimated payments made by the Tenant for that year, then within thirty (30)
days following receipt by Tenant of the Expense Statement, Tenant shall pay
in full an amount equal to such excess. If Tenant's obligations for
Operating Expenses are less than the estimated payments made by Tenant for
that year, then Tenant shall receive a cash refund in the amount of such
overpayment.
4.4. Landlord may, but only in the month of June each
year, send to Tenant a revised estimate of Operating Expenses to be incurred
for the then current calendar year, which shall be subject to Tenant's
approval, such approval not to be unreasonably withheld, conditioned or
delayed. Upon receipt of such revised estimate of Operating Expenses, the
amount thereof shall be divided into twelve (12) equal monthly installments,
and Tenant shall pay Landlord, at the same time that the next regular
monthly Rent payment is due, the sum necessary to bring the Tenant current
for the then current calendar year. Subsequent installments shall be payable
at the adjusted rate together with the regular Base Rent payments for the
balance of such calendar year and shall continue until further adjusted
based on the estimate for Operating Expenses for the next year.
4.5. If this Lease terminates before the end of a
calendar year, payment of Operating Expenses by the Tenant will be based on
the portion of the year prior to the termination of the Term.
4.6. Tenant (or its designated agent), at its expense,
shall have the right each calendar year, following prior written notice to
Landlord, to audit Landlord's books and records relating to Operating
Expenses in St. Louis, Missouri, within twelve (12) months after receipt of
the Expense Statement. In the event Operating Expenses for any calendar year
are incorrect, appropriate adjustments shall be made promptly by the
parties. If such adjustment results in the Landlord reimbursing the Tenant
for more than two percent (2%) of the year's Operating Expenses, the
Landlord shall pay the reasonable costs of such audit.
4.7. (a) Notwithstanding the above, the payment of Taxes,
utilities and insurance premiums for the Premises shall not be included
within Operating Expenses nor included in the regular monthly estimated
payments of Operating Expenses to be paid by the Tenant. Bills for Taxes,
insurance premiums and utilities for the Premises shall be sent to the
Tenant at the following address:
Xxxxxx X. Xxxxx & Co., L.P.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
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The bills for the Taxes shall be paid by the Tenant to the taxing authority
on or before December 15 of each calendar year based on tax bills forwarded
to the Tenant by the Landlord. In the event that the Landlord does not
deliver the bills for the Taxes on or before December 1 of each year, the
Tenant agrees that it shall pay such Tax bills within fifteen (15) days
after receipt thereof, provided that the Landlord shall be responsible for
any penalties or late charges attributable to the Landlord's delay in
delivery the Tax bills to the Tenant. Insurance premiums shall be paid by
the Tenant at least fifteen (15) days prior to the date such premiums are
due and payable, and copies of paid invoices therefor shall be provided by
the Tenant to the Landlord. The parties agree to prorate any and all real
estate and personal property tax and assessment bills or payments in lieu of
taxes from the Commencement Date to the end of the first calendar year of
the Term and from January 1 of the last calendar year of this Lease through
the termination date of this Lease. Prior to the termination date of this
Lease, the Tenant shall pay to the Landlord the prorata share of all real
and personal property taxes and assessments or payments in lieu of taxes
(collectively, the "Tax" or "Taxes") for the portion of the last calendar
year of the Term hereof.
(b) The Tenant shall pay all utility bills to the
utility company providing utility service to the Premises from and after the
Commencement Date, prior to the date delinquent. Prior to the Commencement
Date, the parties shall work together to have utility meters read and/or
utility service billing transferred to the Tenant as of the Commencement
Date. In the event the utility company cannot transfer the billing or read
the meter appropriately, the parties shall equitably prorate utility
charges. Any utility bills that are received by the Landlord shall
immediately be forwarded to the Tenant upon receipt. The Tenant shall have
the right to select and change utility service providers and to enter into
contracts regarding said service, provided that all such contracts may be
terminated by Landlord in the event that this Lease is terminated.
(c) Tenant shall be responsible for any interest
or penalties incurred as a result of late payment of Taxes and shall defend,
indemnify and hold Landlord harmless from and against any and all damage and
liability to Landlord arising out of late payment or failure to pay Taxes.
Tenant shall deliver to Landlord within ten (10) days after payment of such
Taxes, a copy of the paid receipt for such Taxes, unless such receipt is
sent directly to the Landlord, in which case, the Landlord shall deliver to
the Tenant a copy of said receipt within five (5) days following the
Landlord's receipt thereof.
(d) The Tenant shall be permitted to contest any
assessment for Taxes and the Landlord agrees to provide assistance in such
contest provided (i) the Landlord does not incur any expense; (ii) the
Tenant pays any and all expenses as a result of such contest; (iii) all
bills for Taxes are paid in a manner and time so as to avoid any delinquency
or the imposition of any lien against the Premises as a result of such Tax
bills; and (iv) the Tenant shall keep the Landlord informed of the status of
Tenant's contest. Notwithstanding the above, in the event the Tenant desires
to contest any assessment for Taxes at a time when there are less than two
(2) years remaining on the then current Term of this Lease, the Tenant shall
first obtain the prior
17
written consent of the Landlord, which Landlord may withhold in the event
the Landlord reasonably believes that an appeal of the assessment may result
in an increase in the Tax xxxx.
(e) All costs and expenses which Tenant assumes or
agrees to pay to Landlord pursuant to this Lease shall be deemed Additional
Rent and, in the event of non-payment thereof, Landlord shall have all the
rights and remedies hereinafter provided for in case of non-payment of Rent.
4.8. Landlord shall be responsible at its sole cost and
expense for the following items which are referred to herein as the
"Landlord Expenses":
(a) the replacement of the roof of the Building
to the extent necessary (however, Tenant shall be responsible for the cost
and expense of ordinary roof repairs and maintenance);
(b) maintenance, repair, and replacement of the
foundation, structure, glass and granite walls of the Building and the
foundation, structure, floors and walls of the Parking Garage (however,
ordinary repair and maintenance of the expansion joints, caulking and
glazing of the curtain walls of the Building and Parking Garage and repair
and maintenance of the Parking Garage floors, including treatment and
coatings for salt damage, shall be Operating Expenses);
(c) replacement of the HVAC system (except that
Tenant shall be responsible for the cost and expense for maintenance and
repair of the HVAC system and replacement of HVAC compressors and fan
motors); and
(d) any other repair or replacement of portions
of the Premises costing in excess of One Hundred Thousand and 00/100 Dollars
($100,000.00) which are required primarily as a result of Landlord's failure
to maintain the Premises, consistent with its obligations under this Lease.
4.9. (a) Notwithstanding the above, the Landlord agrees
that it shall not expend in excess of One Hundred Thousand and 00/100
Dollars ($100,000.00) for any single maintenance or repair item with respect
to the Premises during the last five (5) years of the Initial Term or during
any of the Option Terms ("Major Expenditure") without obtaining the approval
of the Tenant as to such Major Expenditure. The Tenant agrees that it shall
not unreasonably withhold or delay such approval of any such Major
Expenditure and that the Tenant shall grant its approval if such Major
Expenditure is reasonably necessary in order to maintain the Premises as a
first-class office facility. In granting the Tenant's approval of any Major
Expenditure, the parties shall negotiate, in good faith, to determine
whether the useful life of the Major Expenditure will extend beyond the then
current Term. If the useful life of a Major Expenditure will extend beyond
the then current Term, the cost thereof shall be amortized at the Prime Rate
as an Operating Expense for that portion of the useful life allocable to the
remainder of the Term (including any Option Terms that may be exercised).
18
(b) The Landlord agrees that it shall exercise good
faith in its performance of repairs and maintenance of the Premises during
the last five (5) years of the Term, and the Landlord shall not improperly
circumvent the provisions of Section 4.9(a) regarding Major Expenditures.
--------------
4.10. The Landlord agrees that it shall enter into and
maintain service contracts for the maintenance of the elevators, HVAC system
and major mechanical and electrical components within the Premises. In the
event that the Landlord is unwilling or unable to enter into such service
contracts, the Landlord shall notify the Tenant thirty (30) days prior to
the cancellation of any such service contract and the Tenant may, at its
option and expense, enter into a substitute service contract directly. The
cost of any service contract obtained by the Landlord shall be deemed to be
an Operating Expense hereunder.
5. SERVICES TO BE FURNISHED BY LANDLORD AT TENANT'S COST.
5.1. (a) The parties acknowledge and agree that all
costs and expenses of owning, maintaining, repairing, replacing and
operating the Premises subsequent to the Commencement Date that are neither
Landlord Expenses, nor Excluded Costs, shall be deemed to be Operating
Expenses hereunder and shall be subject to the reimbursement by the Tenant
to the Landlord consistent with the terms hereof and paid without offset or
deduction.
(b) Landlord agrees to operate and maintain the
Premises, including, but not limited to, the Building, interior and exterior
signage and any sidewalks and landscaping on rights of way adjacent to Lot I
as depicted on Exhibit B-1, in a first-class condition and repair and in a
-----------
manner commensurate with similar first class office buildings in the St.
Louis area at Tenant's cost and expense (except for Landlord Expenses) and
to furnish (or cause to be furnished) to Tenant the following defined
services at Tenant's sole cost and expense (except for Landlord Expenses):
(i) Hot and cold water for lavatory and
ordinary office purposes and for any private
restrooms (and showers) and kitchens;
(ii) Central heat, ventilation and air
conditioning ("HVAC") services twenty-four hours per
day, seven days per week. Tenant shall have the
right to install at its expense auxiliary
air-conditioning units within the Premises and,
at its sole discretion, to operate such units
whenever it so desires at Tenant's sole cost and
expense;
(iii) Routine maintenance and repair service
as specified herein;
(iv) Nightly janitorial service and cleaning
service for the Premises and day xxxxxx service if
warranted and requested by Tenant (to include
vacuuming and waxing of floors, trash removal and
window washing (3 times per year)); provided,
however, if Tenant's floor
19
coverings or other improvements require special
treatment, Tenant shall request such special
treatment in writing;
(v) All fluorescent and incandescent bulb,
transformer, ballast and starter replacements in the
Premises;
(vi) Electricity for office lighting and use,
but not limited to fluorescent and incandescent
lighting (including tasks and task ambient lighting
systems); office equipment including, but not
limited to, duplicating machines, computers,
terminals, minicomputers, communications,
audiovisual equipment, vending machines, or
kitchen equipment;
(vii) General management of the Premises by
an experienced professional office building manager
("Building Manager") in a first-class and cost-
effective manner for first-class buildings in the
St. Louis area (subject to the express limitations
provided herein), to be retained pursuant to a
separate contract between Landlord and the Building
Manager. The Management Fee shall be limited to the
amount set forth in the definition of "Management
Fee" in Article I hereof; provided, however, that
---------
in the event Manchester Management, Inc. (the initial
Building Manager, or another entity owned by or
affiliated with Xxxxxx X. Xxxxxx, Xx.) is unable
to provide management services and neither the
Landlord nor the Tenant can locate any alternative
Building Manager reasonably acceptable to both
parties that is willing to provide Building
management services for the Premises for the
Management Fee as compensation, the Landlord and
Tenant shall work together to identify, and the
Landlord shall employ, the Building Manager which
is reasonably acceptable to both the Landlord and
the Tenant which is willing to provide first-class
management services for the lowest management fee,
and the limitations on the Management Fee hereunder
shall be adjusted to accommodate such modified
management fees. The Tenant approves of Manchester
Management, Inc. as a Building Manager, so long as
Xxxxxx X. Xxxxxx, Xx. or Xxxxxx X. Xxxxxx, III is
employed by and is actively involved in managing
the same. Any change in the Building Manager is
subject to the approval of the Tenant, not to be
unreasonably withheld or delayed;
(viii) Maintenance, repairs and replacements
of underground utility lines and facilities;
(ix) Removal of rubbish, snow and ice on the
exterior portions of the Premises and the Parking
Garage; and
(x) Automatic elevator service within the
Building.
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5.2. The failure by Landlord to any extent to furnish,
or the interruption or termination of the required services in whole or in
part, resulting from Landlord's negligent acts or omissions or causes beyond
the reasonable control of Landlord shall not render Landlord liable in any
respect nor be construed as an eviction (constructive or otherwise) of
Tenant, nor cause an offset or abatement of Rent, nor relieve Tenant from
the obligation to fulfill any covenant or agreement of this Lease; provided,
however, in the event of any interruption or termination of services, the
Landlord shall undertake diligent efforts to promptly restore such services
and the Tenant may pursue claims against the Landlord resulting from the
Landlord's negligence, but such claims shall be solely limited to the amount
payable under the Liability Policy. The foregoing to the contrary
notwithstanding:
(a) Tenant, at its option and expense, shall have
the right to install an uninterrupted power source and/or back-up generators
within the Premises at a location reasonably acceptable to the Landlord.
Further, the Tenant shall have the right to restore utility services if the
Landlord is unable to do so within twenty-four (24) hours after written or
telephonic notice from the Tenant. Telephonic notice shall be given to the
Building Manager followed promptly by written facsimile notice to the
Building Manager.
(b) If the Tenant is not satisfied with the
quality, quantity and/or frequency of services provided by the Landlord
under Section 5.1 hereof, the Tenant shall provide written notice to the
-----------
Landlord detailing its objections. The Landlord agrees that it shall
promptly address such objections and attempt to provide satisfactory
service. If, within thirty (30) days after receipt of such notice by the
Landlord, the Landlord has not reasonably satisfied the Tenant's objections,
the Tenant may, at its option and expense, upon thirty (30) days prior
written notice to the Landlord, arrange for and provide said services. The
Landlord, upon receipt of such second notice, shall arrange for the
discontinuation of such services concurrently with the Tenant's commencement
thereof, and upon the assumption of services by the Tenant, no further
charges as Operating Expenses shall accrue for such services, provided the
Landlord may submit bills of Operating Expenses for such services incurred
prior to such Assumption Date. In the event that the service to which the
Tenant objects is being performed under a service contract which cannot be
terminated on thirty (30) days notice, the Landlord and Tenant shall work
together in order to terminate such service contract at the earliest
possible time without penalty to the Landlord, and the assumption of
services by the Tenant shall coincide with the termination of such service
contract.
5.3. Should any of the equipment or machinery used in
the provision by Landlord of the foregoing services for any reason, cease to
function properly, Tenant shall have no claim for offset or abatement of
Rent or damages on account of an interruption in service occasioned thereby
or resulting therefrom. In the event of any failure of any equipment or
machinery to operate, the Landlord shall undertake diligent efforts to
restore such operation.
5.4. Except as otherwise expressly provided in this
Lease, Landlord shall not be required to perform any maintenance on or make
any repairs to the Premises.
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5.5. Notwithstanding anything else contained in this
Section 5 or elsewhere in this Lease, the Tenant acknowledges that in the
---------
event the Tenant assigns all or any portion of this Lease or sublets all or
any portion of the Premises consisting of less than a whole floor of the
Building, the Tenant shall be solely responsible for handling any
communications with, requests from or specific services to any subtenant or
assignee. Neither the Landlord nor the Building Manager shall be responsible
for providing any documentation to or any different services to any assignee
or subtenant, unless such subtenant or assignee is occupying one or more
than one whole floor of the Building. The Tenant agrees that it shall
designate an individual or individuals within its organization who shall be
solely responsible for addressing any questions or concerns of subtenants or
assignees and with whom the Landlord and/or its Building Manager may
communicate with respect to any assignee or subtenant questions or concerns.
The Tenant acknowledges and agrees that the Management Fee agreed to by the
Landlord and its Building Manager hereunder was agreed to under the
assumption that the Building Manager would have no responsibilities with
respect to any assignee or subtenant of Tenant of less than a whole floor
of the Building. In the event that the Tenant desires that the Building
Manager provide any communications or services directly to any assignee or
subtenant, the Building Manager shall do so provided that the then current
Management Fee shall be increased by an amount equal to twenty-five cents
(25(cent)) per RSF of such assignee or subtenant's space within the
Building.
5.6. Notwithstanding anything else contained in this
Section 5 or elsewhere in this Lease to the contrary, the Tenant agrees that
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the Landlord shall have no responsibility with respect to the repair,
maintenance or janitorial services for any food service area or cafeteria
located within the Premises (other than break rooms) ("Cafeteria"). If the
Tenant, in its discretion, installs a Cafeteria within the Building, the
Tenant may enter into a food service contract with a third party food
service provider ("Food Service Contractor") for the operation of the
Cafeteria. The Tenant agrees that it shall undertake and assume the
following responsibilities with respect to the Cafeteria and its operation,
either directly or through its contract with the Food Service Contractor:
(a) The Food Service Contractor shall furnish
property and liability insurance, with coverage amounts reasonably
acceptable to the Landlord, for the food service operations within the
Cafeteria;
(b) The Food Service Contractor shall follow such
reasonable rules and regulations as may be promulgated by the Landlord
hereunder;
(c) The Cafeteria shall be maintained in an orderly
and hygienic condition and in compliance with all applicable county, state
and municipal laws and ordinances;
(d) All dumpsters and grease traps in the Cafeteria
or used by the Food Service Contractor shall be maintained in good and
sanitary condition; and
22
(e) Any outdoor patios that are utilized for food
service and all tables and chairs located thereon shall be maintained in
sightly and orderly condition, and all paper and other trash shall be
promptly disposed of in proper receptacles.
5.7. Notwithstanding anything else contained in this
Section 5 or elsewhere in this Lease, the Tenant shall be responsible for
---------
maintaining, controlling and operating the security system within the
Premises and providing any desired security guard service. The Tenant shall
assume all responsibility for controlling access to the Building and Parking
Garage and issuance of any card keys or other means of gaining access to the
Building and Parking Garage. Tenant shall cooperate with the Landlord to
ensure that the Landlord and Building Manager and their agents have card
keys or other means of gaining access to the Premises as necessary from time
to time in order to exercise their rights and perform their obligations
hereunder.
6. REPAIRS AND ALTERATIONS.
6.1. Promptly after obtaining knowledge thereof, Tenant
shall give to Landlord written notice of any damage to, or defective
condition in any part or appurtenance of the Building's plumbing,
electrical, heating, air-conditioning or other systems serving, located in,
or passing through the Premises. Landlord shall not be required to repair
any injury or damage by fire or other cause, or to make any repairs or
replacements of any panels, decoration, office fixtures, railing, ceiling,
floor covering, partitions or any other property installed in the Premises
by Tenant, except to the extent provided in Section 15 below.
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6.2. In the event that the Tenant desires to have any
modifications or alterations completed within the Premises subsequent to the
Commencement Date, the Tenant shall undertake such improvements or
alterations ("Additional Work"), all at its cost and expense and using its
own architect and contractor, subject to the following conditions:
(a) The Tenant shall not make any exterior or
structural changes to the Premises without the prior written consent of the
Landlord, which consent shall not be unreasonably withheld or delayed;
(b) The Tenant shall provide to the Landlord three
(3) copies of plans and specifications for any Additional Work for exterior
or structural changes to the Premises before undertaking the Additional
Work;
(c) Tenant shall provide to the Landlord two (2)
copies of as-built plans and specifications within sixty (60) days after
completion of any Additional Work;
(d) All Additional Work shall be done in full
compliance with all applicable building codes, regulations, laws, statutes
and ordinances;
(e) The Landlord shall not unreasonably withhold
its approval (if prior written approval is required) of any Additional Work
requested by the Tenant, provided,
23
however that such proposed Additional Work does not reduce the value of the
Premises and so long as the Landlord can obtain the consent of its Lender
for such Additional Work, to the extent such consent is required;
(f) Prior to commencing such structural or exterior
Additional Work, notice shall be given to Landlord and the Landlord's
structural engineer whose address is EQE International, 0000 Xxxxxxxx Xxxxx
Xxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000-0000, Attention: Xxxx X. Xxxxxx (or such
substitute structural engineer as may be designated by the Landlord in
written notice to the Tenant), specifying the work to be done and the area
of the Premises affected by such work;
(g) Tenant shall obtain all necessary governmental
permits prior to commencing such Additional Work;
(h) The Tenant shall provide the Landlord a list
of the contractors and subcontractors performing the Additional Work and
shall provide the Landlord with reasonable assurances that such contractors
and subcontractors carry liability and workers compensation insurance
reasonably satisfactory to the Landlord;
(i) If requested by the Landlord, the Tenant shall
provide reasonable assurances to the Landlord that the provisions in this
Lease regarding mechanic's liens in Section 31 hereof shall be satisfied
----------
with respect to the Additional Work;
(j) The parties shall obtain the written
consent of Landlord's Lender to any exterior or structural Additional Work,
if so required by the Lender; and
(k) Tenant shall pay any out-of-pocket expenses
incurred by the Landlord to professionals or to its Lender in reviewing and
approving any request for any exterior or structural Additional Work. The
out-of-pocket expenses shall be based on reasonable rates for customary
services provided by such professionals. The Landlord shall endeavor to use
the same professionals used by its Lender for reviewing any proposed
exterior or structural Additional Work to the extent the Lender's approval
is required therefor.
6.3. Any and all alterations or Additional Work to the
Premises shall become the property of Landlord upon termination of this
Lease (except trade fixtures, equipment or furniture owned by Tenant).
7. QUIET ENJOYMENT. So long as Tenant observes and performs
the covenants and agreements binding on it hereunder, Tenant shall at all
times during the term hereof granted, peacefully and quietly have and enjoy
possession of the Premises without any encumbrance or hindrance.
8. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves the
following rights:
24
8.1. To constantly have pass keys to the Premises.
8.2. With twenty-four (24) hours notice to the Tenant
to exhibit the Premises during business hours to prospective tenants during
the last twelve (12) months of the Term, and to any prospective purchaser,
mortgagee, or assignee of any mortgage on the Premises and others having a
legitimate interest at any time during the Term, along with a representative
of the Tenant.
8.3. At any time in the event of an emergency, and
otherwise on twenty-four (24) hours notice to the Tenant during business
hours with a representative of the Tenant, to take any and all measures,
including inspections, repairs, alterations, additions and improvements to
the Premises as may be necessary or desirable for the safety, protection or
preservation of the Premises or Landlord's interests, or as may be necessary
or desirable in the operation or improvement of the Premises or in order to
comply with all laws, orders and requirements of governmental or other
authority.
9. INDEMNIFICATION AND WAIVER OF CERTAIN CLAIMS.
9.1. Tenant, to the extent permitted by law, waives
all claims it may have against Landlord and against Landlord's agents and
employees for damage to person or property sustained by Tenant or by any
occupant of the Premises, or by any other person, resulting from any part of
the Premises or any equipment or appurtenances becoming out of repair, or
resulting from any accident in or about the Premises or resulting directly
or indirectly from any act or neglect of any tenant or occupant of any part
of the Premises or of any other person, unless such damage is a result of
the negligent or intentional acts or omissions of Landlord or Landlord's
agents or employees, subject, however, to the provisions of Section 9.3
-----------
below. If any damage results from any act or neglect of Tenant, Landlord
may, at Landlord's option, repair such damage and Tenant shall thereupon pay
to Landlord the total cost of such repair. All personal property belonging
to Tenant or any occupant of the Premises that is in or on any part of the
Premises shall be there at the risk of Tenant or of such other person only,
and Landlord, its agents and employees shall not be liable for any damage
thereto or for the theft or misappropriation thereof. Tenant agrees to
protect, defend, indemnify and hold Landlord harmless against claims and
liability for injuries to all persons and for the damage to or loss of
property occurring in or about the Premises, due to any negligent act or
failure to act by Tenant, its contractors, agents or employees, or default
by Tenant under this Lease. The Landlord agrees that the Tenant's
obligations for indemnification in this Section 9.1 (except for intentional
-----------
acts or omissions of the Tenant or its agents or employees and as provided
in Section 10.7 hereof) shall be limited to the amounts recoverable under
------------
the Liability Policy so long as the Tenant, at all times, maintains the
Liability Policy in effect, in the form and with coverage required under
this Lease.
9.2. Landlord, to the extent permitted by law, waives
all claims it may have against the Tenant and against Tenant's agents and
employees for damages to person or property sustained by Landlord or by any
occupant of the Premises, or by any other person, resulting from
25
any accident in or about the Premises or resulting directly or indirectly
from any act or neglect of any Tenant or occupant of any part of the
Premises or any other person, unless such damage is the result of the
negligent or intentional acts or omissions of Tenant, Tenant's assignees or
subtenants or any of their agents or employees. If any damage results from
any act or neglect of Landlord, Tenant may, at Tenant's option, repair such
damage and Landlord shall thereupon pay to Tenant the total costs of such
repair. Landlord agrees to protect, indemnify and hold Tenant harmless
against claims and liabilities for injuries to all persons and for the
damage to or loss of property occurring in or about the Premises due to the
negligent act or failure to act by Landlord, its contractors, agents or
employees, or default by Landlord under this Lease. The Tenant agrees that
the Landlord's obligations for indemnification under this Section 9.2
-----------
(except for the intentional acts or omissions of the Landlord or its agents
and employees) shall be limited to the amount available under any Liability
Policy by the Tenant for the benefit of the Landlord.
9.3. Landlord shall not be liable for any damage or loss
to fixtures, equipment, merchandise or other personal property of Tenant
located anywhere in or on the Premises caused by theft, fire, water,
explosion, sewer backup or any other hazards, regardless of the cause
thereof, and Tenant does hereby expressly release Landlord of and from any
and all liability for such damage or loss. Landlord shall not be liable for
any damage or loss resulting from business interruption at the Premises and
Tenant does hereby expressly release Landlord of and from any and all
liability for such damage or loss.
9.4. So long as the Tenant maintains in effect all
insurance policies required to be maintained under this Lease in the form
and with the coverage required hereunder, the Tenant shall not be liable for
any damages to the Premises or any part thereof caused by fire or other
insurable hazards resulting from the negligent acts or omissions of the
Tenant, and the Landlord shall be deemed to expressly release the Tenant of
and from any and all liability for such damage or loss.
9.5. The Landlord and the Tenant agree that so long as
it is permitted under any insurance policies carried hereunder, such
policies shall contain a waiver of subrogation provision with respect to the
liabilities of the other party hereunder.
10. PROPERTY AND LIABILITY INSURANCE.
10.1. Subject to the provisions of Section 10.8 hereof,
------------
Tenant shall maintain at Tenant's sole cost and expense (but not as an
Operating Expense) all risks insurance (including earthquake and flood
endorsements) on the Premises for the full replacement value of the
improvements on the Premises (including all improvements, trade fixtures and
personal property of Tenant). Tenant shall also maintain at Tenant's sole
cost and expense rental insurance for the Premises covering up to a three
(3) year period of loss of Base Rent and Additional Rent during such period.
Payments for losses under all insurance policies provided by the Tenant
under this Section 10.1 shall be made solely to Landlord and/or the Lender
------------
of Landlord as their interests shall appear. Said policy or policies may be
issued on a blanket policy basis, so long as such
26
policies shall at all times provide the required insurance coverage and such
coverage will not be reduced by claims unrelated to the Premises.
10.2. Subject to the provisions of Section 10.8 hereof,
------------
Tenant shall, at Tenant's expense (but not as an Operating Expense),
maintain a policy or policies of commercial general liability insurance
("Liability Policy") with respect to the activities of Tenant within the
Office Center and with respect to the Landlord and the Building Manager on
the Premises or elsewhere in the Office Center, with the premiums thereon
fully paid before the due date, issued by and binding upon an insurance
company licensed to do business in the State of Missouri and approved by the
Landlord and its Lender, such insurance to afford minimum protection of not
less than $50,000,000 ("Insurance Coverage Amount") combined single limit
coverage of bodily injury, property damage or combination thereof. The
Insurance Coverage Amount shall be increased on the fifth (5th) anniversary
of the Commencement Date and every five (5) years thereafter during the Term
hereof, to an amount equal to $50,000,000 times the CPI Index on the
adjustment date divided by the CPI Index on the Commencement Date. The
Landlord, Building Manager and any Lenders shall be additional insureds
under the Liability Policy. The parties agree that Fifty Million Dollars
($50,000,000) is the appropriate insurance coverage amount as of the
Commencement Date of this Lease, provided, however, if at any time in the
future, either the Landlord or the Tenant feels that the Insurance Coverage
Amount, as adjusted hereunder, is not providing insurance coverage
comparable to that provided as of the Commencement Date by the Fifty Million
Dollars ($50,000,000) coverage limit, such party shall notify the other
party and the Landlord and Tenant agree to negotiate in good faith to make
any adjustments in the then current Insurance Coverage Amount as may be
appropriate to retain the same level of coverage as is provided as of the
Commencement Date. If the parties are not able to agree as to the
appropriate comparable Insurance Coverage Amount, either party may submit
such issue to Arbitration hereunder. Pending any final agreement of the
parties or the resolution of any Arbitration, the Tenant shall continue to
provide a Liability Policy in the amount of the Insurance Coverage Amount,
as provided above. Said policy or policies may be issued on a blanket policy
basis, so long as such policies shall at all times provide the required
insurance coverage and such coverage will not be reduced by claims unrelated
to the Premises.
10.3. Tenant shall, at Landlord's request from time to
time, provide Landlord with copies of insurance policies necessary to
evidence Tenant's compliance with this Section.
10.4. Tenant shall obtain the agreement of Tenant's
insurers for Tenant's insurers to notify Landlord at least thirty (30) days
prior to cancellation or renewal of any such insurance coverage provided by
Tenant.
10.5. Tenant may, in its discretion, maintain insurance
against theft or damage to its personal property, fixtures and equipment
located within the Premises, provided if the Tenant chooses not to carry
such insurance, the Tenant shall hold the Landlord harmless from any and all
costs, claims or expenses related to any loss of personal property, fixtures
or equipment within the Premises.
27
10.6. All insurance policies, whether or not provided
under this Section 10, shall be in full compliance with the requirements of
----------
Exhibit D attached hereto and all commercially reasonable requirements of
---------
the Landlord's Lenders as such requirements may be modified from time to
time and shall include such endorsements, coverage, policy amounts and other
terms and conditions to the extent reasonably required by the Lenders.
10.7. Notwithstanding anything else contained in this
Lease (including, but not limited to, the provisions of Section 9.1 and
-----------
Section 9.4 hereof) to the contrary, in the event of any loss, claim or
-----------
damage which is covered by any of the insurance policies carried by the
Tenant hereunder, any costs incurred by the Landlord as a result of any
deductible under any of the insurance policies carried by the Tenant shall
be promptly reimbursed by the Tenant after written notice from the Landlord.
10.8. Responsibility for procurement of any insurance
policies required under this Article 10 to be provided by Tenant, may at
----------
Tenant's option, from time to time, but upon sixty (60) days prior written
notice to Landlord, be transferred to Landlord (or transferred back from
Landlord to Tenant; provided if the Landlord has committed to any insurance
contract at the time of such transfer back to the Tenant, the Tenant shall
pay any necessary termination fee for such contract or continue such
coverage if the contract may not be cancelled). If any of the insurance
coverages contemplated by this Article 10 are at any time no longer
----------
available (or are only available at excessive premium levels), Landlord and
Tenant shall mutually and in good faith attempt to secure alternative,
comparable insurance coverages. Irregardless of the transfer of
responsibility for insurance procurement between Landlord and Tenant, Tenant
shall at all times during the Term, remain responsible for payment of
insurance premiums for coverages under this Article 10.
----------
11. HOLDING OVER. Unless otherwise agreed to in writing by
Landlord and Tenant, if Tenant retains possession of the Premises or any
part thereof after the expiration or termination of the Term, Tenant shall
pay Landlord Rent at one hundred fifty percent (150%) of the monthly rate in
effect immediately prior to the expiration or termination of the Term for
the time Tenant remains in possession after the expiration or termination of
the Term and, in addition thereto, Tenant shall pay Landlord for all
damages, consequential as well as direct, sustained by Landlord by reason of
Tenant's retention of possession. The provisions of this Section do not
exclude Landlord's rights of re-entry or any other right hereunder. No such
holding over shall be deemed to constitute a renewal or extension of the
Term hereof.
12. ASSIGNMENT AND SUBLETTING.
12.1. (a) Tenant shall have the right to assign this
Lease or to sublet all or any portion of the Premises to any party which
will use the Premises in accordance with the terms of this Lease, with the
prior written consent of the Landlord which shall not be unreasonably
withheld, delayed or conditioned upon payment of additional Rent or other
sums. In the event that the Landlord does not respond to Tenant's request
within fifteen (15) days following Landlord's receipt of a request for
consent, the Landlord shall be deemed to have
28
consented to such request. No commissions or fees shall be due to Landlord
or the Building Manager on account of any assignment or subletting. Any such
assignment of this Lease or sublease of the Premises shall be and remain
subject to all of the terms and conditions of this Lease. No sublease or
assignment, in any event, shall release the Tenant from any liability
hereunder.
(b) In the event of any assignment or subletting
of all or a portion of the Premises, the Tenant shall provide written notice
to the Landlord of the name of the assignee or subtenant and the portion of
the Premises which such assignee or subtenant shall be occupying at least
fifteen (15) days prior to the date the subtenant or assignee takes
possession of the Premises.
(c) If this Lease is assigned or if the Premises
or any part thereof is sublet or occupied by anybody other than Tenant,
Landlord may, after default by Tenant, collect rent from the assignee,
subtenant or occupant, and apply the net amount collected to the Rent herein
reserved, but no such assignment, subletting, occupancy or collection shall
be deemed a waiver of any of Tenant's covenants contained in this Lease or
the acceptance of such assignee, subtenant or occupant as Tenant, or a
release of Tenant from further performance by Tenant of covenants on the
part of Tenant herein contained.
(d) Tenant may, without the Landlord's consent,
assign this Lease or sublease the Premises or portions thereof to entities
controlled, controlling or affiliated with the Tenant, provided Tenant
shall, within thirty (30) days following such assignment or subletting, give
the Landlord written notice thereof. No such sublease or assignment in any
event shall release the Tenant from any liability hereunder.
12.2. Landlord's rights to assign this Lease are and
shall remain unqualified. Upon any sale of the Premises, Landlord shall
thereupon be entirely freed of all obligations of Landlord hereunder and
shall not be subject to any liability from any act, omission or event
occurring after such conveyance.
13. CONDITION OF PREMISES. At the expiration or termination of
this Lease, Tenant shall return the Premises broom-clean and in such condition
as premises of comparable age and construction would normally be, ordinary wear
and loss by fire or other casualty and Additional Work approved by the
Landlord excepted, failing which Landlord may restore the Premises to such
condition and Tenant shall pay the cost thereof on demand. The Tenant shall
have no responsibility for removing Additional Work and restoring the
Premises so long as the Additional Work which does not materially adversely
affect the value or utility of the Premises for future use.
14. USE OF PREMISES. Tenant agrees to comply with the following
provisions:
14.1. The Premises may be used by the Tenant for any
purpose, provided at all times such use shall be lawful and in compliance
with all applicable governmental statutes,
29
ordinances, laws and regulations and all conditions, restrictions and other
documents recorded in the Office of the Recorder of St. Louis County,
Missouri.
14.2. Tenant will not make or permit to be made any use
of the Premises or any part thereof which would violate any of the
covenants, agreements, provisions or conditions of this Lease, or which
directly or indirectly is forbidden by public law, ordinance or governmental
regulation, or which may be dangerous to life, limb or property, or which
may invalidate any policy of insurance carried on the Building or covering
its operation, or which will suffer or permit the Premises or any part
thereof to be used in any manner or anything to be brought into or kept
therein which shall in any way impair or tend to impair the character,
reputation or appearance of the Premises as a high quality office building,
or which will impair or interfere with any of the services performed by
Landlord for the Premises.
14.3. Tenant shall not overload any floor.
14.4. Tenant shall not use the Premises for any illegal
or immoral purpose.
14.5. Prior to the completion of the Core and Shell and
Tenant Work (including the completion of any Punch-List items), Tenant shall not
contract for any work or service which might involve the employment of labor
incompatible with the Premises employees or employees of contractors doing
work or performing services by or on behalf of Landlord, subject to the
provisions of Paragraph 15 of the Work Letter.
------------
15. CASUALTY DAMAGE.
15.1. If the Premises or any part thereof shall be damaged
by fire or other casualty, Tenant shall give prompt written notice thereof
to Landlord.
15.2. If the improvements within the Premises shall be
damaged:
(a) (i) such that substantial alteration or
reconstruction of the Premises shall take more than six (6) months to
restore after the expiration of the Evaluation Period, in Landlord's
reasonable estimate, and (ii) within the last three (3) years of the then
current Term hereof (plus any Option Terms previously exercised by the
Tenant); or
(b) (i) Such that substantial alteration or
reconstruction of the Premises shall take more than twenty-four (24) months
to restore after the Evaluation Period, in the Landlord's reasonable
estimate, and (ii) such casualty materially impairs the Tenant's ability to
operate its business within the Premises, in the Tenant's reasonable
business judgment (the occurrence of a casualty as described in Section 5.2(a)
--------------
or Section 5.2(b) being referred to as a "Major Casualty");
--------------
(c) such that Landlord's Lender should require that
the insurance proceeds payable as a result of a casualty be applied to the
payment of the mortgage debt; or
30
(d) such that there is material uninsured loss to
the Premises in excess of $250,000, Landlord may, at its option, but subject
to the provisions of Section 15.3 hereof, terminate this Lease by notifying
------------
Tenant in writing of such termination within ninety (90) days after the date
of such damage.
15.3. (a) The Landlord agrees that it shall endeavor
to negotiate provisions in its loan documents with its Lender to permit the
use of insurance proceeds for restoration of the Premises in the event of a
casualty to the Premises. In the event that any Lender does not permit the
Landlord to use insurance proceeds for restoration of the Premises, the
Landlord shall seek reasonable alternative financing if Landlord does not
have sufficient funds to utilize for a restoration in lieu of the insurance
proceeds applied by its Lender toward the Lender's mortgage debt. In the
event that the Lender retains all or a portion of the insurance proceeds to
be applied toward its loan and the Landlord is unable to secure reasonable
alternative financing and as a result thereof, the Landlord does not fully
restore the Premises after a casualty, the parties shall provide for an
equitable reduction in the Rent payable hereunder to reflect the extent to
which the Premises were not fully restored directly as a result of the
Lender's retention of a portion of the insurance proceeds. If the parties
are unable to agree upon an equitable reduction in Rent, then the Landlord
may elect to terminate this Lease by written notice to the Tenant.
(b) If there is an uninsured loss to the Premises
in excess of Two Hundred Fifty Thousand Dollars ($250,000), and the Landlord
has given notice of the Landlord's intention to elect to terminate this
Lease as a result thereof pursuant to the provisions of Section 15.2 hereof,
------------
the Tenant may, by written notice to the Landlord, within sixty (60) days
following the Landlord's notice, elect to retain the Premises in their then
current condition, perform such restoration as the Tenant deems appropriate,
at Tenant's sole cost and expense, and this Lease shall not terminate, nor
shall Rent xxxxx or be reduced on account of damage from such uninsured loss
or the cost of such restoration.
(c) Any restoration performed by the Tenant, at the
Tenant's cost and expense under Subsection (a) or (b) of this Section 15.3,
--------------------- ------------
Section 15.6 or Section 15.8 shall be considered Additional Work.
------------ ------------
15.4. If there is an occurrence of a Major Casualty,
Tenant shall have the right to terminate this Lease upon delivery to
Landlord of written notice of such termination within ninety (90) days after
such Major Casualty.
15.5. After a casualty to the Premises, the Landlord
shall proceed with reasonable diligence to complete consultations with its
insurer, to make arrangements for the payment of funds to be used for
reconstruction, and to consult with its Lenders, contractors, architects and
engineers to evaluate the feasibility of such reconstruction, but in any
event within ninety (90) days (such period to be known as the "Evaluation
Period").
31
15.6. If after initial negotiations by the Landlord with
the insurance company providing property insurance for any casualty, the
Landlord believes that it will be unable to obtain sufficient funds to
restore the Premises without bringing a lawsuit against such insurer, the
Landlord shall notify the Tenant in writing as to the status of such
negotiations, and within twenty (20) days thereafter, the Tenant shall
notify the Landlord in writing that it desires to exercise one of the
following three options:
(a) Have the Landlord accept such reduced amount
from the insurance company and proceed with restoration, acknowledging that
the Landlord is unlikely to be able to fully complete restoration of the
Premises;
(b) Provide to the Landlord sufficient funds to
restore the Premises to a manner acceptable to the Tenant and have the
Landlord assign any claim it may have against the insurance company; or
(c) Have the Landlord delay the restoration of the
Premises and permit the Tenant to pursue settlement discussions and, if
necessary, litigation against the insurance company in order to obtain a
satisfactory payment from the insurance company.
15.7. In the event that the Tenant exercises the option
under Paragraph 15.6(c) above, the time period of twenty-four (24) months
-----------------
under Section 15.2(b) for the completion of restoration shall no longer be
---------------
applicable. The parties further agree that notwithstanding the fact that the
Landlord may not be able to fully restore the Premises subsequent to a
casualty due to the inadequacy of insurance proceeds, such failure to
restore shall not excuse the Tenant from paying all Rent provided for
herein. Any insurance proceeds payable after a casualty shall be paid
directly to the Landlord unless the Tenant has exercised option 15.6(b)
-------
above.
15.8. If neither Landlord nor Tenant has the right to or
does not elect to terminate this Lease as set forth above, Landlord shall
promptly commence and proceed with reasonable diligence after the expiration
of the Evaluation Period to restore the Premises to substantially the same
condition in which they were immediately prior to the happening of the
casualty, except that Landlord's obligation to restore shall not include any
personal property of the Tenant, unless and to the extent the Tenant makes
funds available to the Landlord for such work, nor shall Landlord be
required to spend for such work an amount in excess of the net insurance
proceeds (deducting any costs of collection) actually received by Landlord
as a result of the casualty.
15.9. Landlord shall not be liable for any inconvenience
or annoyance to Tenant or injury to the business of Tenant resulting in any
way from such damage or the repair thereof. Following a casualty and damage
during the Evaluation Period and any period of restoration of the Premises
after any damage or casualty, the Landlord shall be entitled to the proceeds
of the rental insurance policy provided under Section 10.1 hereof. If the
------------
rental insurance proceeds do not fully pay Base Rent and Additional Rent
(reduced due to any lower Operating Expenses
32
during such periods), the Tenant shall pay such deficiency to the Landlord
on the dates upon which such Rent payments are due.
16. CONDEMNATION.
16.1. If the whole of the Premises should be taken for
any public or quasi-public use, by right of eminent domain or otherwise, or
if it should be sold in lieu of condemnation, then this Lease shall
terminate as of the date when physical possession of the Premises is taken
by the condemning authority.
16.2. (a) If less than the whole of the Premises is thus
taken or sold, but if such portion taken or sold is so substantial that
Landlord determines in its reasonable opinion that the reconstruction of the
remaining portions is not reasonably practicable (a "Major Taking"),
Landlord may terminate this Lease by giving written notice thereof to
Tenant, in which event this Lease shall terminate as of the date when
physical possession of such portion of the Premises is taken by the
condemning authority.
(b) If less than the whole of the Premises is taken
or sold, and the proposed restoration by the Landlord will render the
Premises, in the reasonable business judgment of the Tenant, materially
impaired for the continuation of the Tenant's business within the Premises,
the Landlord and the Tenant shall work together in good faith to attempt to
reach an agreement as to the appropriate restoration. If after sixty (60)
days of discussions, in the Tenant's reasonable opinion, the Landlord is
still unwilling to agree to a suitable restoration, the Tenant may notify
the Landlord within thirty (30) days thereafter that it desires to terminate
this Lease effective as of the date of the Major Taking.
16.3. If this Lease is not so terminated upon any such
taking or sale, the Base Rent payable hereunder shall be diminished on an
equitable basis and the Landlord shall restore the Premises to substantially
their former condition to the extent practicable, provided in no event shall
Landlord be required to spend for such work an amount in excess of the net
amount received by Landlord (deducting any costs of collection) as
compensation for such damage.
16.4. Except as provided in Section 16.6 hereof, all
------------
amounts awarded upon a taking of any part or all of the Premises shall
belong to the Landlord, and the Tenant shall not be entitled to and
expressly waives all claims to any such compensation.
16.5. Tenant shall be entitled to claim independently
against the condemning authority any damages expressly referable to Tenant's
business, such as relocation expenses, as the same may be permitted by law,
provided that such claim shall not reduce any award payable to Landlord.
16.6. In the event of a condemnation which results in
termination of this Lease, the Tenant shall be entitled to receive a portion
of any condemnation award paid by the
33
condemning authority equal to the sum of the calculations under Subsections
-----------
(a) and (b) as modified by Subsection (c):
--- --- --------------
(a) Any out-of-pocket costs incurred by the Tenant
and paid to the Landlord for any Tenant Work, multiplied by the number of
Lease Years remaining on the Initial Term as of the date of such taking,
divided by twenty (20); plus
(b) Any out-of-pocket costs incurred by the Tenant
for Additional Work within the Premises, multiplied by the number of Lease
Years remaining on the Initial Term as of the date of such taking, divided
by twenty (20); and
(c) Provided the sum calculated pursuant to
Subsections (a) and (b) above shall be reduced by multiplying such sum by
--------------- ---
the fraction equal to the sum of attorney's fees, costs and expenses and
other out-of-pocket costs incurred by the Landlord in conjunction with any
such condemnation, divided by the sum of the final condemnation award paid
by the condemning authority for the Premises.
16.7. Neither the Landlord nor any entity affiliated
with the Landlord or its members shall directly or indirectly initiate or
procure any rights or actions which could result in the condemnation of the
Premises or this Lease, including without limitation, redevelopment rights
under Chapters 99, 100 and/or 353 RSMo.
17. PARKING.
17.1. During the Term of this Lease, Tenant shall have
the exclusive use, along with its guests and invitees, of the automobile
parking areas situated in the Parking Garage, together with the surface
parking within the Premises, driveways, and footways, subject to the
Landlord's access rights for permitted purposes hereunder and any rights of
Cybertel under the Cybertel Lease. The Landlord agrees that it shall not
make any amendments to the Cybertel Lease that would substantive or
materially adversely affect the Tenant's use of the Premises without the
prior written consent of the Tenant.
17.2. Landlord shall deliver as part of the improvements
on the Premises, nine hundred twenty-three (923) parking spaces for cars
within the Parking Garage and fourteen (14) surface parking spaces for cars.
17.3. The Parking Garage shall have a security system
and access shall be restricted with gated entrance and exit with the use of
a card system paid for and supervised by the Tenant. The Building Manager
shall be responsible for removal of any unauthorized vehicles within the
Parking Garage upon receipt of notice from the Tenant thereof.
18. REASONABLENESS STANDARD. Whenever and wherever in this Lease,
one party must consent or approve of a request of the other party, such
consent or approval shall in all instances be reasonable and promptly given
and shall not be conditioned on other matters or
34
the payment of Additional Rent, fees, expenses or other consideration,
unless such payments or other conditions are expressly provided for in this
Lease as to such matter.
19. DAMAGES FROM CERTAIN CAUSES.
19.1. Landlord shall not be liable to Tenant for any
loss or damage to any property or person occasioned by theft, Force Majeure
or by any other cause beyond the control of Landlord, including but not
limited to delays from the foregoing, nor shall Landlord be liable for any
damage or inconvenience which may arise through repair or alterations of any
part of the Premises, provided the Landlord undertakes commercially
reasonable efforts to restore such damage or reduce such inconvenience.
20. NO IMPLIED WAIVER.
20.1. The failure of either party to insist at any time
upon the strict performance of any covenant or agreement or to exercise any
option, right, power or remedy contained in this Lease shall not be
construed as a waiver or a relinquishment thereof for the future.
20.2. Tenant's failure to pay or Landlord's receipt of a
lesser amount than the monthly installment of Rent due under this Lease
shall not be deemed to be other than on account of the earliest Rent due,
nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rent or pursue
any other remedy provided in this Lease.
20.3. No payment by Landlord or receipt by Tenant of a
sum less than the amount due from the Landlord to the Tenant shall be deemed
to be other than on account of the sum due, nor shall any endorsement or
statement on any check or any letter accompanying any check from Landlord to
the Tenant be deemed an accord and satisfaction, and Tenant may accept such
check or payment without prejudice to Tenant's right to recover the balance
of such sum or pursue any other remedy provided in this Lease.
21. PERSONAL LIABILITY.
21.1. The liability of Landlord to Tenant for any default
by Landlord under this Lease shall be limited to the interest of Landlord in
the Premises and Tenant agrees to look solely to Landlord's interest in the
Premises for the recovery of any judgment from the Landlord, it being
intended that neither Landlord nor any member of Landlord shall be
personally liable for any judgment or deficiency.
22. RELATIONSHIP TO PARTIES.
22.1. Nothing contained in this Lease shall be deemed
or construed by the parties hereto, nor by any third party, as creating the
relationship of principal and agent or of
35
partnership or of joint venture between the parties hereto, it being
understood and agreed that neither the method of computation of Rent, nor
any other provision contained herein, nor any acts of the parties herein,
shall be deemed to create any relationship between the parties hereto other
than the relationship of Landlord and Tenant.
23. EVENTS OF DEFAULT AND REMEDIES. All rights and
remedies of Landlord herein enumerated shall be cumulative, and none shall
exclude any other right or remedy allowed by law. In addition to the other
remedies provided in this Lease, Landlord shall be entitled to restrain by
injunction the violation or threatened violation of any of the Tenant's
covenants, agreements or conditions of this Lease. The occurrence of any of
the defaults set forth in Section 23.1 (after the expiration of any
------------
applicable cure period) shall constitute an "Event of Default" hereunder.
23.1. If:
(a) Tenant fails to pay any Rent within ten (10)
days after the date due or such longer period as may be permitted under
applicable cure rights set forth in Section 23.2 below,
------------
(b) Tenant defaults in the prompt and full
performance of any provision of this Lease, other than the payment of Rent,
and such default continues for thirty (30) days after notice, provided that
if such default cannot reasonably be cured within such thirty (30) day
period and so long as the Tenant commences to cure such default within such
thirty (30) day period and diligently pursues completion of such cure,
Tenant shall not be in default hereunder,
(c) the leasehold interest of Tenant is levied
upon under execution or is attached by process of law,
(d) Tenant shall apply for or consent to the
appointment of a receiver, trustee or liquidator of Tenant or of all or a
substantial part of its assets,
(e) Tenant shall file a voluntary petition in
bankruptcy,
(f) Tenant shall make a general assignment for the
benefit of creditors,
(g) Tenant shall file a petition or an answer
seeking reorganization or arrangement with creditors or to take advantage of
any insolvency law,
(h) Tenant shall file an answer admitting the
material allegations of a petition filed against Tenant in any bankruptcy,
reorganization or insolvency proceeding, or if an order, judgment or decree
shall be entered by any court of competent jurisdiction adjudicating Tenant
bankrupt or insolvent, which is not dismissed within ninety (90) days, or
approving a petition seeking reorganization of Tenant or appointing a
receiver, trustee or liquidator of Tenant or of all or a substantial part of
its assets, or
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(i) Tenant or any affiliate of Tenant shall default
(after the expiration of any applicable cure period) under any other lease
between the Tenant or any affiliate of the Tenant and the Landlord or an
affiliate of Landlord, for space leased by Tenant or any affiliate of the
Tenant in Building I or Building II of the Office Center, then and in any
such event Landlord may, at its election, either terminate this Lease and
Tenant's right to possession of the Premises or, exercise Landlord's rights
hereunder without terminating this Lease or relieving Tenant of any
obligation, including the obligation to pay Rent.
23.2. The Landlord agrees that it shall provide to the
Tenant notice, not more than once in any twelve (12) month period, of any
delinquent Rent payment and the Tenant shall have five (5) days after the
receipt of such delinquency notice to pay the delinquent Rent and avoid the
occurrence of an Event of Default hereunder. The parties further agree that
if:
(a) The Landlord alleges that a default (other than
one involving the payment of Rent) has occurred; and
(b) Tenant in good faith contests the Landlord's
claim of an alleged default; and
(c) the Landlord or Tenant have instituted an
Arbitration proceeding regarding such alleged default,
an Event of Default shall not be deemed to have occurred against the Tenant
if the arbitrator rules in favor of the Landlord and against the Tenant so
long as within thirty (30) days after such ruling, the Tenant has either
cured such breach or commences to cure such breach and diligently pursues
such cure to completion.
23.3. Upon any termination of this Lease, Tenant shall
surrender possession and vacate the Premises immediately, and deliver
possession thereof to Landlord, and Tenant hereby grants to Landlord full
and free license to enter into and upon the Premises in such event with or
without process of law and to repossess the Premises and to expel or remove
Tenant and any others who may be occupying or within the Premises and to
remove any and all property therefrom, using such force as may be necessary,
without being deemed in any manner guilty of trespass, eviction or forcible
entry or detainer, and without relinquishing Landlord's right to Rent or any
other right given to Landlord hereunder or by operation of law.
23.4. If Landlord elects, without terminating this Lease,
to endeavor to relet the Premises, then Landlord may, at Landlord's option,
enter into the Premises, remove Tenant's signs and other evidence of
tenancy, and take and hold possession thereof as provided herein, without
such entry and possession terminating this Lease or releasing Tenant, in
whole or in part, from Tenant's obligation to pay the Rent hereunder for the
full term as hereinafter provided. Upon and after entry into possession
without termination of this Lease, Landlord may relet the Premises or any
part thereof for the account of Tenant to any person, firm or corporation
other
37
than Tenant for such Rent, for such time and upon such terms as Landlord
shall determine to be reasonable. In any such case, Landlord may make
repairs, alterations and additions in or to the Premises, and redecorate the
same to the extent deemed necessary or desirable by Landlord, and Tenant
shall, upon demand, pay the cost thereof, together with Landlord's expenses
of the reletting. If the consideration collected by Landlord upon any such
reletting for Tenant's account is not sufficient to pay monthly the full
amount of the Rent reserved in this Lease, together with the cost of
repairs, alterations, additions, redecorating and Landlord expenses, Tenant
shall pay to Landlord the amount of each monthly deficiency upon demand, and
if the consideration so collected from any such reletting is more than
sufficient to pay the full amount of the Rent reserved herein, together with
the costs and expenses of Landlord, Landlord, at the end of the stated Term
of this Lease, shall account to Tenant.
23.5. Upon the occurrence of an Event of Default, the
Landlord may pursue any remedies available to the Landlord under Missouri law.
23.6. Any and all property which may be removed from the
Premises by Landlord pursuant to the authority of this Lease or of law, to
which Tenant is or may be entitled, may be handled, removed or stored by
Landlord at the risk, cost and expense of Tenant and Landlord shall in no
event be responsible for the value, preservation or safekeeping thereof.
Tenant shall pay to Landlord, upon demand, any and all expenses incurred in
such removal and all storage charges against such property so long as the
same shall be in Landlord's possession or under Landlord's control. Any such
property of Tenant not removed from the Premises or retaken from storage by
Tenant within thirty (30) days after the end of the Term or of Tenant's
right to possession of the Premises, however terminated, shall be
conclusively deemed to have been forever abandoned by Tenant and either may
be retained by Landlord as its property or may be disposed of in such manner
as Landlord may see fit.
23.7. Tenant agrees that if it shall at any time fail
to make any payment or perform any other act on its part to be made or
performed under this Lease, Landlord may, but shall not be obligated to, and
after reasonable notice or demand and without waiving or releasing Tenant
from any obligation under this Lease, make such payment or perform such
other act to the extent Landlord may deem desirable, and in connection
therewith to pay expenses and employ counsel. Tenant agrees to pay a
reasonable attorneys' fee if legal action is required to enforce performance
by Tenant of any condition, obligation or requirement hereunder. All sums so
paid by Landlord and all expenses in connection therewith, together with
interest thereon at the Prime Rate from the date payment was due, shall be
deemed Additional Rent hereunder and payable at the time of any installment
of Rent thereafter becoming due and Landlord shall have the same rights and
remedies for the nonpayment thereof or of any other Additional Rent, as in
the case of default in the payment of Rent.
23.8. (a) The Tenant shall be entitled to restrain by
injunction the violation or threatened violation of any of the Landlord's
covenants, agreements or conditions of this Lease.
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(b) If the Landlord defaults in the performance of
any covenant, agreement or condition of this Lease on Landlord's part to be
performed, or if Tenant's possession or quiet enjoyment of the Premises
shall be interfered with or hindered in any way, the Landlord shall
promptly, upon written notice from Tenant, cure such default, interference
or hindrance and if the same is not cured within thirty (30) days following
receipt by Landlord of Tenant's notice (provided if such default cannot
reasonably be cured within such thirty (30) day period, the cure period
shall be extended so long as Landlord commences to cure such default within
such thirty (30) day period and diligently pursues completion of such cure),
Landlord shall be in default of this Lease ("Landlord Default") and in such
event Tenant may, at its election, pursue the remedies in this Section 23.8.
------------
(c) In the event of a Landlord Default under this
Lease, Tenant may, at its option:
(i) Upon written notice to Landlord, make
payment or take such action as is necessary to cure
the Landlord Default and in connection therewith, pay
expenses and employ legal counsel and other
professionals. Upon so doing, the costs and
expenses so incurred by Tenant (including a
reasonable attorneys' fee) shall be immediately
due and payable together with interest thereon at
the Prime Rate from time to time incurred until
paid.
(ii) Institute an Arbitration proceeding and
secure an award for the damages (including, without
limitation, consequential and incidental damages)
sustained as a result of the Landlord default,
which award shall include Tenant's reasonable
attorneys' fees and accrue interest at the Prime
Rate from the date of the award until paid.
(iii) If the Landlord has not paid the sum
due to Tenant, within thirty (30) days following the
issuance of a final nonappealable award or
judgment against the Landlord as a result of a
Landlord Default, the Tenant may offset the sum
of any final nonappealable judgment or award
against the next installments of Rent due
hereunder, provided that no such offset shall
exceed an amount equal to twelve percent (12%) of
the amount payable as Base Rent for each such
month.
(iv) Exercise such remedies as are available
at law or in equity to the Tenant.
(d) Notwithstanding anything else contained in
Section 23.8(c)(iv) or elsewhere herein or at law or in equity, the Tenant
-------------------
may not offset Rent, except as provided in Section 23.8(iii) nor terminate
-----------------
this Lease as a result of a Landlord Default under any circumstances, and
the Tenant's remedies for a Landlord Default shall be limited to those set
forth in this Section 23.8.
------------
39
24. SUBORDINATION OF LEASE.
24.1. So long as Tenant's rights hereunder are not
disturbed, this Lease shall be subject and subordinate only to deeds of
trust (otherwise for the purpose of this Lease known as a "Mortgage"),
whether presently existing or hereafter arising upon the Premises or upon
the Building, and to any renewals, modifications, refinancings or extensions
thereof, but Tenant agrees that any such Lender shall have the right to
subordinate such Mortgage to this Lease on such terms and subject to such
conditions as such Lender may deem appropriate in its discretion. Any Lender
whose Mortgage lien is superior to this Lease shall agree to execute a
subordination, non-disturbance and attornment agreement ("SNDA") containing
commercially reasonable terms for the benefit of the Tenant and such Lender,
and which agreement shall provide for non-disturbance of Tenant by Lender or
any successor or assign of Lender so long as Tenant is in compliance with
the terms and provisions of this Lease. The first SNDA shall be executed and
delivered by the parties thereto in conjunction with the closing of the
Landlord's construction loan which will provide a portion of the funds for
construction of the Premises.
24.2. Landlord is hereby irrevocably vested with full
power and authority to subordinate this Lease to any Mortgage, now existing
or hereafter placed upon the Premises or the Building as a whole provided
such party recognizes this Lease and agrees to be bound by the obligations
of Landlord hereunder arising from and after the date title transfers, and
Tenant agrees upon demand to execute such further instruments subordinating
this Lease or attorning to any such Lender as Landlord may reasonably
request, on the condition that any such Lender shall execute a
non-disturbance agreement in favor of Tenant.
24.3. Tenant shall, within twenty (20) days after written
request of Landlord, execute, acknowledge and deliver to Landlord or to
Landlord's mortgagee, proposed mortgagee, or proposed purchaser of the
Premises or any part thereof, any estoppel certificates reasonably requested
by Landlord from time to time, which estoppel certificates shall show
whether this Lease is in full force and effect and whether any changes may
have been made to the original Lease; whether the Term of this Lease has
commenced and full Rent is accruing; whether there are any known defaults by
Landlord and, if so, the nature of such defaults; whether possession has
been assumed and all improvements to be provided by Landlord have been
completed; whether Rent has been paid more than thirty (30) days in advance;
and that there are no known liens, charges, or offsets against rental due or
to become due; and that the address shown on such estoppel certificate is
accurate, and such other statements as may be reasonably requested by the
Landlord.
24.4. Tenant agrees that within twenty (20) days after
the receipt of any proposed form of SNDA or tenant estoppel provided by the
Landlord to the Tenant, the Tenant shall review such form and provide any
comments to the Landlord. The Tenant further agrees to review promptly any
further revisions of the SNDA or tenant estoppel and to cooperate with the
Landlord and the Lender to finalize and execute an SNDA and tenant estoppel
in form reasonably acceptable to the Lender so as not to delay the closing
of any loan or sale. In the
40
event that the Tenant requests that Landlord execute an estoppel, the
Landlord shall promptly review any revisions and cooperate with the Tenant
to expedite the execution thereof.
24.5. Tenant shall, in the event of the sale or assignment
of Landlord's interest in the Premises or in the event of any proceedings
brought for the foreclosure of, or in the event of exercise of the power of
sale under, or taking by deed in lieu of foreclosure of, any mortgage made
by Landlord covering the Premises, give full and complete attornment to the
purchaser and recognize the purchaser as Landlord under this Lease for the
balance of the Term of this Lease, including any Option Term, provided such
purchaser agrees to assume the obligations of Landlord under this Lease
arising from and after the date of such purchaser's acquisition of the
Premises.
25. COMMENCEMENT OF POSSESSION. If the Tenant desires to obtain
possession of any portion of the Premises prior to the Commencement Date,
the Tenant may do so only with the prior written consent of the Landlord,
pursuant to the terms of Section 2 hereof.
---------
26. NOTICES AND CONSENTS. The Tenant shall pay the Rent and
forward all notices to Landlord at the following address (or at such other
place as Landlord may hereafter designate in writing):
Xxxxxxxxx Office Center South, L.L.C.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: X. X. Xxxxxxxxx, Xx.
with a copy of notices to:
Xxxxxx Real Estate Advisors, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Xx.
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
Xxx Xxxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xx. Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
26.1. The Landlord shall forward all notices to Tenant
at the following address (or at such other place as Tenant may hereafter
designate in writing):
41
Xxxxxx X. Xxxxx & Co., L.P.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxx Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxx
Xxxxxx X. Xxxxx & Co., L.P.
00000 Xxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx, General Counsel
Xxxxxxxxxxxx, Xxxxxx & Xxxx
2000 Equitable Building
00 Xxxxx Xxxxxxxx
Xx. Xxxxx, XX 00000-0000
Attention: Xxxxxx X. Story
26.2. Any notice provided for in this Lease must, unless
otherwise expressly provided herein, be in writing, and may, unless
otherwise expressly provided herein, be given or served by depositing the
same in the United States mail, postage pre-paid and certified, and
addressed to the party to be notified with return receipt requested, by
overnight courier which provides a record of receipt, by courier which
provides a record of receipt, or by delivering the same in person to an
officer of such party.
26.3. Notice deposited in the mail in the manner
hereinabove shall be effective upon receipt, unless such mail is unclaimed,
in which event notice shall be effective five (5) days after the date of
mailing.
26.4. Notices by Tenant shall also be forwarded to the
Lender at the address provided by Landlord to Tenant at such time as the
Lender has been determined.
Except as specifically provided in this Lease, Tenant hereby
expressly waives the service of intention to terminate this Lease or
re-enter the Premises, of any demand for payment of Rent or possession, and
of any other notice or demand prescribed by any statute or other law.
27. CONTINGENCIES.
27.1. This Lease and Tenant's rights and obligations
hereunder are contingent upon the following matters which the Landlord shall
diligently pursue:
(a) The Landlord shall secure a construction loan
commitment in an amount which, along with Landlord's equity, is sufficient
for the construction of the Premises (other than for Tenant Work to be paid
for by the Tenant), which commitment shall contain no provisions which
cannot reasonably be expected to be complied with, and provide a copy of
such commitment to Tenant on or before sixty (60) days after the Execution
Date;
42
(b) The Landlord shall secure all necessary permits
to allow the commencement of construction of the Core and Shell within
seventy-five (75) days after the Execution Date and deliver copies thereof
to the Tenant. The Tenant acknowledges that the initial construction permits
will be amended at such time as the appropriate modifications to the Core
and Shell Plans have been prepared and approved by the parties pursuant to
Exhibit A;
---------
(c) The Landlord shall have entered into a
construction contract for construction of the Premises (including an
allowance for the Base TI Allowance portion of the Tenant Work) consistent
with the obligations of the Landlord hereunder and a copy of such contract
is provided to the Tenant within seventy-five (75) days after the Execution
Date; and
(d) The Landlord shall commence construction
of the Premises on or before June 1, 2000.
27.2. In the event the Landlord has not satisfied the
foregoing provisions on or before the dates noted (or any extension thereof
to which Tenant agrees not to unreasonably withhold its consent therefor),
the Tenant may at any time thereafter by written notice to the Landlord
terminate this Lease.
28. INVALIDITY OF PARTICULAR PROVISIONS. If any clause or
provision of this Lease is or becomes illegal, invalid, or unenforceable
because of present or later laws or any rule, decision, or regulation of any
governmental body or entity, the intention of the parties hereto is that the
remaining parts of this Lease shall not be affected thereby.
29. COMMISSIONS. Landlord hereby represents and warrants to
Tenant that it has not retained any broker or agent concerning this Lease
other than Xxxxxx Real Estate Advisors, Inc. ("Xxxxxx") and Landlord shall
pay any and all broker's fees or commission owed to Xxxxxx because of this
Lease or any of the transactions described herein. Tenant hereby represents
and warrants to Landlord that it has retained no broker or agent concerning
this Lease other than Xxxxx & Xxxxx/Xxxxxxxx Partners, Inc. and Landlord
shall pay any and all broker's fees or commissions owed to Xxxxx &
Xxxxx/Xxxxxxxx Partners, Inc. because of this Lease or any of the
transactions described herein, pursuant to the Listing Agreement executed by
Landlord, Tenant, Xxxxxx, Xxxxx & Xxxxx/Xxxxxxxx Partners, Inc., Xxxxxx Real
Estate, Inc. and the Adjacent Property Owner. Landlord and Tenant hereby
indemnify and agree to defend and hold each other harmless against any loss,
claim, expense or liability with respect to any other commissions or
broker's fees claimed on account of the execution and/or renewal of this
Lease due to any action of the indemnifying party.
30. SPECIAL STIPULATIONS.
30.1. No receipt of money by Landlord from Tenant after
the expiration or termination of this Lease, the service of any notice, the
commencement of any suit, or final judgment for possession of the Premises
shall reinstate, continue, or extend the Term of this
43
Lease or affect any such notice, demand, or suit or imply consent for any
action for which Landlord's consent is required.
30.2. No waiver of any default of Tenant hereunder shall
be implied from any failure by Landlord to take any action on account of
such default if such default persists or is repeated, and no express waiver
shall affect any default other than the default specified in the express
waiver and such express waiver shall be only for the time and to the extent
therein stated.
30.3. The Premises are located in unincorporated St. Louis
County.
30.4. All of the covenants of Tenant and Landlord in this
Lease shall be deemed and construed to be "conditions" as well as
"covenants", as though the words specifically expressing or importing
conditions and covenants were used in each instance.
30.5. This Lease shall not be recorded by either party
without the consent of the other.
30.6. Neither party has made any representations or
promises, except as contained in this Lease, or in some additional writing
signed by the party making such representation or promise.
30.7. Each provision hereof shall extend to and shall,
as the case may require, bind and inure to the benefit of Landlord and
Tenant and their respective heirs, legal representatives, successors and
assigns.
30.8. It is understood and agreed that this Lease shall
not be binding until and unless all parties have signed it.
44
31. MECHANICS LIENS.
31.1. If, because of any act or omission of Tenant, its
employees, agents, contractors, or subcontractors, any mechanic's lien,
other lien, charge or order for the payment of money shall be filed against
Landlord or against all or any portion of the Premises, Tenant shall, at its
own cost and expense, cause the same to be discharged of record, within
thirty (30) days after the filing thereof, and Tenant shall protect, defend,
indemnify and hold harmless Landlord against and from all costs,
liabilities, suits, penalties, claims and demands, including reasonable
attorney's fees resulting therefrom; provided, however, the Tenant shall be
permitted to contest any such mechanic's lien, provided that the Tenant
provides a bond or other security reasonably satisfactory to the Landlord
and to the Landlord's Lender against any such mechanic's lien and provided
further that the Tenant promptly pay any judgment related to the mechanic's
lien if the Tenant's contest thereof shall fail. Notwithstanding the
foregoing, nothing contained herein shall deem Tenant a partner or agent of
Landlord, and Tenant shall not, by reason hereof or otherwise, have the
right to bind Landlord or the Premises to the payment of any such money.
31.2. The Landlord agrees that in the event any mechanic's
lien is filed against the Premises as a result of work contracted for by the
Landlord, the Landlord shall take reasonable commercial efforts either to
settle the lien or to actively contest it so as to ensure that the Tenant's
occupancy and enjoyment of the Premises is not adversely affected by the
filing of such lien. In the event that any mechanic's lien is filed as a
result of the Landlord's action, and if Landlord is not successful in
obtaining a release of such lien within thirty (30) days of the date of
filing of such lien, then Landlord shall, within ten (10) days thereafter,
provide a bond, title insurance or other reasonable security to the Tenant
providing protection to the Tenant for its leasehold estate hereunder.
32. ATTORNEY'S FEES.
32.1. If any person not a party to this Lease shall
institute an action against Tenant in which Landlord shall be made a party,
arising out of any alleged act or omission of the Tenant or its employees or
agents, Tenant shall indemnify and hold Landlord harmless from all liability
by reason thereof, and all costs incurred by Landlord in such action,
including reasonable attorneys' fees.
32.2. If any person not a party to this Lease shall
institute an action against the Landlord in which the Tenant shall be made a
party, arising out of any alleged act or omission of the Landlord or its
employees or agents, the Landlord shall indemnify and hold the Tenant
harmless from all liability by reason thereof, and all costs incurred by the
Tenant in such action, including such reasonable attorneys' fees.
32.3. In the event of litigation between the parties
hereto, declaratory or otherwise, for the enforcement of any covenants,
terms or conditions of this Lease, the nonprevailing party shall pay the
costs and expenses, including, without limitation, fees or costs of experts,
whether or not used in any proceeding and attorneys' fees actually incurred
by the
45
prevailing party, which shall be determined and fixed by the Court as part
of the judgment. The parties covenant and agree that they intend by this
Section to compensate, for attorney's fees actually incurred by the
prevailing party, the particular attorneys involved at such attorneys' then
normal hourly rate. This Section shall constitute an instruction to the
Court that such rate or rates shall be deemed reasonable.
33. CONSTRUCTION OF LEASE. The language in all parts of this
Lease shall in all cases be construed as a whole according to its fair
meaning and not strictly for or against either Landlord or Tenant. Time is
of the essence of this Lease and of every term, covenant and condition
hereof. The words "Landlord" and "Tenant", as used herein, shall include the
plural as well as the singular. The neuter gender includes the masculine and
feminine. If there is more than one tenant, then the obligations to be
performed shall be joint and several.
34. ENTIRE AGREEMENT. This Lease, together with any attached
exhibits and any written addenda contains the entire agreement between the
parties.
35. INTERPRETATION AND ENFORCEMENT. This Lease shall be
interpreted, governed and enforced in all respects under the laws of the
State of Missouri.
36. FORCE MAJEURE.
36.1. Whenever a period of time is herein prescribed
for the taking of any action by Landlord, Landlord shall not be liable or
responsible for, and there shall be excluded from the computation of such
period of time, any delays due to strikes, work stoppages, riots, acts of
God, natural disasters, weather, governmental imposition of priorities or
controls, shortages of labor, materials or fuels, war, governmental laws,
regulations or restrictions, or any other cause whatsoever beyond the
control of Landlord. All such items in the previous sentence are referred to
herein as "Force Majeure." Notwithstanding the above, subsequent to the
Commencement Date, unavailability or scarcity of materials shall not
constitute a basis for Force Majeure, except in the case of restoration in
the event of a fire or other casualty affecting the Premises.
36.2. Whenever a period of time is hereby prescribed
by the taking of any action by the Tenant (other than the payment of Rent)
subsequent to the Commencement Date, Tenant shall not be liable or
responsible for, and there shall be excluded from the computation of such
period of time, any delays due to Force Majeure. Notwithstanding anything
above, in no event shall any Force Majeure limitations excuse the Tenant
from the obligation to promptly pay Rent as and when due hereunder.
37. HAZARDOUS MATERIALS.
37.1. Tenant shall not at any time use or permit the
use of any portion of the Premises, or the land beneath any of them, for use
in violation of any governmental laws, ordinances, regulations, or orders
concerning Hazardous Materials and other environmental conditions,
including, but not limited to, asbestos, soil, and ground water conditions.
Tenant
46
shall not allow the storage or use of such Hazardous Materials in any manner
not sanctioned by law or by the highest standards prevailing in the industry
for the storage and use of such Hazardous Materials, nor allow to be brought
onto the Premises any such Hazardous Materials except to use in the ordinary
course of Tenant's business, to include ordinary household cleaning and
maintenance products which are used with due care and in accordance with
applicable laws and the instruction of the manufacturer of such products in
the reasonable and prudent conduct of Tenant's business. In addition, Tenant
shall execute affidavits, representations, and the like from time to time at
Landlord's request concerning Tenant's best knowledge and belief regarding
the presence of Hazardous Materials on the Premises. Tenant shall defend,
indemnify and hold Landlord and Landlord's Lender harmless from and against
any and all violations by Tenant or its agents, employees or contractors of
the foregoing provisions (including reasonable attorney's fees) or arising
from any violation of the foregoing covenant and/or existence of Hazardous
Materials that hereinafter become located in, on, or under the Premises,
including, but not limited, to the cost to remediate any such violation and
xxxxx any such Hazardous Materials and any reasonable costs incurred by the
Landlord or Lender for environmental testing, but excluding any such
violation, condition or Hazardous Materials to the extent caused by Landlord
or any third party which is not an employee, agent, contractor, customer or
otherwise affiliated with the Tenant. The foregoing indemnification by
Tenant shall survive the expiration or earlier termination of this Lease.
"Hazardous Materials" shall include, but not be limited to, substances
requiring investigation, removal or remediation under any federal, state or
local statute, regulation ordinance or policy including substances defined
as "hazardous substances" or "toxic substances" in the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended,
42 U.S.C., Section 1802, the Resource Conservation Recovery Act, 42 U.S.C.,
Section 6901, et seq. or those substances defined as "hazardous waste" in
applicable codes of Missouri and in the regulations adopted and publications
promulgated for such codes.
37.2. Landlord represents and warrants to the Tenant
that to the best of Landlord's knowledge, there are no Hazardous Materials
in, on or under the Premises in violation of applicable law. The Landlord
has not and shall not use the Premises in violation of any governmental
laws, ordinances, regulations or orders concerning Hazardous Materials and
other environmental conditions. The Landlord shall defend and hold Tenant,
its officers, employees, agents, contractors and lenders harmless from and
against any and all violations or breaches of the foregoing warranty and
covenant (including reasonable attorneys' fees) and the existence of
Hazardous Materials that hereafter become located in, on or under the
Premises as a result of the action of the Landlord or its agents or
employees, including, but not limited to, the cost to remedy any such
violations and xxxxx any such Hazardous Materials, but excluding any such
violation or condition or Hazardous Materials to the extent caused by Tenant
or any other third party which is not an agent, contractor, employee,
customer or otherwise affiliated with the Landlord. The foregoing
indemnification by the Landlord shall survive the expiration or earlier
termination of this Lease.
37.3. In the event that any third party, which is not an
employee, agent, contractor or otherwise affiliated with either the Tenant
or the Landlord, causes any release of
47
Hazardous Materials onto the Premises subsequent to the Commencement Date,
the Landlord shall be responsible for promptly resolving such release, which
may include in Landlord's reasonable discretion, a clean-up of such release
and/or the pursuit of legal action against such third party which would
cause such third party to promptly remediate such release. The parties agree
that a rider or endorsement shall be added to the Liability Policy providing
for insurance coverage with respect to any clean-up of the Premises as a
result of the release of Hazardous Materials within the Premises protecting
the interests of the Landlord, the Tenant and all Lenders.
38. EFFECT OF DELIVERY OF THIS LEASE. Landlord has delivered
a copy of this Lease to Tenant for Tenant's review only, and the delivery
hereof does not constitute an offer to Tenant or an option to Lease. This
Lease shall not be effective until a copy executed by both Landlord and
Tenant is delivered to and accepted by Landlord.
39. SECTION HEADINGS. The section or subsection headings are
used for convenience of reference only and do not define, limit or expand
the scope or intent of the sections.
40. DEFINITIONS. The definitions set forth in Section 1 are
---------
hereby made part of this Lease.
41. EXHIBITS. Exhibits A through D are attached hereto and
---------- -
incorporated herein and made a part of this Lease for all purposes:
Exhibit Number Description
-------------- -----------
Exhibit A Work Letter
---------
Exhibit A-1 Core and Shell Plans
-----------
Exhibit A-2 Core and Shell Plan Modifications
-----------
Exhibit A-3 Tenant Work Allocation
-----------
Exhibit A-4 Construction Schedule
-----------
Exhibit A-5 Exterior Signs
-----------
Exhibit A-6 Intentionally Deleted
-----------
Exhibit A-7 Tenant Work Schedule
-----------
Exhibit B Legal Description of Office Center
---------
Exhibit B-1 Site Plan of Lot 1
-----------
Exhibit C Declaration of Lease Commencement
---------
Exhibit D Insurance Standards
---------
42. VENDING RIGHTS. The Tenant shall retain exclusive rights to
provide all vending services within the Premises provided that upon written
request of the Landlord, from time to time, the Tenant shall notify the
Landlord of any person or entity providing vending services to the Premises.
48
43. NAMING OF BUILDING. The Tenant shall have the right to name
the Building after itself.
44. OPTION TO PURCHASE. Simultaneous with the execution of this
Lease, the Landlord and Tenant have entered into an Option and First Offer
Agreement ("Building III Option") pursuant to which the Landlord has granted
to the Tenant the option to purchase the Premises, as well as a right of
first offer to purchase the Premises, as more particularly set forth
therein.
45. OPTION TO PURCHASE, RIGHT OF FIRST OFFER AND LEASE OPTION
FOR BUILDINGS I AND II.
45.1. Simultaneous with the execution of this Lease,
the Tenant and the Adjacent Property Owner have entered into an Option and
First Offer Agreement pursuant to which the Adjacent Property Owner grants
to the Tenant certain option and first offer rights with respect to
Buildings I and II, as more particularly set forth therein.
45.2. Simultaneous with the execution of this Agreement,
the Adjacent Property Owner and the Tenant have executed an Option to Lease
Agreement for Buildings I and II, pursuant to which the Adjacent Property
Owner has granted to the Tenant certain rights to lease portions of
Buildings I and II as more particularly set forth therein.
46. NO ESTATE IN LAND. This Lease shall create the relationship
of landlord and tenant between Landlord and Tenant and no estate (other than
this leasehold) shall pass out of Landlord.
47. ARBITRATION. All disputes between Landlord and Tenant
relating to or arising under this Lease shall be resolved by the submission
of such disputes to binding arbitration as provided herein ("Arbitration").
47.1. All Arbitrations shall be conducted in St. Louis
County, Missouri, or at another location mutually approved by the parties in
writing, pursuant to the Commercial Arbitration Rules of the American
Arbitration Association ("AAA"), except as may be herein provided. All
Arbitration proceedings shall be undertaken pursuant to the Federal
Arbitration Act, 9 U.S.C. Sections 1-16, where applicable, and the award of
the arbitrator(s) shall be conformable and enforceable in any court of
competent and final jurisdiction. All parties expressly agree to waive their
respective rights to appeal from an award of the arbitrator(s) or seek
redress in any other court, except as to those grounds set forth in 9 U.S.C.
Sections 10, 11 and 16.
47.2. In any dispute where a party seeks $200,000.00 or
more in damages or if the dispute involves whether the Landlord or Tenant
may terminate the Lease, three (3) arbitrators shall be employed to
arbitrate the dispute. In the event the dispute involves less than
$200,000.00 or if the dispute does not involve Lease termination issues,
there shall be one (1) arbitrator. In the event of any Arbitration or other
legal proceeding brought by any party against
49
the other with regard to any matter arising out of or related to this Lease,
each party expressly agrees that the final award rendered by the arbitrator(s)
shall also provide for an allocation and division between or among parties to
the Arbitration, on a basis which the arbitrator(s) deem just and equitable
under the circumstances, of all costs and expenses of the dispute, including,
but not limited to, court costs, arbitrator's fees and expenses, AAA fees and
expenses, reasonable attorneys' fees and expenses, accountants' and expert
witness' fees and expenses, stenographic or reporter expenses, and rental
expenses for the premises where the Arbitration is held.
47.3. All disputes shall be determined by the arbitrator(s)
in accordance with the substantive law of the State of Missouri, except that
the parties expressly agree that the Federal Arbitration Act is applicable and
takes precedence over Missouri's Uniform Arbitration Act, Chapter 435, Revised
Statutes of the State of Missouri.
47.4. The party desiring Arbitration ("First Party")
shall give written notice to that effect to the other party ("Second Party"),
and shall also apply to the AAA for the appointment of arbitrator(s) in
accordance with the appointment procedures of the Commercial Arbitration Rules
of the AAA, and the parties shall proceed in accordance with such rules to
designate arbitrator(s). A demand for Arbitration is to be made within a
reasonable time after the claim or controversy has arisen, but in no event
later than the date when institution of legal or equitable proceedings based
on such claim or controversy would be barred under the applicable statute of
limitations under Missouri law.
47.5. Within twenty (20) days after the arbitrator(s)
shall have been designated, each party shall submit a written statement
stating and explaining such party's position to the other party and to the
arbitrator(s) with respect to the subject matter of the Arbitration,
together with its arguments in support of its position ("Position Paper").
47.6. The arbitrator(s) shall resolve any discovery
disputes by prehearing conferences as may be needed. The parties agree that
the arbitrator(s) and any counsel of record to the proceeding shall have power
of the subpoena process in aid of Arbitration, as provided by law.
47.7. The arbitrator(s) are directed by this Lease to
conduct the Arbitration hearing no later than six (6) months from the service
of the statement of claim and demand for Arbitration, unless good cause is shown
establishing that the hearing cannot fairly and practically be so conducted.
47.8. Notwithstanding any provision regarding Arbitration
as provided herein, the Tenant shall not be permitted to submit any issue to
Arbitration regarding the payment of Rent and pursue such issue hereunder
unless prior to the submission of such issue to Arbitration, the Tenant first
pays to the Landlord all amounts of Rent as are alleged by the Landlord to be
then due and owing by the Tenant and continue to pay Rent in such amounts
during the entire period of Arbitration, until a final decision is rendered.
50
48. FINANCING BY TENANT. The Landlord hereby releases any
statutory lien that it may have on the furniture, fixtures and equipment owned
by the Tenant which may be located from time to time within the Premises and
which the Tenant is permitted to remove at the end of the Term of this Lease
under the terms hereof. The Tenant may, at its option, grant a security
interest in such furniture, fixtures and equipment. The Tenant may also, at
its option, grant a deed of trust in its interest as Tenant under this Lease
("Leasehold Deed of Trust"). Upon the written request of the Tenant, the
Landlord shall agree to provide written notice of any default hereunder to the
beneficiary under any Leasehold Deed of Trust.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
51
IN WITNESS WHEREOF, Landlord and Tenant have signed this Lease in
the County of St. Louis, State of Missouri, the day and year first above
written.
THIS LEASE CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
LANDLORD: TENANT:
ECKELKAMP OFFICE CENTER SOUTH, XXXXXX X. XXXXX & CO., L.P.,
L.L.C., A MISSOURI LIMITED LIABILITY A MISSOURI LIMITED PARTNERSHIP
COMPANY
By: Eckelkamp Office Center, Inc., By:
Managing Member ----------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
-----------------------------
X.X. Xxxxxxxxx, Xx.,
President
52
EXHIBIT A
---------
WORK LETTER
-----------
1. CONSTRUCTION OF PREMISES.
a. The Landlord and Tenant agree that during the Construction
Period, the Landlord shall construct the Premises
substantially in accordance with the plans for the core
and shell for the Premises ("Core and Shell") which were
drawn by Xxxx Design Group, Inc. dated August 5, 1998, as
amended, and which are more particularly described on
Exhibit A-1 (Core and Shell Plans) along with
-----------
modifications to be prepared in part by Xxxxx Xxxxxx
Architects, Inc. set forth on Exhibit A-2 (25 pages)
-----------
dated December 3, 1999 (Core and Shell Plan Modifications)
attached hereto and incorporated herein, as supplemented
pursuant to Paragraph 1(b) and the Tenant Work Plans (as
defined below) for the Premises. As used herein, the
phrase "Core and Shell Plans" shall mean the plans
referenced on Exhibit A-1 and the modifications to
-----------
such plans as contemplated by Exhibit A-2. The process
-----------
and procedure for the construction of the Premises is
more particularly set forth in this Work Letter.
b. The Tenant acknowledges receipt of the Core and Shell
Plans and approves of such Core and Shell Plans to
the extent completed. The Landlord shall promptly
prepare the modifications to the Core and Shell Plans
listed on Exhibit A-2 and submit such plans for the
-----------
approval of the Tenant ("Plan Modifications"). The
Tenant agrees that it shall not unreasonably withhold
or delay its approval of the Plan Modifications so long
as they are consistent with the provisions of Exhibit A-2.
-----------
The Core and Shell Plans shall be subject to the approval
of the Landlord's Lender. If the Landlord's Lender
requires any reasonable changes to the Core and Shell
Plans, the Landlord and Tenant shall work together in
good faith to make any reasonable and appropriate changes,
but at no cost or expense to the Tenant. Upon approval
of the final Core and Shell Plans, the Landlord and
Tenant shall amend this Lease to incorporate the final
Core and Shell Plans to be a part of this Lease.
c. The parties agree that Exhibit A-3 (Tenant Work
-----------
Allocation) attached hereto and incorporated herein is
a schedule that reflects which items are covered by
the Core and Shell Plans and which items are to be
included within the future plans for the Tenant Work
("Tenant Work Plans").
2. APPROVAL RIGHTS AND REVIEW PROCESS.
a. It is the intention of the parties to work together in
an expeditious, efficient and good faith manner to
satisfy the preparation and approval procedures set
A-1
forth herein or to be agreed upon by the parties during
the construction phase of the Premises. In any
circumstance in which the Landlord or the Tenant is
required to review and approve any plans, changes to
plans, construction completion or other items or issues
in conjunction with the design and completion of
construction of the Premises pursuant to this Work
Letter, the party whose approval is sought shall not
unreasonably withhold, delay or condition its consent to
any such request, unless the terms of this Work Letter
explicitly impose a different standard of review;
provided, however, such approval shall not be required
to be given in the event that the approval requested
shall require the party whose approval is sought to
incur material expense or result in material delay in
the performance of the obligations of the parties
hereunder.
b. In the event that any party declines a request for
approval related to the Premises design or
construction, the declining party shall provide
written notice to the other party of the reason for
such objection and in the event the requesting party
disagrees with such reason, the parties shall promptly
seek to remedy such objection to the reasonable
satisfaction of the Landlord and Tenant. If
appropriate, the parties shall engage the services of
an architect, contractor or engineer to resolve any
disputes involving the Premises construction, design
or suitability.
3. CORE AND SHELL PLANS. The Landlord agrees that it shall promptly
commence construction of the Premises and shall pursue the
completion of construction of the Premises in accordance with the
Core and Shell Plans with due diligence, pursuant to the
preliminary schedule set forth on Exhibit A-4 attached hereto
-----------
labeled Construction Schedule ("Construction Schedule"). The
Construction Schedule shall be further modified pursuant to
Paragraph 8 hereof. The Landlord agrees that it shall undertake
-----------
good faith efforts to complete the construction of the Premises in
accordance with the Construction Schedule, subject to delays as a
result of Excusable Construction Delay. The Landlord shall provide
the Tenant with a written status report of the progress of
construction every month with a detailed update on the projected
Construction Schedule. The Landlord currently anticipates having
weekly construction meetings within the Office Center for which
meeting minutes shall be prepared. The Tenant may send a
representative or representatives to participate in such meetings
and, in any event, the Landlord shall promptly provide to the
Tenant a copy of such meeting minutes.
4. CORE AND SHELL CONSTRUCTION. The Landlord agrees that the Core and
Shell shall be constructed in accordance with all applicable laws,
codes, rules and regulations, including, but not limited to, the
local building code, fire and life safety requirements, the ADA
and good practices consistent with national standards and all
other local laws of St. Louis County in the State of Missouri.
5. IDENTITY/SIGNAGE.
A-2
a. The parties acknowledge and agree that the Premises
shall be known as the "Xxxxxx Xxxxx Building" or
such other name identifying Tenant or any affiliate of
Tenant as may be reasonably requested by the Tenant from
time to time. The Landlord shall construct and affix
upon the Building, three (3) parapet wall signs which
shall be exclusive to Tenant and shall be comprised of
illuminated individual white letters displaying the name
of the Tenant as shown on Exhibit A-5 (Exterior Signs),
-----------
and two (2) ground signs at the locations shown on
Exhibit B-1 and as depicted on Exhibit A-5 (Exterior
----------- -----------
Signs). All signs, logos or other monuments shall be in
full compliance with all applicable laws, statutes and
ordinances of St. Louis County, Missouri or other
governmental body governing the Premises. The Landlord
shall provide an allowance for exterior signs on the
Premises of $40,000.00 (which sum shall be in addition
to the Base TI Allowance). In the event that the cost of
the design, purchase and installation of the exterior
signs exceeds $40,000.00, the Tenant shall pay such
difference as an Excess TI Cost, as provided for herein.
The Landlord agrees that it shall promptly proceed to
attempt to obtain any governmental variances or other
approvals necessary to allow the construction of a
monument sign on the Premises containing a Dow Xxxxx
Average indicator, comparable in size to the existing
monument signs adjacent to Buildings I and II and
containing approximately 175 square feet of surface
area. In the event that the Landlord cannot obtain such
variances or approvals, such monument sign shall have a
surface area of approximately 150 square feet.
b. Tenant shall be permitted to request installation of
architecturally compatible signage on the walls of
elevator lobbies and on entrance doors as Tenant Work.
The Landlord shall provide for an allowance for
interior signage in the Premises of $20,000 (which
shall be in addition to the Base TI Allowance). All
acquisition and installation costs for initial
interior signage above $20,000 shall be paid for from
the Base TI Allowance at Tenant's expense.
Maintenance, repair, replacement and restoration of
such signage shall be included as an Operating Expense
under this Lease.
c. The Tenant may, upon the approval of the Landlord,
transfer its rights to utilize signs to any assignee
or subtenant that is comparable in stature and
prestige to those having signage rights in comparable
buildings owned by the Landlord or affiliates of the
Landlord, or comparable buildings owned by other
landlords.
6. DESIGN TEAM AND SUBCONTRACTORS.
a. Landlord and Tenant agree that the design team ("Design
Team") for the Tenant Work ("Design Work") shall
include:
A-3
(1) Arcturis, Inc., as Tenant's architect ("Tenant
Architect") to prepare drawings and specifications
for the Tenant Work through the customary AIA design
development phase;
(2) Sverdrup/CRSS ("Tenant Engineer") to produce
engineering and working drawings for each
subcontractor;
(3) Xxxxx Xxxxxx Architects, Inc. ("Architect") to
provide assistance and coordination to be sure that
the Tenant Work is coordinated with the construction
work for the Core and Shell;
The Design Team shall also prepare construction drawings
and specifications (to be jointly issued) for bid packages that
will be complete and suitable for obtaining competitive open-market
bids from Xxxxxx Electric, Inc., Xxxx Plumbing, Inc., Xxxxxxx X.
Xxxxxxx Contracting, Inc., and Fire Assurance, Inc., and from at
least three additional reputable, qualified trade subcontractors
who customarily bid and perform such categories of Tenant Work in
the St. Louis metropolitan area. The foregoing subcontractors
("Approved Subcontractors") allowed to bid shall be mutually
identified and agreed to in advance by Landlord, Tenant and
Contractor. The Tenant reserves the right to utilize a
subcontractor other than the lowest bidder. The Tenant Architect
and the Tenant Engineer shall be engaged under contract with Tenant
and paid for from the Base TI Allowance, as an expense of the
Tenant Work. The expenses of the Architect with respect to the
Tenant Work, shall be paid for by the Landlord.
b. Prior to the completion of the Core and Shell and Tenant
Work (including the completion of any Punch-List items),
all Contractors and Subcontractors utilized by the
Tenant for Tenant Work or any other services provided to
the Tenant within the Premises, shall be affiliated with
the AFL/CIO and will not create any labor or work
stoppages or strikes affecting the Landlord's
construction of the Premises or any other services
provided by the Landlord hereunder. In the event that
the Tenant desires to utilize a mover that is not
affiliated with the AFL/CIO, the Tenant shall do so in
accordance with the provisions of Paragraph 15 hereof.
------------
7. TENANT WORK.
a. The Landlord and Tenant acknowledge and agree that the
Landlord shall complete the Core and Shell of the
Premises in accordance with the Core and Shell Plans. In
addition, the Landlord shall undertake the Tenant Work
within the Building as requested by the Tenant in
accordance with the procedures set forth below. The
Landlord shall provide to the Tenant an allowance of
Twenty-Five and 00/100 Dollars ($25.00) per RSF of the
Building toward Tenant Work, plus an additional
allowance of One and 00/100 Dollars ($1.00) per RSF of
the Building for architectural and mechanical review of
the construction of the Premises by the Tenant Engineer
and the Tenant Architect
A-4
("Base TI Allowance"). In the event that the cost of the
Tenant Work, as requested by the Tenant, exceeds the
Base TI Allowance, the Tenant shall be responsible for
payment of such excess sum ("Excess TI Costs").
b. The parties agree that the Tenant may utilize the Base TI
Allowance for tenant finish, including, but not limited
to, installation of ceiling pads and lighting, furniture
(including, but not limited to, work stations), fixtures
and equipment and for architects, engineers and other
consultants and service providers hired by Tenant in
connection with the relocation of Tenant's business to
the Premises ("Tenant Work"). Any furniture or trade
fixtures purchased by or for Tenant utilizing the Base
TI Allowance shall remain the Tenant's property and the
Tenant shall have the right to retain and remove such
items throughout the Lease Term, so long as no Event of
Default is outstanding hereunder.
c. Attached hereto as Exhibit A-7 is a schedule for the
-----------
preparation, review, approval and bidding for the
Tenant Work ("Tenant Work Schedule"). The parties
hereto agree to proceed in good faith and with due
diligence at all times to respond to and satisfy the
Tenant Work Schedule so as to not delay the completion
of the Tenant Work and the final Substantial
Completion of the Premises.
d. Tenant has or will immediately begin space planning
for the Building with the Tenant Architect for the
preparation of Design Work and working drawings for
the interior of the Premises as provided in Exhibit A-7
-----------
(Tenant Work Schedule).
e. Any private restrooms (including showers) and kitchens
included within Tenant Work shall be paid for out of
the Base TI Allowance, other restrooms in the Building
shall be included in the Core and Shell, as provided
in the Core and Shell Plans.
f. The Core and Shell Plans shall include a card reader
at six (6) perimeter entrances and exits of the
Building. The cost of such card readers shall not be
included within the Base TI Allowance provided the
cost of any additional security system shall be
charged against the Base TI Allowance. The cost of
maintaining, operating or replacing the security
system within the Premises shall be deemed to be an
Operating Expense paid by Tenant under the Lease.
g. The Landlord shall undertake its best efforts to provide
that Cybertel will only utilize the roof of the Parking
Garage as a "Cell Site" in a manner which will be
architecturally harmonious with the design of the
Parking Garage (with antenna panels next to the wall
surface of the Parking Garage and of the same color as
the Parking Garage, if reasonably possible). If Cybertel
does utilize a portion of the Parking Garage as a Cell
Site under the Cybertel Lease, the Landlord and Tenant
shall work together to minimize the interference of the
A-5
use and enjoyment of the Premises (including, without
limitation, no loss of parking spaces) by and as a
result of Cybertel's Cell Site.
h. The Tenant shall have the exclusive right to use the
Building roof, shafts, risers, or conduits for the
installation and maintenance of conduits, cables,
ducts, flues, pipes and other devices for
communications, data processing devices, supplementary
HVAC, kitchen air supply and exhaust requirements and
other facilities consistent with Tenant's use of the
Premises. Any such uses shall be subject to the
Landlord's prior approval, not to be unreasonably
withheld, conditioned or delayed, and applicable
codes, ordinances and laws.
i. The Tenant shall have the right to install within the
Premises, communications, wiring and cable to provide
direct communications with the building currently owned
by the Tenant at 00000 Xxxxxxxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxx or other facilities owned or leased by the
Tenant. The Tenant shall have the right to install an
additional generator or generators, at the Tenant's sole
cost and expense, near the location of the life/safety
generator located near the Premises as reflected on the
Site Plan, provided the installation of such additional
generators shall be subject to the consent of the
Landlord, which consent shall not be unreasonably
withheld.
8. TENANT WORK PLANS.
a. The Tenant shall prepare or have prepared preliminary
space plans for the Premises ("Space Plans") in
accordance with Exhibit A-7 (Tenant Work Schedule). The
-----------
Landlord shall provide to the Tenant more detailed
construction schedules for the Core and Shell which
shall be prepared jointly with the Tenant, and H.B.D.
Contracting, Inc. (the "Contractor") within forty-five
(45) days from the Execution Date in accordance with
Exhibit A-7 (Tenant Work Schedule). The Tenant's
-----------
construction drawings shall be completed by October 1,
2000. Such construction schedule shall be prepared using
a Microsoft project format, as reasonably requested by
Tenant. Promptly after the execution of this Lease, the
Landlord, the Tenant, the Tenant Architect, the Tenant
Engineer, the Architect, the Contractor and Xxxxxx shall
meet and agree upon a competitive bid process and any
required revisions to the construction schedule that
will provide for the completion of the Core and Shell
and the design and construction of the Tenant Work so as
to permit the completion of the Premises and occupancy
thereof on or before December 31, 2001 ("Substantial
Completion Date"). As part of the bid process for the
Tenant Work, the Contractor and the Landlord agree that
the Contractor shall request bids for each potential
subcontract as provided in Paragraph 6(a) hereof and
--------------
that the lowest responsive bidder shall be utilized in
each case unless the Tenant specifically selects, in its
sole discretion, a bidder other than the lowest bidder.
The construction contract with the Contractor shall
limit the Contractor to a fee for overhead and profit
related to the Tenant
A-6
Work to an amount equal to seven percent (7%) of the cost
of the Tenant Work which shall be processed on an
open-book basis using actual substantiated costs
incurred with subcontractors. Any self-performed work
undertaken by the Contractor shall be charged at actual
direct cost without any xxxx-up, other than the seven
percent (7%) fee. The Contractor self-performed work
shall be limited to general requirements work as
described on Exhibit A-6; and all other Tenant Work
-----------
shall be competitively bid. At such time as the Tenant
Work Plans are finalized and subcontractor bids are
selected, the Contractor shall prepare and deliver to
Tenant and Landlord a guaranteed maximum price bid for
the Tenant Work, which shall include all subcontract
amounts, the Exhibit A-6 Work and the 7% overhead and
-----------
profit fee. Any costs for the Tenant Work exceeding the
guaranteed maximum price bid (excluding change orders)
shall be borne by Contractor. If costs for the Tenant
Work are less than the guaranteed maximum price bid, the
savings shall be credited either to the Base TI
Allowance or the Excess TI Costs, as appropriate. During
the course of construction of the Tenant Work and
following completion thereof (for a period of six (6)
months after the Commencement Date), Tenant shall be
given access to Contractor's books and records
pertaining to Tenant Work, including specifically
records of Contractor self-performed work described in
Exhibit A-6. Tenant shall be entitled to audit and
-----------
verify said records and costs and if Tenant establishes
that: (i) costs invoiced by the Contractor for Tenant
Work exceeded subcontract amounts as to subcontracted
Tenant Work and/or (ii) costs for Contractor's Exhibit A-6
-----------
work were unreasonable in relation to the type and
character of work being performed, resulting in excess
costs, then Tenant shall be entitled to a refund of such
excess amounts.
After establishing the bid process, the modifications
to be made to the Construction Contract and a final
Construction Schedule for the Tenant Work, the
Landlord and Tenant agree that:
(1) Both Landlord and Tenant must approve the
plans, specifications and working drawings
for the Tenant Work as per Exhibit A-7
-----------
(Tenant Work Schedule); and
(2) Any third party contractor or
subcontractor engaged by the Tenant in
conjunction with the Tenant Work shall
be a member of and/or affiliated with
the AFL/CIO Construction Trades.
b. The Landlord and the Contractor acknowledge that the
cost of the Tenant Work may be as high as Fifty and
00/100 Dollars ($50.00) per RSF of the Building and that
such amount of Tenant Work can be completed within the
Exhibit A-4 Schedule for Tenant Work. In the event that
-----------
the scope of the Tenant Work proposed by the Tenant and
the Tenant Architect is substantially greater than Fifty
and 00/100 Dollars ($50.00) per RSF or includes items
A-7
which will extend the Tenant Work Construction Schedule
beyond that reasonably contemplated by the parties and
cannot, in the reasonable opinion of the Contractor, be
completed within seven (7) months, the Contractor shall
promptly notify the Landlord and the Tenant, providing
specific reasons why such schedule cannot be met. The
Landlord, the Tenant and the Contractor shall promptly
meet in order to attempt to reduce the Tenant Work
completion time to seven (7) months, or if not, provide
for commencement of the Tenant Work and, if required,
the Tenant Work Plans (or "Design Work") at an earlier
date. If the Tenant desires to implement Tenant Work
costing substantially in excess of Fifty and 00/100
Dollars ($50.00) per RSF or unusual items that cannot be
completed in the reasonable opinion of the Contractor on
a schedule coinciding with the Substantial Completion
Date, prior to agreeing to the scope of the Tenant Work,
the Landlord and the Tenant shall modify this Lease in
order to provide that the Tenant will pay to the
Landlord any and all Delay Expenses that may be incurred
by the Landlord or the Contractor as a result of such
extended Tenant Work completion schedule. This Lease
shall also be amended to adjust the Construction
Schedule, the proposed Commencement Date, and the dates
used for calculation of any Late Delivery Payment,
provided, however, that the Tenant shall have no
liability to pay for costs or expenses related to
extended performance costs not previously agreed to in
writing in conjunction with a revised Construction
Schedule if the Contractor fails to conform to the new
schedule for Tenant Work, after the Contractor has
agreed in writing to do so.
9. TENANT WORK CONSTRUCTION AND CHANGE ORDERS.
a. At such time as the Landlord and the Tenant have agreed
on the scope of the Tenant Work, the parties shall
execute an amendment of this Lease incorporating the
Tenant Work Plans into this Lease and confirming the
dollar amount of the Excess TI Costs which shall be paid
by the Tenant. The Landlord shall also amend its
construction contract with the Contractor to provide for
the Tenant Work. The Tenant shall pay the Tenant Excess
TI Costs (less retained holdbacks provided herein) in
periodic installments to the title insurance company or
construction Lender disbursing the construction funds in
conjunction with the payment of draw requests to the
Contractor for the Tenant Work, after such time as the
Landlord has disbursed the Base TI Allowance to the
Contractor (less the retained holdback share). At such
time as Landlord and Tenant have agreed upon the scope
of the Tenant Work and subcontractors have been chosen
to undertake such work, the Landlord shall diligently
pursue to completion the Tenant Work in accordance with
the Construction Schedule. The Landlord and the Tenant
shall insure that all goods and services contracted to
be purchased by the Landlord and/or the Tenant to be
included within the scope of the Tenant Work shall be
invoiced separately from all the Core and Shell
construction costs. The Landlord and
A-8
the Tenant shall communicate with each other on a
regular basis as to the status of the Tenant Work and
the calculation of expenses related thereto. The
Landlord and the Tenant shall cooperate and communicate
with one another not less than once per month to provide
estimates for the costs of the Tenant Work. In
conjunction with the design of the Tenant Work, the
Landlord shall prepare a budget for the Tenant Work
showing the estimated Tenant Work budget and identifying
those items that will be paid for directly by the
Landlord and those items which will be paid for directly
by the Tenant. The Tenant Work budget shall be updated
monthly by the Landlord.
b. In the event that the Tenant desires any change order
("Tenant Change Order") to the Core and Shell Plans or
the Tenant Work Plans, the Tenant or the Tenant
Architect shall notify the Landlord, the Contractor
and the Architect in writing describing the desired
Tenant Change Order. The Contractor, the Architect and
the Tenant Architect shall promptly provide to the
Landlord and the Tenant information regarding:
(1) the cost of implementing such Tenant Change
Order, if any;
(2) the effect such Tenant Change Order shall
have on the Construction Schedule, if any;
and
(3) any questions or suggestions regarding
implementation or clarification of the
Tenant Change Order.
If the Tenant desires to pursue the Tenant Change
Order, Tenant shall promptly notify the Landlord and
the Landlord shall seek approval of its Lender for
such Tenant Change Order, to the extent required by
such Lender. If the Landlord obtains the approval of
its Lender for such Tenant Change Order (if such
approval is required), the Landlord shall promptly
notify the Contractor, the Architect, the Tenant
Architect and the Tenant and the construction contract
shall be modified to effect the Tenant Change Order.
The Tenant agrees that the estimated cost of the
Tenant Change Order shall be paid by the Tenant to the
Landlord or the Landlord's title company within ten
(10) business days, to be utilized for payment for the
costs of such Tenant Change Order ("Tenant Change
Order Cost") or at Tenant's option, said amount shall
be charged against the Base TI Allowance, if not
already expended. The Landlord agrees to provide the
Tenant with copies of any invoices or other materials
reasonably necessary to permit the Tenant to evaluate
the cost of any Tenant Change Order. In the event that
any proposed Tenant Change Order will adversely affect
the Construction Schedule, the Landlord shall notify
the Tenant as to the Delay Expenses anticipated to be
incurred by the Landlord and Contractor, as a result
of such Tenant Change Order with respect to the
construction of the Premises and the Tenant shall also
deposit such sum with the Landlord at the time of the
payment of the
A-9
Tenant Change Order Cost, to the extent that such Tenant
Change Order Cost will cause the cost of the Tenant Work
to exceed the sum of the Base TI Allowance. The parties
agree to cooperate with one another in order to
implement any and all Tenant Change Orders, but in no
event shall any Tenant Change Order result in any
increased cost or financial loss to the Landlord.
C. (i) In the event that the Landlord desires to make any
change order to the Core and Shell Plans ("Landlord
Change Order"), the Landlord shall notify the Tenant in
writing (which may include communication by facsimile)
describing the desired Landlord Change Order the Tenant
agrees to notify the Landlord by telephone and/or
facsimile giving the Tenant's approval or stating
Tenant's objections, in the event that the Tenant
objects to any requested Landlord Change Order because
it will unacceptably (x) alter the exterior appearance
of the Building, or (y) change the RSF or floor plate of
the Building, no later than three (3) business days
after receipt of such proposed Landlord Change Order. In
the event that the Landlord notifies the Tenant that
such Change Order must be approved on an expedited
basis, the Tenant agrees to undertake its best efforts
to review such proposed Landlord Change Order as soon as
possible and respond to the Landlord by telephone and/or
facsimile confirming whether or not said proposed Change
Order is approved.
(ii) In the event that the Tenant has not responded to the
Landlord within three (3) business days after receipt
of a non-expedited Landlord Change Order, the Tenant
shall be deemed to have waived its right to object. In
the event that the Tenant objects to any proposed
Landlord Change Order, the parties shall immediately
enter into discussions with the Contractor and the
Architect to review the requested Landlord Change
Order and determine what, if any, modification can be
made to the Landlord Change Order to remedy Tenant's
objection and so as not to delay the Substantial
Completion of any portion of the Premises.
10. CONSTRUCTION SCHEDULE. The Landlord and Tenant shall endeavor to
perform their obligations under the Construction Schedule to avoid
any delay in the completion of the Tenant Work or the Core and
Shell. In the event that the Tenant fails to meet its obligations
under this Construction Schedule for the design of the Tenant Work,
the Tenant shall reimburse the Landlord for any and all costs and
expenses incurred as a result of such failure. The parties
acknowledge and agree that it is critical for each of the parties
to endeavor to perform their obligations in a timely manner so that
the Construction Schedule for the Premises can be met.
11. REIMBURSEMENT FOR TENANT WORK.
A-10
a. If the estimated price for the Tenant Work, plus other
funds expended to date or to be expended by the Landlord
for other phases of the Tenant Work, exceeds the Base TI
Allowance, the Tenant shall pay such Excess TI Costs to
the Landlord's title company or construction Lender
disbursing construction proceeds as provided in
Paragraph 9(a) hereof. In the event changes in the scope
--------------
of the Tenant Work which the Landlord will contract to
perform will result in the cost of the Tenant Work
exceeding the Base TI Allowance, the Tenant shall pay
such Excess TI Costs as provided in Paragraph 9(a)
--------------
hereof. The construction contract for the Tenant Work
with the Contractor shall provide that prior to the
completion of fifty percent (50%) of the Tenant Work,
there shall be a ten percent (10%) retainage and for the
remainder of the Tenant Work completion there shall be a
zero percent (0%) retainage. The resulting total five
percent (5%) retainage shall be held until Substantial
Completion of the Premises, subject to the terms of the
construction documents. At such times as the Architect
and Tenant Architect determine that the Building and
Parking Garage are Substantially Complete, the
Architect, Tenant Architect, Landlord and Tenant shall
prepare a Punch-List, and 125% of the estimated cost of
completing the Punch-List items (as such cost is
determined in the reasonable discretion of the
Architect) shall be held back pending completion of such
Punch-List. Funds in the Punch-List holdback shall be
released to the Contractor upon the completion of
Punch-List items from time to time, but no more often
than once a month. In the event of any dispute as to the
completion of any Punch-List items, the Architect and
Tenant Architect shall determine whether or not such
Punch-List item has been satisfactorily completed.
b. Upon the completion of the Tenant Work and the payment
of all outstanding invoices therefor, but in no event
later than ninety (90) days after the Commencement Date,
the Landlord shall provide to the Tenant a full
accounting of all of the costs and expenses incurred by
the Landlord and the Tenant for the Tenant Work
("Accounting"). In the event that the sum paid by the
Landlord for the Tenant Work (less any sums previously
reimbursed by the Tenant to the Landlord) exceeds the
Base TI Allowance, plus Excess TI Costs paid by the
Tenant, the Tenant shall pay such sum to the Landlord
within thirty (30) days after receipt of the Accounting.
In the event that the sum paid by the Landlord for the
Tenant Work (less any sums previously reimbursed by
Tenant to the Landlord) is less than the Base TI
Allowance, plus Excess TI Costs paid by the Tenant, the
Landlord shall forward payment of such difference to the
Tenant along with the Accounting. In the event that the
Tenant disputes any portions of the Accounting, the
Landlord and the Tenant agree to negotiate in good faith
to resolve any disputes and make any appropriate
adjustments in the payments. In the event that the
Tenant seeks credit or reimbursement for costs or
expenses incurred directly by the Tenant toward the Base
TI Allowance, the Tenant shall provide to the Landlord a
A-11
written description of the expense reimbursement
requested, a copy of the invoice from the contractor or
supplier to whom such cost was paid, and evidence of
payment within thirty (30) days after the Commencement
Date.
c. The Tenant agrees to indemnify and hold the Landlord
harmless from any and all costs and expenses incurred
by the Landlord as a result of any Tenant Work
undertaken by the Tenant for which Tenant is liable
for payment. In the event that any mechanic's lien is
filed against the Landlord or the Premises as a result
of Tenant Work undertaken by the Tenant, the Tenant
shall provide reasonable assurances to the Landlord,
Landlord's Lender and the Landlord's title insurance
company so that the title insurance company will
provide title insurance coverage to the Landlord and
the Lender over such mechanic's lien.
12. ADDITIONAL PAYMENTS BY TENANT. All sums for Tenant Work to be paid
by the Tenant to the Landlord hereunder shall be deemed to be
Additional Rent hereunder.
13. ACCESS TO AND INSPECTION OF THE PREMISES. The Tenant, the Tenant
Architect and the Tenant's consultants shall have access to the
Premises for the purposes of inspecting the construction of the
Premises, during the construction of the Core and Shell and Tenant
Work, subject to coordinating with the Contractor, and the
Landlord, abiding by all appropriate safety rules and regulations
established by the Landlord and Contractor, and so as not to
unreasonably delay or interfere with construction. The Tenant
shall provide to the Landlord certificates of insurance for any
third party consultants of the Tenant naming the Landlord and
Landlord's Lender as additional insureds on the liability
policies, prior to entering upon the Premises. In the event that
the Tenant identifies any portion of the construction which the
Tenant believes is not substantially in compliance with the
approved Core and Shell Plans or Tenant Work Plans, the Tenant
shall promptly notify the Landlord of such objection and the
parties shall work in good faith to promptly resolve such
noncompliant work. The Landlord acknowledges and agrees that the
Tenant Architect shall have the primary inspection role with
respect to the Tenant Work.
14. COMPLETION OF TENANT WORK. Thirty (30) days prior to the anticipated
date of the completion of Tenant Work for each floor of the
Building, the Landlord shall notify the Tenant and establish a
procedure for review and inspection of the Tenant Work on such
floor. The Landlord and the Tenant shall establish inspection
procedures pursuant to which the Tenant shall review the status of
the Tenant Work on such floor and the parties shall prepare a
Punch-List for the Tenant Work, for the items to be finished after
the Architect and the Tenant Architect certify that a floor is
Substantially Completed ("Punch-List"). The Landlord and the
Tenant shall coordinate the completion of any Tenant Work on each
floor of the Building in a manner to expedite the Substantial
Completion of the Building. Subsequent to the preparation of the
Punch-List, the Landlord and the Contractor shall diligently
pursue the completion of all Punch-List items to the reasonable
satisfaction of the Tenant. A floor of the Building, or the
Premises as a whole, shall be "Substantially Complete" on such
date as the Architect and the Tenant Architect have delivered to
the Landlord and the Tenant a certificate
A-12
confirming that such floor is, or the Premises as a whole, are
Substantially Complete in accordance with the Core and Shell Plans
and Tenant Work Plans and are suitable for occupancy by the Tenant
(subject to Punch-List items). The foregoing, to the contrary,
notwithstanding, the Tenant may elect initially to complete Tenant
Work only on certain selected floors of the Building, in which
event when all of the floors so selected by the Tenant for Tenant
Work have been Substantially Completed, and whatever Tenant Work
is, at a minimum, required for the other floors of the Building to
meet building and fire code requirements so as to enable the
Tenant to occupy said selected floors is completed, then the
Commencement Date shall occur as contemplated by this Lease.
Notwithstanding anything else herein contained to the contrary,
the Landlord acknowledges that it shall not be permitted to
require the Tenant to pay partial Rent based on the Substantial
Completion of merely a portion of the floors of the Building.
15. MOVE IN. In the event that the Tenant obtains access to the Premises
to make them ready for its occupancy pursuant to the Advance
Occupancy provisions of this Lease, the Tenant acknowledges that
if it utilizes contractors or movers not affiliated with the
AFL/CIO, such use may result in strikes or other work stoppages.
The Tenant agrees to work closely with the Contractor and the
Landlord to avoid any such strike or work stoppage, provided that
if any strike or work stoppage does occur because of the Tenant's
use of non-AFL/CIO contractors or movers, the Tenant agrees to
indemnify and reimburse the Landlord and the Contractor for any
and all costs and expenses resulting from any such strike or work
stoppage, including, but not limited to, costs related to delays
in the Construction Schedule, increased costs of construction of
the Premises, construction period interest or related loan costs,
Taxes, utilities, loss or delay of Rent payments and similar
costs.
16. CONSTRUCTION CONTRACT. The Landlord shall, prior to execution of the
Construction Contract, provide a copy thereof with all exhibits
and attachments to the Tenant, for Tenant's approval, which
approval shall not be unreasonably withheld or delayed. Tenant
shall have a period of ten (10) days following receipt of the form
of Construction Contract to review such form to assure itself that
the Construction Contract is in conformity with the terms,
provisions and procedures of this Lease. Once approved, the
Landlord shall not enter into any amendments or modifications, nor
waive any default, nor grant any time extensions to the Contractor
which are contrary to the terms of the Landlord's obligations
under this Lease, without the Tenant's prior written approval,
provided that Change Orders in the Construction Contract shall be
governed by the procedures set forth in Paragraph 9 hereof.
-----------
17. SETTLEMENT AGREEMENT. The Landlord agrees that the Premises, as
initially constructed, shall be in compliance with the settlement
agreement dated November 9, 1987 and recorded in Book 8238, page
974 in the Office of the Recorder of Deeds for the County of St. Louis.
A-13
EXHIBIT "A-1"
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TO
--
EXHIBIT A
---------
CORE AND SHELL PLANS
A1-1
EXHIBIT "A-2"
-------------
TO
--
EXHIBIT A
---------
CORE AND SHELL PLAN MODIFICATIONS
A2-1
EXHIBIT "A-3"
-------------
TO
--
EXHIBIT A
---------
TENANT WORK ALLOCATION
ITEM SHELL T-I
ARCHITECTURAL
-------------
Core wall drywall (taped and sanded) on tenant side X
Shaft wall drywall (taped and sanded) on tenant side X
Column drywall taped and sanded X
Straight through ceiling grid @ 9'-0" (Grid upgrade = T.I.) X X
Preselected ceiling pads on floor (Ceiling upgrade = T.I.) X X
Inside face drywall at perimeter walls, except at rated columns X
Bathroom ceiling, floors and walls (w/material selections) X
Exit and Feature stairs (w/material selections) X
Elevator cabs (w/material selections) X
Elevator lobby ceiling, floors and walls (w/material selections) X
Entry lobby floors, walls and ceilings X
2nd floor Atrium walls X
2nd floor balcony rail X
Lower level exit corridors, lobby and garage tunnel link X
Lower level mechanical, electrical, life safety, generator and fire pump X
Lower level receiving, housekeeping and maintenance X
Lower level offices, dining, kitchen, mail and supply rooms X
Core signage (in owner soft cost budget, see lease) X
Building signage (in owner soft cost, shown on civil plans, see lease) X
Window blinds X
Electrical room with sleeves for telephone/cable and janitor closet X
Tenant drywall partitions X
Tenant doors, building standard, full height, solid core, frames and hardware X
HVAC
----
Main supply trunk lines in plenum X
Final Supply diffuser location X
Thermostat zone controls (Per shell drawings) X
Additional zones and controls X
Tenant specific HVAC for computer rooms X
ELECTRICAL
----------
Service to the building X
Distribution from the main service to the floors X
Floor distribution to tenant areas X
A3-1
ITEM SHELL T-I
2x4 parabolic fixtures @ 1/80 sf stored in warehouse (upgrade-=T.I.) X X
2x4 parabolic fixtures beyond 1/80 sf and installation of all X
Exit signs, emergency lighting and strobes, core areas only X
Emergency generator for life safety only (BOCA 1996) X
Emergency power for tenant X
PLUMBING
--------
Wet columns as shown on Xxxx Co. plumbing plans X
Tenant lunch rooms, private toilets and showers X
Kitchen plumbing including grease trap and fixture hookup X
FIRE PROTECTION
---------------
Water service, fire pump, sprinkler mains and branches in plenum X
Open area head distribution X
Sprinkler heads moved to non-open area tenant plan locations X
Fire hydrants, fire dept connections, fire alarm system (BOCA 1996) X
SECURITY
--------
Card readers (6 perimeter exterior doors) X
Sleeves in the core from the main service to the floors X
Service and equipment to the building and/or garage, with floor distribution X
X0-0
XXXXXXX "X-0"
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TO
--
EXHIBIT A
---------
CONSTRUCTION SCHEDULE
A4-1
EXHIBIT "A-6"
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TO
--
EXHIBIT A
---------
TO FOLLOW
A6-1
EXHIBIT "A-7"
-------------
TO
--
EXHIBIT A
---------
TENANT WORK DESIGN AND SCHEDULE
Tenant Work Design shall consist of three items:
1. SCHEMATIC DESIGN DRAWINGS
a. CADD drawings depicting the following items:
1. Blocking and stacking layouts of departments within
the building.
2. Blocking and stacking layouts of departments on each
floor.
3. Floor plan layouts of all walls, rooms and doors.
4. Workstation standards and layout.
5. Notation and labeling of all areas.
2. DESIGN DEVELOPMENT DRAWINGS (refinement of Schematic Design Drawings)
a. CADD drawings depicting the following items:
1. Refined floor plan layouts of walls, rooms and doors.
2. Reflected ceiling plans of all floors.
3. Detailed room requirements (lighting, power, HVAC,
plumbing, data, security, office equipment,
built-ins, other custom items).
4. Kitchen/Cafeteria layout and detailed requirements
(per #3 above).
5. Material specifications, color selections and
schedules.
3. CONSTRUCTION DRAWINGS
a. CADD drawings depicting the following items:
1. Code review information
2. Construction details, schedules and specifications
3. Mechanical, electrical, plumbing and fire protection
drawings
4. All final material and equipment selections
SCHEDULE
ITEM COMPLETION DATE
a. Preparation of Schematic Design Drawings by Tenant June 1, 2000
Architect per Item #1.
b. Architect review of Schematic Design Drawings and June 15, 2000
feedback to Tenant.
A7-1
c. Completion of Design Development Drawings by Tenant August 1, 2000
Architect per Item #2.
d. Architect review of Design Development Drawings and August 15, 2000
feedback to Tenant.
e. Tenant Architect and Design Team completion of October 1, 2000
Construction Drawings.
f. Architect's review of Tenant Architect's Construction October 15, 2000
Drawings prior to final bid issue. Architect to provide
Tenant Architect with specific corrections in writing.
g. Tenant Architect and Design Team completion of November 30, 2000
Construction Drawings incorporating Architect's comments
from Item f.
h. Landlord and Contractor bid the Tenant Construction January 15, 2001
Drawings.
i. Tenant and Landlord review and approve final plans and February 28, 2001
pricing based on results of item h.
j. Obtain permits from St. Louis County and West County May 15, 2001
EMS for Tenant Work to be undertaken by Contractor and
Landlord.
k. Commence construction of Tenant Work by Contractor June 1, 2001
promptly after obtaining permits pursuant to Item j.
A7-2
EXHIBIT B
---------
LEGAL DESCRIPTION OF OFFICE CENTER
----------------------------------
The land upon which the Office Center is situated is described as
Manchester/270 Office Center, according to the plat thereof recorded in Plat
Book 281, page 35 of the St. Louis County Records.
B-1
EXHIBIT B-1
-----------
SITE PLAN OF LOT 1
------------------
B1-1
EXHIBIT C
---------
DECLARATION OF LEASE COMMENCEMENT
---------------------------------
This DECLARATION is hereby entered into as of the day of
-----
, 20 , by and between Xxxxxxxxx Office Center South, L.L.C., a
----------- ---
Missouri limited liability company ("Landlord") and Xxxxxx X. Xxxxx & Co.,
L.P., a Missouri limited partnership ("Tenant").
W I T N E S S E T H
-------------------
WHEREAS, Landlord and Tenant entered into a Lease Agreement dated
for certain premises ("Premises") being on Lot I of Manchester/270
-----------
Office Center with an address of 0000 Xxxxxx Xxxxxxxx Xxxxx, Xx. Xxxxx,
Xxxxxxxx, 00000, and more fully described in said Lease; and
WHEREAS, Landlord and Tenant wish to confirm the Commencement Date
and the expiration date of the Initial Term of the Lease, and the date upon
which the payments of full Rent for the Lease and use of the Premises shall
commence;
NOW, THEREFORE, Landlord and Tenant hereby mutually agree and
confirm that: (1) the Commencement Date for the Lease is
----------------------
and the Initial Term shall expire on ; (2) the payment of full Rent
------------
under the provisions of the Lease shall commence on the Commencement Date in
the amounts set forth in Article III of the Lease; (3) Tenant is in possession
of and has accepted the Premises demised by the Lease, and acknowledges that
all the work to be performed by Landlord in the Premises as required under
the Lease has been satisfactorily completed (subject only to punch list items,
if any); and (4) there are RSF within the building located
---------------
within the Premises.
All other terms and conditions of said Lease and any modifications
thereof shall remain unchanged.
IN WITNESS WHEREOF, the parties hereto have set their hands to this
instrument as of the day and date first above written.
LANDLORD: TENANT:
XXXXXXXXX OFFICE CENTER SOUTH, XXXXXX X. XXXXX & CO., L.P.,
L.L.C., A MISSOURI LIMITED LIABILITY A MISSOURI LIMITED PARTNERSHIP
COMPANY
By: Xxxxxxxxx Office Center, Inc., By:
Managing Member ---------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
------------------------------
X.X. Xxxxxxxxx, Xx.,
President
C-1
EXHIBIT D
---------
INSURANCE SPECIFICATIONS
------------------------
I. PROPERTY INSURANCE* - All Risk, including Flood (backup of sewers and
drains) and Earthquake (subsidence and
earth movement)
A. Building Limit** $37,500,000.
------------
B. Rents Limit*** $ 6,258,711.($4,633,711 Base rental yr.1+$1,625,000 OE)
------------
C. Extra Expense $ -0-
1. Property Deductible/Rents
2. Flood Deductible
3. Earthquake Deductible
* Form should include No Coinsurance provision, Building
glass, EDP (hardware & software), Boiler & Machinery, a
broadening endorsement (see attached).
** Subject to clause 10.1
----
*** Subject to Rents Schedule sec.3 and 4 of this Lease & 24
-------------------------
month extended period of indemnity, including the perils
of flood and earthquake.
II. GENERAL LIABILITY:*
General Aggregate Limit: $1,000,000.
-----------
Products/Completed operations
Aggregate Limit: $1,000,000.
-----------
Each Occurrence Limit: $1,000,000.
-----------
Personal & Advertising
Injury Limit: $1,000,000.
-----------
Medical Expense: $ 10,000.
-----------
*Form should include a Commercial General Liability Form similar
coverages outlined in the Xxxxxx Broadening Liability Endorsement
III. UMBRELLA:*
Limit of Liability $50,000,000. Each Occurrence
------------
$50,000,000. General Aggregate
------------
$50,000,000. Products/Completed
------------ Operations Aggregate
*See Sec.10.2
IV. ENVIRONMENTAL COVERAGE:* (3rd Party Liability) Contingent Environmental
Cleanup Limit of Liability $ 5,000,000.
-------------
*See Sec.37
D-1
V. INSURANCE CARRIERS REQUIREMENTS:
All carriers must have a rating of "A-" or better for claims paying
ability assigned by Standard & Poor's Rating Group, or a general
rating of "A-" or better; with a financial class VIII, or greater,
assigned by A.M. Best Company, Inc. meeting the following criteria:
The limit in any one risk is acceptable in an amount up to 10% of
the latest Best's Reported Policyholder's Surplus (e.g. if the
policyholder's surplus is $200,000,000 only $20,000,000 can be
accepted). If coverage is more than the 10% surplus, the policy
must be endorsed by a Reinsurance Endorsement by a company meeting
these same requirements.
D-2
