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EXHIBIT 10.27
COMMERCIAL LEASE
THIS LEASE, made this 31st day of December, 1996, by and
between Xxxxxxx X. Xxxxxxxxx ("Lessor"), and Digital Teleport, Inc., a
Missouri corporation ("Tenant"),
WITNESSETH:
1. DESCRIPTION OF LEASED PREMISES. Lessor hereby demises and
leases to Tenant approximately 10,000 square feet of the approximately 14,400
square foot building located at 00000 Xxxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx 00000
(the "Leased Premises").
2. PERMITTED USE. The Leased Premises shall be used as general
business and administrative offices and for such other purposes as Lessor and
Tenant may agree. Tenant, in the use of the premises, shall faithfully observe
in all material respects, all applicable City, County, State and Federal
ordinances, laws, statutes and regulations now in force or which may hereafter
be in force.
3. COMMENCEMENT. The Term of the lease shall commence on January
1, 1997, and shall end on December 31, 1997, both inclusive, unless sooner
terminated as provided herein. Tenant shall have the right to extend this lease,
at the same rental and upon all of the same terms, provisions and conditions
herein contained, for additional terms of one year each until the headquarters
of the Company have relocated from the Leased Premises, by giving Lessor written
notice of such extension at least thirty (30) days prior to the commencement of
such additional term.
4. RENTAL. Subject to adjustment as hereinafter provided, Tenant
shall pay to Lessor as Rent for the Leased Premises during the lease term the
sum of Seventy-Five Thousand Dollars ($75,000.00) per year for each and every
year of said Term, payable in equal monthly installments of Six Thousand, Two
Hundred Fifty Dollars ($6,250.00) each, on the first day of each calendar month
of the lease term, in advance, at the office of the Lessor as set forth in
Section 22 hereof.
All Rent payable under this lease shall be paid without set-off
or deduction and appropriate apportionment of monthly rental installments shall
be made for any partial months at the beginning and at the end of the term of
this lease.
5. TENANT'S OBLIGATIONS. Tenant agrees that no representations
as to the condition of the Leased Premises or the appropriateness of the Leased
Premises for its intended use has been made by Lessor to Tenant either directly
or indirectly prior to or at the execution of this lease that are not herein
expressed. During the continuance of this lease Tenant shall keep the Leased
Premises and its appurtenances in good order and repair, replacing all glass
broken, including but not limited to plate glass with glass of the same size and
quality as that
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broken; shall not allow any waste or misuse of the water or other utilities;
shall not make or permit noises or odors objectionable to the public; shall pay
for all damages to the Leased Premises caused by any waste, misuse or neglect by
Tenant of the Leased Premises, its apparatus or appurtenances; shall not
overload, damage or deface the Leased Premises, or do any act or thing or bring
or keep anything thereon which may make void or voidable any insurance on the
premises or the Leased Premises or which may render an increase or extra
premiums payable for insurance; and at the expiration of the time mentioned in
this lease, or at an earlier termination thereof by forfeiture or otherwise,
shall yield up the Leased Premises together with all its apparatus and
appurtenances to Lessor in the same condition as when leased, reasonable wear
and tear and damage by fire or other casualty beyond the control of Tenant
excepted, and will surrender all original and duplicate keys of the several
doors and such other things as appertain to the Leased Premises.
6. UTILITIES AND TAXES. Tenant shall be responsible for the
payment of all utilities metered or otherwise charged to the Leased Premises,
including but not limited to electricity, gas, water, sewage, garbage collection
and telephone services. Tenant shall also be responsible for payment of all
state and local taxes assessed upon the Leased Premises. Lessor agrees to
reasonably cooperate with Tenant in disputing any such tax assessments.
7. INSURANCE. Tenant agrees that it will, at all times during
the Term of this lease and at its own expense, carry public liability insurance
covering property damage, death and personal injury in, on, or about the Leased
Premises in an amount as may be reasonably required by the Lessor; provided,
however, that in no event shall the amounts of such coverages be greater than
the existing coverage amounts maintained by Lessor on the Leased Premises
immediately prior to the execution of this lease unless such amounts are
reasonably acceptable to Tenant. Tenant shall furnish Lessor certificates
evidencing all such insurance coverage upon demand.
Lessor and Tenant hereby waive any rights each may have against
the other on account of any loss or damage occasioned to Lessor or Tenant, as
the case may be, their respective property, the Leased Premises or its contents,
arising from any risk generally covered by fire and extended coverage insurance,
vandalism, malicious mischief and sprinkler leakage; and the parties each, on
behalf of their respective insurance companies insuring the property of either
Lessor or Tenant against any such loss, hereby waive any right of subrogation
that it might have against Lessor or Tenant, as the case may be, to the maximum
extent permitted by law without obtaining the express consent of their
respective insurance companies.
8. ALTERATIONS AND REPAIRS. If the Tenant desires alterations,
repairs or improvements, the Tenant shall do same at the Tenant's expense,
provided that (i) all work shall be done by contractors reasonably approved in
writing by Lessor, (ii) Tenant shall furnish to Lessor prior to commencing any
work, security reasonably satisfactory to Lessor,
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against items for labor and material, (iii) the work shall be reasonably
approved by Lessor, and (iv) no part of the work shall be of a character which
will require changes outside the leased premises or will adversely affect the
Lessor's governmental permits relative to the Leased Premises or the cost of
fire insurance for the Leased Premises. All alterations, repairs or improvements
whether made by Lessor or Tenant which are so permanently attached or affixed to
the Leased Premises that their removal would cause substantial damage to the
Leased Premises shall become the sole property of Lessor upon termination of the
lease whether by expiration of term or otherwise. Tenant shall have the right to
remove all such alterations, repairs or improvements that are not so permanently
affixed or attached to the Leased Premises that their removal would cause
substantial damage to the Leased Premises; provided, however that Tenant shall
repair any and all damage to the Leased Premises relating to the installation
and/or removal of such alterations, repairs or improvements removed by Tenant.
9. NO LIENS. Tenant covenants and agrees that it has no power to
incur any indebtedness giving a right to a lien of any kind or character upon
the right, title, or interest of Lessor in and to the Leased Premises and the
property of which the Leased Premises is a part, and that no person shall ever
be entitled to any lien superior to the interest in this lease reserved to
Lessor upon the premises directly or indirectly derived through or under Tenant,
or its agents or servants, or on account of any act or omission of Tenant.
Should any such lien be filed, Lessor may, but shall not be obligated to,
procure its discharge by any lawful means. In such event, Lessor shall be
entitled to recover from Tenant all amounts paid in the course of procuring said
discharge, including reasonable attorney's fees and costs.
10. HOLD HARMLESS. Lessor shall not be liable for any damage
occasioned by failure to keep the Leased Premises in repair, and shall not be
liable for any damage done or occasioned by or from electric current, plumbing,
gas or the elements, unless said damage is caused directly by Lessor.
11. LESSOR'S RIGHT TO ENTER PREMISES. Tenant hereby grants to
Lessor such licenses or easements in or around the Leased Premises or any
portion or portions thereof as shall be reasonably required to maintain and
operate the Leased Premises, provided that no exercise, occupancy under, or
enjoyment of any such license or easement shall result in any unreasonable
interference with Tenant's use, occupancy, or enjoyment of the leased premises
as contemplated by this lease. Tenant also hereby grants to Lessor the right to
enter the Leased Premises or any portion or portions thereof to examine the same
and show them to prospective fee owners, ground lessees, mortgagees and tenants.
The provisions of this Section shall not be construed to impose any obligations
upon Lessor.
12. SUBORDINATION. This lease, at Lessor's option, shall be
subordinate to any ground lease, mortgage, deed of trust, or any other
hypothecation for security now or hereafter placed upon the real property of
which the Leased Premises is a part and to any and all
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advances made on the security thereof and to all renewals, modifications,
consolidation, replacements and extensions thereof; provided that any such
agreement contains a covenant to the effect that so long as there shall be no
default on the part of Tenant entitling Lessor to terminate this lease, or if
such default exists, so long as the time to cure such default has not expired,
then this lease shall not be terminated or modified, nor shall the rights of
Tenant hereunder, or its occupancy of the Leased Premises be affected in any way
by reason of such agreement or any foreclosure action instituted in connection
therewith. Notwithstanding such subordination, Tenant's right to quiet
possession of the Leased Premises shall not be disturbed if Tenant is not in
default and so long as Tenant shall pay the rent and observe and perform all of
the provisions of this lease, unless this lease is otherwise terminated pursuant
to its terms. Tenant agrees to execute any documents required to effectuate such
subordination or to make this lease prior to the lien of any mortgage, deed of
trust or ground lease, as the case may be, and failing to do so within fifteen
(15) days after written demand, does hereby make, constitute and irrevocably
appoint Lessor as Tenant's attorney in fact and in Tenant's name, place and
stead, to do so.
13. TERMINATION, DEFAULT AND REMEDIES.
If Tenant defaults in payment of Rent and such default is not
cured within ten (10) days after written notice from Lessor of such default, or
if Tenant defaults in any other of Tenant's obligations hereunder and such
default is not cured within thirty (30) days after written notice from Lessor of
such default; provided, however, that if such default is not capable of cure
within such 30-day period and Tenant is diligently proceeding to cure, Tenant
shall have a commercially reasonable time to cure such default; then all Rent
shall become due and Lessor may (i) declare this lease terminated and enter into
and repossess the Leased Premises and expel Tenant and its chattels; or (ii)
enter into and repossess the Leased Premises and relet the same. In such event,
Tenant shall be liable to Lessor for all costs and expenses incurred by Lessor,
including reasonable attorneys' fees, in recovering possession or in collecting
delinquent rent, whether or not litigation is commenced; (ii) all costs of
redecorating, repairing, renovating and remodeling the Leased Premises as
required to relet; (iii) all advertising and brokerage costs and expenses
incurred in reletting or attempting to relet the Leased Premises. Lessor may xxx
for sums in advance or from time to time as same accrue. If Lessor terminates
this lease as a result of a default by Tenant, Lessor agrees to use reasonable
efforts to mitigate damages resulting from such default.
If this lease is terminated at the election of Lessor, as
aforesaid, or in any other way, Tenant shall, without demand, surrender and
deliver up the Leased Premises and property peaceably to Lessor immediately upon
such termination, and if Tenant shall remain in possession of the Leased
Premises, or any part thereof, one day after the termination of this lease in
any of the ways above named, Tenant shall be deemed guilty of forcible detainer
of the Leased Premises under the statutes of the State of Missouri and shall be
subject to all the conditions and
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provisions above named and to eviction and removal forcibly or otherwise with or
without process of law as above stated. After the commencement of a suit, or
after final judgment, for possession of said premises, Lessor may receive and
collect any rent due from Tenant, and the payment of said rent shall not waive
or affect said suit or said judgment. All rights of Lessor in the event of
default herein enumerated shall be in addition to and without prejudice to any
remedy or remedies which Lessor may have at law or in equity for nonpayment of
rent or for breaches of the covenants and agreements hereof.
14. BANKRUPTCY. If any proceedings under the present or any
future Bankruptcy Act be instituted by or against Tenant and such proceedings
are not dismissed within sixty (60) days, or if a receiver, custodian or trustee
be appointed for or ordered to dispose of Tenant's business or property, or if
Tenant makes any assignment or conveyance for the benefit of creditors, the same
shall constitute a breach of this lease, and Lessor shall forthwith on that
breach be entitled to (i) collect actual damages therefor as provided by law or
notwithstanding any other provisions of this lease to the contrary, (ii) recover
from Tenant as and for liquidated damages an amount equal to the difference
between the rent reserved hereunder for the unexpired portion of the term
demised and the fair and reasonable rental value of the leased premises for the
same period, (iii) collect the reasonable fees of Lessor's attorneys incurred in
connection with such bankruptcy or insolvency proceedings. In addition to its
rights to collect actual or liquidated damages and attorneys' fees, Lessor shall
have the rights of termination, entry and repossession as set forth above in the
preceding Section.
15. RIGHT TO CURE TENANT'S DEFAULT. If Tenant is in default
under any provision of this lease, other than the provision requiring the
payment of rent, and Lessor has given written notice of default, and if Tenant
shall fail to cure, or to commence with due diligence to cure, such default
within thirty (30) days after receipt of such notice, then Lessor may
immediately, or any time thereafter, without notice, cure such default on behalf
of Tenant and at the expense of Tenant. If Lessor at any time is compelled to
pay or elects to pay any sum of money, or do any act which will require the
payment of any sum of money, by reason of failure of Tenant to comply with any
provision of this lease, or if Lessor be compelled to incur any expense,
including reasonable attorney's fees in instituting, prosecuting and/or
defending any action or proceeding instituted by reason of any default of Tenant
hereunder, the sum or sums so paid by Lessor shall be repaid by Tenant to Lessor
on demand.
16. NO WAIVER. The fact that Lessor does not exercise its right
hereunder in the event of breach of covenants herein by Tenant shall not be
deemed a waiver of such rights as to subsequent breaches of covenants herein by
Tenant.
17. CONDEMNATION. In the event that the Leased Premises shall be
taken by the exercise of the power of eminent domain, this lease shall terminate
as of the date of the taking of possession by or the vesting of title in the
condemning authority. All income, rent,
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awards or interest derived from or damages awarded for any such taking under the
power of eminent domain shall belong to and be the property of Lessor, whether
such damages shall be awarded for compensation for diminution in value of the
leasehold or for the fee of the Leased Premises. Notwithstanding the foregoing,
Tenant shall have the right to maintain an action and make a claim in its own
name to the condemning authority for the value of any trade fixtures, equipment,
merchandise or personal property of any kind belonging to Tenant and not forming
a part of the Leased Premises, or for the cost of moving the all or any of the
same, Tenant's other relocation costs or expenses so long as no such claim or
action adversely affects any claim or action of Lessor. A voluntary sale by
Lessor to any party having the power of eminent domain, either under the threat
of condemnation or while condemnation proceedings are pending, shall be deemed
to be a taking by eminent domain.
18. DESTRUCTION. If the Leased Premises shall be destroyed in
whole or in part by fire, the elements or other casualty so as to render the
leased premises wholly unfit for occupancy and if the damage cannot be repaired
within 90 days from the happening of said injury or Lessor advises Tenant within
30 days of such destruction that Lessor will not repair the Leased Premises
within said 90 days, this lease shall terminate as of the date of such injury
without further liability on the part of either party hereto. In the event of
any such termination, Tenant shall immediately surrender the possession of the
Leased Premises and all rights therein to Lessor, and Lessor shall have the
right to immediately enter into and take possession of the Leased Premises and
shall not be liable for any loss, damage or injury to the property or person of
Tenant. If Lessor repairs the Leased Premises within said 90 days this lease
shall continue in full force and effect. Tenant shall not be required in any
event to pay rent for any portion of said 90 days during which the Leased
Premises is wholly unfit for occupancy.
19. SUBLETTING AND ASSIGNING. Tenant shall not sublet the Leased
Premises or any part thereof, nor allow the same to be used or occupied by any
other person or for any other use than that herein specified, nor assign or
encumber this lease or any interest therein, without the written consent of
Lessor, which consent shall not be unreasonably withheld; provided, however,
that Tenant may pledge its rights and privileges under this lease to secure
financial obligations to third parties, without the need to obtain the consent
of Lessor. Any consent to any assignment, transfer or sublease which may be
given by Lessor shall not constitute a release of Tenant from the full
performance by it of the covenants on the part of the Tenant herein contained.
20. NOTICES AND PLACE OF PAYMENT. Any notice, demand, request,
consent, approval, or other communication which either party hereto is required
or desires to give or make or communicate upon or to the other shall be in
writing and shall be given or made or communicated by United States registered
or certified mail, addressed, in the case of Lessor to Xxxxxxx Xxxxxxxxx, 00000
Xxxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx 00000, and addressed in the case of Tenant to
Digital Teleport, Inc., 00000 Xxxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attn:
President,
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subject to the right of either party to designate a different address
by notice similarly given. Any notice, demand, request, consent, approval, or
other communication so sent shall be deemed to have been given, made, or
communicated, as the case may be, on the date the same was deposited in the
United States mail as registered or certified matter with postage thereon fully
prepaid.
All payments by Tenant to Lessor pursuant to any provision of
this lease shall be paid to Xxxxxxx Xxxxxxxxx at the above-listed address.
21. SECTION HEADINGS. The Section headings appearing in this
lease are inserted only as a matter of convenience and for reference purposes,
and in no way define, limit or describe the scope and intent of this lease or
any Section hereof, nor in any way affect it.
22. SUCCESSORS BOUND. All the terms of this lease shall extend
to and be binding upon the respective heirs, executors, administrators,
successors and assigns of the respective parties hereto.
23. GOVERNING LAW. This lease shall be governed by and construed
and interpreted in accordance with the internal laws of the State of Missouri
applicable to contracts made and to be performed wholly within such state,
without regard to choice or conflict of laws provisions.
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IN WITNESS WHEREOF, the parties hereto have executed this lease
as of the date first above written.
TENANT LESSOR
DIGITAL TELEPORT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxxxxxx
Title: President Date: 12/31/96
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Date: 12/31/96
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