Exhibit 10.34
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LEASE AGREEMENT
BETWEEN
BROADWAY SQUARE PARTNERS, LLP, LANDLORD
AND
THE KANSAS CITY SOUTHERN RAILWAY COMPANY, TENANT
CATHEDRAL SQUARE
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June 26, 2001
LEASE AGREEMENT
AGREEMENT dated this 26th day of June, 2001, by and between BROADWAY
SQUARE PARTNERS, LLP, a Missouri limited liability partnership, having its
principal office at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000,
("Landlord"), and THE KANSAS CITY SOUTHERN RAILWAY COMPANY, a Missouri
corporation, with an address of 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx
00000 ("Tenant").
WITNESSETH:
Article I. LEASEHOLD GRANT AND PREMISES
1.01 Leased Premises. In consideration of the mutual covenants and
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agreements set forth herein, Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord, for the rental and on the terms and conditions hereinafter
set forth, the premises (the "Premises") described in Exhibit A attached hereto
and made a part hereof and located at the southeast corner of Twelfth and
Washington (the "Building") in Kansas City, Missouri, on the real property more
particularly described on Exhibit A-1 attached hereto and made a part hereof
(the "Land").
1.02 Parking. Landlord hereby leases to Tenant and Tenant hereby leases
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from Landlord 250 parking spaces for Tenant's employees in the parking garage
(the "Garage") below the Building. Such parking shall be subject to the
reasonable rules and regulations from time to time established by Landlord for
such parking facilities. The rate for parking spaces shall be [Redacted] per
month. Such rate shall remain fixed for a period of five (5) years following the
Commencement Date (defined in Section 2.01 hereof), and thereafter such rate
shall be equal to the market rate for such spaces.
1.03 Cooperative Efforts to Sublease. Landlord will utilize its best
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efforts in assisting Tenant to find a suitable tenant to sublease the first and
second floors at a lease rate equal to or greater than the rate (including the
parking supplement) paid by Tenant for the first five years of the lease. Office
space in the Building will be among the finest Class A office space in the
Kansas City area. Quoted full service rates for other premier Class A space are
in the range of $24 to $28. The vacancy rate for downtown Class A space is about
4%.
1.04 Title. Landlord represents and warrants to Tenant that: (i) on or
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before the Commencement Date, Landlord will have indefeasible and marketable
title to the Land, subject only to matters of record that do not unreasonably
interfere with the leasing and use of the Land, the Common Area and the Premises
in accordance with the terms of this Lease; (ii) Landlord has the unrestricted
right and authority to enter into this Lease; and (iii) the Land and the Garage
are properly zoned for the construc-
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tion and use of the Building, the Land and the Garage for the purposes
contemplated by this Lease.
1.05 Common Area. The term "Common Area" shall mean the area generally
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designated as such on the site plan attached hereto as Exhibit A-2 and made a
part hereof. Tenant shall have the right to the nonexclusive use of such Common
Area in conjunction with Tenant's use and occupancy of the Premises, including
without limitation Tenant's ingress and egress to and from the Building. The
Common Area shall be subject to reasonable rules and regulations from time to
time established by Landlord. The Common Area shall not be used in a manner
which unreasonably interferes with Tenant's access to the Building.
Article II. TERM
2.01 Term. Subject to and upon the terms and conditions set forth in
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Section 2.02 and in the Work Letter attached hereto as Exhibit B (the "Work
Letter"), and in particular those relating to the commencement and expiration of
the term, the term of this Lease shall begin on the Commencement Date set forth
in Section 2.02 hereof (the "Commencement Date") and shall end on the last day
of the calendar month during which the fifteenth anniversary of the Commencement
Date occurs.
2.02 Possession. Landlord shall notify Tenant upon receipt by Landlord
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of a certificate of occupancy following completion of the shell building. The
Commencement Date shall be the date 120 days following the date of such
certificate of occupancy for the shell building. During such 120-day period,
Tenant and Tenant's contractors shall have the right to install the tenant
improvements to the Premises. The Base Rental herein reserved shall begin on the
Commencement Date; provided, however, in the event of any occupancy by Tenant
prior to the Commencement Date (other than pursuant to the Work Letter), such
occupancy shall in all respects (other than the payment of Base Rental) be the
same as that of a Tenant under this Lease. In the event that Tenant wishes to
occupy a portion of the Premises and conduct business therein prior to the
Commencement Date, and provided that all required certificates of occupancy can
be obtained, then Tenant and Landlord shall enter into an agreement pursuant to
which Tenant shall occupy and use such portion of the Premises in accordance
with the terms and conditions of this Lease, including payment of Base Rental
and Additional Rent prorated on the basis of the proportionate part of the
Premises so occupied. Neither Landlord nor any agent or employee of Landlord has
made any representation or promise with respect to the Premises or the Building
except as herein expressly set forth, and no rights, privileges, easements or
licenses are acquired by Tenant except as herein expressly set forth. By taking
possession of the Premises, Tenant shall be deemed to have accepted the same in
its then existing, "as is", condition and such taking of possession shall be
conclusive evidence that the Premises and the Building are in good and
satisfactory condition at the time of the taking of possession, subject only to
"punch list" items related to improvements contemplated by the Work Letter and
except for latent defects.
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Article III. RENT
3.01 Base Rental. Subject to the provisions for rental adjustments
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hereinafter set forth, Tenant hereby agrees to pay a base annual rental ("Base
Rental") which shall be computed at the rate of [Redacted] for each square foot
of Rentable Area (computed in accordance with Section 3.09 hereof). The Base
Rental shall be payable in equal monthly installments which shall be due and
payable in advance on the first day of each calendar month during each year of
the term hereof. All payments of rent shall be paid to the Landlord in lawful
money of the United States of America at the address of Landlord shown herein,
or to such other party or at such other place as Landlord may designate from
time to time in a written notice to Tenant. If the term commences or terminates
on any day other than the first or last day of a calendar month, the Base Rental
and all other sums due hereunder shall be prorated for such fractional calendar
month. In the event any installment of Base Rental or Additional Rental is not
paid on its due date, Tenant shall also pay to Landlord an amount equal to the
delay charge, if any, actually incurred by Landlord with respect to a payment to
the first mortgage holder for the month for which such rent payment is due, and
such payment shall constitute Additional Rent hereunder and shall be immediately
due and payable. Except as otherwise expressly provided in this Lease, Base
Rental and Additional Rent shall be payable hereunder without set-off or
deduction; provided, however, nothing herein shall diminish the right of Tenant
to proceed against Landlord in such manner as it may see fit with respect to any
claim or claims arising under this Lease.
3.02 Additional Rent. As additional rent ("Additional Rent") Tenant
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shall pay to Landlord Tenant's Share of Operating Costs and Taxes (hereinafter
defined) for each Operating Year. For the purposes hereof, the following terms
shall be defined as follows:
(a) The term "Taxes" shall mean all taxes, impositions, assessments, and
all other similar governmental charges, if any, which are levied, assessed,
or imposed upon, or which become due and payable in connection with the
Land, the Common Area, the Garage and the Building (excepting franchise
taxes and federal and state taxes on income), including taxes levied by
present or future taxing authorities. If any Taxes are payable in
installments, the calculation of Tenant's Share of such Taxes shall include
only the installment or installments payable for the Operating Year in
question. At its cost and expense Tenant shall have the right to contest
the amounts of such taxes and assessments so long as such contest is not
contrary to the terms of the first mortgage affecting the Building or
otherwise prejudicial to Landlord's title to the Premises, the Land, the
Common Area or the Garage. Notwithstanding the foregoing, Tenant shall not
have the right to contest such amounts if Landlord objects thereto for the
reason that Landlord reasonably believes that such contest might adversely
affect (a) the taxes or assessments on the Garage or the building site
south of the Building or the improvements which may subsequently be
constructed thereon or (b) the taxes or assessments on the Building during
or after the expiration of this Lease.
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(b) The term "Estimated Taxes" shall mean Landlord's good faith estimate of
the Taxes for an Operating Year.
(c) The term "Operating Costs" shall mean all operating expenses of the
Land, the Common Area, the Garage and Building which shall be computed on
the cash basis and in accordance with generally accepted accounting
principles consistently applied and which shall include all reasonable
expenses, costs, and disbursements of every kind and nature which Landlord
shall pay or become obligated to pay because of or in connection with the
ownership, operation or use of the Land and Building, including, but not
limited to, the following:
(i) Wages and salaries of all employees directly engaged in the
operation and maintenance of the Land, the Common Area, the Garage and
Building in accordance with customary practices for Class A office
buildings in the Kansas City, Missouri metropolitan area, including
taxes, insurance, and benefits relating thereto;
(ii) All supplies and materials used in the operation and maintenance
of the Land, the Common Area, the Garage and Building;
(iii) Cost of water, sewage, trash removal, power, electricity,
heating, lighting, air conditioning, ventilating, and other utilities
furnished in connection with the operation of the Garage and the
Building (excluding any such cost and utilities which are separately
metered or otherwise separately billed to specific tenants);
(iv) Cost of all maintenance and service agreements on equipment
located in the Garage and the Building, including, but not limited to,
security services, alarm services, window cleaning, janitorial
service, and elevator maintenance;
(v) Cost of casualty, rent and liability insurance applicable to the
Garage and the Building and Landlord's personal property used in
connection therewith;
(vi) Costs of repair and general maintenance of the Building, the
Garage and the Common Area, including landscaping, but excluding
repairs and general maintenance paid by proceeds of insurance or by
any tenant or other third parties, and alterations attributable solely
to particular tenants of the Building as a whole;
(vii) Reasonable management fees in an amount which is consistent with
fees charged by professional managers for Class A buildings in the
Kansas City area; and
(viii) A reasonable amortization charge on account of any capital
expenditures incurred to effect (i) a reduction in operating expenses
of the Building or the Garage (but not in excess of the reduction
realized in such ex-
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penses for the year in question, as reasonably determined by
Landlord), or (ii) a modification or addition to the Building or the
Garage which is necessary in order to comply with governmental
requirements imposed subsequent to the completion of the Building or
the Garage.
(d) When in this Section 3.02 reference is made to Taxes or Operating Costs
for the Common Area, only the Taxes and Operating Costs attributable to
that portion of the Common Area that is located on the westerly portion of
the block shall be included as Additional Rent under this Section 3.02
until completion of a permanent structure on the land adjoining to the east
of the Common Area. Upon the completion of such permanent structure only
one-half of the Taxes and Operating Costs attributable to the Common Area
shall be included in Additional Rent under this Section 3.02.
(e) Expressly excluded from the definition of the term Operating Costs are:
(i) Capital investment items (except as set forth in subsection
c(viii) above);
(ii) Leasing commissions and leasing advertising costs;
(iii) Specific costs billed to and paid by specific tenants;
(iv) Depreciation;
(v) Principal, interest, and other costs directly related to
financing; and
(vi) The cost of any utility or service requirements of any other
lessees in the Building above the volume of such utility or service
typically required by customary office occupancy; the cost of tenant
finish improvements or alterations or any other extraordinary
requirements of any other lessees in the Building; Landlord's
administrative and overhead costs (except to the extent the same are
attributable to additional services requested by Tenant); costs that
are paid by any warranty or guaranty; attorneys' fees related to
tenant lease negotiations or enforcement; costs or expenses related to
casualty damage or other liability to the extent such costs or
expenses are reimbursed from insurance or eminent domain proceeds or
by the party whose fault necessitated such cost or expense; costs
which are paid or reimbursed to Landlord from any other source; any
cost attributable to faulty, defective or improper construction or
design of the Building or Common Area; any cost or expense
attributable to the negligent or tortious act or omission of Landlord,
its agents, employees or contractors; and amounts paid to Landlord or
any affiliate of Landlord for services or materials to the extent that
such amounts exceed what would otherwise have been payable to
unaffiliated third-parties for such services or materials.
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(vii) All costs and expenses associated with the removal of the
concrete barriers that now separate the Land from that the land
currently owned by interests related to Xxxxx Xxxxxxxxx and Xxxx
Xxxxxxxxxx.
(f) The term "Estimated Operating Costs" shall mean Landlord's reasonable
estimate of the Operating Costs for an Operating Year.
(g) The term "Operating Year" shall mean each calendar year ending December
31st after the commencement of the Lease Term, including that portion of
the calendar year in which the term of this Lease commences subsequent to
the Commencement Date.
(h) The term "Land" shall mean the real property upon which the Building is
located, which is more specifically described on Exhibit A-1 to this Lease,
which is attached hereto and made a part hereof.
(i) The term "Tenant's Share of Operating Costs and Taxes" shall mean an
amount equal to the sum of the Operating Costs and Taxes, divided by the
Rentable Area of the Building, multiplied by the Rentable Area of the
Premises. For so long as Tenant is the only tenant of the Building,
"Tenant's Share of Operating Costs and Taxes" shall mean all Operating
Costs and Taxes. Moreover, with respect to the Garage, "Tenant's Share of
Operating Costs and Taxes" shall mean a pro rata portion equal to the
number of parking spaces leased by Tenant divided by the total number of
parking spaces in the Garage.
(j) Notwithstanding anything contained in this Section 3.02 to the
contrary, so long as Tenant is the sole tenant of the Building, then Tenant
shall always be consulted with respect to the level of property management
service, particularly janitorial and cleaning service, with a view to
economizing Operating Costs whenever possible. Landlord shall always use
its best efforts to accommodate such requests by Tenant so long as such
requests do not compromise the Landlord's goal of maintaining, operating
and preserving the Land, Common Area, Garage and Building as first class
facilities.
3.03 Annual Budget. Landlord shall prepare an annual budget for the
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Operating Costs and furnish a copy thereof to Tenant. Landlord and Tenant shall
review such budget with a view toward collaborating on the level of building
management service referred to in Section 3.02(j) hereof.
3.04 Monthly Payments of Operating Expenses. From time to time Landlord
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shall provide to Tenant a reasonably detailed estimate of the amount of the
Estimated Taxes and the Estimated Operating Costs and Tenant shall pay to
Landlord each month as Additional Rent an amount equal to one-twelfth of the
Estimated Taxes and the Estimated Operating Costs. Within 120 days from the end
of each Operating Year, Landlord shall deliver to Tenant a statement setting
forth Taxes and Operating Costs for each year and comparing such cost with the
Estimated Taxes and Estimated Operating Costs defined herein. In the event Taxes
and Operating Costs for any Operating
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Year as reflected on the statement exceed the Estimated Taxes and Estimated
Operating Costs paid by Tenant, Tenant shall pay to Landlord within 30 days
after the receipt of such statement and as Additional Rental over and above the
Base Rental, Tenant's Share of such excess. If such statement indicates an
overpayment by Tenant, Landlord shall immediately pay the amount of such
overpayment to Tenant, and if such overpayment is more than ten percent (10%),
then Landlord shall pay interest on such overpayments, prorated on a monthly
basis for the period during which Estimated Taxes or Estimated Operating Costs
paid by Tenant resulted in overpayment, at the rate equal to 3% plus the prime
rate of interest then charged by Commerce Bank of Kansas City, NA. Together with
the foregoing statement, prepared in accordance with accounting practices
generally applicable to commercial real estate applied consistently from year to
year, Landlord shall furnish to Tenant an itemized description, in reasonable
detail, of the items included in Taxes and Operating Costs. Tenant and Tenant's
auditors and consultants shall have the right to examine and audit the books and
records of account relating to such Taxes and Operating Costs. Landlord and
Tenant shall promptly make any adjustments in Tenant's share of Operating Costs
and Taxes established by such audit. If such audit discloses an overcharge by
Landlord equal to or greater than five percent (5%) the cost of such audit shall
be paid by Landlord. Anything herein to the contrary notwithstanding, in no
event shall the Base Rental provided herein ever be reduced.
3.05 Payment of Taxes. Notwithstanding Section 3.03, so long as Tenant
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is not in default hereunder, Tenant shall not be required to pay monthly
installments of Estimated Taxes, and Tenant shall have the right to pay to
Landlord the actual amount of Tenant's Share of Taxes as and when they become
due. Within ten (10) days following Landlord's request therefor, Tenant shall
pay to Landlord as Additional Rent an amount equal to Tenant's Share of Taxes.
If Tenant fails to pay such amount within such period, then such amount shall
bear interest at a rate equal to three percent (3%) plus the prime rate of
interest then charged by Commerce Bank of Kansas City, NA.
3.06 Parking Supplement. During the period the real estate taxes for
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the Building are abated pursuant to the provisions of Chapter 99 of the Missouri
Revised Statutes and action taken by the Land Clearance for Redevelopment
Authority of the City of Kansas City, Missouri, Tenant shall also pay to
Landlord as a supplement for parking and as Additional Rent an amount equal to
[Redacted] per year per square foot of Rentable Area contained within the
Premises. Such amount shall be payable in equal monthly installments and shall
be due and payable together with the payment of Base Rental and other Additional
Rent.
3.07 Base Rental Adjustment. The Base Rental set forth in Section 3.1
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shall be adjusted so that during the second through fifth lease years, beginning
on the first anniversary of the Commencement Date and ending on the fifth
anniversary of the Commencement Date, the Base Rental shall be [Redacted] for
each square foot of Rentable Area (computed in accordance with Section 3.09
hereof).
3.08 Base Rental CPI Adjustment. The Base Rental shall be increased,
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but not decreased, at the end of the fifth, tenth and fifteenth years of this
Lease by an
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amount equal to one-half the increase in the Consumer Price Index. "Consumer
Price Index" shall mean the Consumer Price Index for All Urban Consumers (CPI-U)
of the Bureau of Labor Statistics of the United States Department of Labor
(United States City Average, All Items, 1982-84=100). In order to determine the
increase in the Consumer Price Index, the monthly index number for the calendar
month during which the Commencement Date occurs shall be compared with the
monthly index number of the calendar month of the fifth and tenth anniversaries
of the Commencement Date. If the index number for the fifth and tenth
anniversary months is not known on the fifth and tenth anniversary dates, then
Tenant shall pay to Landlord a Base Rental amount which is based upon a
reasonable estimate of such index number and the parties shall make appropriate
adjusting payments when the actual number becomes known. Notwithstanding the
foregoing, for the purpose of applying the CPI adjustment factor in order to
compute the rent for lease years six through ten, the Base Rent during years one
through five shall be deemed to be [Redacted].
3.09 Method of Measurement. The term "Rentable Area", as used herein,
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shall refer to the area or areas of space within the Building determined in
accordance with the guidelines of the Building and Office Managers Association
(BOMA) as follows:
(a) Rentable Area on a single-tenancy floor is determined by measuring from
the extended plane of the inside surface of the outer glass to the extended
plane of the inside surface of the opposite outer glass bounded by the
intersections of such planes, and shall include all areas within such
planes excluding vertical penetrations such as building stairs, fire
towers, elevator shafts, flues, vents, stacks, pipe shafts, and vertical
ducts, plus Tenant's proportionate share of common areas, such as building
and elevator lobbies, corridors, restrooms, mechanical rooms, telephone and
electrical closets and service areas within the Building. No deductions
from Rentable Area shall be made for columns or projections necessary to
the Building. Vertical penetrations which are for the specific use of
Tenant, such as special stairs or elevators, shall be included as Rentable
Area.
(b) Rentable Area for a partial floor shall include all space within the
demising walls (measured from the midpoint of demising walls, and, in the
case of exterior walls, measured as defined in Section 3.09(a) above), plus
Tenant's proportionate share of common areas, such as building and elevator
lobbies, corridors, restrooms, mechanical rooms, telephone and electrical
closets and service areas within the Building.
(c) The parties agree that for the purposes of this Lease the Rentable Area
of the Premises is 129,775 square feet, subject to confirmation after the
completion of construction.
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Article IV. USE AND SERVICES
4.01 Use of Premises. Tenant shall use the Premises only for general
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office purposes (including the railroad car "museum" proposed for the site) and
for no other purpose whatsoever. Tenant shall not overload, damage, or deface
the Premises or do any act which may make void or voidable any insurance on the
Premises or the Building or which may render an increased or extra premium
payable for insurance.
4.02 Lawful Use. Tenant shall comply with all federal, state, and
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municipal laws and ordinances relating to the use or occupancy of the Premises
by Tenant or any condition of the Premises created by or attributable to Tenant.
Tenant shall not occupy or use the Premises for any business or purpose which is
unlawful, disreputable, or deemed to be hazardous on account of fire, or permit
anything to be done by Tenant, its employees, contractors, licensees or agents
which will in any way increase the rate of fire insurance coverage on the
Building and/or its contents.
4.03 Rules and Regulations of Building. Tenant shall comply with the
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Rules and Regulations of the Building with respect to safety, care, cleanliness,
parking and preservation of good order in the Building that Landlord may
reasonably establish from time to time for all tenants of the Building and shall
be consistent with any of the express terms of this Lease. Such rules and
regulations shall apply uniformly to all Tenants and occupants of the Building.
Landlord shall not be liable to Tenant for any failure of any other tenants of
the Building to comply with such Rules and Regulations, but Landlord will
diligently use all legal means to enforce the Rules and Regulations for all
tenants.
4.04 Services to be Provided by Landlord.
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(a) Landlord agrees to make available to Tenant at all times
electricity for general office uses only (but not more than the design
capability standards set forth below), elevator service and security
service, and to provide janitorial service on a five (5) day week
basis. Landlord agrees to furnish Tenant with hot, cold and
refrigerated water, heating and refrigerated air conditioning in
season, at temperatures considered standard for first class office
buildings or as determined by governmental edict. Tenant shall have
access to the Premises and the Garage twenty four (24) hours per day,
seven (7) days per week. Landlord shall not be liable in damages or
otherwise for failure, stoppage, or interruption of any such service,
nor shall the same be construed as an eviction of Tenant, work an
abatement of rent, or relieve Tenant from any covenant herein. In the
event of any failure, stoppage, or interruption thereof, Landlord
shall use reasonable diligence to resume services promptly.
(b) Design capabilities of the heating, cooling and electrical systems
are based upon and limited to the following:
(i) The Tenant's occupancy does not exceed one (1) person for
each one hundred (100) square feet of Rentable Area.
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(ii) The total connected electrical load does not exceed seven
(7) xxxxx per square foot of area within the Premises for all
purposes including lighting and power. Tenant shall have the
right to increase the designed electrical load at its expense as
a part of its tenant finish costs.
(iii) The proper use of blinds to control sun load.
4.05 Extraordinary Equipment. Without the prior written consent of
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Landlord, which consent shall not be unreasonably withheld or delayed, and
Tenant's written agreement to pay additional costs, Tenant shall not install or
maintain any apparatus or device which will increase the usage of electrical
power, water, or gas for the Premises to an amount greater than would be
required for normal general office use for space of comparable size.
Article V. IMPROVEMENTS, ALTERATIONS MAINTENANCE AND REPAIRS
5.01 Improvements. Initial Tenant improvements to the Premises shall be
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installed in accordance with the Work Letter attached hereto as Exhibit B and
made a part hereof.
5.02 Alterations. No alterations, additions or improvements to the
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Premises shall be made without first having the Landlord's prior written
consent, which consent shall not be unreasonably withheld or delayed. No such
alterations, additions or improvements shall interfere with or damage the
mechanical or electrical systems or the structure of the Building. Landlord
shall have the right to approve all window treatments in the Premises. Nothing
herein is meant to interfere with Tenant's ability to control the floor layout
in the Premises. Any alterations, additions or improvements consented to by the
Landlord shall be made at Tenant's sole expense. Tenant shall obtain any and all
governmental permits, approvals, or authorizations required in connection with
any such work, and Landlord shall cooperate with Tenant for such purposes, and
Tenant shall hold Landlord harmless from and against all liability, costs,
damages, expenses (including attorneys' fees) and liens resulting therefrom. All
alterations (expressly excluding all trade fixtures, office furniture systems,
security systems, appliances and equipment), shall become the property of the
Landlord upon termination of this Lease. Such property which does not become the
property of Landlord shall remain the property of Tenant, and Tenant shall have
the right to remove such property from the Premises. Tenant agrees to indemnify
and hold Landlord harmless against and from all claims for mechanic's,
materialmen's or other liens in connection with any alterations, additions or
improvements made by Tenant to which Landlord may give its consent.
5.03 Liens. Tenant shall not permit any mechanic's, materialmen's, or
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other liens to be fixed against the Premises, the Building, or the Land and
agrees immediately to discharge (either by payment or by filing of the necessary
bond, or otherwise) any mechanic's, materialmen's, or other lien which is
allegedly fixed or placed against any of the foregoing as a result of work
ordered or authorized by Tenant; provided, however, that Tenant shall have the
right to contest such liens in good faith if Tenant, not later than thirty (30)
days after receiving notice of such liens, provides assurance
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reasonably satisfactory to Landlord that no portion of the Premises, the
Building or the Land shall be sold or otherwise utilized to satisfy such lien.
Satisfactory assurances shall be deemed to include a letter of credit or a
surety bond furnished by Tenant to Landlord in an amount equal to one hundred
twenty-five percent (125%) of the claimed lien, the proceeds of which shall be
available to Landlord to satisfy such lien if Tenant fails to contest such lien,
including appeals, in a manner which prevents the Premises, the Building and the
Land from being sold or otherwise utilized to satisfy such lien.
5.04 Maintenance and Repairs.
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(a) (A) Landlord shall provide for the cleaning and maintenance of the
Building and all Building systems, the Garage, the Common Area and the
Land, including planting and landscaping surrounding the Building and
the structural, electrical and mechanical components of the Building,
the Garage and all exterior components of the Building and the Garage,
in keeping with the usual standard for first class office buildings.
If and to the extent requested by Tenant, Landlord shall, at Tenant's
cost, also provide cleaning and maintenance services for the Premises.
Except as so requested and paid for by Tenant, Landlord shall not be
required to maintain or repair any non-building standard or special
tenant improvements in or about the Premises, and there will be an
additional charge to Tenant for the cleaning of such items as carpet,
blinds, drapes, and wall coverings by Landlord.
(b) The first installation of building standard electric light lamps
will be made by the Landlord. Thereafter, the Tenant shall pay
promptly to Landlord the installed cost of all electrical lamps,
starters and ballasts used on the Premises; provided, however, that
Tenant shall have the right, at its option, to provide such materials
and service for itself or through a contractor it selects.
(c) Tenant shall keep and maintain the Premises in good repair and
condition, reasonable wear and tear excepted. Tenant shall not commit
or allow any waste or damage to be committed on any portion of the
Premises or the Building by Tenant, its employees, contractors,
licensees or agents. If and to the extent such costs are not paid by
Landlord's insurance, Tenant shall pay to Landlord the full cost to
repair or replace any damage or injury done to the Building or any
part thereof caused by Tenant, its agents, employees, invitees, or
visitors; provided, however, that Tenant shall not be liable for any
such costs if not paid for by Landlord's insurance because of
Landlord's failure to maintain insurance in accordance with the
requirements of this Lease.
5.05 Landlord's Access. Landlord and Landlord's mortgagee(s) shall have
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the right at all reasonable times during the Term, after providing reasonable
advance notice to Tenant, to enter the Premises to inspect the condition
thereof, to determine if Tenant is performing its obligations under this Lease,
to perform the services or to make the repairs and restoration that Landlord is
obligated or elects to perform or furnish under this Lease, to make repairs to
adjoining space, to cure any defaults of Tenant hereunder that Landlord elects
to cure, and to remove from the Premises any improvements
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thereto or property placed therein in violation of this Lease, and upon
reasonable notice during the last six (6) months of the term of this Lease, if
not extended by Tenant, to show the Premises to prospective new tenants of the
Building. Landlord shall not exercise any of its rights under this section in
any manner which unreasonably interferes with Tenant's operations or which
conflicts with any practices or procedures established by Tenant to protect the
security or confidentiality of its business.
Article VI. INSURANCE
6.01 Landlord's Insurance. Landlord shall, at all times during the term
--------------------
of this Lease, keep in effect, insurance on the Building and the Garage against
loss by fire, the risks covered by what is commonly known as "all risk",
malicious mischief and vandalism, in an amount equal to the full replacement
value of such buildings and improvements, but not less than that required from
time to time by Landlord's mortgagee. The policy or policies evidencing such
insurance shall be written by a company or companies of recognized standing and
satisfactory to Landlord and to Landlord's mortgagee and authorized to do
business in the state where the Premises are located, and shall provide that
losses shall be paid to the insureds as their respective interest may appear. A
mortgage clause may be included in said policies covering Landlord's mortgagee;
provided, however, that the inclusion of such clause shall not impair any of
Tenant's rights under this Lease. Landlord shall also maintain commercial
general liability insurance and including broad form contractual liability
coverage, and workers' compensation and employer's liability insurance, all
providing coverage consistent with industry practices in the Kansas City,
Missouri downtown area for Class A office buildings. Said policies shall further
provide that the same shall not be canceled or altered except upon not less than
thirty (30) days prior written notice to Tenant and to mortgagee. Certificates
confirming such coverage and copies of such policies, as and when requested by
Tenant, shall be deposited with Tenant. Tenant shall have the right to request
additional or different insurance coverage, and in such event Tenant shall pay
to Landlord any additional premium cost which is attributable thereto.
6.02 Tenant's Insurance. Tenant covenants and agrees that it will at
------------------
all times during the term hereof, at its own expense, carry and maintain (or
cause to be carried and maintained) with insurers reasonably satisfactory to
Landlord, policies of insurance as follows:
(a) Commercial general liability insurance naming Tenant as the
insured, and Landlord and Landlord's mortgagee as additional insureds
thereunder, providing coverage of at least $1,000,000 combined single
limit coverage per occurrence and aggregate coverage. Such commercial
general liability insurance shall also include within its coverage,
but shall not be limited to, the following:
(i) Property damage insurance for liability or damage which may
result from any accident or casualty whereby property of any
xxxxxxx, agent, employee or other person or persons whomsoever
may be damaged or destroyed (excluding care, custody and control
of property and equipment owned or controlled by persons other
than employees of Tenant); and
12
(ii) Contractual liability endorsement insuring and covering
Tenant's contractual liability hereunder to indemnify Landlord,
et al., as provided in Section 6.04.
(b) Workmen's Compensation and Employer's Liability Insurance to the
extent of the required statutory limits.
(c) Blanket all risk property coverage including business interruption
insurance in an amount sufficient to satisfy all co-insurance
requirements of the policies providing such coverage.
(d) All insurance to be furnished by Tenant shall be carried in
companies reasonably satisfactory to Landlord, and certificates of
insurance with respect to the issuance of such insurance policies, and
with respect to the fact that the same are in full force and effect,
shall promptly be delivered to Landlord together with proof that all
premiums thereon have been duly paid. All such policies of insurance
shall provide that no cancellation or change of coverage will be made
without at least thirty (30) days prior written notice to Landlord and
to Landlord's mortgagee. Certificates confirming such coverage and
copies of such policies, as and when requested by Landlord, shall be
deposited with Landlord which may deposit the same with its mortgagee.
(e) In the event that Tenant shall fail to obtain or renew any of the
insurance provided for in this Section, Landlord shall have the right
at its election (but without being obligated so to do) to procure or
renew the same after giving not less than ten (10) days' prior written
notice to Tenant; and the amount or amounts paid therefor shall become
so much Additional Rent under the terms hereof, due and payable with
the next succeeding installment of Base Rental due hereunder.
(f) Notwithstanding the foregoing and for so long as Tenant is
reasonably financially responsible, Tenant shall have the right to
self insure its general liability coverage so long as such coverage is
administered in accordance with reasonable practices and procedures
similar to those followed by other self insurers.
6.03 Waiver of Subrogation and Release. Notwithstanding any other
----------------------------------
provision in this Lease to the contrary, each of Landlord and Tenant hereby
releases the other, and each of their agents, directors, officers, members,
employees and invitees, from any and all liability or responsibility (to the
other or anyone claiming through or under them by way of subrogation or
otherwise) for any loss or damage to property caused by fire or any of the all
risk coverage casualties, to the extent of insurance proceeds either realized by
the releasing party as a result of such loss or damage or which would have been
realizable by the releasing party if the releasing party had in effect all
insurance coverage such party is required to maintain pursuant to the terms of
the Lease, even if such fire or other casualty shall have been caused by the
fault or negligence of the other party, or anyone for whom such party may be
responsible. Landlord and Tenant agree that their policies of insurance will
include such a clause or endorsement; provided, however, that in no event shall
any such release be applicable if (i) doing so
13
would work in contravention of any requirement in any applicable policy of
insurance to the effect that if the insured waives subrogation, coverage is or
may be void and (ii) the party insured under such policy has provided written
notice to the other party to this Lease of such policy requirement and such
other party has been unable to locate, within ten (10) days after the date the
insured party gives such notice, an insurer reasonably acceptable to the insured
party which is willing to issue, at a rate not more than the rate for the
coverage otherwise available to the insured, to the insured party a substitute
policy providing substantially similar coverage but without a similar
requirement regarding waiver of subrogation.
6.04 Indemnity by Tenant. Tenant hereby indemnifies and agrees to hold
-------------------
Landlord and Landlord's agents, directors, officers, employees, invitees, and
contractors, against and from all claims, losses, costs, damages, or expenses
(including, but not limited to, reasonable attorneys' fees) resulting from or
arising from any and all injuries or death of any person or damage to the extent
caused by any act, omission, or neglect of Tenant or Tenant's directors,
officers, employees, agents, invitees, or guests, or any parties contracting
with Tenant relating to the Premises. The provisions of this Section are subject
to the waiver of subrogation and release provided for in Section 6.03.
6.05 Indemnity by Landlord. Landlord hereby indemnifies and agrees to
---------------------
hold Tenant and Tenant's agents, directors, officers, employees, invitees, and
contractors, harmless against and from all claims, losses, costs, damages, or
expenses (including, but not limited to reasonable attorneys' fees) resulting
from or arising from any and all injuries or death of any person or damage to
the extent caused by any act, omission, or neglect of Landlord or Landlord's
directors, officers, employees, agents, invitees, or guests, or any parties
contracting with Landlord relating to the Building or the Land. The provisions
of this Section are subject to the waiver of subrogation and release provided
for in Section 6.03.
Article VII. CASUALTY
7.01 Fire or Other Casualty. Subject to the provisions hereof, damage
----------------------
to or destruction of any portion of any of the Building or the Premises or the
fixtures and equipment therein by fire, or other casualty, or any
untenantability of the Premises resulting therefrom, shall not terminate this
Lease or entitle Tenant to surrender the Premises. In the event of any such
damage to or destruction of any portion of the Premises, Tenant shall
immediately notify Landlord. Within thirty (30) days after its receipt of notice
of such damage or destruction to the Premises or after any other substantial
damage to or destruction of any part of the Building, the Common Area or the
Garage, Landlord shall notify Tenant of the length of time that Landlord
reasonably estimates will be required to repair or restore the property
affected. In the event that such estimated length of time is greater than one
hundred eighty (180) days from the date Landlord provides the estimate to
Tenant, Landlord and Tenant thereafter shall each have the right to terminate
this Lease by written notice to the other within thirty (30) days following
Landlord's notice of such estimated length of time for repair or
14
restoration. Within forty-five (45) days after its receipt of notice from Tenant
of such damage or destruction to the Premises, or within forty-five (45) days
after the occurrence of any such damage or destruction to the Building, the
Common Area or the Garage, Landlord shall notify Tenant whether insurance
proceeds are available for restoration and repair, and if not, whether other
sources of funds are available to Landlord for such restoration and repair. If
such proceeds or funds are not available, then Landlord and Tenant shall each
have the right to terminate this Lease by written notice given to the other
within thirty (30) days following Landlord's notice that funds are not
available. In the event that the Lease is not terminated by either Landlord or
Tenant within such thirty (30) day periods, Landlord, subject to the rights of
any mortgagee, shall proceed with due diligence to collect the proceeds of any
available insurance, and promptly and diligently shall restore the Premises or
other property affected including damage, if any, to the Garage and Common Area,
to substantially as good condition and of not less value and utility than
immediately prior to the casualty. For purposes hereof, "force majeure" shall
mean an act of God, strike, lock-out or other labor dispute, war, invasion,
insurrection, riot, natural disaster, civil disturbance, inability to obtain
supplies or services not within Landlord's reasonable control, act or restraint
of any governmental body or authority, or any other matter beyond Landlord's
reasonable control. During any period of time that all or any portion of the
Premises or the Garage are untenantable or inaccessible to Tenant, rent shall
xxxxx in the same proportion as the untenantable or inaccessible portions of the
Premises bears to the entire Premises and parking fees and the Parking
Supplement relating to (i) in the case of damage or destruction to the Garage,
the parking spaces affected or (ii) the number of parking spaces corresponding
to the proportion of the Premises to which abatement applies, shall be abated.
Landlord shall not be responsible to Tenant for damage to, or destruction of,
any furniture, equipment, improvements or other changes made by Tenant in, on,
or about the Premises regardless of the cause of the damage or destruction.
Notwithstanding anything in the foregoing to the contrary, if such damage or
destruction occurs during the last twenty-four (24) months of the Lease term,
Landlord shall have no obligation to repair or restore the Premises.
Article VIII. EMINENT DOMAIN
8.01 Eminent Domain. In the event the whole or any portion of the
--------------
Premises, or any portion of the Building or the Garage, shall be taken or
condemned for a public or quasi-public use or purpose by any competent authority
and Tenant notifies Landlord in writing of Tenant's good faith determination
that, as a result thereof, the Premises or the balance of the Premises is not
sufficient for Tenant's purposes, then and in either of such events, the term of
this Lease shall terminate when possession of the whole or portion of the
Premises, Garage or Building shall be required for such use or purpose, and any
award, compensation or damages (hereinafter sometimes called the "award"), shall
be paid to and be the property of Landlord. In the event only a part of the
Premises, Garage or Building shall be taken or condemned for a public or
quasi-public use or purpose by any competent authority, and as a result thereof
the Premises or the balance of the Premises continues to be sufficient for
Tenant's purposes, this Lease shall not terminate and Landlord, subject to the
rights of any mortgagee, shall promptly repair
15
and restore the Premises, the Garage or the Building, as the case may be. Any
award paid as a consequence of such taking or condemnation, shall be paid to
Landlord and be applied to the cost of said repairing and restoration. Any sums
remaining after such application shall be paid to Landlord. Rent shall xxxxx
during such period of time that the Premises or Garage are untenantable or
unavailable to Tenant, in the same proportion as the untenantable or
inaccessible portions of the Premises bears to the entire Premises and parking
fees and the Parking Supplement relating to (i) in the case of a taking
affecting the Garage, the parking spaces affected or (ii) the number of parking
spaces corresponding to the proportion of the Premises to which abatement
applies shall be abated. Nothing herein shall preclude Tenant from seeking and
obtaining a separate award from the condemning authority for the value of its
leasehold improvements and the loss of its leasehold estate, so long as such
separate award does not directly or indirectly reduce the amount of the award
payable to Landlord.
Article IX. DEFAULT
9.01 Default. If Tenant shall default in the payment of any installment
-------
of Base Rental or Additional Rental or the payment of other amounts due under
this Lease, and if such default continues for ten (10) days after receipt of
written notice thereof from Landlord to Tenant, or in the performance or
observance of any of Tenant's other covenants, agreements, or obligations
hereunder and if such default continues for thirty (30) days after written
notice thereof from Landlord to Tenant or if such default cannot be cured within
such thirty day period, if Tenant within such period fails to begin the
correction thereof or thereafter fails to diligently pursue such correction to
its completion or if any proceeding is commenced by Tenant for the purpose of
subjecting the assets of Tenant to any law relating to bankruptcy or insolvency
or for any appointment of a receiver of Tenant or of any of Tenant's assets, or
if any such proceeding is commenced against Tenant and not dismissed within
sixty (60) days thereafter, or if Tenant makes a general assignment of Tenant's
assets for the benefit of creditors, then, in any such event, Landlord may,
without process, reenter immediately into the Premises and remove all persons
and property therefrom, and at its option, terminate this Lease as to all future
rights of Tenant and have, regain, repossess, and enjoy the Premises after
reentry or after judgment for possession thereof. If Landlord elects to
terminate this Lease, all obligations herein contained on the part of Landlord
to be done and performed shall cease, but without prejudice to the right of
Landlord to recover from Tenant all past or future rentals and damages. The
Premises may be relet by Landlord for such rent and upon such terms as Landlord
in its sole discretion may determine and Tenant shall be liable for all damages
sustained by Landlord, including, without limitation, deficiency in rent,
reasonable attorneys' fees, and expenses of placing the Premises in first class
rentable condition and expenses of renting same including, but not limited to,
payment of brokerage fees. The provisions contained in this Section shall be in
addition to and shall not prevent the enforcement of any claim Landlord may have
against Tenant for anticipatory breach of the unexpired term of this Lease. Any
and all reasonable attorneys' fees and costs of collection incurred by Landlord
in the enforcement of the terms or provisions of this Lease shall be payable by
Tenant, and the amount of such costs shall be deemed Additional Rental and
shall, upon notice by Landlord given at any time prior to and including the
service of notice of any legal
16
action, be immediately due hereunder. In the event Landlord shall commence legal
action, or any unlawful detainer proceeding or other summary proceeding for
collection of rent due hereunder, said Additional Rent shall be deemed a past
due obligation to pay rent in connection with said proceeding. Landlord shall
have a right to commence one or more actions to enforce the terms of this
Section and the commencement and prosecution of one action shall not be deemed a
waiver or an estoppel from commencing one or more actions from time to time in
the future. All rights and remedies of Landlord under this Lease shall be
cumulative and shall not be exclusive of any other rights and remedies provided
to Landlord under applicable law.
9.02 Landlord's Right to Cure Defaults. If Tenant defaults in the
---------------------------------
observance or performance of any of Tenant's covenants, agreements, or
obligations hereunder wherein the default can be cured by the expenditure of
money, Landlord may, after reasonable notice to Tenant, but without obligation,
and without limiting any other remedies which it may have by reason of such
default, cure the default, charge the cost thereof to Tenant, and Tenant shall
pay the same forthwith upon demand, as Additional Rent, together with interest
thereon at the rate set forth in Section 3.05 of this Lease. In case the
Landlord or Tenant prevails in any suit or arbitration proceeding to defend or
prosecute under the terms of this Lease, there shall be allowed by the
prevailing party, to be included in any judgment recovered, reasonable
attorneys' fees and other costs to be fixed by the court.
Article X. PRIORITY AND ESTOPPEL CERTIFICATES
10.01 Lease Subordination. Landlord may cause this Lease to be made
-------------------
subject and subordinate to all mortgages, deeds of trust, and restrictions which
may now or hereafter affect the Building, and to all renewals, modifications,
consolidations, and extensions thereof so long as the holder of such superior
interest agrees that so long as Tenant observes and performs its obligations
under this Lease, its rights hereunder shall not be disturbed. For confirmation
of such subordination, Tenant shall execute promptly a subordination agreement
requested by Landlord in such form and content as may be reasonable in view of
the circumstances. So long as Tenant shall faithfully discharge the obligations
on its part to be kept, this Lease shall not be affected by any default under
such mortgage, deeds of trust, or restriction and in the event of foreclosure or
enforcement thereof, the rights of Tenant hereunder shall survive, and if
requested to do so by such mortgagee or other owner of a superior interest,
Tenant shall attorn to such prior holder, its successors and assigns, and this
Lease shall in all respects continue in full force and effect, provided,
however, that Tenant fully performs all of its obligations hereunder. Landlord
agrees to secure for Tenant a written nondisturbance agreement from each owner
of any such superior interest, in form and content reasonably acceptable to
Tenant, which agreement shall be delivered to Tenant not later than the
Commencement Date of this Lease or such later date as such superior interest
shall arise.
10.02 Estoppel Certificates. Tenant agrees, at any time and from time
---------------------
to time, upon not less than twenty (20) days prior written notice by Landlord,
to execute, acknowledge and deliver to Landlord or a party designated by
Landlord, including Land-
17
lord's mortgagee, a statement in writing (i) certifying that this Lease is
unmodified and in full force and effect or if there have been modifications,
that the Lease is in full force and effect as modified and stating the
modifications, (ii) stating the dates to which the rent and other charges
hereunder have been paid by Tenant, (iii) stating whether or not Landlord is in
default in the performance of any covenant, agreement or condition contained in
this Lease, and, if so, specifying each such default of which Tenant may have
knowledge, and (iv) stating the address to which notices to Tenant should be
sent, (v) agreeing that Tenant shall not encumber or assign or sublease any
portion of the Premises without the written consent of Landlord, except as
otherwise permitted under the terms of this Lease, which consent shall not be
unreasonably withheld or delayed, and (vi) agreeing that Tenant shall not prepay
any rent more than thirty (30) days in advance. Any such statement delivered
pursuant hereto may be relied upon by any owner of the Building, any mortgagee,
any prospective purchaser of the Building or of Landlord's interest, or any
prospective assignee of any mortgagee.
10.03 Notice to Mortgagee. If so requested by Landlord, Tenant agrees
-------------------
to give any mortgagee or trust deed holders by certified mail, a copy of any
Notice of Default served upon the Landlord, provided that prior to such notice,
Tenant has been notified, in writing (by way of Notice of Assignment of Rents
and Leases, or otherwise), of the address of such mortgagees and trust deed
holders. Such mortgagee and trust deed holder shall have the same right to cure
the defaults of Landlord hereunder as Landlord has under the terms of this
Lease.
Article XI. SURRENDER AT END OF TERM
11.01 Tenant to Surrender Premises in Good Condition. Upon the
----------------------------------------------
expiration or termination of the Lease Term, Tenant shall, at its expense:
(a) Remove Tenant's goods and effects and those of all persons
claiming under Tenant.
(b) Quit and deliver up the Premises to Landlord, peaceably and
quietly, in as good order and condition as the same were in on the
date the Lease Term commenced or were thereafter placed in by
Landlord, reasonable wear and tear excepted.
(c) Any property left in the Premises after the expiration or
termination of the Lease Term shall be deemed to have been abandoned
and the property of Landlord to dispose of as Landlord deems
expedient.
11.02 Holding Over. If with Landlord's written consent Tenant remains
------------
in possession of the Premises after the expiration or other termination of the
Term, Tenant shall be deemed to be occupying the Premises on a month-to-month
tenancy at a rental rate as stated in the written consent. Such month-to-month
tenancy may be terminated by Landlord or Tenant on the last day of any calendar
month by delivery of at least thirty (30) days advance notice of termination to
the other. If without Landlord's written consent Tenant remains in possession of
the Premises after the expiration or other
18
termination of the Term, Tenant shall be deemed to be occupying the Premises
upon a tenancy at sufferance at monthly rental equal to one and one-half (1 1/2)
times the rent determined in accordance with Section 3 hereof.
Article XII. MISCELLANEOUS
12.01 Notices. Each notice required or permitted to be given hereunder
-------
by one party to the other shall be in writing with a statement therein to the
effect that notice is given pursuant to this Lease and the same shall be given
and shall be deemed to have been delivered, served, and given if delivered in
person or placed in the United States Mail, postage prepaid, by United States
registered or certified mail, addressed to such party at the address provided
for such party herein. Any notices shall be addressed and given as follows:
If to Landlord:
Broadway Square Partners, LLP
c/o DST Realty, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: President
If to Tenant:
The Kansas City Southern Railway Company
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: President
(a) Prior to the Commencement Date, the address for notices to Tenant
shall be the address set forth above for Tenant; after the
Commencement Date, the address for Tenant shall be the Premises. The
addresses stated above shall be effective for all notices to the
respective parties until written notice of a change in address is
given.
12.02 Choice of Law and Integration. There are no understandings or
-----------------------------
agreements concerning the occupancy of the Premises by Tenant not incorporated
in this Lease. This is a Missouri contract and shall be construed according to
the laws of the State of Missouri. The captions in this Lease are for
convenience only and are not a part of this Lease. The covenants and agreements
hereof shall as fully and completely bind the heirs, executors, administrators,
legal representatives, successors, and assigns of the parties hereto as if they
had been specifically mentioned in each of said covenants and agreements. Any
rider or exhibit attached to this Lease shall become a part of this Lease with
the same force and effect and in the same manner as if all the provisions
therein mentioned were actually included herein.
19
12.03 Waiver of Covenants. Failure of Tenant to insist, in any one or
-------------------
more instances, upon strict performance of any term, covenant, or condition of
this Lease, or to exercise any option herein obtained, shall not be construed as
a waiver, or a relinquishment for the future, of such term, covenant, condition,
or option, but the same shall continue and remain in full force and effect.
Similarly, failure of Landlord to insist, in any one or more instances, upon
strict performance of any term, covenant, or condition of this Lease, or to
exercise any option herein obtained, shall not be construed as a waiver, or a
relinquishment for the future, of such term, covenant, condition, or option, but
the same shall continue and remain in full force and effect. The receipt by
Landlord of rents with knowledge of a breach in any of the terms, covenants, or
conditions of this Lease to be kept or performed by Tenant shall not be deemed a
waiver of such breach, and neither party shall be deemed to have waived any
provision of this Lease unless expressed in writing and signed by such party.
12.04 Commissions. Landlord and Tenant each represents and warrants to
-----------
the other that there are no claims for brokerage commissions or finder's fees in
connection with the execution of this Lease. Tenant agrees to indemnify the
Landlord against and hold it harmless from all liabilities and claims of all
brokers and sales representatives claiming by, through or under Tenant. Landlord
shall indemnify Tenant and hold it harmless from all liabilities and claims of
all brokers and sales representatives claiming by, through or under Landlord.
12.05 Assignment and Subletting. Tenant shall not have the right to
-------------------------
assign this Lease or sublet all or any part of the Premises without the express
written consent of the Landlord, which shall not be unreasonably withheld or
delayed. No assignment or subletting permitted by the Landlord shall relieve the
Tenant of liability hereunder, but Tenant shall require each such assignee to
assume and agree to perform and observe all of the Tenant's obligations
hereunder. Notwithstanding the foregoing, and after the earlier of (i) the
closing of Landlord's loan for the permanent financing on the Building or (ii)
twelve (12) months from and after the Commencement Date, no consent of Landlord
shall be required with respect to any assignment of this Lease or any interest
in this Lease or any sublease of all or any portion of the Premises so long as
Landlord shall receive notice thereof plus reasonable evidence within thirty
(30) days after closing that the transaction is in fact one of the following:
(a) Any assignment or sublease to an entity succeeding to the business
and assets of Tenant, whether by way of merger or consolidation or by
way of acquisition of all or substantially all of the assets of
Tenant, provided that the acquiring or surviving entity agrees to
become directly obligated under this Lease;
(b) Any assignment or sublease to an entity which is either the parent
of Tenant, controlled by Tenant ("control" for purposes hereof meaning
ownership of 50% or more of all financial interests and 50% or more of
the voting interests) or controlled directly or indirectly by the same
entity which directly or indirectly controls Tenant; or
20
(c) Any assignment or sublease to a partnership, limited liability
company or joint venture in which Tenant, or an entity described in
items (1) or (2) above, is a bona fide partner, member or joint
venturer and owns an interest therein of at least fifty percent (50%).
12.06 Quiet Possession. Landlord agrees that Tenant, upon payment of
----------------
the Base Rental and Additional Rental and observing and keeping the covenants of
this Lease on its part to be kept, shall lawfully, peaceably and quietly hold,
occupy and enjoy said Premises as space in a first class office building, during
said term without hindrance or molestation by Landlord or any person or persons
lawfully claiming under Landlord.
12.07 Light and Air. Tenant has no right to light or air over any
-------------
premises adjoining the Building.
12.08 Further Assurances. The parties agree to execute such documents
------------------
as may be required to conform the legal description of the Land and the Common
Area to a final recorded plat and the locations and configurations illustrated
on the attached drawings.
IN WITNESS WHEREOF, the undersigned Landlord and Tenant have executed
this instrument as of the day and year first above written.
BROADWAY SQUARE PARTNERS, THE KANSAS CITY SOUTHERN RAILWAY
LLP, a Missouri limited liability COMPANY, a Missouri corporation
partnership
By: DST Systems, Inc., a Delaware
corporation, a partner
By: /s/ X.X. Xxxxxxx
-------------------------------
By: /s/ Xxxxxxx Xxxxx
--------------------------------
By: SCOL, Inc., a Missouri corporation,
a partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
21
EXHIBIT A
TO
LEASE AGREEMENT
---------------
All of the rentable area in the Building.
22
EXHIBIT A-1
TO
LEASE AGREEMENT
---------------
Description of the Land
-----------------------
[Insert legal description of the Land.]
23
EXHIBIT B
TO
LEASE AGREEMENT
---------------
WORK LETTER
Landlord's Work and Tenant's Work. Landlord agrees to complete the so-called
---------------------------------
building "shell" in full compliance with all applicable codes and requirements,
including, without limitation, the Americans with Disabilities Act. All work
required for the completion of the Premises that is not Landlord's Work shall be
"Tenant's Work." Tenant's Work shall include the installation of all tenant
improvements to the Premises. The parties estimate that the cost of the tenant
improvements will not be less than $30 per square foot of rentable area.
Completion of Tenant's Plans and Specifications. Tenant shall cause the plans
-----------------------------------------------
and specifications for the Tenant's Work to be completed and delivered to
Landlord no later as soon as reasonably possible from and after the date hereof.
Completed plans and specifications must be approved by Landlord, but such
approval shall not be unreasonably withheld or delayed. All of Tenant's Work
shall be in full compliance with all applicable codes and requirements,
including without limitation the Americans with Disabilities Act.
Completion of the Building. Landlord shall use all due diligence to expedite the
--------------------------
completion of the Building on a schedule that will allow Tenant's contractor to
complete Tenant's Work as soon as reasonably possible. Landlord shall allow
reasonable access to and the use of loading docks, loading areas, elevators and
hoists so that Tenant and its contractors may complete Tenant's Work. For the
purposes hereof, the Building shall be deemed to have been completed by
Landlord, subject to correction and completion of "punch list" items, upon the
issuance of a certificate of occupancy for the Building shell. Subject to the
terms and conditions of this Lease, if and to the extent such completion is
delayed, the Commencement Date shall be delayed accordingly. At the time that
Landlord is prepared to provide access to Tenant's contractor for commencement
of Tenant's Work, and again at the time Landlord is prepared to deliver
possession of the Premises to Tenant for occupancy, Landlord shall give written
notice to Tenant of the availability of the Premises for commencement of
Tenant's Work or for occupancy, as the case may be.
Pre-Commencement Occupancy. In the event Tenant occupies the Premises prior to
--------------------------
the Commencement Date, such occupancy shall be subject to all of the terms,
covenants and conditions of this Lease, except the payment of rent; provided,
however, that Tenant shall nevertheless pay for all utilities used by Tenant or
by Tenant's agents, contractors and employees. Landlord shall provide access to
Tenant's contractor at least one hundred twenty (120) days prior to the
projected Commencement Date for purposes of completion of Tenant's Work.
Landlord's contractor shall be responsible to
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coordinate the work of Landlord's contractor and Tenant's contractor to
facilitate the timely completion of Tenant's Work. Use or occupancy of the
Premises by Tenant or Tenant's contractor for the purpose of completing Tenant's
Work shall not constitute acceptance of possession or occupancy by Tenant for
any purpose under this Lease.
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WORK LETTER
SCHEDULE B-1
The "Landlord's Work" shall mean the following:
The Building. Landlord shall construct, or cause to be built, a five
------------
(5)-story office building containing approximately 130,000 square feet
of rentable area.
The Parking Garage. Landlord shall construct, or cause to be built, an
------------------
attached, structured parking facility below the Building that shall
contain not less than 800 parking spaces.
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FIRST AMENDMENT TO
LEASE AGREEMENT
---------------
AGREEMENT dated this 26th day of March, 2002, by and between BROADWAY
SQUARE PARTNERS, LLP, a Missouri limited liability partnership, having its
principal office at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000,
("Landlord"), and THE KANSAS CITY SOUTHERN RAILWAY COMPANY, a Missouri
corporation, with an address of 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx
00000 ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant are parties to that certain Lease
Agreement dated June 26, 2001 (the "Lease"), and due to a mutual mistake of fact
with respect to the term of the Lease, the parties now wish to correct the Lease
to provide for an initial term of seventeen years, so that it will conform to
the terms contained in the Letter of Intent between the parties dated March 28,
2000.
WHEREAS, terms that are capitalized, but not defined, herein shall have
the same meanings given to such terms in the Lease.
NOW, THEREFORE, in consideration of the premises and the mutual terms,
covenants, and conditions herein contained, the legal sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Term. The parties hereby delete Section 2.01 of the Lease and insert
----
in lieu thereof a new Section 2.01, which shall provide as follows:
2.01 Term. Subject to and upon the terms and conditions set
----
forth in Section 2.02 and in the Work Letter attached hereto as Exhibit
B (the "Work Letter"), and in particular those relating to the
commencement and expiration of the term, the term of this Lease shall
begin on the Commencement Date set forth in Section 2.02 hereof (the
"Commencement Date") and shall end on the last day of the calendar
month during which the seventeenth anniversary of the Commencement Date
occurs.
2. Base Rental CPI Adjustment. In order that the periods of time for
--------------------------
the Base Rental CPI Adjustment will conform to the corrected term of the Lease,
the parties hereby delete Section 3.08 of the Lease and insert in lieu thereof a
new Section 3.08, which shall provide as follows:
3.08 Base Rental CPI Adjustment. The Base Rental shall be
--------------------------
increased, but not decreased, at the end of the fifth, tenth and
fifteenth years of this Lease by an amount equal to one-half the
increase in the Consumer Price Index. "Consumer Price Index" shall mean
the Consumer Price Index for All Urban
27
Consumers (CPI-U) of the Bureau of Labor Statistics of the United
States Department of Labor (United States City Average, All Items,
1982-84=100). In order to determine the increase in the Consumer Price
Index, the monthly index number for the calendar month during which the
Commencement Date occurs shall be compared with the monthly index
number of the calendar month of the fifth, tenth and fifteenth
anniversaries of the Commencement Date. If the index number for the
fifth, tenth and fifteenth anniversary months is not known on the
fifth, tenth and fifteenth anniversary dates, then Tenant shall pay to
Landlord a Base Rental amount which is based upon a reasonable estimate
of such index number and the parties shall make appropriate adjusting
payments when the actual number becomes known. Notwithstanding the
foregoing, for the purpose of applying the CPI adjustment factor in
order to compute the rent for lease years six through ten, the Base
Rent during years one through five shall be deemed to be [Redacted].
3. The Lease. Except as herein expressly provided, the Lease remains
---------
unchanged and in full force and effect.
IN WITNESS WHEREOF, the undersigned Landlord and Tenant have executed
this instrument as of the day and year first above written.
BROADWAY SQUARE PARTNERS, LLP, THE KANSAS CITY SOUTHERN RAILWAY
a Missouri limited liability COMPANY, a Missouri corporation
partnership
By: DST Systems, Inc., a Delaware
corporation, a partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
By: SCOL, Inc., a Missouri corporation,
a partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
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