EXHIBIT
10.29
MEADOWS CORPORATE CENTER
ST. LOUIS, MISSOURI
STANDARD SERVICE CENTER LEASE AGREEMENT
By and Between
THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY
As Landlord
And
LACKLAND ACQUISITION II, LLC
As Tenant
LEASE INDEX
i
ii
iii
iv
SERVICE CENTER LEASE
THIS
LEASE is made and entered into on this 28 day of
November 2001 between THE LINCOLN NATIONAL LIFE INSURANCE
COMPANY, an Indiana corporation, (“Landlord”) and
LACKLAND ACQUISITION II, LLC, a _____________limited liability
company, as (“Tenant”).
A RTICLE I - LEASED
PREMISES
1 .1
Demise of Leased Premises . Landlord, in
consideration of the rents and of the terms and conditions
hereinafter contained, does hereby lease to Tenant, and Tenant,
does hereby rent from Landlord the space containing approximately
30,705 rentable square feet (“Leased Premises”). The
Leased Premises is located in four (4) suites: Suite 1836A
containing approximately 8,139 rentable square feet, Suite 1836B
containing approximately 4,430 rentable square feet, Suite 1828
containing approximately 9,500 rentable square feet and Suite 1842
containing approximately 8,636 rentable square feet in the building
known as Meadows Corporate Center II (“Building”),
which is situated at Lackland Hills Parkway, St. Louis, Missouri
63146. The Building is located on the land described on Exhibit
“A” (“Property”) and the floor plans of the
Leased Premises are attached as Exhibit “B” and
incorporated by reference.
1 .2
Condition of Leased Premises . Tenant accepts the
Leased Premises in its “as is” condition except as
altered by the work to be performed by Tenant as described in
Exhibit “F” attached hereto and made a part hereof,
subject to all recorded matters, laws, ordinances, and governmental
regulations and orders. Tenant acknowledges that neither Landlord,
any employee of Landlord, Landlord’s property manager, or any
agent of Landlord has made any representation as to the condition
of the Leased Premises or the suitability of the Leased Premises
for Tenant’s intended use. The taking of possession of the
Leased Premises by Tenant shall be conclusive evidence that the
Leased Premises were in good and satisfactory condition and
suitable for the use intended by Tenant at the time such possession
was taken. Upon request by Landlord, Tenant shall execute a
commencement letter signifying such acceptance.
A RTICLE II - TERM
2.1
Term . The term of this Lease (the
“Term”) shall be for a period of seven (7) years (the
“Term”), commencing August 1, 2001 (the
“Commencement Date”) and ending on July 31, 2008 (the
“Expiration Date”), unless sooner terminated pursuant
to any provision hereof. Landlord and Tenant shall execute a
Certificate Affirming The Lease Commencement Date in the form
attached hereto as Exhibit “C”.
2.2
Delay in Occupancy . If for any reason Landlord
cannot deliver possession of the Leased Premises to Tenant on the
Commencement Date, Landlord shall not be subject to any liability
therefor, nor shall such failure affect the validity of this Lease
or the obligations of Tenant hereunder, except the Commencement
Date shall be delayed until possession of the Leased Premises
delivered to Tenant and the Term shall be extended for a period
equal to the delay in the delivery of the Leased
1
Premises, plus the number of days necessary to end the Term on
the last day of a month. In the event of any delay hereunder,
Landlord and Tenant shall execute and deliver an amendment hereto
setting forth the revised Commencement and Expiration
Dates.
2.3
Early Occupancy . If Tenant occupies the Leased
Premises prior to the Commencement Date, such occupancy shall be
upon all of the terms and conditions contained herein but shall not
advance the Expiration Date.
2.4
Option to Extend Term . Provided Tenant is not in
default in any of the terms, conditions or covenants of this Lease
either on the date Tenant gives Landlord the renewal notice
required herein or at the end of the initial Term of this Lease,
Landlord hereby grants to Tenant an option to renew this Lease for
one (1) five (5) year term. Such option to renew must be exercised
by giving written notice to Landlord at least one hundred eighty
(180) days prior to the termination of the initial Term of this
Lease, and once a notice to exercise is given it is irrevocable by
Tenant. If Tenant elects to exercise such renewal option, then such
renewal term shall be on the same terms and conditions as contained
in this Lease, except that Base Rental shall be the then prevailing
market rent for comparable office buildings in the St. Louis,
Missouri market.
The
“then prevailing market rent for comparable office buildings
in the St. Louis, Missouri rental market” means what a
landlord under no compulsion to lease the Leased Premises and a new
tenant under no compulsion to lease the Leased Premises would
determine as rent for the Extension Term, taking into
consideration, among other relevant matters, the use permitted
under the Lease, the quality, size, design and location of the
Leased Premises and the rental rates for similar space in the St.
Louis metropolitan market area. The parties shall endeavor in good
faith to agree on the Base Rent for the Extension Term within sixty
(60) days prior to the applicable renewal date. If Landlord and
Tenant are unable to agree on the Base Rent for the Extension Term
by such date, then the Base Rent shall be determined as hereinafter
provided. Within thirty (30) days prior to the renewal date,
Landlord and Tenant each shall appoint a licensed real estate
appraiser (who shall be a member of the American Institute of Real
Estate Appraisers) with experience in the area in which the Leased
Premises are located to determine the then prevailing market rent
of the Leased Premises. If either Landlord or Tenant does not
appoint a licensed appraiser, and such failure continues thereafter
for another ten (10) days after a second written notice from the
other, the single licensed appraiser appointed shall be the sole
licensed appraiser and shall set the then prevailing market rent of
the Leased Premises. If two (2) licensed appraisers are appointed
pursuant to this paragraph, they shall meet promptly and attempt to
set the then prevailing market rent of the Leased Premises. If they
are unable to agree within the thirty (30) days after the second
licensed appraiser has been appointed, then each party or its
appraiser shall submit its appraisal for the then prevailing market
rent to a third appraiser (selected in the manner set forth below)
and the third appraiser shall select one of the two submitted
appraisal amounts, without any modification, as the then prevailing
market rent. The third appraiser, who must meet all of the minimum
licensing and experience criteria set forth above, shall be
selected by the first two appraisers. Landlord and Tenant each
shall bear the cost of their own licensed appraiser, and shall
split equally the cost of appointing the third licensed appraiser,
if necessary. If the determination of the then prevailing market
rent of the Leased Premises is not completed prior to the renewal
date, Tenant shall continue to pay Base Rent at the rate in effect
immediately prior to the renewal date, and the parties shall
promptly account for any rent differential
2
upon determination of the then prevailing market rent of the
Lease Premises.
All
other terms of this Lease shall remain the same. As used throughout
this Lease, any reference to the “lease term”,
“term”, or “term of this Lease” shall also
include any and all renewal terms.
2.5 Right of First
Opportunity . Subject to all other options held by existing
tenants of the Building and provided that Tenant is not in default
hereunder at the time of Tenant’s exercise of this option,
Tenant shall have the right of first opportunity (the “Right
of First Opportunity”) to lease any additional space located
in Building II or Building III (the “Expansion Space”),
if and when such space becomes available during the initial Term of
this Lease, on the following terms and conditions:
(i) Landlord
shall notify Tenant of available Expansion Space prior to offering
such Expansion Space to any other party. Tenant shall have ten (10)
days from the receipt of such notification to exercise the Right of
First Opportunity by sending written notice to Landlord of its
intent to lease the Expansion Space or any portion thereof (the
“Leased Expansion Space”);
(ii) at
the time Tenant exercises the Right of First Opportunity and at the
time Landlord delivers the Leased Expansion Space to Tenant, Tenant
shall not be in default of its obligations under this Lease beyond
any applicable cure period, and this Lease at that time shall be in
full force and effect;
(iii) Tenant
shall execute and deliver to Landlord within thirty (30) days after
receipt thereof from Landlord an amendment to the Lease prepared by
Landlord which effective with the Commencement Date of the Lease by
Tenant of the Leased Expansion Space (a) adds the Leased Expansion
Space to the Leased Premises, (b) increases the rentable area of
the Leased Premises by the rentable area of the Leased Expansion
Space and increases Tenant’s Proportionate Share accordingly,
and (c) makes such other modifications of affected portions of this
Lease consistent with the foregoing.
Tenant
shall accept the Leased Expansion Space “as is” and
“as built”, subject to latent defects to base building
and base building systems, and all leasehold improvements made by
Tenant to the Leased Expansion Space shall be installed in
accordance with the provision of Article IX of the Lease and at
Tenant’s sole cost and expense. Tenant shall not be obligated
to commence paying Rent with respect to the Leased Expansion Space
until the date that is the earlier of (i) thirty (30) days after
the Leased Expansion Space has been delivered to Tenant vacant,
free and clear of all leases and tenancies, ready for
Tenant’s leasehold improvement work, and (ii) the date that
construction of leasehold improvements to the Leased Expansion
Space ha been substantially completed, subject to punchlist
items.
A RTICLE III - RENT
3 .1
Base Rent. Tenant shall pay rent to Landlord starting
with the Commencement Date of the Lease for the use and occupancy
of the Leased Premises as follows:
3
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Period
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Base Rent per SF
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Monthly Base Rent
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Annual Base Rent
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8/1/01 - 7/31/02
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$
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11.50
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$
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29,425.63
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$
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353,107.50
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8/1/02 - 7/31/03
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$
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11.75
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$
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30,065.31
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$
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360,783.75
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8/1/03 - 7/31/04
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$
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12.00
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$
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30,705.00
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$
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368,460.00
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81/1/04 - 7/31/05
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$
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12.25
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$
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31,344.69
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$
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376,136.25
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8/1/05 - 7/31/06
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$
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12.50
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$
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31,984.38
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$
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383,812.50
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8/1/06 - 7/31/07
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$
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13.00
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$
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33,263.75
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$
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399,165.00
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8/1/07 - 7/31/08
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$
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13.25
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$
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33,903.44
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$
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406,841.25
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(“Base
Rent”), payable in advance, on the first day of each month
during the Term hereof. The Base Rent is computed based upon 30,705
square feet of service center space as shown on Exhibit
“B”. Base Rent and all other sums, whether designated
additional rent or otherwise, payable to Landlord under this Lease
shall be payable in U.S. Dollars at the office of Jones Lang
LaSalle, or at such other place or places as Landlord may in
writing direct. Tenant shall pay all rent payable under this Lease
without notice or demand, both of which are expressly waived by
Tenant. Tenant shall pay base Rent due under this Lease, without
demand, offset or deduction.
3.2
Additional Rent . Tenant shall pay to Landlord
additional rent as provided in this Article III. All charges due
and payable by Tenant other than Base Rent are herein called
“Additional Rent”. The term “Rent” shall
mean Base Rent and Additional Rent.
3.3
Late Charges . Tenant’s failure to pay Rent
promptly may cause Landlord to incur unanticipated costs. The
amount of such costs are difficult to ascertain, and therefore on
any Rent payment not made within ten (10) days after it is due,
Tenant shall pay Landlord a late charge equal to fifteen percent
(15%) of the overdue amount. The parties agree that such late
charge represents a fair and reasonable estimate of the costs
Landlord will incur by reason of such late payment.
3 .4
Proportionate Share . Tenant’s
“Proportionate Share” as used in this Lease shall be
obtained by multiplying the expense in question by a fraction, the
numerator of which shall be the rentable square footage area of the
Leased Premises, and the denominator of which shall be the rentable
square footage area of the Building which for purposes of this
Lease shall be stipulated to be 42,340 square feet. For purposes of
this Lease, Tenant’s Proportionate Share is
72.52%.
If
a particular expense is incurred or charged to more than one
building on the Property rather than solely to the Building, then,
for the purposes of calculating Tenant’s Proportionate Share
with respect to the Building, such multi-building expense shall be
allocated to the Building by multiplying the expense in question by
a fraction, the numerator of which shall be the rentable square
footage of the Building and the denominator of which shall be the
rentable square footage area of the buildings for which the expense
was incurred or otherwise allocated to, with the resulting number
being used to calculate Tenant’s Proportionate Share as to
the Leased Premises. For purposes of this Lease, Tenant’s
Proportionate Share is 17.80%.
3 .5
Real Property Taxes, Insurance and Management Fees .
(a) Beginning August 1, 2001, Tenant shall pay as Additional Rent,
Tenant’s Proportionate Share of the amount by which Real
Property Taxes (as defined in Section 3.5(b)), Insurance (as
defined in Section 3.6), and
4
management fees paid by Landlord and relating solely to
management of the Building, payable during each calendar year
falling entirely or partly within the Lease Term exceed the Expense
Stop Amount as defined in Section 3.9. Tenant shall make estimated
monthly payments to Landlord on account of the amount by which Real
Property Taxes, Insurance and management fees that are expected to
be paid during each calendar year would exceed the Expense Stop
Amount. Beginning August 1, 2001 and at the beginning of each
calendar year thereafter, Landlord may submit a statement setting
forth Landlord’s reasonable estimates of such excess and
Tenant’s Proportionate Share thereof. Tenant shall pay to
Landlord on the first day of each month following receipt of such
statement, until Tenant’s receipt of the succeeding annual
statement, an amount equal to one-twelfth (1/12 th ) of
such share.
(b)
“Real Property Taxes” shall mean: (i) any fee, license
fee, license tax, business license fee, commercial rental tax,
levy, charge, assessment, government charge or tax imposed by any
taxing authority against the Building or land upon which the
Building is located; (ii) any tax on the Landlord’s right to
receive, or the receipt of, rent or income from the Building or
against Landlord’s business of leasing the Building; (iii)
any tax, or charge, or assessment, or any assessment for repayment
of bonds for fire protection, streets, sidewalks, road maintenance,
refuse or other services provided to the Building for any
governmental agency; (iv) any charge or fee replacing any tax
previously included within the definition of real property tax; and
(v) any costs incurred by Landlord in contesting such Real Property
Taxes, whether successful or not. Real Property Taxes does not,
however, include Landlord’s federal or state income,
franchise, inheritance or estate taxes. Tenant shall pay when due
all taxes charged against trade fixtures, furnishings, equipment or
any other personal property belonging to Tenant.
3.6
Insurance . Landlord shall maintain such
insurance on the Building as Landlord reasonably deems appropriate
(“Insurance”).
3 .7
Verification of Operating Statement Upon request by
Tenant, and at Tenant’s cost and expense, Landlord shall
furnish Tenant such information as may be necessary for Tenant to
verify the Common Expenses (as defined in Section 4.4), Real
Property Taxes, Insurance or management fees, and shall cooperate
with Tenant in verifying the operating statement. No decreases in
Common Expenses shall reduce Tenant’s rent below the annual
Base Rent set forth in Section 3.1 of this Lease.
If
Tenant does not agree with Landlord’s operating statement,
then Tenant shall have the right, if written notice of the nature
and extent of such disagreement is given to Landlord not later than
thirty (30) days following receipt of such statement by Tenant, and
the parties are unable to resolve such disagreement by negotiation,
to cause an audit to be made, not later than ninety (90) days
following receipt of Landlord’s statement of Landlord’s
records concerning Common Expenses, Real Property Taxes, Insurance
or management fees by an independent certified public accountant
designated by Landlord from a list of not less than three (3) such
accountants selected by Tenant, at the expense of Tenant unless
such audit discloses an error in excess of ten percent (10%) in the
computation of all such costs, in which event such audit shall be
at the expense of Landlord. In no event shall the independent
certified public accountant making the audit be compensated on a
contingent-fee basis. The results of such audit shall be binding
upon Landlord and Tenant. If
5
Landlord receives no such notice within thirty (30) days
following receipt of Landlord’s operating statement, then
such statement shall be conclusively deemed to have been approved
and accepted by Tenant. Pending resolution of any dispute with
respect to such operating statement and Real Property Taxes, Tenant
shall pay the sums shown as due on such operating statement, and if
it shall be finally determined that any portion of such sums was
not properly due, Landlord shall refund the appropriate sum to
Tenant.
3.8
Interest on Past Due Amounts . Any
amount owed by Tenant to Landlord which is not paid when due shall
bear interest at the rate of fifteen percent (15%) per annum from
the due date of such amount, in addition to any late charges due
under this Lease. If the interest rate specified in this Lease is
higher than the rate permitted by law, the interest rate is hereby
decreased to the maximum legal interest rate permitted by
law.
3.9
Expense Stop Amount . For purposes of
this Lease, “Expense Stop Amount” shall be defined as
Tenant’s Proportionate Share of the actual expense incurred
for Real Property Taxes, insurance and management fees in the
calendar year 1999.
ARTICLE IV - COMMON
AREAS
4.1
Common Areas . In this Lease,
“Common Areas” shall mean all areas on the Property,
which are available for the common use of tenants of the Property
and which is not part of the Leased Premises or the premises of
other tenants. Landlord may from time to time change the size,
location, nature and use of any of the Common Areas. Tenant
acknowledges that such activities may result in occasional
inconvenience and such activities and changes shall be expressly
permitted if they do not materially affect Tenant’s use of
the Property.
4.2
Use of Common Areas . Tenant shall
have the nonexclusive right (in common with all others to whom
Landlord has granted or may grant such rights) to use the Common
Areas for the purposes intended, subject to such reasonable rules
and regulations as Landlord may establish from time to time. Tenant
shall abide by such rules and regulations and shall use its best
effort to cause others who use the Common Areas with Tenant’s
expressed or implied permission to abide by Landlord’s rules
and regulations. Tenant shall not, at any time, interfere with the
rights of Landlord, other tenants, or any other person entitled to
use the Common Areas.
4.3
Vehicle Parking . Tenant shall be
entitled to use the vehicle parking spaces allocated to Tenant on
the Property without paying any additional rent. Tenant’s
parking shall not be reserved and shall be limited to 123 vehicles
no larger than standard size automobiles or pickup utility
vehicles. Temporary parking of large delivery vehicles on the
Property may be permitted by the rules and regulations established
by Landlord. Vehicles shall be parked only in striped parking
spaces and not in driveways, loading areas or other locations not
specifically designated for parking
4.4
CommonExpenses . Landlord shall
maintain the Common Areas in good order, condition and repair. In
addition to the Base Rent, Tenant shall pay its pro rata share of
monthly Common Expenses (as defined below) (the “Common
Expense Fee”), and is subject to annual
adjustment.
6
“Common
Expenses” shall mean all costs incurred by Landlord in
repairing, maintaining and operating the Building and the Common
Areas (other than (i) expenses recoverable under Section 3.5(b)
above and (ii) expenses incurred by Landlord in satisfying its
obligations under Section 8.1 below). Common Expenses shall
include, but are not limited to, the following: gardening and
landscaping, electrical, water and sewer service, maintenance and
repair associated with the Common Areas; maintenance, repair and
replacement of signs; property damage, fire and other types of
insurance on the Common Areas and worker’s compensation
insurance; charges and assessments by the owners’
association, if any, for the Property; all personal property taxes
and assessments levied on or attributable to personal property used
in connection with the Common Areas, the Building or the Property;
straight-line depreciation on personal property owned by Landlord
and consumed or used in the operation or maintenance of the Common
Areas; rental or lease payments paid by Landlord for rented or
leased personal property used in the operation or maintenance of
the Common Areas or the Building; fees for required licenses and
permits; repairing, replacing, resurfacing, repaving, maintaining,
painting, lighting, cleaning, refuse removal, security and similar
items.
ARTICLE V -
USE
5.1
Use. Tenant shall use the Leased Premises for general
office purposes, and for no other purpose without the prior written
consent of Landlord. Tenant will not use or occupy the Leased
Premises for any unlawful purpose, and will comply with all present
and future laws, ordinances, regulations, and orders of the United
States of America, the state in which the Leased Premises are
located, and all other governmental units or agencies having
jurisdiction over the Property and the Leased Premises. Tenant
agrees to operate its business in the Leased Premises during the
entire Term and to conduct its business in a reputable manner.
Tenant shall not cause, maintain or permit any outside storage on
or about the Leased Premises, shall not commit or suffer any waste
upon the Leased Premises, or any nuisance or other act or thing
which may disturb the quiet enjoyment of any other tenant in the
Building. No use shall be made or permitted to be made of the
Leased Premises, nor acts done, which will increase the existing
rate of insurance upon the Building or cause the cancellation of
any insurance policy covering the Building, or any part thereof.
Tenant shall not sell, or permit to be kept, used, in or about the
Leased Premises, any article, which may be prohibited by the
standard form of fire insurance policy. Tenant shall, at its sole
cost and expense, comply with any and all requirements, pertaining
to the Leased Premises, of any insurance organization or company,
necessary for the maintenance or reasonable fire and public
liability insurance covering the Leased Premises, Building and
appurtenances. Tenant shall restrict the number of employees,
including temporary workers, permitted in the Leased Premises to no
more than allowed by the prevailing building code at any given
time. Tenant shall not place on any floor a load exceeding the
floor load per square foot, which such floor was designed to carry.
Landlord shall have the right to prescribe the weight, position and
manner of installation of safes and other heavy equipment and
fixtures.
5.2
ADA . Tenant shall at its expense make any
improvements or alterations to the Leased Premises and Landlord
shall at its expense make any improvements or alterations to the
Common Areas required to conform with the Americans With
Disabilities Act of 1990 (“ADA”) and
7
any other laws, ordinances, orders or regulations of any
governmental body or authority presently required or hereinafter
enacted (except to the extent such non-compliance is the result of
modifications to the Leased Premises made by Tenant). Tenant
represents and warrants that the use and occupancy of the Leased
Premises as contemplated by this Lease comply or will comply fully
with all such laws, ordinances, and other governmental
requirements.
ARTICLE VI - SECURITY
DEPOSIT
As
an additional inducement to enter into this Lease and as evidence
of Tenant’s intention to comply with the terms and conditions
of this Lease, Tenant has deposited with Landlord a deposit in the
amount of $ -0- (“Security Deposit”).
Landlord shall hold the Security Deposit as security for the
performance by Tenant of Tenant’s covenants and obligations
under this Lease. Tenant shall not be entitled to receive interest
on the monies held as a Security Deposit. The Security Deposit
shall not be considered an advance payment of Base Rent, Additional
Rent or other charges provided for in this Lease, nor shall the
Security Deposit serve as a measure of the damages which would be
suffered by Landlord in the case of a default by Tenant. Landlord
may, from time to time, without prejudice to any other remedy, use
the Security Deposit to the extent necessary to make good any
arrearages or nonpayment of Base Rent, Additional Rent or other
charges provided for in this Lease, or to satisfy any obligation of
Tenant hereunder. Following any such application of the Security
Deposit, Tenant shall deposit with Landlord on demand the amount so
applied in order to restore the Security Deposit to its original
amount. If Tenant is not in default at the expiration of this Lease
and if the Security Deposit has not been used as outlined above,
then the balance of the Security Deposit shall be returned to
Tenant within 60 days after the termination date. If Landlord
transfers Landlord’s interest in the Leased Premises,
Landlord may assign the Security Deposit to the transferee and
thereafter have no further liability for the return of the Security
Deposit. The Security Deposit shall not be assigned or encumbered
by Tenant and any attempted assignment or encumbrance by Tenant
(except in connection with a permitted assignment of this Lease)
shall be void.
ARTICLE VII -
OPERATIONS: UTILITIES: SERVICES
7.1
Operation . Landlord shall operate
the Building in accordance with standards customarily followed in
the operation of comparable service center buildings in the St.
Louis, Missouri area.
7.2
Hours of
Operation . Tenant shall have access to the Leased Premises
24 hours per day every day of the week.
7.3
Utilities . Tenant agrees that it will pay all costs
for gas, electric current and other utilities used or consumed upon
or in connection with the Leased Premises during the term hereof
and any renewals thereof, as and when charged for the same shall
become due and payable.
7.4
Interruption of Services . Landlord shall not be in
default under this Lease and shall not be liable to Tenant for
failure to provide services pursuant to this Article if failure to
provide the services is caused by factors outside of
Landlord’s control.
8
7.5
No
Interference . Without Landlord’s prior review and
written consent, Tenant shall not install or operate any
electrical, internet, satellite, microwave, or other systems that
will or may necessitate any changes, replacements or additions to,
or changes in the use of, the water system, heating system,
plumbing system, air-conditioning system or electrical system of
the Leased Premises or the Building. Any changes, replacements or
additions to those systems made necessary by Tenant’s
installation or operation of any such utility systems shall be made
at Tenant’s expense. Further, no such electrical, Internet,
satellite, microwave, or other systems will interfere with any
other tenant in the Building or with any other buildings on the
Property.
ARTICLE VIII - REPAIRS
AND MAINTENANCE
8.1
Landlord’s Obligations .
Landlord shall keep and maintain in good repair and working order
and make all repairs to and perform necessary maintenance upon the
structural components and elements, and electrical, plumbing and
mechanical systems (including but not limited to sprinkler
systems), of the Building and all parts and appurtenances, which
are required in the normal maintenance and operation of the
Building. The cost and expense of any maintenance or repair to the
Building necessary due to the acts or omissions of Tenant or
Tenant’s agents, employees, contractors, invitees, licenses
or assignees, shall be reimbursed by Tenant to Landlord upon demand
as Additional Rent. Landlord shall not be responsible for ADA
compliance with respect to any improvements made to the Leased
Premises by Tenant. Landlord shall not be liable for any damage or
loss occasioned by Landlord’s failure to repair the Leased
Premises unless it shall have failed to make such repair within a
reasonable time following written notice from Tenant of the need
for such repair.
8.2
Tenant’s Obligations . Except
as provided in Section 8.1, Tenant, at its sole cost and expense,
shall keep and maintain in good repair and working order and make
all repairs to and perform necessary maintenance within and upon
the Leased Premises, including the Tenant’s improvements, and
all parts and appurtenances thereof, which are required in the
normal maintenance and operation of the Leased Premises.
If
Tenant fails to maintain and repair the Leased Premises, Landlord
may, on ten (10) days prior notice (except that no notice shall be
required in case of emergency) enter the Leased Premises and
perform such repair and maintenance on behalf of Tenant. In such
case, Tenant shall reimburse Landlord for all costs so incurred
within thirty (30) days of receipt from Landlord of a written
invoice therefor.
ARTICLE IX -
ALTERATIONS: TENANT’S PROPERTY
9.1
Alterations by Tenant . Tenant shall
make no alterations, additions, replacements or improvements to the
Leased Premises without the express written consent of Landlord,
which consent, which consent is hereby deemed to be given in
connection with the work to be performed by Tenant as contemplated
in Exhibit “F” attached hereto. Landlord may require
Tenant to provide demolition and/or lien and completion bonds in
form and amount satisfactory to Tenant. All alterations, additions
or improvements to the Leased Premises made by Tenant will be
accomplished
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in a good and workmanlike manner, in conformity with all
applicable laws and regulations, by a contractor approved by
Landlord, and shall become the property of the Landlord at the
expiration of the Term of this Lease. Landlord reserves the right
to notify Tenant at the time Landlord approves any work that
Landlord will require Tenant to remove any alteration, improvement
or addition made to the Leased Premises by Tenant, and to repair
and restore the Leased Premises to a condition substantially
equivalent to the condition of the Leased Premises prior to any
such alteration, addition or improvement. Tenant shall give
Landlord at least ten (10) days’ prior written notice of the
commencement of any work on the Leased Premises. Landlord may elect
to record and post notices of non-responsibility on the Leased
Premises.
9.2
Contractors’ Insurance
Requirements . In the event Landlord gives its approval to
Tenant pursuant to Section 9.1, Tenant shall require any third
party vendor or contractor performing work on the Leased Premises
to carry and maintain at no expense to Landlord: (a) Commercial
General Liability Insurance with a combined single limit of
$1,000,000 bodily injury and property damage per occurrence; (b)
Auto Liability insurance with a combined single limit of
$1,000,000; and (c) Workers’ Compensation insurance in
accordance with applicable state law and Employer’s Liability
insurance with limits of not less than $100,000/$ 100,000/$500,000.
Tenant shall obtain a Certificate of Insurance prior to
commencement of work and Landlord and Tenant are to be additional
insureds as respects the liability coverages.
9.3
Tenant’s Property . Provided Tenant is not in
default under the terms of this Lease, Tenant, at its expense and
at any time and from time to time, may install in and remove from
the Leased Premises its trade fixtures, equipment, removable walls
and wall systems, furniture and furnishings, provided such
installation or removal is accomplished without damage to the
Leased Premises or the Building and the installation does not
unreasonably interfere with the other tenants and their guests use
of the Building. On or prior to the termination date, Tenant shall
remove all of Tenant’s property from the Leased Premises and
repair any damage to the Leased Premises caused by such removal.
All property of Tenant remaining on the Leased Premises after the
expiration of the Term of this Lease shall be deemed to have been
abandoned and may be removed by Landlord.
ARTICLE X - HAZARDOUS
MATERIALS
10.1
Use of
Hazardous Materials
10.1(a)
Tenant’s Obligations and
Liabilities : Tenant shall not cause or permit any
Hazardous Material to be brought upon, kept or used in or about the
Leased Premises by Tenant, its agents, employees, contractors, or
invitees. If Tenant’s use of Hazardous Material results in
damage to the Leased Premises, the Property or Landlord, the Tenant
shall indemnify, defend and hold Landlord harmless from any and all
claims, judgments, damages, penalties, fines, costs or liabilities
(including, without limitation, diminution in value of the Leased
Premises, damages for the loss of restriction on use of rentable or
usable space or of any amenity of the Leased Premises, damages
arising from any adverse impact on marketing of space, and sum paid
in settlement of claims, attorneys’ fees, consultant fees and
expert fees) which arise during or after the lease Term as a result
of such contamination. This indemnification of Landlord by Tenant,
includes, without limitation, costs incurred in connection with any
investigations of site conditions or any clean-up,
remedial,
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removal or restoration work required by any federal, state or
local governmental agency or political subdivision because of
Hazardous Material present in the soil or ground water on or under
the Leased Premises resulting from Tenant’s activities.
Without limiting the foregoing, if the presence of Hazardous
Material on the Leased Premises caused by Tenant results in any
contamination of the Leased Premises, Tenant shall promptly take
all actions at its sole expense as are necessary to return the
Leased Premises to the conditions existing prior to the
introduction of any such Hazardous Material in the Leased Premises,
provided that Landlord’s approval of such actions shall first
be obtained, which approval shall not be unreasonably withheld so
long as such actions would not potentially have any material
adverse long-term or short-term effect on the Leased Premises. The
foregoing indemnity shall survive the expiration or earlier
termination of this Lease.
10.1(b) Definition : As used
herein, the term “Hazardous Material” means any
hazardous or toxic substance, material or waste, including, but not
limited to those substances, materials and wastes listed in the
United States Department of Transportation Hazardous Materials
Table (49 CFR 172.101) or by the Environmental Protection Agency as
hazardous substances (40 CFR Part 261) and amendments thereto, or
such substances, materials and wastes that are or become regulated
under any applicable local, state or federal law.
10.1(c) Inspection : Landlord
and its property manager or agents shall have the right, but not
the duty, to inspect the Leased Premises at any time to determine
whether Tenant is complying with the terms of this Lease. If Tenant
is not in compliance with this Lease, Landlord shall have the right
to immediately enter upon the Leased Premises to remedy any
contamination caused by Tenant’s failure to comply,
notwithstanding any other provisions of this Lease. Landlord shall
use its best efforts to minimize interference with Tenant’s
business but shall not be liable for interference caused
thereby.
10.1(d) Default : Any default
under this Paragraph shall be a material default-enabling Landlord
to exercise any of the remedies set forth in this Lease.
ARTICLE XI - ASSIGNMENT
AND SUBLETTING
Tenant
shall not assign, transfer or encumber this Lease or any part
hereof and shall not sublet, grant licenses or concessions, nor
allow any other occupant to come in, with or under Tenant, nor
shall Tenant permit this Lease or the leasehold estate hereby
created to become vested i