<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-QSB
(Mark One)
/X/ Quarterly report under Section 13 or 15 (d) of the Securities
Exchange Act of 1934
For the quarterly period ended September 30, 1998
/ / Transition report under Section 13 or 15 (d) of the Exchange Act
For the transition period from to
---------- ----------
Commission file number: 000-24167
EBS Building, L.L.C.
(Exact Name of Small Business Issuer as Specified in Its Charter)
Delaware 43-1794872
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
c/o PricewaterhouseCoopers, LLP, 800 Market Street,
St. Louis, Missouri 63101-2695
(Address of Principal Executive Offices)
(314)206-8500
(Issuer's Telephone Number, Including Area Code)
N/A
(Former Name, Former Address and Former Fiscal Year, if Changed
Since Last Report)
Check whether the issuer: (1) filed all reports required to be filed by
Section 13 or 15 (d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes X No
------- -------
APPLICABLE ONLY TO ISSUERS INVOLVED IN
BANKRUPTCY PROCEEDINGS DURING THE
PRECEDING FIVE YEARS
Check whether the registrants filed all documents and reports required
to be filed by Section 12, 13 or 15 (d) of the Exchange Act after the
distribution of securities under a plan confirmed by a court.
Yes X No
------- -------
APPLICABLE ONLY TO CORPORATE ISSUERS
State the number of shares outstanding of each of the issuer's classes
of common equity, as of the latest practicable date: As of September 30, 1998,
there were 9,466,938 Class A Membership Units outstanding.
Transitional Small Business Disclosure Format (check one):
Yes No X
------- -------
<PAGE> 2
PART I
FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
EBS BUILDING, L.L.C.
BALANCE SHEET
SEPTEMBER 30, 1998
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
SEPTEMBER 30, 1998 DECEMBER 31, 1997
(UNAUDITED)
<S> <C> <C>
ASSETS
Rental property $ 19,690,818 $ 19,584,653
Cash 4,941 403,919
Rents receivable 47,088 7,465
Due from Edison Brothers Stores, Inc. - 61,398
Prepaid expenses 33,622 61,040
Capitalized lease commissions 872,384 -
Capitalized lease restructuring costs 876,232
Other assets 402 -
------------------ -----------------
Total assets $ 21,525,487 $ 20,118,475
================== =================
LIABILITIES
Accounts payable $ 26,483 $ 63,418
Accrued professional fees 96,661 139,297
Accrued utilities 95,766 72,644
Accrued salaries 10,157 45,777
Accrued property taxes 312,094 -
Accrued lease commissions 760,305 -
Due to Edison Brothers Stores, Inc. - 112,022
Note Payable 1,172,000 -
Other liabilities 6,559 12,495
------------------ -----------------
Total liabilities 2,480,025 445,653
------------------ -----------------
MEMBERS' EQUITY:
Membership Units (Class A - 10,000,000 authorized, 9,466,938 and 9,058,041
issued and outstanding at September 30, 1998 and December 31, 1997,
respectively; Class B - 533,062 and 941,959 authorized, issued and
outstanding at September 30, 1998 and December 31, 1997, respectively) - -
Paid-in capital 19,810,522 19,810,522
Retained earnings (765,060) (137,700)
------------------ -----------------
Total members' equity 19,045,462 19,672,822
------------------ -----------------
Total liabilities and members' equity $ 21,525,487 $ 20,118,475
================== =================
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE> 3
EBS BUILDING, L.L.C.
STATEMENT OF OPERATIONS
FOR THE PERIOD ENDED SEPTEMBER 30, 1998
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
FOR THE 3 MONTHS ENDED FOR THE 9 MONTHS ENDED
SEPTEMBER 30, 1998 SEPTEMBER 30, 1998
(UNAUDITED) (UNAUDITED)
<S> <C> <C>
Income:
Rent $ 873,340 $ 2,566,738
Other 27,003 85,303
------------------ -----------------
Total income 900,343 2,652,041
------------------ -----------------
Expenses:
Maintenance 264,384 903,591
Professional fees 161,897 614,218
Utilities 218,315 569,570
General and administrative 130,303 339,215
Depreciation & amortization 165,599 411,928
Property taxes 104,031 312,296
Other operating expenses 44,879 128,583
------------------ -----------------
Total expenses 1,089,408 3,279,401
------------------ -----------------
Net loss $ (189,065) $ (627,360)
================== =================
Net loss per Class A Unit - primary $ (0.02) $ (0.07)
Net loss per Class A Unit - fully diluted $ (0.02) $ (0.06)
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE> 4
EBS BUILDING, L.L.C.
STATEMENT OF CHANGES IN MEMBERS' EQUITY
FOR THE PERIOD ENDED SEPTEMBER 30, 1998
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
CLASS A CLASS B
MEMBERSHIP MEMBERSHIP PAID IN RETAINED
UNITS UNITS CAPITAL EARNINGS TOTAL
<S> <C> <C> <C> <C> <C>
Balance, December 31, 1997 9,058,041 941,959 $ 19,810,522 $ (137,700) $ 19,672,822
Units transferred (unaudited) 408,897 (408,897) - - -
Year to date loss (unaudited) - - - (627,360) (627,360)
------------ ------------- --------------- ------------ -------------
Balance, September 30, 1998 (unaudited) 9,466,938 533,062 $ 19,810,522 $ (765,060) $ 19,045,462
============ ============= =============== ============ =============
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE> 5
EBS BUILDING, L.L.C.
STATEMENT OF CASH FLOWS
FOR THE PERIOD ENDED SEPTEMBER 30, 1998
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
FOR THE 3 MONTHS ENDED FOR THE 9 MONTHS ENDED
SEPTEMBER 30, 1998 SEPTEMBER 30, 1998
(UNAUDITED) (UNAUDITED)
<S> <C> <C>
Cash flows from operating activities:
Net loss $ (189,065) $ (627,360)
Reconciliation of net loss to cash flows
provided by operating activities:
Depreciation & amortization expense 165,599 411,928
Changes in operating assets and liabilities:
Increase in assets, excluding cash
rental property and capitalized lease costs (80,070) (70,232)
Increase in liabilities 812,332 981,395
---------------------- ----------------------
Cash flows provided by operating activities 708,796 695,731
---------------------- ----------------------
Cash flows from investing activities:
Lease commissions paid (760,305) (879,328)
Lease restructuring costs paid (912,742) (912,742)
Capital Expenditures (net) (37,387) (474,639)
---------------------- ----------------------
Cash flows provided by investing activities (1,710,434) (2,266,709)
---------------------- ---------------------
Cash flows from financing activities:
Net Draws on Line of Credit 1,002,000 1,172,000
---------------------- ----------------------
Cash flows (used) by financing activities 1,002,000 1,172,000
---------------------- ----------------------
Net increase/(decrease) in cash 362 (398,978)
Cash, beginning of period 4,579 403,919
---------------------- ----------------------
Cash, end of period $ 4,941 $ 4,941
====================== ======================
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE> 6
EBS BUILDING, L.L.C.
NOTES TO FINANCIAL STATEMENTS (UNAUDITED)
SEPTEMBER 30, 1998
- -------------------------------------------------------------------------------
1. The accompanying unaudited financial statements, in the opinion of the
Manager, include all adjustments necessary for a fair presentation of
the results for the interim periods presented. These adjustments
consist of normal recurring accruals. The financial statements are
presented in accordance with the requirements of Form 10-QSB and
consequently do not include all the disclosures required by generally
accepted accounting principles. For further information, refer to the
financial statements and notes thereto for the period ended December
31, 1997 included in the Company's Registration Statement on Form 10-SB
filed on April 30, 1998
2. During February 1998 and June 1998, Edison Brothers Stores, Inc.
("Edison") exchanged an additional 280,560 and 128,616 Class B
Membership Units respectively, for an equal number of Class A
Membership Units of the Company and simultaneously distributed such
units to holders of Allowed General Unsecured Claims. In addition,
during the quarter ended September 30, 1998, 279 Class A Membership
Units were returned to Edison by holders of Allowed General Unsecured
Claims. Such Units were canceled and an equal number of Class B
Membership Units were simultaneously reissued to Edison. All
outstanding Class B Membership Units will eventually be canceled and an
equivalent number of Class A Membership Units issued to the holders of
Allowed General Unsecured Claims as required by the Members Agreement
and the Plan of Reorganization. At June 30, 1998, Edison held 532,783
Class B Membership Units.
3. The following table sets forth the computation of primary and fully
diluted earnings (loss) per unit for the periods ended:
<TABLE>
<CAPTION>
For the For the
3 Months Ended 9 Months Ended
September 30, 1998 September 30, 1998
(unaudited) (unaudited)
<S> <C> <C>
Numerator:
Net Earnings/(Loss) - Primary and Diluted $ (189,065) $ (627,360)
================== ==================
Denominator:
Weighted Average Units Outstanding - Primary 9,467,126 9,359,050
Effect of Potentially Dilutive Units 532,874 640,950
------------------ ------------------
Units Outstanding - Diluted 10,000,000 10,000,000
================== ==================
Primary Earnings/(Loss) per Unit $ (0.02) (0.07)
================== ==================
Diluted Earnings/(Loss) per Unit $ (0.02) $ (0.06)
================== ==================
</TABLE>
The weighted average units outstanding - basic was calculated on a
daily outstanding unit basis. The outstanding units - diluted was
calculated assuming that all of the Class B Units currently issued and
outstanding will eventually be converted into an equal number of Class
A Units.
4. Effective March 16, 1998, the Company entered into a $2,000,000
revolving line of credit with First Bank (the "Line of Credit"). The
Company presently intends to use the Line of Credit for working capital
needs and tenant improvements. Borrowings under the Line of Credit bear
interest at a rate per annum equal to the LIBOR rate plus 2.25%. There
was no commitment fee
<PAGE> 7
EBS BUILDING, L.L.C.
NOTES TO FINANCIAL STATEMENTS (UNAUDITED)
SEPTEMBER 30, 1998
- -------------------------------------------------------------------------------
for this Line of Credit. Payments due for borrowings on the Line of
Credit are for interest only until maturity (March 15, 1999), when all
outstanding principal and interest is due and payable. As of September
30, 1998, the Company had outstanding borrowings of $1,172,000 under
the Line of Credit.
5. On August 14, 1998, the Company entered into a five-year lease for
2,835 square feet of rentable office space, or approximately 1% of
total rentable space. This lease provides annual rent of less than
$10,000 and expires in September 2003.
On September 30, 1998, the Company entered into a new two-year lease
with Edison for 206,450 square feet of rentable office space, or
approximately 48% of total rentable space. The Edison lease provides
annual rent of $1,740,978 and expires in September 2000 with an option
to renew for one year at $12 per square foot or for seven years at
prevailing market rates. Edison previously occupied 273,068 square feet
of rentable office space, or approximately 63% of total rentable space.
In connection with the Edison lease, the Company incurred lease
restructuring costs of $912,742, which have been capitalized and will
be amortized over the term of the lease.
In addition, on September 30, 1998, the Company entered into a
twelve-year lease with Stifel Financial Corp. and Stifel, Nicolaus &
Company, Incorporated for in excess of 82,000 square feet of rentable
office space, or approximately 20% of total rentable space. The Stifel
lease provides annual rent ranging from $1,275,000 to $1,572,500 and
expires in December 2010 with two options to renew for five year terms
at prevailing market rates.
The accompanying notes are an integral part of these financial statements.
<PAGE> 8
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION.
During the forthcoming twelve months of operations, EBS Building,
L.L.C. (the "Company") intends to continue owning, managing, maintaining,
repairing, leasing, selling, hypothecating, mortgaging or otherwise dealing with
the building located at 501 North Broadway, St. Louis, Missouri (the
"Building").
On August 14, 1998, the Company entered into a five-year lease for
2,835 square feet of rentable office space, or approximately 1% of total
rentable space. This lease provides annual rent of less than $10,000 and expires
in September 2003.
On September 30, 1998, the Company entered into a new two-year lease
with Edison Brothers Stores, Inc. ("Edison") for 206,450 square feet of rentable
office space, or approximately 48% of total rentable space (the "New Edison
Lease"). The New Edison Lease provides annual rent of $1,740,978 and expires in
September 2000 with an option to renew for one year at $12 per square foot or
for seven years at prevailing market rates. This New Edison Lease replaced the
prior lease agreement between the Company and Edison under which Edison
occupied 273,068 square feet of rentable office space, or approximately 63% of
total rentable space. In connection with the New Edison Lease, the Company
incurred lease restructuring costs of $912,742, which have been capitalized and
will be amortized over the term of the New Edison Lease.
In addition, on September 30, 1998, the Company entered into a
twelve-year lease with Stifel Financial Corp. and Stifel, Nicolaus & Company,
Incorporated for not less than 82,000 square feet of rentable office space, or
approximately 20% of total rentable space. The Stifel lease provides annual rent
ranging from $1,275,000 to $1,572,500 and expires in December 2010 with two
options to renew for five year renewal terms at then prevailing market rental
rates. The lease commencement date is January 1, 1999. Pursuant to the Stifel
lease, the name of the Building has changed to "One Financial Plaza". In
addition, the Company incurred lease commission costs of approximately $760,000
and expects to incur tenant improvement costs of approximately $2,000,000 in
connection with the Stifel lease. Lease commissions have been capitalized and
will be amortized over the term of the Stifel lease. Tenant improvement costs
will be capitalized upon the completion of construction plans.
Based upon the addition of the aforementioned leases, the annual
average rental rate of all tenants, including Edison, is $12.00 per square foot.
The annual average rental rate of all tenants, excluding Edison, is $15.77 per
square foot. Upon commencement of each of these leases, the Building's total
occupancy will be approximately 83%.
Rental income remained relatively constant from the quarter ended June
30, 1998 to the quarter ended September 30, 1998. Total operating expenses
decreased 8% during the same period, primarily due to lower levels of
professional fees incurred during the third quarter as well as lower deferred
maintenance costs. During the nine months ended September 30, 1998, the Company
had a net decrease in cash of $398,978. This decline was caused primarily by
commissions paid to leasing agents, tenant improvement costs incurred related to
a tenant lease entered into on February 16, 1998, lease restructuring costs
related to the New Edison Lease as well as various corporate costs incurred
associated with the registration of the Class A Membership Units under
<PAGE> 9
the Securities Exchange Act of 1934, as amended.
In March 1998, the Company entered into a $2,000,000 revolving line of
credit with First Bank (the "Line of Credit") to cover any shortfalls in cash
flows. As of September 30, 1998, the Company had $1,172,000 of outstanding
borrowings under its Line of Credit. Management anticipates either increasing
the Company's availability under the Line of Credit or entering into an
additional revolving line of credit to fund the Company's present and
anticipated financing needs related to tenant improvement costs and lease
commissions on new leasing arrangements.
Year 2000 Compliance
The Company, through its property manager, Insignia Commercial Group,
Inc. (the "Property Manager"), utilizes computer software for its corporate and
real property accounting records and to prepare its financial statements, as
well as for internal accounting purposes. The current principal accounting
system software is not Year 2000 compliant. The Property Manager has informed
the Company that plans are being made to update the accounting systems during
1999. The cost of such update will be borne by the Property Manager. However,
in the event that such systems should fail, as a contingency plan, the Company
could prepare all required accounting entries manually, without incurring
material additional operating expenses.
The Property Manager has also informed the Company that it has budgeted
funds for and plans to review the major date-sensitive non-information
technology systems (such as the elevators, heating, ventilating, air
conditioning and cooling ("HVAC") systems, locks, and other like systems) in the
Building in early 1999 to determine if such systems are materially Year 2000
compliant. The Property Manager plans to internally make such determinations.
The Company expects to incur an estimated $100,000 in costs associated
with upgrading the current systems. In the most reasonably likely worst case
scenario, the failure of the non-information technology systems in the Building
could lead tenants to withhold their rent payments, which could have a material
adverse effect on the Company's business, results of operations and financial
condition. However, the Company does not believe that the Year
2000 issue will pose significant problems to the Company's information
technology and non-information technology systems, or that resolution of any
potential problems with respect to such systems will have a material adverse
effect on the Company's financial condition or results of operations.
The Company has not endeavored to determine whether or not its tenants
are Year 2000 compliant. The most reasonably likely worst case scenario facing
the Company as a result of a failure of its tenants' (or their financial service
providers') computer systems would be such tenants' inability to pay rent on
time. Such delays in payment could have a material adverse effect on the
Company's financial condition or results of operations.
PART II
OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits (listed by numbers corresponding to the Exhibit Table of
Item 601 of Regulation S-B
3.1: Articles of Organization of the Issuer filed with the
Delaware Secretary of State on September 24, 1997
incorporated by reference to the Issuer's Registration
Statement on Form 10-SB filed on April 30, 1998, Exhibit
<PAGE> 10
2.1.
3.2: Members Agreement of EBS Building, L.L.C. A Limited
Liability Company, dated as of September 26, 1997
incorporated by reference to the Issuer's Registration
Statement on Form 10-SB filed on April 30, 1998, Exhibit
2.2.
4: See the Members Agreement, referenced as Exhibit 3.2.
10.6: Lease by and among EBS Building, L.L.C., Stifel
Financial Corp. and Stifel, Nicolaus & Company,
Incorporated, dated September 30,1998.
10.7: Lease by and between EBS Building, L.L.C. and Edison
Brothers Stores, Inc., dated September 30, 1998.
10.8: Assignment of Lease by and between EBS Building, L.L.C.
and Edison Brothers Stores, Inc., dated September 30,
1998.
27: Financial Data Schedule.
(b) Reports on Form 8-K. The Issuer did not file any reports on Form
8-K during the quarter ended September 30, 1998.
<PAGE> 11
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
REGISTRANT:
EBS Building, L.L.C.
By: PricewaterhouseCoopers LLP, as Manager
By: /s/ Keith F. Cooper
-------------------------------
Keith F. Cooper, Partner
Date: November 13, 1998
<PAGE> 12
Exhibit Index
3.1: Articles of Organization of the Issuer filed with the
Delaware Secretary of State on September 24, 1997
incorporated by reference to the Issuer's Registration
Statement on Form 10-SB filed on April 30, 1998, Exhibit
2.1.
3.2: Members Agreement of EBS Building, L.L.C. A Limited
Liability Company, dated as of September 26, 1997
incorporated by reference to the Issuer's Registration
Statement on Form 10-SB filed on April 30, 1998, Exhibit
2.2.
4: See the Members Agreement, referenced as Exhibit 3.2.
10.6: Lease by and among EBS Building, L.L.C., Stifel
Financial Corp. and Stifel, Nicolaus & Company,
Incorporated, dated September 30, 1998.
10.7: Lease by and between EBS Building, L.L.C. and Edison
Brothers Stores, Inc., dated September 30, 1998.
10.8: Assignment of Lease by and between EBS Building, L.L.C.
and Edison Brothers Stores, Inc., dated September 30,
1998.
27: Financial Data Schedule.
<PAGE> 1
EXHIBIT 10.6
EXECUTION FORM
---------------------------------------------------------------------------
EDISON BROTHERS BUILDING
STANDARD OFFICE LEASE
FOR
STIFEL FINANCIAL CORP.
AND
STIFEL, NICOLAUS & COMPANY, INCORPORATED
---------------------------------------------------------------------------
<PAGE> 2
EDISON BROTHERS BUILDING
STANDARD OFFICE LEASE
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
ARTICLE INDEX PAGE
- ------- ----- ----
<S> <C> <C>
ARTICLE 1. PARTIES AND REFERENCE DATA........................................................1
ARTICLE 2. DEMISING CLAUSE...................................................................6
ARTICLE 3. TERM AND POSSESSION...............................................................6
ARTICLE 4. RENT..............................................................................8
ARTICLE 5. SECURITY DEPOSIT.................................................................11
ARTICLE 6. PERMITTED USE....................................................................11
ARTICLE 7. SERVICES.........................................................................11
ARTICLE 8. SUBLETTING AND ASSIGNMENT........................................................13
ARTICLE 9. QUIET POSSESSION AND SUBORDINATION...............................................14
ARTICLE 10. LANDLORD'S RESERVED RIGHTS......................................................15
ARTICLE 11. ALTERATIONS AND IMPROVEMENTS....................................................16
ARTICLE 12. REPAIRS AND REPLACEMENTS........................................................17
ARTICLE 13. DESTRUCTION OR DAMAGE...........................................................17
ARTICLE 14. EMINENT DOMAIN..................................................................18
ARTICLE 15. HOLDING OVER....................................................................18
ARTICLE 16. SURRENDER OF POSSESSION.........................................................19
ARTICLE 17. DEFAULT AND REMEDIES............................................................19
ARTICLE 18. BANKRUPTCY......................................................................21
ARTICLE 19. INSURANCE AND WAIVER OF RECOVERY................................................22
ARTICLE 20. TAXES ON TENANT'S PROPERTY......................................................23
ARTICLE 21. AMERICANS WITH DISABILITIES ACT.................................................23
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
<S><C>
ARTICLE 22. HAZARDOUS MATERIALS.............................................................23
ARTICLE 23. GENERAL PROVISIONS..............................................................24
</TABLE>
Exhibit A Floor Plan
Exhibit A-1 Signage Plan
Exhibit B INTENTIONALLY OMITTED
Exhibit C Work to be Performed on the Premises
Exhibit D Building Rules
Exhibit E Lease Commencement Agreement
Exhibit F Lien Waivers
Exhibit G Nondisturbance and Subordination Agreement
Exhibit H Lease Estoppel Certificate
Exhibit I Twelfth Floor Expansion
Addendum No. 1
ii
<PAGE> 4
EDISON BROTHERS BUILDING
STANDARD OFFICE LEASE
---------------------
ARTICLE 1.
PARTIES AND REFERENCE DATA
--------------------------
As used in this Lease the following terms shall have the following
meanings:
1.1. LANDLORD: EBS Building, L.L.C., a Delaware limited liability
company, having as its address for notice purposes c/o Price Waterhouse Coopers
LLP, 800 Market Street, Suite 1800, St. Louis, Missouri 63101, Attn: Mr. Keith
F. Cooper, Partner.
1.2. TENANT: Stifel Financial Corp., a Delaware corporation and
Stifel, Nicolaus & Company, Incorporated, a Missouri corporation, having as
their address for notice purposes (i) 500 North Broadway, Suite 1700, St. Louis,
Missouri 63102, Attn.: Steve Bushmann, until the Lease Commencement Date, and
(ii) 500 Washington Avenue, Suite 900, St. Louis, Missouri 63101, Attn: Steve
Bushmann thereafter (collectively referred to herein as "Tenant"). Each and
every reference herein to "Tenant" shall apply to each and both of Stifel
Financial Corp. and Stifel, Nicolaus & Company, Incorporated; and the
representations and warranties of "Tenant" herein and the covenants and
agreements of "Tenant" herein shall be deemed jointly and severally made by and
enforceable against Stifel Financial Corp. and Stifel, Nicolaus & Company,
Incorporated, each and both of which such parties shall be jointly and severally
liable for the obligations of "Tenant" under this Lease.
1.3. DATE OF THIS LEASE: September 30, 1998
1.4. DATE OF PRELIMINARY SPACE PLAN: October 5, 1998
DATE OF FINAL SPACE PLAN: October 8, 1998
(12:00 Noon)
LANDLORD'S PLAN SUBMITTAL DATE
FOR INITIAL PREMISES: October 19, 1998
TENANT'S PLAN APPROVAL DATE
FOR INITIAL PREMISES: October 23, 1998
LANDLORD'S PLAN SUBMITTAL DATE
FOR SUBSEQUENTLY DELIVERED
PREMISES: November 2, 1998
<PAGE> 5
TENANT'S PLAN APPROVAL DATE
FOR SUBSEQUENTLY DELIVERED
PREMISES: November 13, 1998
1.5. LEASE COMMENCEMENT DATE: January 1, 1999
RENT COMMENCEMENT DATE: January 1, 1999
LEASE EXPIRATION DATE: December 31, 2010
1.6. TERM: Twelve (12) years
1.7. BUILDING: The office building in the City of St. Louis, State
of Missouri, known and numbered as 500 Washington Avenue, St. Louis, Missouri
63101, together with the land owned and/or leased by Landlord upon which it is
situated, including all facilities and improvements thereon and consisting of
434,136 rentable square feet.
1.8. PREMISES: Not less than 82,000 rentable square feet, located
on a portion of the seventh floor and all of the eighth and ninth floors in the
Building as depicted in Exhibit A of this Lease and as improved in accordance
with the provisions of Exhibit C of this Lease. Landlord and Tenant hereby
stipulate and agree that the eighth and ninth floors of the Building contain
32,000 rentable square feet each. Concurrent with its approval of the Final
Space Plan, Landlord shall calculate the number of usable square feet in that
portion of the seventh floor of the Building which constitutes part of the
Premises in accordance with BOMA standards, and Landlord shall multiply such
number by a load factor of 12% and add such sum to the number of usable square
feet to determine the number of rentable square feet in the seventh floor
Premises. Landlord shall then promptly prepare and deliver, and Tenant shall
promptly countersign and return to Landlord, an acknowledgment in respect of
this Lease setting forth the aggregate number of square feet constituting the
Premises and any corresponding adjustments to the rental amounts payable
hereunder, Tenant's Proportionate Share, the Tenant Improvement Allowance (and
the portion thereof which may be expended on Move Expenses) and the number of
parking spaces to be made available to Tenant.
1.9. SUITE NUMBER: 900, FLOOR NUMBERS: 7, 8 and 9
1.10. PERMITTED USE: General office purposes, sales of securities
and investment banking services, and other lawful accessory uses.
1.11. ANNUAL BASE RENT AND MONTHLY BASE RENT INSTALLMENT (assuming
the Premises consist of 85,000 rentable square feet, but subject to adjustment
as acknowledged per Section 1.8 above):
From 01/01/1999 - 3/31/1999; Annually $ 150,000.00; Monthly
$12,500.00, based upon a base rental rate of $15.00 per rentable
square foot.
From 04/01/1999 - 12/31/1999; Annually $ 1,275,000.00; Monthly
$106,250.00, based upon a base rental rate of $15.00 per rentable
square foot.
From 01/01/2000 - 12/31/2000; Annually $ 1,317,500.00; Monthly
$109,791.67,
2
<PAGE> 6
based upon a base rental rate of $15.50 per rentable square foot.
From 01/01/2001 - 12/31/2001; Annually $ 1,360,000.00; Monthly
$113,333.33, based upon a base rental rate of $16.00 per rentable
square foot.
From 01/01/2002 - 12/31/2002; Annually $ 1,360,000.00; Monthly
$113,333.33, based upon a base rental rate of $16.00 per rentable
square foot.
From 01/01/2003 - 12/31/2003; Annually $ 1,402,500.00; Monthly
$116,875.00, based upon a base rental rate of $16.50 per rentable
square foot.
From 01/01/2004 - 12/31/2004; Annually $ 1,402,500.00; Monthly
$116,875.00, based upon a base rental rate of $16.50 per rentable
square foot.
From 01/01/2005 - 12/31/2005; Annually $ 1,445,000.00; Monthly
$120,416.67, based upon a base rental rate of $17.00 per rentable
square foot.
From 01/01/2006 - 12/31/2006; Annually $ 1,487,500.00; Monthly
$123,958.33, based upon a base rental rate of $17.50 per rentable
square foot.
From 01/01/2007 - 12/31/2007; Annually $ 1,530,000.00; Monthly
$127,500.00, based upon a base rental rate of $18.00 per rentable
square foot.
From 01/01/2008 - 12/31/2008; Annually $ 1,572,500.00; Monthly
$131,041.67, based upon a base rental rate of $18.50 per rentable
square foot.
From 01/01/2009 through 12/31/2009, Annual Base Rent due under
this Lease shall be that amount equal to the number of rentable square feet
constituting the Premises, as acknowledged pursuant to Section 1.8 above, times
the product obtained by multiplying $16.50 by a fraction, the numerator of which
shall be the CPI-U (as hereinafter defined) for December 31, 2008, and the
denominator of which shall be the CPI-U (as hereinafter defined) for January 1,
1999, which Annual Base Rent shall not exceed $22.17 per rentable square foot.
The Monthly Base Rent Installment shall be the amount of Annual Base Rent
divided by twelve.
From 01/01/2010 through 12/31/2010, Annual Base Rent due under
this Lease shall be that amount equal to the number of rentable square feet
constituting the Premises, as acknowledged pursuant to Section 1.8 above, times
the product obtained by multiplying the Annual Base Rent for the immediately
prior lease year by a fraction, the numerator of which shall be the CPI-U (as
hereinafter defined) for December 31, 2009, and the denominator of which shall
be the CPI-U for December 31, 2008, which Annual Base Rent shall not exceed
$22.84 per rentable square foot. The Monthly Base Rent Installment shall be the
amount of Annual Base Rent divided by twelve.
As used herein, the term "Consumer Price Index" shall mean The
Consumer Price Index for All Urban Consumers (CPI-U), All Items, U.S. City
Average (1982-1984 = 100) published by the United States Department of Labor,
Bureau of Labor Statistics. In the event the Consumer Price Index is not
published effective as of the date(s) referred to above, then the adjustment
shall be measured from the date most immediately preceding the date(s) in
question. If the Consumer Price Index is changed so that the base year differs
from that referenced above, the Consumer Price Index shall be converted in
accordance with the conversion factor published by the United States Department
of Labor, Bureau of Labor Statistics. If the Consumer Price Index is
discontinued or revised during the Term, such other governmental index or
computation
3
<PAGE> 7
with which it is replaced shall be used in order to obtain substantially the
same result as would be obtained if the Consumer Price Index had not been
discontinued or revised.
1.12. COMMERCIAL OR COMPREHENSIVE GENERAL LIABILITY INSURANCE
REQUIRED: One Million and 00/100 Dollars ($1,000,000.00).
1.13. SECURITY DEPOSIT: None.
1.14. TENANT'S PROPORTIONATE SHARE: The percentage determined by
dividing the number of rentable square feet constituting the Premises, as
acknowledged pursuant to Section 1.8 above, by 434,136 (the number of rentable
square feet within the Building stipulated and agreed upon by Landlord and
Tenant, based on the information made available to Landlord as of the date of
this Lease).
1.15. EXPENSE STOP AMOUNT: The Expense Stop Amount shall be the
amount equal to the Expenses, as defined in Section 4.2 of the Lease, of the
Building for the 1999 (01/01/99-12/31/99) calendar year.
1.16. TAX EXPENSE STOP AMOUNT: The Tax Expense Stop Amount shall
be the amount equal to Taxes as defined in Section 4.2 of the Lease, of the
Building for the 1999 (01/01/99-12/31/99) calendar year, provided, however, that
effective January 1, 2009 (and applicable during the remainder of the Term
thereafter), the Tax Expense Stop Amount shall be increased by $1.00 per
rentable square foot.
1.17. NUMBER OF PARKING SPACES: Tenant shall have the nonexclusive
use of 1 parking space per 1,000 square feet of rentable space for the Premises,
as acknowledged pursuant to Section 1.8, 21 of which shall be located in the
parking garage in the Building (the "Building Garage") and the remainder of
which shall be located in the garage owned and operated by the Land Clearance
for Redevelopment Authority of the City of St. Louis and located on City Block
118 in the City of St. Louis (the "St. Louis Centre Garage"); provided, however,
that as parking spaces become available in the Building Garage as a result of
Edison Brothers Stores' exercise of its right to vacate and surrender portions
of its premises in the Building, for every parking space in the Building Garage
vacated and surrendered by Edison Brothers Stores after the Lease Commencement
Date, Landlord shall offer Tenant, by notification in writing of the
availability of substitute parking for each parking space surrendered by Edison
Brothers Stores, 1 parking space in the Building Garage in exchange for 1
parking space in the St. Louis Centre Garage. Tenant shall then have the right
to accept such offer and thereby substitute up to 21 (in the aggregate, over the
Term) parking spaces located in the St. Louis Centre Garage for parking spaces
in the Building Garage so long as Tenant responds to Landlord in writing within
five (5) business days of Tenant's receipt of notice of the availability of said
substitute spaces. All of the parking spaces shall be unreserved. Landlord and
Tenant hereby acknowledge that five (5) of the parking spaces in the Building
Garage to be provided to Tenant are considered "double" parking spaces (by
length or by width) and the same shall be counted as two (2) parking spaces for
purposes of allocating parking spaces to Tenant under this Lease; such double
spaces shall be specifically designated from time to time for Tenant's use. The
other eleven (11) spaces in the Building Garage are "single" parking spaces and
shall not be specifically designated for Tenant's use. In
4
<PAGE> 8
the event Tenant elects to substitute parking spaces in the St. Louis Centre
Garage for parking spaces in the Building Garage pursuant to the procedures
described above, the first five (5) spaces to be offered to Tenant shall be
"single" parking spaces and the remaining sixteen spaces to be so offered to
Tenant shall consist of four (4) "double" parking spaces and eight (8) "single"
parking spaces, in such order as Landlord may elect. Parking spaces in the
parking garage in the Building are accessible 24 hours per day, seven days per
week (subject to interruptions for maintenance and the like) at no additional
charge. From and after the Lease Commencement Date, Landlord covenants to
perform those obligations of the tenant under the lease for the St. Louis Centre
Garage which, if not performed, would give the landlord thereunder the right to
terminate such lease. Parking spaces in the St. Louis Centre Garage shall be
available during normal downtown business hours as referenced in the lease for
the St. Louis Centre Garage. To the extent any of the parking spaces surrendered
by Edison Brothers Stores in the St. Louis Centre Garage (in connection with a
reduction in the size of its premises in the Building or a termination of its
lease) are designated by Edison Brothers Stores as being entitled to exiting
privileges without charge on a twenty-four (24) hour basis pursuant to Section
IX.D. of the lease for the St. Louis Centre Garage, Landlord shall make such
space(s) available to Tenant in substitution for, and not in addition to,
parking spaces otherwise made available to Tenant in the St. Louis Centre Garage
hereunder until such time as one (1) out of every five (5) spaces furnished to
Tenant in the St. Louis Centre Garage is entitled to such exiting privileges. In
the event landlord and/or manager of the St. Louis Centre Garage imposes a
charge for exiting privileges after normal downtown business hours as referenced
in the lease for the St. Louis Centre Garage, Tenant shall have the right to
surrender the use of all or any portion of the parking spaces in the St. Louis
Centre Garage which are subject to such charge (which surrender shall reduce,
accordingly, the number of parking spaces to which Tenant is entitled
hereunder). Tenant may exercise this right only by giving Landlord thirty (30)
days prior written notice and by delivering to Landlord within such thirty (30)
day period the parking access cards for such spaces. Subject to Landlord's
receipt of the parking access cards, Tenant's obligation to pay for such spaces
hereunder shall terminate concurrent with the expiration of such thirty (30) day
period.
1.18. INITIAL MONTHLY RENT PER PARKING SPACE: $85.00 through
December 31, 1999. Thereafter, at any time and for time to time, the monthly
rent per parking space shall be subject to increase in amounts equal to the
lesser of market rate increases for comparable parking in the downtown St. Louis
market (as determined by Landlord) or three percent (3%) annually, calculated on
a cumulative basis.
1.19. ADDENDUM: Addendum No. 1, consisting of 4 pages,
incorporated herein by this reference.
1.20. BROKERS: Name of Landlord's broker: Insignia/ESG, Inc.;
Party responsible for payment: Landlord. Name of Tenant's broker: Pace
Properties Incorporated; Party responsible for payment: Landlord. Landlord shall
pay Pace Properties Incorporated on behalf of Tenant a commission equal to three
and one-half percent (3.5%) of the Base Rent for the first five (5) years of the
Lease and one and one-half percent (1.5%) of the Base Rent for the seven (7)
years of the Lease (assuming a Base Rent of $16.50 per rentable square foot for
years eleven and twelve), payable in two (2) equal installments, due on the date
of execution of the Lease and on the Lease Commencement Date.
5
<PAGE> 9
1.21. EXHIBITS: The following Exhibits attached to this Lease are
incorporated herein by this reference.
Exhibit A. Floor Plan
Exhibit A-1. Signage Plan
Exhibit B. INTENTIONALLY OMITTED
Exhibit C. Work to be Performed on the Premises
Exhibit D. Building Rules
Exhibit E. Certificate of Occupancy
Exhibit F. Lien Waivers
Exhibit G. Nondisturbance and Subordination Agreement
Exhibit H. Lease Estoppel Certificate
Exhibit I. Twelfth Floor Expansion
Addendum No. 1
1.22. STORAGE AREA: Approximately 4,200 useable square feet of
storage space located on the Seventh Floor of the Building, as depicted in
Exhibit A of this Lease. See Section 23.32 of the Lease.
ARTICLE 2.
DEMISING CLAUSE
---------------
Landlord, for and in consideration of the rents, covenants and
agreements hereinafter mentioned and hereby agreed to be paid, kept and
performed by Tenant, does hereby lease to Tenant, and Tenant does hereby lease
from Landlord, the Premises on the terms and conditions contained herein.
ARTICLE 3.
TERM AND POSSESSION
-------------------
3.1. TERM. The Term shall commence on the Lease Commencement Date
and shall continue until the Lease Expiration Date, unless earlier terminated as
provided herein, provided that if Tenant, with Landlord's prior permission,
occupies the Premises (or any part thereof) prior to the Lease Commencement
Date, then the Term shall also include the period from the date of occupancy to
the Lease Commencement Date.
3.2. POSSESSION. On or prior to January 1, 1999, Landlord shall
deliver to Tenant possession of that portion of the Premises comprising
approximately 10,000 square feet located on the eighth floor of the Building
(the "Initial Premises"). On or prior to April 1, 1999, Landlord shall deliver
to Tenant possession of the remainder of the Premises (the "Subsequently
Delivered Premises"). Landlord shall use reasonable efforts to so deliver the
Premises by such dates, subject to Section 23.11 of this Lease and subject to
Tenant's compliance with the Approval Procedures (as hereafter defined in
Exhibit C to this Lease). The Initial Premises and the Subsequently Delivered
Premises shall together constitute the Premises. Tenant acknowledges that it
shall have no right to use or occupy the Subsequently Delivered Premises prior
to April 1, 1999 except as expressly set forth below. Tenant may move its
personal property
6
<PAGE> 10
into the Subsequently Delivered Premises in areas designated by Landlord during
each of the weekends of March 1999, as long as such activity does not interfere
with Landlord's construction of the Tenant Improvements. Landlord shall offer
reasonable cooperation to Tenant in connection with Tenant's move into the
Premises, provided, however, that such cooperation shall be without cost to
Landlord. Tenant's move into the Premises shall not unreasonably interfere with
any other tenant's or occupant's use or enjoyment of its premises in the
Building. If the Initial Premises are not ready for occupancy on or prior to the
Lease Commencement Date, this Lease shall nevertheless continue in effect, but
(a) Rent (as hereinafter defined) with respect to such portion of the Initial
Premises which is not ready for occupancy shall abate (on a pro rata basis)
until such portion of the Initial Premises is ready for occupancy, and (b) the
Lease Expiration Date shall be extended for a period commensurate with such
period of Rent abatement, if any, with respect to the Initial Premises, and
Landlord shall have no other liability whatsoever on account thereof. If the
Subsequently Delivered Premises are not ready for occupancy on or prior to April
1, 1999, this Lease shall nevertheless continue in effect, but (a) Rent with
respect to such portion of the Subsequently Delivered Premises which is not
ready for occupancy shall abate, (b) the Lease Expiration Date shall be extended
for a period commensurate with such period of Rent abatement, if any, with
respect to the Subsequently Delivered Premises, (c) Landlord shall reimburse
Tenant for any increase in base rent payable by Tenant in its current premises
at 500 North Broadway, St. Louis, Missouri (which reimbursement obligation shall
not, however, exceed One Thousand Two Hundred Ninety-Eight and 63/100 Dollars
($1,298.63) per day), and Landlord shall have no other liability whatsoever on
account thereof. Rent shall not be abated, nor shall Landlord be obligated to
reimburse Tenant for any increase in base rent payable by Tenant in its current
premises at 500 North Broadway, St. Louis, Missouri, if the Initial Premises or
the Subsequently Delivered Premises are not ready for occupancy because of the
failure to complete the installation of special items ordered by Tenant or
because of any delay resulting from Tenant's failure to submit plans on or prior
to Tenant's Plan Approval Dates in accordance with Exhibit C or Tenant's failure
otherwise to comply with the Approval Procedures, or resulting from changes or
additions to Tenant's plans after the initial submission. The determination of
Landlord's architect for the Tenant Improvements shall be set forth in writing
and shall be final as to whether the Premises are ready for occupancy. Tenant's
taking possession of any portion of the Premises shall be conclusive evidence
that such portion of the Premises was in good order and satisfactory condition
when Tenant took possession, except as to latent defects and damage caused by
Tenant or Tenant's agents. On the date on which Tenant takes possession of the
Initial Premises, the parties shall execute a Lease Commencement Agreement in
the form attached hereto as Exhibit E confirming the Lease for the Initial
Premises and Rent Commencement Date for the Initial Premises and setting forth
any incomplete items (if any), but failure to execute such document shall not in
any manner affect the obligations of the parties hereunder.
3.3. INTENTIONALLY OMITTED.
3.4. BUILDING PLANNING. If (i) during the two (2) years from the
date the Subsequently Delivered Premises are ready for occupancy, Tenant
exercises the expansion rights set forth in Section 23.34.a hereof, and such
expansion encompasses all or a portion of the Storage Area or (ii) at any time
if Landlord requires the Storage Area for use in connection with the lease of
the sixth floor of the Building to another tenant or (iii) at any time after the
first two (2) years of the Term, if Landlord requires the Storage Area for use
in conjunction with another
7
<PAGE> 11
suite or for other reasons connected with the Building planning program,
Landlord shall have the right, upon notifying Tenant in writing, to move the
Storage Area to other space in the Building, at Landlord's sole cost and
expense, and the terms and conditions of this Lease shall remain in full force
and effect, save and excepting that a revised Exhibit A and B shall become part
of this Lease and shall reflect the location of the new space and Article 1 of
this Lease shall be amended to include all correct data as to the new space. In
effecting such move, Landlord shall use reasonable efforts not to disturb
Tenant's ongoing business operations in any material respect.
3.5. COMMON AREAS. The "common areas" in the Building shall mean
such areas as are provided and maintained by Landlord from time to time as areas
for use by Tenant in common with Landlord and other tenants or occupants of the
Building. The portions of the common areas of the Building affording entrance
into the Building and access to the elevators serving the floors on which the
Premises are located shall be maintained and configured in a manner reasonably
determined by Landlord to afford substantially equivalent access and prestige to
the manner and means of access and prestige offered by such portions of the
common areas as of the date of this Lease. Tenant shall have the nonexclusive
right to use the from time to time common areas in common with other tenants in
the Building and subject to the Building Rules (which Landlord shall use
reasonable efforts to enforce in a non-discriminatory manner).
3.6. COMMUNICATIONS DISH. Tenant shall have the right, at Tenant's
sole cost and expense and subject to all applicable rules, regulations and
ordinances of the City of St. Louis or any other applicable governmental or
quasi-governmental agency or authority, to place a communications dish on the
roof of the Building. Such installation shall be in strict accordance with plans
and specifications approved by Landlord. Upon termination of the Lease, Tenant
shall, at its sole cost and expense, remove the communications dish and all
ancillary connections from the Building and restore the roof of the Building
pursuant to the terms of Article 16 of this Lease. Any and all construction with
respect to the installation and removal of the communications dish shall be
performed by a contractor selected by Tenant and approved by Landlord and a
representative of Landlord shall supervise the installation or removal. Tenant's
installation and use of such communications dish may not interfere with other
communications or transmission equipment utilized by other tenants of the
Building.
Landlord shall use reasonable efforts to cause or request other
tenants of the Building to use their respective communications or transmissions
equipment, if any, in a manner that does not interfere with Tenant's use of
Tenant's communications dish.
ARTICLE 4.
RENT
----
4.1. RENT. Commencing on the Rent Commencement Date, Tenant shall
pay the Annual Base Rent specified in Article 1 to Landlord at the location
designated from time to time by Landlord in the Monthly Base Rent Installment
specified in Article 1 in advance, on, or prior to the first day of each and
every month during the Term without set off or deduction whatsoever. The rent
for any partial month shall be prorated on the basis of the number of days in
such month and shall be paid on the first day of such partial period.
8
<PAGE> 12
4.2. ADJUSTMENTS TO RENT. The Annual Base Rent shall be adjusted
from time to time in accordance with this section to reflect increases in the
Expenses of operating the Building, as defined in Section 4.3, and increases in
Taxes on the Property or the Building, as defined in Section 4.4. The Annual
Base Rent including the adjustments made pursuant to this section and the rent
for the Storage Space referred to in Section 23.32 is referred to in this Lease
as the "Rent". As used herein ("Tenant's Proportionate Share") shall be a
fraction, the numerator of which is the rentable area of the Premises and the
denominator of which is the total rentable area of the Building. If the Expenses
in any period during the Term commencing after December 31, 1999 exceed the
Expense Stop Amount, Annual Base Rent shall be adjusted to include Tenant's
Proportionate Share of the amount Expenses that exceed the Expense Stop Amount.
If the Taxes in any period during the Term commencing after December 31, 1999
exceed the Tax Expense Stop Amount, Annual Base Rent shall be adjusted to
include Tenant's Proportionate Share of such excess. Tenant shall not be
responsible for any payment of Expenses pursuant to this Article 4 during 1999,
and Tenant shall not be responsible for any payment of Taxes pursuant to this
Article 4 during 1999. For 1999 and for each year of the Term thereafter,
Expenses shall be calculated in accordance with consistently applied accounting
practices on a grossed-up basis reflecting the variable Expenses of the Building
(including the gross revenue component of the management fee) for each calendar
year as if the Building was the greater of (i) the actual percentage of
occupancy of the Building (calculated on a weighted average using the average
monthly occupancy for each month of the calendar year) or (ii) ninety five
percent (95%) occupied; provided, however, if the gross-up percentage for any
calendar year, other than 1999, is as set forth in (i) above, for each calendar
year in which such percentage is used, such percentage shall also be used to
gross-up retroactively Expenses for 1999. Only those component Expenses that are
affected by variations in occupancy levels may be so adjusted.
Within one hundred eighty (180) days after the end of each
calendar year (or portion thereof) during the Term, Landlord will provide Tenant
with a written notice ("Statement") setting forth the amount of any adjustments
to Annual Base Rent together with a statement of Expenses and Taxes for the
previous calendar year. The Statement shall contain sufficient detail to permit
Tenant to duplicate Landlord's calculation of Expenses and Taxes, together with
any gross-up, and Tenant's Proportionate Share thereof. Within thirty (30) days
following receipt of the Statement, Tenant shall pay to Landlord as additional
rent: (a) the adjustment to Annual Base Rent of the previous calendar year after
credit for any estimated payments which Tenant has made pursuant to this
section; and (b) an estimated adjustment to Annual Base Rent for the months
which have elapsed in the current calendar year based on the previous calendar
year's increase in Expenses and/or Taxes and Landlord's good faith projection of
the increase in Expenses and/or Taxes during the current calendar year after
credit for any estimated payments made by Tenant pursuant to this section.
Commencing with the month following the month in which the Statement is dated
and continuing until such time as Tenant receives Landlord's next Statement, the
Monthly Base Rent Installments shall be adjusted to include Tenant's
Proportionate Share of any Expenses and/or taxes in excess of the Expense Stop
Amount based on Expenses for the previous year and taxes in excess of the Tax
Expense Stop Amount based on Taxes for the previous year and Landlord's good
faith projection of the increase in Expenses and Taxes for the current calendar
year. The adjusted portion of the payments of Annual Base Rent as so adjusted
with respect to Expenses shall be credited against the actual
9
<PAGE> 13
Expenses as shown in Landlord's next Statement. Similarly, the adjusted portion
of the payments of Annual Base Rent as so adjusted with respect to Taxes shall
be credited against the actual Taxes as shown in Landlord's next Statement. If
the next Statement shows that Tenant has overpaid and if Tenant is not then in
default, Landlord shall credit such overpayment against the next accruing
payments of Rent until the overpayment is reduced to zero. The obligation to pay
the adjustments to Annual Base Rent shall survive any termination of the Term.
Notwithstanding anything contained in this Section 4.2, the Annual Base Rent
payable by Tenant shall in no event at any time be less than the Annual Base
Rent specified in Article 1 hereof. The adjustment to Annual Base Rent payable
under this section shall be payable in respect of all periods during the Term,
including any portion of the Term prior to the Rent Commencement Date.
4.3. EXPENSES. "Expenses" shall mean all expenses and costs of
operating the Building, including, without limitation, the following costs: (a)
wages of all on-site employees (including employment taxes and fringe benefits);
(b) janitorial labor and materials; (c) costs of building security personnel and
materials; (d) electricity, gas, sewer, water, trash disposal and other
utilities; (e) maintenance and repairs (including maintenance and service
contracts); (f) landscaping maintenance; (g) insurance premiums; (h) capital
improvements to the extent necessary to comply with applicable governmental
rules and regulations; (i) expense of building management fees; (j) capital
expenses which reduce any component cost of Expenses (such cost to be reasonably
amortized by Landlord (over the useful life of the capital item) and (k) legal
and accounting fees and expenses. Expenses shall not include: (w) costs of
alterations of any tenant's premises; (x) principal and interest payments on
loans made on the security of the Building; (y) costs of capital expenditures
(except as provided above in the this section); and (z) leasing commissions. If
the Building is not fully leased or if Landlord is not providing standard
building services to all tenants during any calendar year, actual Expenses shall
be adjusted to reflect a fully serviced and leased Building (in the manner
described in Section 4.2) for the purpose of making the adjustment to Annual
Base Rent.
4.4. TAXES. "Taxes" shall mean (a) real estate and personal
property taxes assessed on the Building and personal property of the Landlord
therein, including any increases in real estate taxes as any partial or full tax
relief which presently may be afforded to the Building expires, and further
including any tax imposed as a substitute for or supplement to presently
existing real estate and/or personal property taxes; and (b) reasonable expenses
of Landlord in attempting to reduce or limit real estate and/or personal
property taxes (any refunds to be credited against taxes in the year received).
Landlord and Tenant hereby expressly acknowledge and agree that the Tax Expense
Stop Amount is hereby increased by $1.00 per rentable square foot effective
January 1, 2009, as set forth in Section 1.16.
4.5. INSPECTION RIGHTS. During the Term and upon ten (10) days
prior written notice to Landlord, Tenant or Tenant's designee shall have the
right, during normal business hours, to inspect at the Landlord's office in the
Building, Landlord's books and records with respect to Expenses and Taxes within
ninety (90) days of Tenant's receipt of the Statement. Landlord shall cooperate
with Tenant in any such inspection of Landlord's books and records, and shall,
if requested by Tenant make available a member of its staff to explain any
entries in such books and records. Tenant may, at Tenant's expense, make copies
of any such books or records not designated as confidential by Landlord;
provided, however, that such materials may not be
10
<PAGE> 14
disclosed by Tenant to any other person or entity without Landlord's consent.
Unless Tenant asserts specific error(s) within ninety (90) days of Tenant's
receipt of the Statement, the Statement shall be deemed to be correct. In the
event Landlord concurs with Tenant's determination of specific error(s) in the
Statement and if Tenant is not then in default or thereafter in the event such
default is cured within the applicable cure period, Landlord shall credit any
overpayment against the next accruing payments of Rent until the overpayment is
reduced to zero, or if the Term of this Lease has ended, Landlord shall repay
such amount to Tenant. If Tenant's inspection of the books and records show that
Tenant overpaid its proportionate share of Expenses and Taxes by more than three
percent (3%), then Landlord shall pay to Tenant Tenant's reasonable
out-of-pocket costs of conducting the inspection (not to exceed $2,000 in each
instance).
ARTICLE 5.
SECURITY DEPOSIT
----------------
INTENTIONALLY OMITTED.
ARTICLE 6.
PERMITTED USE
-------------
Tenant shall use and occupy the Premises only for the Permitted
Use. Tenant agrees that from and at all times after the date of delivery of the
Subsequently Delivered Premises, occupancy of the Premises shall not exceed one
(1) person per 200 rentable square feet on any floors which are not fully
occupied by Tenant. Tenant and all persons permitted by Tenant to come upon the
Premises or the Storage Area shall comply with the Building Rules and with such
reasonable modifications thereof as Landlord may make from time to time.
Landlord shall use reasonable efforts to enforce the Building Rules in a
non-discriminatory manner. Landlord shall not be liable for any nonobservance of
the Building Rules by any other person. Tenant shall not make or permit to be
made any use of the Premises or the Storage Area which is forbidden by
applicable law or governmental regulation or which may be dangerous to persons
or property or which may invalidate or increase the premium cost of any policy
of insurance carried on the Building.
ARTICLE 7.
SERVICES
--------
7.1. BUILDING STANDARD SERVICES. Landlord at Landlord's expense
shall furnish: (a) heat and air conditioning to provide a seasonable temperature
(subject to governmental regulations) for normal occupancy and use of the
Premises under normal business operations daily Monday through Friday from 8:00
A.M. to 6:00 P.M., Saturdays from 8:00 A.M. to 1:00 P.M., Sundays and the
following holidays excepted: New Year's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day and Christmas Day ("Normal Business Hours"); (b)
cold water from the public supply for drinking, lavatory and toilet purposes and
hot water for lavatory purposes from regular Building supply drawn through
fixtures installed by Landlord; (c) janitor service and customary cleaning in
and about the Premises (private kitchens, eating areas and restrooms excepted,
provided Landlord shall remove trash from such areas)
11
<PAGE> 15
Monday through Friday (holidays excepted) comparable to standard janitor service
furnished by other comparable buildings in the vicinity of the Building (Tenant
shall not provide any janitor services or cleaning without Landlord's prior
consent); (d) passenger elevator service in common with other tenants at
reasonable times (freight elevator service will be made available by Landlord
upon reasonable notice by Tenant); (e) window washing of all exterior windows in
the Premises, both inside and out, at reasonable intervals (but, with respect to
the outside of such windows, no less frequently than two times per year); (f)
electrical service at those points of connection provided and installed by
Landlord and in the manner and to the extent deemed by Landlord to be standard;
and (g) 24 hour on site security personnel. Tenant shall have no right of access
to and within the Building for the installation or operation of systems for the
provision of electrical service to the Premises for part or all of Tenant's
electrical energy requirements without Landlord's prior written consent, which
consent shall not be unreasonably withheld, conditioned or delayed. Tenant shall
report to Landlord any deficiency in the services provided by Landlord or
Landlord's agents, which services shall be comparable in quality to services
provided in comparable office buildings in the vicinity of the Building.
7.2. OVER BUILDING STANDARD SERVICES. If Tenant occupies the
Premises after Normal Business Hours, Tenant shall reimburse Landlord for the
increased expenses of providing utilities and other services necessary to
operate the Building during such hours, including but not limited to, increased
expenses for heating, air conditioning, security service, Building employees'
overtime and any additional janitorial service. After Normal Business Hours
heating, ventilating and air conditioning will be available to Tenant at
Tenant's expense at a cost of $25.00 per hour per floor, subject to actual cost
increases thereof to Landlord as reasonably calculated by Landlord at any time
and from time to time. Tenant shall have the right to request such other
services after Normal Business Hours and Landlord shall use reasonable efforts
to make such services available to Tenant at reasonable costs. Landlord shall
use reasonable efforts to advise Tenant as to when Tenant's occupancy of the
Premises after Normal Business Hours will result in additional charges to Tenant
under this Section 7.2 in addition to the foregoing HVAC charge.
The maximum installed electric load on the Premises shall not
exceed: (i) electricity drawn from Building standard receptacles: 3 watts per
usable square foot in the Premises per hour; and (ii) Building standard
lighting: 2.5 watts per usable square foot in the Premises per hour; provided,
however, that the specified wattage capacity set forth in clause (i) may be
increased from 3 to 4 watts for each floor of the Building on which the Premises
are situated at Tenant's written request in conjunction with the construction of
the Tenant Improvements. Tenant shall contribute the sum of Six Thousand Dollars
($6,000.00) for each floor of the Building on which it desires to have such
wattage increased. Tenant's written request for such increase must be submitted
to Landlord by not later than five (5) days prior to Landlord's Plan Submittal
Date for the Subsequently Delivered Premises. Tenant's contribution to such
costs may be charged against the Tenant Improvement Allowance.
Normal electrical consumption on the Premises is as follows: (i)
electricity drawn from Building standard receptacles: 3 watts per usable square
foot in the Premises per hour; (ii) Building standard lighting: 2.5 watts per
usable square foot in the Premises per hour; and (iii) Building standard
heating, ventilating and air conditioning is designed to offset 4.5 watts per
usable square foot in the Premises per hour. Tenant will not be allowed to
exceed any of the
12
<PAGE> 16
maximum installed electric load in the Premises as herein referenced. If
Tenant's usage of electricity exceeds normal electrical consumption, Tenant is
responsible for all expenses associated with such excess electrical consumption.
Landlord reserves the right to install submeters or to conduct an electric
consumption audit to determine electrical consumption on the premises at the
expense of Landlord. A master meter if desired by Tenant may be installed at
Tenant's expense in a manner approved by Landlord. Landlord shall have access to
such metering devices at all reasonable times and shall prepare a separate
monthly statement of the excess utilities used by such equipment based on the
utility rates established from time to time by the public utility furnishing
such service. Tenant shall pay the amounts shown on such statements to Landlord
within fifteen (15) days of receipt. Should Tenant fail to promptly pay for such
service, Landlord may discontinue furnishing such service, which shall not be
deemed an eviction (actual or constructive) or a disturbance of Tenant's
possession, use and quiet enjoyment of the Premises. Tenant agrees that Landlord
shall not be liable for damages resulting from such discontinuance, nor shall
Tenant be relieved from the performance of any of Tenant's covenants or
obligations under this Lease.
Landlord, by furnishing any of the above services, shall not be
deemed to have warranted the same to be free from any interruption or
discontinuance that is beyond the reasonable control of the Landlord or which
may result from occasional damage or malfunctions of equipment and distribution
facilities. Any such interruption or discontinuance shall not constitute an
eviction (actual or constructive) or a disturbance of Tenant's possession, use
or quiet enjoyment of the Premises. If, due to any Landlord work or installation
under this Lease or Landlord's failure to perform its obligations under this
Lease, (i) Tenant is unable for at least five (5) consecutive business days to
operate its business in the Premises in substantially the same manner as its
business was operated before the work, installation or Landlord's failure, (ii)
the interruption occurs during Tenant's business hours, and (iii) the work or
installation is either (x) in the public area of the Premises or (y) Tenant is
unable, after using reasonable efforts, to relocate its employees and property
so as to continue to operate its business, Rent shall be abated on a per diem
basis in the proportion that the area of the Premises that is unusable bears to
the total area of the Premises. Tenant agrees that Landlord shall not be liable
for damages resulting from any such interruption or discontinuance, nor shall
Tenant be relieved of the performance of any of Tenant's covenants or
obligations under this Lease except as expressly set forth above.
ARTICLE 8.
SUBLETTING AND ASSIGNMENT
-------------------------
Tenant shall not by operation of law or otherwise, without
Landlord's prior written consent, which consent shall not be unreasonably
withheld, conditioned or delayed, assign, hypothecate, mortgage, encumber or
convey this Lease or any interest in or under it, or to sublet, or otherwise
permit occupancy by any other person or entity of all or any portion of the
Premises or Storage Area. Tenant acknowledges and agrees that it shall not be
deemed unreasonable for Landlord to refuse its consent to any proposed assignee
or subtenant (i) whose reputation or financial condition is unacceptable to
Landlord; (ii) who is currently a tenant in the Building; or (iii) who is or has
been in active good faith negotiation with Landlord or its agent within the last
ninety (90) days for comparable space in the Building. For the purposes of this
section any transfer of stock in a corporate tenant or any transfer of an
interest in a partnership tenant in
13
<PAGE> 17
which a transfer of control of the corporation or partnership is effected shall
not be deemed to be an assignment of this Lease requiring the prior written
consent of Landlord. Any document purporting to sublet the Premises and/or the
Storage Area or assign Tenant's interest in this Lease shall be of no force or
effect unless the same shall bear the written consent of Landlord. No subtenant
or assignee shall use the Premises for any purpose other than the Permitted Use.
No permitted sublease or assignment shall in any way release Tenant from
Tenant's primary liability under this Lease. If Tenant desires the consent of
Landlord to sublease or assign, at least thirty (30) but no more than one
hundred twenty (120) days prior to the date on which Tenant desires the
assignment or sublease to be effective (the "Transfer Date") Tenant must submit
the proposed sublease or assignment to Landlord for Landlord's approval,
together with the following documents: (a) a detailed description of the portion
of the Premises and/or the Storage Area proposed to be sublet (which must be a
single, self-contained unit (the "Space"); (b) a complete financial statement of
the subtenant or assignee with an authorization to verify the same; (c) a
declaration by the subtenant or assignee as to the type of business to be
carried out and the number of employees to occupy the Space; (d) payment of a
$200 fee for processing of the sublease or assignment documents; (e) proof of
payment of all leasing commissions, if applicable; and (f) executed lease
estoppel certificates from Tenant and the proposed subtenant or assignee in the
Building standard form. If Tenant is permitted to sublease at a base rent in
excess of that provided for herein, or if Tenant is permitted to assign its
interest in this Lease for any consideration whatsoever, such excess or such
consideration (net of any subletting or assignment costs, including commissions,
paid by Tenant and approved in writing by Landlord in connection with such
permission to sublease or assign) shall be paid by Tenant to Landlord as
received. Tenant shall pay all of Landlord's out-of-pocket costs and expenses,
including reasonable attorneys' fees, relating to any such proposed assignment
or subletting.
ARTICLE 9.
QUIET POSSESSION AND SUBORDINATION
----------------------------------
Landlord covenants and agrees with Tenant that so long as Tenant
is not in default hereunder, Tenant shall peaceably and quietly enjoy the
Premises through the Term without hindrance or molestation by anyone claiming
through or under Landlord, subject, however, to the terms of this Lease. This
Lease is subject and subordinate to all present or future financial encumbrances
on the Building and to all modifications and replacements thereof and to all
advances made or hereafter to be made on the security thereof, and is further
subject to all present and future easements, conditions and encumbrances of
record, and to all applicable laws, ordinances and governmental rules and
regulations (hereinafter, with the above described financial encumbrances,
collectively called the "Conditions"). Landlord shall use its reasonable efforts
to obtain from the holder of any deeds of trust or mortgages affecting the
Building a non-disturbance and subordination agreement substantially in the form
of Exhibit G attached hereto and incorporated herein by reference. Such
non-disturbance and subordination agreement shall provide that, so long as
Tenant is not in default under this Lease, Tenant's use and enjoyment of the
Premises in accordance with all the material terms of this Lease shall not be
disturbed or materially diminished by reason of any foreclosure of any first
deed of trust. If Tenant is not furnished with such non-disturbance and
subordination agreement from the holder of any deed of trust or mortgage
hereafter affecting the Building or leasehold thereof, this Lease shall not be
subordinate to such deed of trust or mortgage. Landlord shall not, in any event,
be liable to
14
<PAGE> 18
Tenant for any failure to deliver the requested non-disturbance and
subordination agreement. If Landlord obtains and delivers the requested
non-disturbance and subordination agreement, the rights of Tenant under this
Lease shall be and are subject and subordinate at all times to the lien of any
deed of trust or mortgage hereafter in force against the Building, and to all
advances made or hereafter to be made upon the security thereof, and to all
renewals, modifications, consolidations, replacements and extensions thereof.
Except as expressly set forth above, this Article 9 is self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination Tenant shall promptly execute such further instruments as may be
requested by Landlord. Tenant hereby irrevocably authorizes Landlord to execute
and deliver in the name of Tenant any such instrument if Tenant fails to do so
and Landlord shall provide Tenant with a copy of any document so executed and
delivered by Landlord (with an additional copy sent to Tenant to the attention
of the "Legal Department"). If any purchaser at a foreclosure sale (including
any mortgagee by purchase or by deed in lieu of foreclosure) becomes the owner
of the Premises, Tenant will attorn to and recognize such entity's becoming such
owner for all purposes in place of the Landlord named in this Lease; provided
that there shall be no credit given by such entity to Tenant for any Rent which
has been prepaid more than one (1) month in advance.
ARTICLE 10.
LANDLORD'S RESERVED RIGHTS
--------------------------
Landlord reserves the following rights: (a) to change the name of
the Building (beyond the change contemplated in Section 23.35 hereof), provided
that without Tenant's consent Landlord may not change the name of the Building
so long as Tenant continues to exclusively lease and occupy (excluding any
assignment or subletting of the Premises by Tenant in accordance with the
provisions of the Lease) a minimum of 82,000 rentable square feet in the
Building as the Premises, as acknowledged pursuant to Section 1.8 above; (b) to
maintain signs on the interior and exterior of the Building; (c) to designate
and control all sources furnishing Building related services to tenants; (d) at
any time during the Term (if Tenant has vacated the Premises) and otherwise
during the last year of the Term, to display "for rent" signs on and exhibit and
otherwise prepare the Premises for reoccupancy; (e) to retain passkeys to all
doors within and into the Premises; (f) during the last year of the Term to
exhibit the Premises to prospective lessees; (g) to grant to anyone the
exclusive right to conduct any particular business in the Building; (h) to close
the Building after Normal Business Hours and on legal holidays and to affect
such reasonable security measures as Landlord may deem appropriate and in the
best interests of the Building and tenants; subject, however, to Tenant's right
to admittance under such reasonable security regulations as Landlord may
prescribe from time to time; (i) to approve the weight, size, and location of
safes or other heavy objects, which objects may be moved in, about or out of the
Building or Premises and/or the Storage Area only at such times and in such
manner as Landlord shall direct, and in all events at Tenant's sole risk and
responsibility; (j) to take any and all measures necessary or desirable for the
operation, safety, protection or preservation of the Building, including
repairs, alterations, decorations, additions or improvements, whether structural
or otherwise, in and about the Building, or any part thereof, and installation
of an energy management system to more accurately monitor and control heat,
ventilating and air conditioning in the Building, and during the continuance of
any such work to temporarily close doors, entry ways, public spaces and
corridors in the Building and to interrupt or temporarily suspend Building
services or facilities; and (k) to change the street address of the Building as
15
<PAGE> 19
required by law or regulation. Landlord may enter upon the Premises and may
exercise any or all of the foregoing rights without being deemed guilty of an
eviction (actual or constructive) or disturbance of Tenant's use or possession
and without being liable in any manner to Tenant and without abatement of rent
or affecting of Tenant's obligations hereunder.
ARTICLE 11.
ALTERATIONS AND IMPROVEMENTS
----------------------------
Tenant shall not, without the prior written consent of Landlord,
which consent shall not be unreasonably withheld, conditioned or delayed, make
any alterations, improvements or additions to the Premises and/or the Storage
Area (hereinafter referred to as a "Change"). Tenant's reconfiguration of its
office units shall not require Landlord's consent unless such reconfiguration
results in alterations to the Building's HVAC, electrical, plumbing or other
utility systems. If Landlord consents to a Change it may impose such conditions
with respect thereto as Landlord, acting in its reasonable discretion, deems
appropriate, including without limitation, requiring Tenant to furnish Landlord
security for the payment of all costs to be incurred in connection with the
Change, insurance against liabilities which may arise out of such work naming
Landlord as an additional insured together with all necessary permits for such
Change. The work necessary to make the Change shall be done at Tenant's expense
by employees or contractors hired by Landlord except to the extent that Landlord
may agree otherwise, and shall be performed in such manner and at such times as
Landlord shall direct to minimize disturbance to other tenants. Tenant shall
promptly pay, when due, the cost of all such work and of all decorating required
by reason thereof. Tenant shall also pay to Landlord a percentage of the cost of
such work (such percentage to be established on a uniform basis for the Building
by Landlord from time to time and shall not, in any event, exceed ten percent
(10%) of the cost of such work if there shall be no general contractor selected
and paid by Tenant, approved by Landlord and retained for such work, or five
percent (5%) of the cost of such work if there shall be such a general
contractor selected and paid by Tenant, approved by Landlord and retained for
such work) sufficient to reimburse Landlord for all expenses arising from
Landlord's involvement with such work. Upon completion of such work, Tenant
shall deliver to Landlord, if payment is made directly to contractors by Tenant,
evidence of payment, contractors affidavits and full and final waivers of all
liens for labor, services or materials (in the form attached hereto as Exhibit
F), and Tenant shall defend and hold Landlord and the Building harmless from all
costs, damages and liens and expenses related to such work. In connection with
such work Tenant shall never be deemed an agent of Landlord. All work done by
Tenant or Tenant's contractors shall be done in a good and workmanlike manner
using only good grades of materials and shall comply with all insurance
requirements and all Conditions. Tenant's contractors may not utilize any
non-union or other employees or procedures which might delay, hinder or
otherwise interfere with Landlord's construction activities in or management of
the Building. In consideration of Landlord's consent to such Change, any Change
shall (without further compensation to Tenant) become Landlord's property at the
termination of the Term, and shall, unless Landlord requests otherwise, be
relinquished to Landlord in good condition, ordinary wear excepted.
16
<PAGE> 20
ARTICLE 12.
REPAIRS AND REPLACEMENTS
------------------------
Landlord, at Landlord's expense, shall maintain and keep in good
condition the Premises, the Storage Area and Building, except for damage to the
Premises, the Storage Area or the Building caused by acts or omissions of
Tenant, Tenant's agents, employees, contractors, guests or invitees, in which
event Tenant, subject to the provisions of Section 19.2 hereof, will bear the
cost of such maintenance or repair. Tenant, at Tenant's expense, shall at all
times keep the Premises and Storage Area in a clean, safe and tenantable
condition and in good order, repair and appearance and Landlord shall have the
right to approve the means and methods employed in performance of such work. If
Tenant does not do so Landlord may (but need not) restore the Premises and
Storage Area to a clean, safe and tenantable condition, and Tenant shall pay the
cost thereof forthwith upon being billed by Landlord. This Section shall not
apply to damage or destruction and condemnation proceedings otherwise provided
for in this Lease. In the event emergency repairs are required within the
Premises and Tenant is unable to contact Landlord after diligent and persistent
efforts so to do and Landlord is otherwise unaware of such emergency, Tenant may
perform Landlord's repair obligations within the Premises as set forth herein.
Such repairs shall be performed in a good and workmanlike manner using materials
of a quality comparable to the materials used in the construction of the
Premises and the Building generally. During the performance of such repairs (and
thereafter, until Tenant is able to contact Landlord), Tenant shall endeavor to
notify Landlord that Tenant has undertaken to make such repairs on Landlord's
behalf and Landlord shall have the right to assume the performance of such
repairs at any time. Any such repairs undertaken by Tenant shall be performed in
a manner so as not to interfere with any other tenant's access to or use and
occupancy of its premises within the Building. Landlord shall reimburse Tenant
for the reasonable costs of said repairs within thirty (30) days of Landlord's
receipt of an invoice for same. For the purpose of this Article 12, an
"emergency" necessitating such repairs shall not be deemed to exist unless
Tenant reasonably determines that there is an imminent threat of harm to any
person or an imminent threat of material damage to Tenant's property located in
the Premises.
ARTICLE 13.
DESTRUCTION OR DAMAGE
---------------------
If all or a substantial portion of the Premises be rendered
untenantable, inaccessible or unsafe by fire or other casualty, or portions of
the Building exclusive of the Premises are damaged or a system therein is
damaged in such a way as to render the Premises untenantable by fire or other
casualty, and if it is reasonably anticipated that even though undertaken and
pursued with all due diligence it will require more than six (6) months to
repair the damaged area, or if the Building or Premises are damaged by an
uninsured casualty, (i) Landlord may terminate this Lease as of the date of such
casualty by notice to Tenant given within thirty (30) days after such
occurrence, and (ii) if such casualty occurs during the last twelve (12) months
of the Term and is not caused by an act or omission of Tenant, Tenant may
terminate this Lease as of the date of such casualty by notice to Landlord given
within thirty (30) days after such occurrence. If neither Landlord nor Tenant
elects to terminate this Lease, Landlord shall proceed with all due diligence to
repair the damaged area at Landlord's expense and the Rent shall abate as to
that portion of the Premises which is untenantable for so long as the same shall
remain untenantable. If this Lease is
17
<PAGE> 21
terminated pursuant to this section, Rent shall be apportioned on a per diem
basis and paid to the date of the casualty. If the Premises are partially
damaged by fire or other casualty but are not rendered substantially
untenantable taking into consideration Tenant's normal use of the Premises, then
Landlord shall proceed with all due diligence to repair the Premises and the
Rent shall not abate.
ARTICLE 14.
EMINENT DOMAIN
--------------
If the whole of the Building or the whole of the Premises shall be
taken by the exercise of the power of eminent domain or pursuant to any
agreement in lieu of the exercise of such power (hereinafter called a
"Condemnation Proceeding"), then this Lease shall terminate as of the date of
the taking of possession by or the vesting of title in the condemning authority
(such date being hereinafter called the "Taking Date"). If less than the whole
of the Building or less than the whole of the Premises shall be taken in a
Condemnation Proceeding, Tenant may at Tenant's option terminate this Lease as
of the Taking Date by giving notice of Tenant's exercise of such option within
sixty (60) days after the Taking Date, provided that as a result of such taking
Landlord shall have determined that the Premises (or the remaining portion
thereof) may no longer be adequately used for the Permitted Use. If a portion of
the Premises shall be taken and Tenant shall not exercise Tenant's option to
terminate this Lease or if such taking shall not give rise to such option to
terminate, then this Lease shall terminate on the Taking Date only as to that
portion of the Premises so taken but shall remain in full force and effect with
respect to that portion of the Premises not so taken, and the Rent and other
charges payable by Tenant hereunder shall be reduced in the ratio in which the
diminution of the rentable square footage of the Premises following the Taking
Date shall bear to the rentable square footage thereof immediately prior to such
Taking Date. Except as otherwise ordered by the court in a Condemnation
Proceeding, all income, rent, awards or interest derived from any Condemnation
Proceeding shall belong to and be the property of Landlord, but this shall not
preclude Tenant from making an independent claim for the value of Tenant's
personal property which Tenant is entitled to remove under this Lease and
Tenant's relocation expenses in such Condemnation Proceeding provided that such
claim does not result in a reduction of Landlord's award.
ARTICLE 15.
HOLDING OVER
------------
If Tenant without the consent of Landlord retains possession of
the Premises, the Storage Area or any part thereof after termination of the
Term, Tenant shall pay to Landlord Rent at a rate equal to (i) one hundred
thirty-three percent (133%) of the Rent payable for the month immediately
preceding the commencement of said holding over computed on a per month basis
for the first month or portion of the first month (without reduction for such
partial month) that Tenant remains in possession, (ii) one hundred sixty-seven
percent (167%) of the Rent payable for the month immediately preceding the
commencement of said holding over computed on a per month basis for the second
month or portion of the second month (without reduction for such partial month)
that Tenant remains in possession, and (iii) two hundred percent (200%) of the
Rent payable for the month immediately preceding the commencement of said
holding over computed on a per month basis for each month or part thereof
(without reduction for any partial
18
<PAGE> 22
month) that Tenant remains in possession after the second month; and in addition
thereto, in the event Tenant remains in possession of the Premises or any part
thereof for a period in excess of three (3) months after termination of the Term
of this Lease, Tenant shall pay Landlord all direct and consequential damages
sustained by reason of Tenant's retention of possession. Such retention of
possession shall constitute a month to month lease terminable in accordance with
law.
ARTICLE 16.
SURRENDER OF POSSESSION
-----------------------
Upon the termination of the Term Tenant shall immediately
surrender the Premises (together with any Changes) and the Storage Area to
Landlord in good order, repair and condition, ordinary wear and casualty losses
for which Tenant is not responsible pursuant to the terms of this Lease
excepted, and shall remove all vaults (as directed by Landlord), office
furniture and equipment, trade fixtures and other items of Tenant's property on
the Premises and the Storage Area. Tenant shall pay Landlord upon demand the
cost of repairing any damage to the Premises, the Storage Area and to the
Building caused by any such removal. If Tenant fails or refuses to remove any
such property from the Premises, the Storage Area or the Building, Tenant shall
be conclusively presumed to have abandoned the same and Landlord may dispose of
the same without incurring any liability therefor.
ARTICLE 17.
DEFAULT AND REMEDIES
--------------------
If Tenant shall default in the payment of any installment of the
Rent or in the payment of any other sum required to be paid by Tenant under this
Lease and such default shall continue for five (5) days after notice from
Landlord that payment thereof is due, or if Tenant shall default in the
observance or performance of any of the other covenants or conditions in this
Lease which Tenant is required to observe or perform and such default shall
continue for thirty (30) days after written notice to Tenant, or if a default
involves a hazardous condition (meaning the existence of an imminent threat of
harm to any person or imminent threat of material damage to the Building or any
part thereof or of material damage to any personal property within the Building)
and is not cured by Tenant immediately upon written notice to Tenant, or if the
interest of Tenant in this Lease shall be levied upon under execution or other
legal process, or if any voluntary petition in bankruptcy or for corporate
reorganization or any similar relief shall be filed by Tenant, or if any
involuntary petition in bankruptcy shall be filed against Tenant under any
federal or state bankruptcy or insolvency act and shall not have been dismissed
within ninety (90) days following the filing thereof, or if a receiver shall be
appointed for Tenant or any of the property of Tenant by any court and such
receiver shall not be dismissed within ninety (90) days from the date of
appointment, or if Tenant shall make an assignment for the benefit of creditors,
or if Tenant shall admit in writing Tenant's inability to meet Tenant's debts as
they mature, or if Tenant shall abandon the Premises, then Landlord may treat
the occurrence of any one or more of the foregoing events as a breach of this
Lease and thereupon at Landlord's option may, without notice or demand of any
kind to Tenant or any other person, exercise one or more of the following
described remedies, in addition to all other rights and remedies provided at law
or in equity:
19
<PAGE> 23
(a) Landlord may terminate this Lease and the estate
created hereby, in which event Landlord may forthwith repossess
the Premises and the Storage Area and be entitled to recover
forthwith, in addition to any other sums or damages for which
Tenant may be liable to Landlord as damages, an amount, if any,
equal to the Rent which would have been payable during any period
of rent-free occupancy provided to Tenant by this Lease, the cost
of all leasing commissions paid by Landlord in connection with
this Lease, the cost to Landlord of the initial leasehold
improvements to the Premises, and all other amounts paid to or on
behalf of Tenant in connection with Tenant's entry into this Lease
and occupancy of the Premises and the Storage Area (including
without limitation any moving cost allowance, payments on lease(s)
assumed by Landlord, payment for preparation of floor plans and
the like), including Landlord's interest expense thereon, together
with a sum of money equal to the excess of the value of the Rent
provided to be paid by Tenant for the balance of the Term over the
fair market rental value of the Premises, after deduction of all
anticipated expenses of reletting for said period.
(b) Landlord may terminate Tenant's right of possession
and may repossess the Premises and Storage Area by forcible entry
or unlawful detainer suit, by taking peaceful possession or
otherwise without terminating this Lease, in which event Landlord
may, but shall be under no obligation to, relet the same for the
account of Tenant, for such rent and upon such terms as shall be
satisfactory to Landlord. For the purpose of such reletting,
Landlord is authorized to decorate, repair, remodel or alter the
Premises. If Landlord shall fail to relet the Premises, Tenant
shall pay to Landlord as damages a sum equal to the amount of the
Rent reserved in this Lease for the balance of the then-existing
Term of this Lease. If the Premises are relet and a sufficient sum
shall not be realized from such reletting after paying all of the
costs and expenses of all decoration, repairs, remodeling,
alterations and additions and the expenses of such reletting to
satisfy the Rent provided for in this Lease and the amounts
recoverable (including broker's fees) by Landlord from Tenant
pursuant to subparagraph (a) of this paragraph, Tenant shall
satisfy and pay the same upon demand therefor from time to time.
Landlord may file suit to recover any sums falling due from time
to time and no suit or recovery of any portion due Landlord
hereunder shall be any defense to any subsequent action brought
for any amount not theretofore reduced to judgment in favor of
Landlord.
No waiver of any default by Tenant shall be implied from any omission by
Landlord to take any action on account of said default if such default persists
or shall be repeated, and no express waiver shall affect any default other than
the default specified in the express waiver and then only for the time and to
the extent therein stated. No failure of Landlord to exercise any power given
Landlord hereunder or to insist upon strict compliance with any obligation
hereunder and no custom or practice of the parties at variance with the
20
<PAGE> 24
terms hereof shall constitute a waiver of Landlord's right to demand exact
compliance with the terms hereof. In the event of a default by Tenant under this
Lease which continues beyond any applicable cure period, Landlord shall use
reasonable efforts to mitigate its damages in accordance with the laws of the
State of Missouri. The provisions of this Section shall survive any termination
of this Lease.
ARTICLE 18.
BANKRUPTCY
----------
If a petition is filed by or against Tenant for relief under the
bankruptcy laws of the United States (the "Bankruptcy Code"), and Tenant
(including for the purposes of this section Tenant's successor in bankruptcy,
whether a trustee or Tenant as debtor in possession) assumes and proposes to
assign, or proposes to assume and assign, this Lease pursuant to the provisions
of the Bankruptcy Code to any person or entity who has made or accepted a bona
fide offer to accept an assignment of this Lease on the terms acceptable to
Tenant, then notice of the proposed assignment setting forth (a) the name and
address of the proposed assignee, (b) all of the terms and conditions of the
offer and proposed assignment, and (c) the adequate assurance to be furnished by
the proposed assignee of the proposed assignee's future performance under this
Lease, shall be given to Landlord by Tenant no later than twenty (20) days after
Tenant has made or received such offer, but in no event later than ten (10) days
prior to the date on which Tenant applies to a court of competent jurisdiction
for authority and approval to enter into the proposed assignment. Landlord shall
have the prior right and option, to be exercised by notice to Tenant given at
any time prior to the date on which the court order authorizing such assignment
becomes final and non-appealable, to receive an assignment of this Lease upon
the same terms and conditions, and for the same consideration, if any, as the
proposed assignee, less any brokerage commission which may otherwise be payable
out of the consideration to be paid by the proposed assignee for the assignment
of this Lease. If this Lease is assigned pursuant to the provisions of the
Bankruptcy Code, Landlord: (i) may require from the assignee a deposit or other
security for the performance of assignee's obligations under this Lease in an
amount substantially the same as would have been required by Landlord upon the
initial leasing to a tenant similar to the assignee; and (ii) shall be entitled
to receive as additional Rent, any amounts received by Tenant in connection with
such assignment. Any person or entity to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code shall be deemed without further act or
documentation to have assumed all of the Tenant's obligations arising under this
Lease on and after the date of such assignment. Any such assignee shall upon
demand execute and deliver to Landlord an instrument confirming such assumption.
No provision of this Lease shall be deemed a waiver of Landlord's rights or
remedies under the Bankruptcy Code to oppose any assumption and/or assignment of
this Lease, or to regain possession of the Premises if this Lease has neither
been assumed nor rejected within sixty (60) days after the date of the order for
relief or within such additional time as a court of competent jurisdiction may
have fixed. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord under this Lease, whether or not
expressly denominated as rent, shall constitute rent for the purposes of Section
502(b)(6) of the Bankruptcy Code.
21
<PAGE> 25
ARTICLE 19.
INSURANCE AND WAIVER OF RECOVERY
--------------------------------
19.1 INSURANCE. Tenant shall at all times during the Term maintain
in full force and effect with respect to the Premises (a) commercial or
comprehensive general liability insurance (on an occurrence and not claims-made
basis) having the limits set forth in Article 1 hereof, (b) all risk property
insurance upon all property owned or used by Tenant in the Premises in an amount
not less than the full replacement cost thereof, (c) workers' compensation and
employer's liability insurance in form and in at least the minimum amount
required by law, (d) contractual liability insurance sufficient to cover
Tenant's indemnity obligations hereunder and (e) such other coverage as may be
reasonably required by Landlord or any mortgagee of the Building, each in the
standard form generally of use in the State of Missouri by a company reasonably
satisfactory to Landlord. The amount of such insurance coverage shall be subject
to increase upon the reasonable request of Landlord. Such insurance shall be
subject to modification, exhaustion or cancellation only upon ten (10) days
notice to Landlord. Tenant, at or prior to the Lease Commencement Date, and
thereafter not less than thirty (30) days prior to the expiration of any such
policy, shall furnish Landlord with an endorsement to such insurance, such
endorsement to be in a form reasonably acceptable to Landlord and any mortgagee
of the Building and, at the request of Landlord, to name Landlord and any such
mortgagee as an additional insured.
19.2. WAIVER OF RECOVERY. Landlord and Tenant hereby mutually
waive any and all rights of recovery against one another for real or personal
property loss or damage occurring to the Premises or to the Building or any part
thereof or any personal property located therein from perils which are able to
be insured against in standard fire and extended coverage, vandalism and
malicious mischief and sprinkler leakage insurance contracts (commonly referred
to as "All Risk") issued in the State of Missouri (whether or not such insurance
actually is carried). Such release shall include any deductible or self insured
retention. Landlord and Tenant shall request their insurance carriers to consent
to a waiver of all rights of subrogation against each other by inclusion of such
a clause in their respective policies or by endorsement thereto.
19.3. INDEMNITY BY TENANT. Subject to the foregoing limited
waiver, Tenant shall defend and indemnify Landlord and save Landlord harmless
from and against any and all claims against Landlord arising from (a) Tenant's
use or occupancy of the Premises or the conduct of Tenant's business or from any
activity, work or thing done, permitted or suffered by Tenant in or about the
Premises or Building, (b) the nonperformance of any covenant or agreement on
Tenant's part to be performed pursuant to the terms of this Lease or (c) any act
or negligence of Tenant or of any of Tenant's agents, contractors, employees,
invitees or licensees, and from and against all costs, counsel fees, expenses
and liabilities incurred in any such claim or in any action or proceeding
brought thereon; and in case any action or proceeding be brought against
Landlord by reason of any such claim, Tenant upon notice from Landlord,
covenants to resist or defend at Tenant's expense such action or proceeding by
counsel reasonably satisfactory to Landlord; provided, however, that the
provisions of this Section 19.3 shall not be construed to make Tenant
responsible for loss, damage, liability or defense resulting from injuries to
third parties to the extent caused by the negligence of Landlord or Landlord's
contractors, licensees, employees, guests and invitees.
22
<PAGE> 26
19.4. LANDLORD'S INSURANCE. Landlord shall at all times maintain
in full force and effect with respect to the Building commercial or
comprehensive general liability insurance having the limits set forth in Article
1 hereof.
ARTICLE 20.
TAXES ON TENANT'S PROPERTY
--------------------------
Tenant shall be liable for and shall pay before delinquency, taxes
levied against any personal property or trade fixtures placed by Tenant in the
Premises and/or the Storage Area. If any such taxes on Tenant's personal
property or trade fixtures are levied against Landlord or Landlord's property or
if the assessed value of the Building is increased by the inclusion therein of a
value placed upon such personal property or trade fixtures of Tenant and if
Landlord, after written notice to Tenant, pays the taxes based upon such
increased assessments, which Landlord shall have the right to do regardless of
the validity thereof, but only under proper protest if requested by Tenant,
Tenant shall upon demand repay to Landlord the taxes levied against Landlord, or
the proportion of such taxes resulting from such increase in the assessment;
provided that in any such event, at Tenant's sole cost and expense, Tenant shall
have the right, in the name of Landlord and with Landlord's full cooperation, to
bring suit in any court of competent jurisdiction to recover the amount of any
such taxes so paid under protest, any amount so recovered to belong to Tenant.
ARTICLE 21.
AMERICANS WITH DISABILITIES ACT
-------------------------------
Landlord shall be responsible for compliance with the requirements
of the Americans with Disabilities Act (the "ADA") with respect to the Building
shell, lobbies, restrooms (including Building standard restrooms on floors fully
occupied by Tenant), and other common areas of the Building, and agrees to hold
Tenant harmless with respect to failure by Landlord to fulfill Landlord's
obligations under the ADA with respect to those areas. Tenant shall be
responsible for compliance with the requirements of the ADA with respect to the
Premises and the Storage Area, and the use and occupancy of the Premises and the
Storage Area by Tenant, and agrees to hold Landlord harmless with respect to
failure by Tenant to fulfill Tenant's obligations under the ADA with respect to
the occupancy and use of the Premises and the Storage Area.
ARTICLE 22.
HAZARDOUS MATERIALS
-------------------
The Building was constructed in compliance with the codes and
regulations in effect at the time of construction. Landlord agrees to comply
with all applicable laws and regulations relating to hazardous materials
associated with the Building structure and common areas. The foregoing does not
relate to compliance with laws or regulations which are applicable to the use or
occupancy of premises in the Building by individual tenants or the conduct of
such tenant's business in those premises and compliance with those laws and
regulations shall be the sole responsibility of the individual tenants. As of
the date of this Lease, to the best of Landlord's knowledge, the Premises
contain no asbestos and Landlord has received no notice with respect to
23
<PAGE> 27
the Building from any governmental agency of any violation of the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), Resource
Conservation and Recovery Act ("RCRA") or any similar law or regulation in
effect in the State of Missouri. Tenant agrees to comply with all applicable
laws and regulations relating to hazardous materials and Tenant shall not use,
store, dispose of, or generate any such materials in, on or about the Premises,
the Storage Area, or the Building except as customarily used for general office
purposes, which materials may be utilized and subsequently disposed of only in
strict compliance with all applicable laws and regulations and insurance
requirements applicable to the Building.
ARTICLE 23.
GENERAL PROVISIONS
------------------
23.1. COSTS AND EXPENSES OF ENFORCEMENT: If Tenant or Landlord
brings any action for any relief against the other, declaratory or otherwise,
arising out of this Lease, including any suit by Landlord for the recovery of
Rent or possession of the Premises and the Storage Area, the losing party shall
reimburse the prevailing party for the reasonable fees and costs of attorneys,
including the reasonable fees and costs of investigators and experts engaged in
connection with such action and reasonable fees, costs and expenses incurred in
connection with any appeal, all of which shall be deemed to have accrued on the
commencement of such action and shall be paid whether or not the action is
prosecuted to judgment. The "prevailing party" shall be the party that prevails
in obtaining a remedy or relief which most nearly reflects the remedy or relief
which that party sought.
23.2. LATE FEES: All amounts due Landlord under this Lease shall
be considered past due for the purposes hereof on the fifth (5th) day after the
due date and shall bear interest from such date until paid at an annual rate
equal to four percent (4%) in excess of the then publicly announced Prime Rate
of Mercantile Bank National Association, St. Louis, Missouri, or its successor
(the "Bank') which rate shall change as and when such Prime Rate shall be
changed by such Bank, or the highest lawful rate, whichever is less. If the Bank
no longer exists, then in such event, Landlord may designate another bank doing
business in the City or County of St. Louis, Missouri to determine the Prime
Rate for purposes of this section. Further, on the second occasion and each
subsequent occasion in any calendar year during the Term on which an installment
of Rent has not been received by Landlord within five (5) days after the Rent's
due date, Landlord shall be entitled, as a service charge, to a fee of five
percent (5%) of the amount of the Monthly Rent then due hereunder.
23.3. NOTICES: All notices, consents, approvals and requests
required or permitted hereunder shall be given in writing and shall be effective
for all purposes if hand delivered or sent by (a) certified or registered United
States mail, postage prepaid, or (b) expedited prepaid delivery service, either
commercial or United States Postal Service, with proof of attempted delivery,
and (c) by telecopier (with answer back acknowledged), addressed if to Landlord
at Landlord's address set forth in Article 1 hereof, or at such other address
designated from time to time by Landlord, with a copy to Landlord's property
management agent, per Landlord's from time to time written notification to
Tenant on or after the date of this Lease, or if to Tenant, at Tenant's address
set forth in Article 1 hereof, or at such other address designated from time to
time by Tenant, with a courtesy copy to Tenant's attorney, per Tenant's from
time
24
<PAGE> 28
to time written notification to Landlord on or after the date of this Lease,
provided that such copy shall be a courtesy copy only and failure to provide
such courtesy copy shall have absolutely no effect or entitle Tenant to any
remedy whatsoever. Any notice duly given to Tenant shall be effective whether or
not the courtesy copy was given to Tenant's attorney. A notice shall be deemed
to have been given: in the case of hand delivery, at the time of delivery; in
the case of registered or certified mail, when delivered or the first attempted
delivery on a Business Day; or in the case of expedited prepaid delivery and
telecopy, upon the first attempted delivery on a Business Day.
23.4. LANDLORD'S RIGHT TO TRANSFER INTEREST: Landlord has the
right to transfer Landlord's interest in the Building and in this Lease, and
upon any such transfer Landlord shall automatically be released from all
liability under this Lease, and Tenant shall look solely to such transferee for
the performance of Landlord's obligations hereunder. Landlord may assign
Landlord's interest in this Lease to a mortgage lender as additional security
provided that such assignment shall not release Landlord from Landlord's
obligations hereunder and Tenant shall continue to look solely to Landlord for
the performance of Landlord's obligations hereunder.
23.5. ENTIRE AGREEMENT: This Lease, together with the Exhibits
referenced in Article 1 and Addendum(s), if any, constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
shall be binding upon the parties hereto and their respective heirs, personal
representatives, executors, successors and permitted assigns, as the case may
be. All terms used in this Lease shall be deemed to refer to the masculine,
feminine, neuter, singular or plural, as the context may require.
23.6. APPLICABLE LAW AND PARTIAL INVALIDITY: This Lease shall be
governed by and enforced in accordance with the laws of the State of Missouri.
The invalidity or unenforceability of any provision of this Lease shall not
affect or impair any other provision.
23.7. AMENDMENT: This Lease may not be altered, amended, modified,
or extended except by written instrument signed by Landlord and Tenant.
23.8. WAIVER: The waiver by either Landlord or Tenant of any
breach of any term, condition or covenant of this Lease shall not be deemed to
be a waiver of any subsequent breach of the same or any other term, condition or
covenant of this Lease. No failure either by Landlord or Tenant to take action
against the other party hereto on account of any failure by such party to
perform any of such party's obligations under this Lease shall be deemed to be a
waiver by the non-defaulting party, except only where the non-defaulting party
has provided to the other party a written waiver, signed by the non-defaulting
party.
23.9. BROKERAGE: Each of the parties hereto warrants to the other
that, except as set forth in Article 1 hereof, such party has not obligated the
other party for any finders', brokers' or other agents' commission, fees or
other remuneration in connection with this Lease; and each party shall indemnify
and hold the other party harmless from and against any and all claims for such
fees alleged to have been incurred by such party.
25
<PAGE> 29
23.10. LEASE ESTOPPEL CERTIFICATE: Tenant from time to time, upon
not less than ten (10) days prior written request by Landlord, will promptly
deliver to Landlord a duly executed Lease Estoppel Certificate in the Building
standard form (attached hereto as Exhibit H).
23.11. FORCE MAJEURE: Any prevention, delay or stoppage due to
strikes, lockouts, labor disputes, acts of God, inability to obtain labor or
materials, governmental restrictions, regulations or controls, enemy or hostile
government action, civil commotion, fire or other casualty or other causes
beyond the reasonable control of the party required to perform shall excuse the
performance by such party for a period equal to any such prevention, delay or
stoppage, except for the obligations imposed with regard to Rent and other
charges to be paid by Tenant pursuant to this Lease.
23.12. LEASE TERMINATION: This Lease may be terminated only in
accordance with its terms, and no unilateral termination by Tenant not expressly
established in writing within this Lease and no voluntary surrender of this
Lease by Tenant shall be effective unless such termination or surrender shall be
accepted by Landlord in writing.
23.13. RELATIONSHIPS: Nothing contained in this Lease shall be
deemed to constitute or be construed to create any relationship between Landlord
and Tenant other than that of lessor and lessee.
23.14. AUTHORITY: With respect to each entity constituting the
Tenant, such entity hereby covenants and warrants that (a) it is validly
existing and duly organized; (b) it is duly authorized to do business in the
State of Missouri; (c) the person executing this lease on behalf of such entity
is an officer of such entity duly authorized by such entity to sign and execute
this Lease on such entity's behalf; (d) this Lease is a valid and binding
obligation of such entity, enforceable in accordance with the Lease's terms; and
(e) no approval from any other party is necessary prior to such entity's
execution of this Lease or performance of such entity's duties hereunder.
Landlord hereby covenants and warrants that (a) Landlord is duly authorized to
do business in the State of Missouri; (b) Landlord is validly existing and duly
organized in the State of Delaware; (c) Landlord is authorized to enter into and
perform the obligations to Landlord under this Lease; (d) this Lease is a valid
and binding obligation of Landlord, enforceable in accordance with the Lease's
terms; and (e) no approval from any other party is necessary prior to Landlord's
execution of this Lease or performance of Landlord's duties hereunder.
23.15. NON-BINDING UNLESS SIGNED: Submission of the form of this
Lease for examination shall not bind Landlord in any manner, and no lease or
other obligation of Landlord shall arise until this instrument is signed by both
Landlord and Tenant, approved by the holder of any mortgage, deed of trust or
other financial encumbrance on the Building having such approval rights, and
delivery is made to each party.
23.16. RIGHTS: No rights to any view or to light or air over any
property, whether belonging to Landlord or any other person are granted to
Tenant by this Lease.
23.17. INTENTIONALLY OMITTED.
26
<PAGE> 30
23.18. LEASE PAYMENTS: Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease (regardless of Tenant's
designation of such payments) to satisfy obligations of Tenant hereunder in such
order and amounts as Landlord in Landlord's sole discretion may elect.
23.19. INTENTIONALLY OMITTED.
23.20. LANDLORD'S LIABILITY: Notwithstanding any other provision
hereof to the contrary, Landlord or Landlord's agents shall not be liable for
any damage to property entrusted to employees or agents of Landlord, nor for
loss of or damage to any property by theft or otherwise, nor for any injury or
damage to persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water or rain which may leak from any part of the
Building or from the pipes, appliances or plumbing works therein or from the
roof, street or subsurface or from any other place or resulting from dampness or
any other cause whatsoever. Landlord or Landlord's agents shall not be liable
for interference with the light or other incorporeal hereditaments, nor shall
Landlord be liable for any latent defect in the Premises or the Storage Area or
in the Building. Tenant shall give reasonably prompt notice to Landlord in case
of fire or accidents in the Premises or the Storage Area or in the Building or
of defects therein or in the fixtures or equipment. It is expressly understood
and agreed that none of Landlord's covenants, undertakings and agreements under
this Lease are made or intended as personal covenants, undertakings or
agreements by Landlord, and any liability for damage or breach or nonperformance
by Landlord shall be collectible only out of Landlord's interest in the
Building, and no personal liability is assumed by or at any time may be asserted
against Landlord.
23.21. CONFIDENTIALITY: The terms and conditions of this Lease are
confidential and may not be disclosed by Tenant or Landlord or their respective
representatives to any third parties (other than such party's attorneys,
accountants and advisors) without the prior written consent of the other, except
to the extent disclosure is necessary in order to comply with applicable
governmental laws, rules or regulations, including securities laws.
23.22. TENANT'S FINANCIAL STATEMENTS: At any time during the Term,
Tenant shall, upon ten (10) business days prior written notice from Landlord,
provide Landlord with a current financial statement and financial statements two
(2) years prior to the current financial statement year. Such statement shall be
prepared in accordance with generally accepted accounting principles and, if
such is the normal practice of Tenant, shall be audited by an independent
certified public accountant.
23.23. LANDLORD'S DEFAULT: In the event of any default on the part
of Landlord, Tenant shall give notice by certified mail to any holder of a
financial encumbrance covering the Building who has requested such notice(s) by
written notice to Tenant (or Landlord shall have requested same on behalf of
such holder), whose address shall have been furnished to the Tenant, and shall
offer such holder a reasonable opportunity to cure the default, including time
to obtain possession of the Building by power of sale or a judicial foreclosure,
if such should prove necessary to effect a cure.
27
<PAGE> 31
23.24. SIGNAGE: Tenant shall have the right to have signage
installed by Landlord in the locations depicted on Exhibit A-1 to this Lease
(the "Signage Plan"), which signage shall be subject to compliance with all
applicable laws, statutes, rules, regulations and ordinances.
All such signs shall be subject to Landlord's prior written
approval, which approval shall not be unreasonably withheld, conditioned or
delayed.
Landlord shall provide an allowance (the "Signage Allowance") for
up to Twenty Five Thousand and 00/100 Dollars ($25,000.00) of the cost of
Tenant's signage described in paragraphs a, b and c of Exhibit A-1 (excluding
the cost of electrical connections for said signage, which cost Landlord agrees
to pay without charge to such allowance). The Signage Allowance shall be
accounted for by Landlord concurrently with the distribution of the Tenant
Improvement Allowance pursuant to Exhibit C to this Lease. Tenant shall be
responsible for any cost in excess of Twenty-Five Thousand and 00/100 Dollars
($25,000.00), which excess may be deducted from the Tenant Improvement Allowance
or else shall be paid to Landlord on demand.
With respect to signage on and within the Building, however,
Landlord hereby agrees as follows: (a) no present or future tenant in the
Building engaged primarily in the sale or issuance of securities, other than
Tenant, shall have the right to exterior signage or any interior signage, other
than directory signage, which is visible from the exterior of the Building or
which is located within the portion of the common areas on the second floor of
the Building to the St. Louis Centre Garage (provided it is hereby understood
and agreed that for purposes of this prohibition no other tenant shall be
considered "engaged primarily in the sale or issuance of securities" unless such
sales and issuances shall generate in excess of 50% of the gross revenues of
such tenant generated from activities and operations within its leased premises
in the Building for any fiscal year of such tenant during the Term of this
Lease); and (b) any tenant exterior signage on the side of the Building facing
Broadway shall be at an elevation below the elevation at which Tenant is
permitted to maintain signage pursuant to Paragraph a of Exhibit A-1 of this
Lease, and any tenant exterior signage on the side of the Building facing
Washington shall be at an elevation below the elevation at which Tenant is
permitted to maintain signage pursuant to Paragraph c of Exhibit A-1 of this
Lease.
BALANCE OF THIS PAGE IS INTENTIONALLY BLANK
28
<PAGE> 32
23.25. WAIVER OF TRIAL BY JURY: Landlord and Tenant hereby agree
not to elect a trial by jury of any issue triable of right by jury, and waive
any right to trial by jury fully to the extent that any such right shall now or
hereafter exist with regard to the claim, counterclaim or other action arising
in connection therewith. This waiver of right to trial by jury is given
knowingly and voluntarily by the parties, and is intended to encompass
individually each instance and each issue to which the right to a trial by jury
would otherwise accrue. Landlord or Tenant, as the case may be, is hereby
authorized to file a copy of this paragraph in any proceeding as conclusive
evidence of this waiver by the other party.
23.26. HEADINGS: The Article and/or Section headings and the Table
of Contents in this Agreement are included herein for convenience of reference
only and shall not constitute a part of this Agreement for any other purpose.
23.27. TIME OF THE ESSENCE: Time is of the essence with respect to
the performance and observance of all of the terms, covenants and conditions
hereof.
23.28. LANDLORD'S FEES. Whenever Tenant requests Landlord to take
any action or give any consent required or permitted under this Lease, Tenant
shall reimburse Landlord for Landlord's reasonable costs incurred in reviewing
the proposed action or consent, including, without limitation, reasonable
out-of-pocket attorneys', engineers' or architects' fees, within ten days after
Landlord's delivery to Tenant of a statement of such costs. Tenant shall be
obligated to make such reimbursement without regard to whether Landlord consents
to any such proposed action.
BALANCE OF THIS PAGE IS INTENTIONALLY BLANK
29
<PAGE> 33
23.29. TELECOMMUNICATIONS. Tenant and its telecommunications
companies, including, but not limited to, local exchange telecommunications
companies and alternative access vendor services companies, shall have no right
of access to and within the Building for the installation and operation of
telecommunications systems, including, but not limited to, voice, video, data
and any other telecommunications services provided over wire, fiber optic,
microwave, wireless and any other transmission systems, for part or all of
Tenant's telecommunications within the Building and from the Building to any
other location without Landlord's prior written consent, which consent shall not
be unreasonably withheld, conditioned or delayed.
23.30. DISCLAIMER OF IMPLIED WARRANTIES. Landlord expressly
disclaim any implied warranty that the Premises are suitable for Tenant's
intended commercial purpose, and Tenant's obligation to pay rent and additional
rent hereunder is not dependent upon the condition of the Premises or the
performance by Landlord of its obligations hereunder, and, except as otherwise
expressly provided herein, Tenant shall continue to pay the rent and additional
rent, without abatement, setoff or deduction, notwithstanding any breach by
Landlord of its duties or obligations hereunder, whether express or implied.
BALANCE OF THIS PAGE IS INTENTIONALLY BLANK
30
<PAGE> 34
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY
BE ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, the undersigned have caused this Lease to be
signed and delivered on their behalf on the dates set forth below.
TENANT:
STIFEL FINANCIAL CORP.
By: /s/ Charles R. Hartman
---------------------------------------
Name: Charles R. Hartman
Title: Secretary
Date: September 30, 1998
STIFEL, NICOLAUS & COMPANY, INCORPORATED
By: /s/ Charles R. Hartman
---------------------------------------
Name: Charles R. Hartman
Title: Secretary
Date: September 30, 1998
LANDLORD:
EBS BUILDING, L.L.C.
BY: PricewaterhouseCoopers LLP, its Manager
By: /s/ Keith F. Cooper
---------------------------------------
Name: Keith F. Cooper
Title: Partner
Date: September 30, 1998
31
<PAGE> 35
EXHIBIT A
FLOOR PLAN
----------
<PAGE> 36
389251
EXHIBIT A-1
SIGNAGE PLAN
------------
Subject to the terms and conditions of Section 23.24 of the Lease,
on or prior to the Lease Commencement Date (subject to Section 23.11 of the
Lease) Landlord shall, with the cooperation of Tenant as directed by Landlord
and at the cost of Tenant (except for the Signage Allowance provided by Landlord
as set forth in Section 23.24 of the Lease), install or cause to be installed
the following signage:
a. BROADWAY ENTRANCE. Tenant shall have the exclusive right to
signage within the stone band at the base of the semi-circle where the
name "Edison Brothers Stores, Inc." is currently located (and where the
Building name will be located upon the change of such name as
contemplated under Section 23.35 of the Lease or as otherwise permitted
under Article 10 of the Lease). Tenant's sign shall be within the "band"
within the outer edge of the round columns located directly below said
band, and the font of said signage shall be limited in height to 13"
letters. Tenant shall have the right, subject to the foregoing
limitations, to back-light this signage. Such signage shall be subject to
receipt of applicable governmental approvals.
b. AIRSHAFT AT THE CORNER OF BROADWAY AND WASHINGTON. Tenant shall
have the exclusive tenant right to signage and a "Dow" ticker on the
north and east sides of the Building airshaft located at the corner of
Broadway and Washington, provided, however, that (i) the font of said
signage shall be limited in height to 6" letters on the airshaft, (ii)
any such signage must be approximately the same size as the openings on
the airshaft and (iii) any such signage shall not interfere with the
ventilating system for the Building garage. Such signage shall be subject
to receipt of applicable governmental approvals.
c. WASHINGTON STREET ENTRANCE. Tenant shall have the right to
place signage on the Building facade between the brick area where the
Building name is located and the glass area at the Washington Street
entrance to the Building, and the font of said signage shall be limited
in height to 9" letters. Such signage shall be subject to receipt of
applicable governmental approvals.
Subject to the terms and conditions of Section 23.24 of the Lease,
on or after the Lease Commencement Date, (i) in the event Landlord installs a
monument sign at the St. Louis Centre entrance to the Building, Tenant shall
have the right (at Tenant's cost, to be paid to Landlord on demand) to have its
name appear on said monument sign and its position near the top of said monument
sign shall be determined in accordance with the amount of space leased by Tenant
in proportion to other tenants in the Building, and (ii) in the event Landlord
installs a monument or similar style sign at any point around the perimeter of
the Building, Tenant shall have the right (at Tenant's cost, to be paid to
Landlord on demand) to have its name appear on said sign and its position near
the top of said sign shall be determined in accordance with the amount of space
leased by Tenant in proportion to other tenants in the Building. Such signage
shall be subject to receipt of applicable governmental approvals.
<PAGE> 37
Drawings are attached hereto and made a part of this Exhibit A-1
generally depicting the exterior signage proposed in paragraphs a, b and c
above, and showing the relationship of such exterior signage to the exterior
Building signage initially proposed by Landlord.
In the event the locations or other features of the exterior
signage described in paragraphs a, b and c of this Exhibit A-1 to the Lease (the
"Stifel Signage") shall not be permissible under applicable laws, statutes,
rules, regulations or ordinances, Landlord and Tenant agree as follows:
(i) Landlord and Tenant acknowledge that, inter alia, permits
and approvals for the Stifel Signage must first be obtained from the
appropriate St. Louis City (the "City") authorities in compliance with
the City Code, and that similar permits and approvals will be sought for
Landlord's exterior Building name identification signage initially
proposed by Landlord and shown on the drawings appended to this Exhibit
A-1 for informational purposes (the "Landlord's Building Signage").
Landlord and Tenant agree to assist and cooperate with each other to
prepare and present the applications necessary to obtain permits and
approvals (including, without limitation, any requisite zoning variances)
for such signage.
(ii) With respect to the Stifel Signage described in
paragraph a of this Exhibit A-1 and the Landlord's Building Signage on
the Broadway side of the Building, if only one sign is permitted,
Landlord and Tenant agree that such sign will include the name "Stifel
Nicolaus" in substantial conformity with paragraph a of this Exhibit A-1
(the "Stifel Broadway Sign"), unless the City shall require as a
condition to issuance of the required permits and approvals for the
Stifel Broadway Sign that the name of the Building be changed to include
the name "Stifel Nicolaus" in some manner. In such event, except to the
extent the parties shall mutually agree in writing otherwise, Landlord
and Tenant agree that Landlord shall install no signage on the exterior
Broadway side of the Building or the Washington side of the Building
(including, without limitation, Landlord's Building Signage) unless and
until the requisite permits and/or approval shall be obtained to
authorize the installation of the Stifel Broadway Sign on the Broadway
side of the Building without changing the name of the Building to include
"Stifel Nicolaus" in some manner.
(iii) With respect to the Stifel Signage described in
paragraph b of this Exhibit A-1 and the Landlord's Building Signage on
the airshaft, if only one sign is permitted, Landlord and Tenant agree
that such sign will include the name "Stifel Nicolaus".
(iv) With respect to the Stifel Signage described in
paragraph c of this Exhibit A-1 and the Landlord's Building Signage on
the Washington side of the Building, if only one sign is permitted,
Landlord and Tenant agree that such sign will be the Landlord's Building
Signage.
If, notwithstanding the efforts of Landlord and Tenant pursuant to
paragraph (i) of this Exhibit A-1, by the date of delivery of the Subsequently
Delivered Premises Landlord shall have been unable to obtain the permits and
approvals necessary to authorize the installation of the Stifel Signage without
changing the name of the Building to include the name "Stifel Nicolaus" in
<PAGE> 38
some manner, Landlord agrees, upon Tenant's written request, for the limited
purposes of permitting only, to change the name of the Building to add the name
"Stifel Nicolaus" insofar as necessary to reflect in its permit application to
the City for the Stifel Signage that the name of the Building is "One Financial
Plaza - Stifel Nicolaus" (the "Name"), provided that:
(1) Landlord may discontinue or abandon use of the Name, or
otherwise change the name of the Building to omit reference to "Stifel
Nicolaus" at any time after issuance or denial of the permits and
approvals for the Stifel Signage without rendering the Landlord's
Building Signage or any of the Building's other signs nonconforming and
without creating any other violation of applicable zoning or other laws,
ordinances, statutes or regulations.
(2) Landlord shall not be obligated to hold out, present or
represent the Name as the name of the Building for any purpose whatsoever
other than the permitting purposes herein specified.
(3) The use of the Name in such permit application and such
permit process shall not result in any detriment, beyond the reasonable
control of Landlord, to advertising, management, operations or marketing
efforts with respect to the Building, and shall not render the Building
in nonconformity with or violation of any applicable zoning or other
laws, ordinances, statutes or regulations.
(4) The Stifel Signage described in such permit application
and such permit process shall conform to paragraphs a, b and c of this
Exhibit A-1, or shall be configured in such manner as shall differentiate
between the lettering of "One Financial Plaza" and "Stifel Nicolaus" to
the reasonable satisfaction of Landlord and Tenant.
Tenant agrees that, without Landlord's prior written consent,
Tenant, its officers, directors, employees, agents or contractors, or anyone
else under the control or direction of Tenant, shall not hold out, present or
represent the Name as the name of the Building for any purpose whatsoever
(including, without limitation, marketing, advertising or address purposes), and
shall not include the name of "Stifel Nicolaus" in references to the name of the
Building.
Tenant agrees that, without cost or charge to Landlord, Landlord
shall have the right and interest to the use of the name "Stifel Nicolaus" as
part of the Name in connection with the Building and the Building name at any
time, for the pendency of such permit application and such permit process and
thereafter for so long as Landlord shall elect, in its discretion; and Tenant
hereby grants such right and interest to Landlord, its successors and assigns,
and Tenant further waives all claims for compensation and all restrictions in
connection with such grant.
Tenant agrees to hold harmless and indemnify Landlord, and its
officers, members, employees, agents and contractors, against any claims, losses
or damages including, without limitation, reasonable attorneys' fees and costs,
resulting from the inclusion of the name "Stifel Nicolaus" in the name of the
Building for the permitting purposes herein specified.
<PAGE> 39
EXHIBIT B
INTENTIONALLY OMITTED
---------------------
<PAGE> 40
EXHIBIT C
WORK TO BE PERFORMED IN THE PREMISES
------------------------------------
The plan submittal and approval process and the related timing,
delivery and approval requirements (collectively the "Approval Procedures") are
very important to completion of construction in the Premises and the readiness
of the Premises for occupancy on the Lease Commencement Date. Each party agrees
to comply with the Approval Procedures, as stated in Paragraphs B and C below,
in order to prevent a delay in the Lease Commencement Date. In the event that a
delay by Tenant in the Approval Procedures should delay the readiness of the
Initial Premises for occupancy on the Lease Commencement Date or the readiness
of the Subsequently Delivered Premises on April 1, 1999, the Lease shall
nevertheless continue in effect, and Rent shall be due and payable on the Rent
Commencement Date and thereafter as otherwise set forth in the Lease, and
without abatement.
A. TENANT IMPROVEMENT ALLOWANCE. Up to Twenty-Five and 00/100
Dollars ($25.00) per rentable square foot in the Premises, as
acknowledged in accordance with Section 1.8 of this Lease (the "Tenant
Improvement Allowance"), to be used only for payment of (i) Tenant's Move
Expenses, as defined below, of up to Two and 00/100 Dollars ($2.00) per
rentable square foot in the Premises, as acknowledged in accordance with
Section 1.8 of this Lease (the "Move Expense Sub-Allowance"), and (ii)
the Construction Costs, including without limitation, permanently applied
improvements in and to the Premises, costs in connection with the related
installation of telephone and computer cabling, space planning,
demolition work, the preparation of construction drawings, the Six
Thousand and 00/100 Dollars ($6,000.00) per floor agreed upon charge, if
applicable, with respect to installation of excess electrical voltage
capacity pursuant to Section 7.2 of the Lease, the cost of any
construction permits related to the foregoing, and construction
management fees of Landlord and Tenant. Two percent (2%) of the aggregate
Construction Costs shall be paid to Landlord or Landlord's agent for said
construction management services and up to two percent (2%) of the Tenant
Improvement Allowance may be paid to Tenant's construction management
agent. The term "Move Expenses" shall mean moving materials,
advertisements, business cards, stationery, phone listings, hiring
temporary employees relating to the move, and the like. The Tenant
Improvement Allowance shall not, however, be used for the purchase of
Tenant's furnishings (other than permanently affixed improvements, such
as wallpaper and casework), trade fixtures, equipment or supplies, all of
which shall be paid for solely by Tenant, without allowance or
reimbursement from Landlord.
B. PROJECT MANAGERS - CONSTRUCTION BIDS. Landlord and Tenant shall
each engage its own construction management agent (the "Project Manager")
to take joint construction bids from the following contractors: ISC,
Guarantee Interiors, and Niehaus Construction Co. Tenant and Landlord
shall each be provided with a copy of each bid and an opportunity to
review the same. The contractor for the improvements to the Premises must
be jointly approved by Tenant and Landlord or Landlord's Project Manager,
and shall be engaged by Landlord. Tenant shall approve the contractor
promptly upon request by Landlord, and in any event within four (4)
business days after the receipt of the last of the foregoing bids.
<PAGE> 41
C. APPROVAL PROCEDURES. The following paragraphs set forth the
process for approval of the space plan and construction documents:
1. Tenant has engaged, with Landlord's approval as
to the scope of work and the cost of work, a design firm to
prepare a space plan for the proposed improvements to the
Premises. Landlord shall pay the cost of said space plan, which
amount shall not be deducted from the Tenant Improvement
Allowance.
2. Based on the space plan to be delivered by
Tenant to Landlord by October 1, 1998 and to be modified by Tenant
as reasonably required by Landlord (and revised to incorporate
such modifications) by October 5, 1998 (the "Preliminary Space
Plan"), Landlord shall commence the preparation of the plans and
specifications (the "Construction Documents") necessary to
construct the Initial Premises. At or prior to 5:00 p.m. on
October 7, 1998, Tenant shall deliver to Landlord a space plan
reflecting changes only to that portion of the Premises on the
seventh floor of the Building, which shall be modified by Tenant
as reasonably required by Landlord (and revised to incorporate
such modifications) by 12:00 Noon on October 8, 1998 (the "Final
Space Plan"), which Final Space Plan shall be substituted for the
Initial Space Plan as the basis for the preparation of the
Construction Documents. Landlord shall deliver the Construction
Documents to Tenant for review and approval no later than October
19, 1998 (the "Landlord's Plan Submittal Date for Initial
Premises"). Tenant shall review the Construction Documents and
shall either return the same to Landlord, marked approved or with
Tenant's necessary changes indicated no later than October 23,
1998 (the "Tenant's Plan Approval Date for Initial Premises"). In
the event that Tenant indicates changes to the Construction
Documents, Landlord shall promptly make the indicated changes and
return the revised Construction Documents to Tenant for Tenant's
review and approval. Tenant shall have five (5) days after receipt
of the revised Construction Documents to approve and return to
Landlord the Construction Documents. Construction Documents, with
or without requested revisions from the Tenant, must be signed by
the Tenant (together with the Construction Documents so approved
for the Subsequently Delivered Premises, the "Approved
Construction Documents") to authorize Landlord to complete the
work to the Initial Premises (work on the Initial Premises will
not begin until such approval is received by Landlord).
Based on the Final Space Plan, Landlord shall
prepare the Construction Documents necessary to construct the
Subsequently Delivered Premises. Landlord shall deliver the
Construction Documents to Tenant for review and approval no later
than November 2, 1998 (the "Landlord's Plan Submittal Date for
Subsequently Delivered Premises"). Tenant shall review the
Construction Documents and shall either return the same to
Landlord, marked approved or with Tenant's necessary changes
indicated no later than November 13, 1998 (the "Tenant's Plan
Approval Date for Subsequently Delivered Premises"). In the event
that Tenant indicates changes to the Construction Documents,
Landlord shall promptly make the indicated changes and return the
revised Construction Documents to Tenant for Tenant's review and
approval. Tenant shall have three (3) days after receipt of the
revised Construction
2
<PAGE> 42
Documents to approve and return to Landlord the Construction
Documents. Construction Documents, with or without requested
revisions from Tenant, must be signed by the Tenant (and shall
thereafter constitute Approved Construction Documents) to
authorize Landlord to complete the work to the Subsequently
Delivered Premises (work on the Subsequently Delivered Premises
will not begin until such approval is received by Landlord).
3. Within ten (10) days of receipt of the
applicable Approved Construction Documents, Landlord will provide
to Tenant a reasonably detailed breakdown of the cost of the
construction of such work ("Construction Costs"). If the
Construction Costs and Move Expenses are not in excess of the
Tenant Improvement Allowance, Landlord shall proceed promptly with
the necessary construction. If the Construction Costs are in
excess of the Tenant Improvement Allowance, Landlord will so
advise Tenant, detailing the costs and overruns and will permit
Tenant a reasonable time (not to exceed seven (7) days from the
date of such notice) to revise the Construction Documents to
reduce the Construction Costs or approve the Construction Costs
with such excess costs payable by Tenant as set forth below.
D. CONSTRUCTION. In accordance with the Approved Construction
Documents, Landlord shall cause the construction of the improvements to
the Premises by the Contractor approved by Landlord and Tenant as
provided in Paragraph B above. In the event the sum of the Construction
Costs and the Move Expenses in an amount not to exceed the Move Expense
Sub-Allowance exceeds the Tenant Improvement Allowance, Tenant shall the
responsible for payment of all such excess costs, and Tenant shall
deposit with Landlord an amount equal to fifty percent (50%) of such
excess costs as estimated by or on behalf of Landlord prior to
construction commencement, and Tenant shall pay the balance when the
Subsequently Delivered Premises are ready for occupancy, as determined
by Landlord's architect. No credit shall be given to Tenant if the sum
of the Construction Costs and the Move Expenses in an amount not to
exceed the Move Expense Sub-Allowance shall be less than the Tenant
Improvement Allowance.
In the event that Tenant requests any modifications to the
Approved Construction Documents ("Change Orders"), Tenant, upon written approval
from the Landlord of the Change Order, will pay Landlord the total amount of
such costs as estimated by or on behalf of Landlord within ten (10) days of
Landlord's approval of the Change Order.
Landlord agrees to furnish all of the material, labor, and
equipment for the construction of the improvements to the Premises described in
clause (ii) of Paragraph A above (the "Tenant Improvements"). The Tenant
Improvements shall be constructed in a good and workmanlike manner in accordance
with the Approved Construction Documents and applicable building codes. If the
Subsequently Delivered Premises are not ready for occupancy in their entirety
but the Subsequently Delivered Premises are partially ready for occupancy during
March 1999, Tenant may, but need not, occupy the portion of the Premises that is
ready for occupancy, and in the event of such occupancy Tenant shall pay to
Landlord the pro rata portion of the full rent and the pro rata portion of the
full amount of other obligations to be paid by Tenant under this Lease based
upon the portion of the Premises occupied by Tenant as if the Lease Commencement
Date had been the date Tenant partially occupied the Premises. Such occupancy
shall otherwise be governed by the terms and conditions of this Lease.
3
<PAGE> 43
Landlord agrees to provide reasonable cooperation to Tenant in the
enforcement by Tenant of any express warranties or guaranties of workmanship or
materials given by subcontractors or materialmen that guarantee or warrant
against defective workmanship or materials and in the enforcement by Tenant of
any service contracts that provide service, repair or maintenance to any item
incorporated in the Premises. Such cooperation shall be at no cost to Landlord.
For purposes of this Lease, the term "ready for occupancy" shall
mean that Tenant is able to obtain a certificate of occupancy for the Premises
(based upon compliance with all applicable municipal requirements pertaining to
construction, but subject to submission and provision of the application and
related documentation of any payment of any fees) from applicable governmental
authorities. On the date the Subsequently Delivered Premises are ready for
occupancy, Landlord shall notify Tenant thereof, and an inspection of the
Premises by Tenant, Landlord and the Project Managers shall be conducted as soon
as reasonably possible thereafter. During the inspection, a "punch list" of all
remaining items to be completed pursuant to the Approved Construction Documents
shall be compiled, which punch list items shall be promptly completed thereafter
by Landlord under the supervision of the Project Managers. The Premises shall,
however, be deemed ready for occupancy notwithstanding the fact that
insubstantial details of construction, decoration or mechanical adjustments may
remain and notwithstanding the fact that such a "punch list" may be compiled as
herein set forth.
4
<PAGE> 44
EXHIBIT D
BUILDING RULES
--------------
Tenant's use of the Building and Premises shall be governed by the
following rules, which Landlord shall use reasonable efforts to enforce on a
uniform basis. Landlord reserves the right to unilaterally amend or add to the
rules, and such amendments and additions shall be effective when notice of the
same is given to Tenant in the manner provided in the Lease.
1. Nothing shall be displayed, painted or affixed by Tenant on any
part of the exterior or interior of the Building (except within the Premises)
without the prior written consent of Landlord, and then only of such color,
size, style and material as shall be approved by Landlord. Nothing shall be
placed in the Premises which may be visible from the exterior of the Building
(including window treatments) without the prior written consent of Landlord.
2. Landlord shall furnish Tenant with two (2) keys to each door
lock for the Premises. Additional keys shall be procured from Landlord and paid
for by Tenant. No additional or replacement locks shall be placed on any door of
the Premises, and Tenant shall not permit duplicate keys to be made. Tenant
shall be solely responsible for the security of all keys to the Premises. All
keys furnished to Tenant shall be surrendered to Landlord at the termination of
the Term.
3. If Tenant desires additional wiring connections, Landlord shall
direct the electricians as to where the wires are to be introduced and without
such directions no boring or cutting for wiring shall be permitted.
4. Tenant shall not install or operate any steam or internal
combustion engine, boiler, machinery, refrigerating or heat generating device or
air conditioning apparatus in or about the Premises or carry on any mechanical
business therein. Tenant shall not install any vending machines other than for
use by Tenant's employees; however Tenant may install refrigerators, microwaves
or coffee makers in the Premises for use solely by Tenant's employees.
5. The common areas of the Building shall not be obstructed by
Tenant or used in any way except for ingress and egress to and from the offices.
Tenant shall place no objects outside Tenant's premises.
6. The bathroom fixtures shall not be used for purposes other than
those for which they were constructed. The cost of repairing any damage caused
by Tenant resulting from misuse of such fixtures shall be borne by Tenant.
7. Tenant shall not permit littering of the common areas of the
Building.
8. Tenant shall not make noises, cause disturbances or vibrations
or use any electrical or electronic devices or other devices that emit sound or
other waves or disturbances or create odors, any of which may be offensive to
other tenants of the Building or which would interfere with the operation of any
device or equipment or radio or television broadcasting or reception from or
within the Building or elsewhere, and shall not place or install any musical
instrument or equipment or any similar device inside or outside the Premises
without the prior written consent of Landlord. The use thereof, if permitted,
shall be subject to control of Landlord to the end that others shall not be
disturbed or annoyed.
<PAGE> 45
9. Tenant shall not waste utility services and shall cooperate
fully with Landlord to assure the most effective operation of the Building's
HVAC system and shall not adjust any controls other than thermostats installed
for Tenant's use. Tenant shall keep corridor door(s) closed.
10. Tenant assumes full responsibility for protecting Tenant's
space from theft, robbery and pilferage, which includes keeping doors locked and
other means of entry to the Premises closed and secured.
11. No animals, birds, bicycles or other vehicles shall be allowed
in any part of the Building without the prior consent of Landlord.
12. Any person or person (other than the janitor of Landlord) who
shall be employed for the purpose of cleaning or maintaining the Premises shall
be employed at Tenant's cost, subject to the terms of the Lease, and Landlord
shall in no way be responsible for any loss of property on or from the Premises,
however occurring, by such person.
13. Tenant shall not accumulate or store on the Premises any waste
paper, discarded records, books and paper files, sweepings, rags, rubbish or
other combustible matter. Tenant shall not place in any trash receptacle any
material which cannot be disposed of in the ordinary course, and Tenant shall
keep all trash within Tenant's Premises. All garbage and refuse disposal shall
be made in accordance with Landlord's instructions as designated from time to
time.
14. Tenant shall not make any room to room canvass to solicit
business from other tenants in the Building and shall not exhibit, sell, or
offer to sell, use, rent or exchange any item or service in or from the Premises
unless within the Permitted Use.
15. Landlord reserves the right to exclude from the Building all
disorderly persons, persons under the influence of alcohol or a controlled
substance, idlers and peddlers, solicitors, and persons entering in crowds or in
such unusual numbers as to cause inconvenience to the tenants of the Building.
16. Any parking spaces included in the Lease shall be used only
for the personal automobiles of Tenant and Tenant's employees and guests (no
trucks (other than pick-up trucks), motor homes and the like). Landlord reserves
the right to designate locations for one or more of such parking spaces. Upon
Landlord's request, Tenant promptly shall furnish Landlord the names, vehicle
descriptions and vehicle license numbers of each authorized user of Tenant's
parking spaces. Tenant shall be liable for all costs and expenses suffered or
incurred by Landlord in the towing of illegally parked vehicles of Tenant,
Tenant's employees or guests. Landlord shall have no obligation to monitor the
use of any such spaces.
17. Tenant shall comply with all Conditions (as defined in the
Lease) in connection with Tenant's use and occupancy of the Premises.
18. All deliveries to the Premises shall be subject to the
reasonable control of Landlord as to place and time of deliveries.
19. The common areas of the Building are a no smoking area in
which no smoking of any kind, including but not limited to cigarettes, cigars,
pipes, or any other device, is permitted except in an area specifically
designated by Landlord as an area where smoking is
2
<PAGE> 46
permitted. Landlord shall not be responsible for violations of this provision by
any Tenant of the Building, Tenant's employees, visitors, contractors, or
subcontractors. In the event Landlord seeks to enforce this provision against
Tenant, Tenant shall pay all costs and expenses of every kind including, without
limitation, all court costs and attorneys fees and charges. In the event
Landlord seeks any injunctive relief to prevent violations of this provision of
the Lease, Tenant agrees that if a bond is required by the court, that the
amount of such bond not exceed $100.00. Landlord further reserves the absolute
right to designate the entire areas of the Builders, grounds and Premises as
non-smoking.
3
<PAGE> 47
EXHIBIT E
LEASE COMMENCEMENT AGREEMENT
----------------------------
TENANT: STIFEL FINANCIAL CORP. and STIFEL, NICOLAUS & COMPANY,
INCORPORATED
LANDLORD: EBS BUILDING, L.L.C.
BUILDING: EDISON BROTHERS BUILDING
PREMISES: 500 Washington Avenue, St. Louis, Missouri
DATE OF ORIGINAL LEASE EXECUTION: _______________________
This Lease Commencement Agreement is executed by Tenant and
Landlord pursuant to the provisions of the Lease referenced above, and shall be
attached thereto and become a part thereof for all purposes.
1. Tenant hereby acknowledges that it has inspected the Initial
Premises and finds same to be substantially complete, in a tenantable condition
and now suitable for Tenant's intended use.
2. Tenant and Landlord hereby agree that all work to be done to
the Initial Premises is acceptable and that the only work remaining to be done
to the Premises, all of which is of a minor nature, is as follows:______________
____________________________________ . Such work is the responsibility of
Landlord to complete and said party hereby agrees to promptly undertake the
completion of same. Tenant hereby agrees that such work may be completed after
it has taken occupancy of the Initial Premises and the term of the Lease has
commenced; and further, that Tenant shall not be entitled to any abatement of
Tenant's rent or other compensation as a result thereof except as provided in
the Lease.
3. Tenant and Landlord hereby agree, pursuant to Section 3.2 of
the Lease, that the actual Commencement Date of the term of the Lease shall be
______________________ and that the rent, as provided for in the Lease, shall
commence as of such date, and further, that the Lease will terminate at Midnight
(local time) on ____________________, if not otherwise terminated pursuant to
the provisions of the Lease.
<PAGE> 48
Executed this ______________ day of ________________, 19___
TENANT:
STIFEL FINANCIAL CORP.
By:______________________________
Title:_______________________
Date:____________________________
STIFEL, NICOLAUS & COMPANY, INCORPORATED
By:______________________________
Title:_______________________
Date:____________________________
LANDLORD:
EBS BUILDING, L.L.C.
By:______________________________
By:______________________________
Name:________________________
Title:_______________________
Date:____________________________
2
<PAGE> 49
EXHIBIT F
FORM 1
CONTRACTOR'S LIEN WAIVER
------------------------
STATE OF MISSOURI )
) SS. WAIVER
CITY OF ST. LOUIS )
WHEREAS, _____________________ ("Contractors") has/have been
employed by STIFEL FINANCIAL CORP. and STIFEL, NICOLAUS & COMPANY, INCORPORATED,
as Tenant of the Premises described below, to perform construction as a general
contractor upon the following described premises, to-wit:
("the Premises"), the specific terms and conditions of such employment being
governed by that certain Agreement dated the ________ day of __________, 19___,
and
WHEREAS, EBS Building, L.L.C. ("Landlord") is Landlord of the
Premises.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt of which is
hereby acknowledged, Contractor does hereby waive any right it may have to file
any and all mechanic's liens, claim of lien or right of lien against Landlord or
Landlord's interest in the Premises, provided by the statutes of the State of
Missouri, upon the above described Premises or any portion thereof. Further,
Contractor hereby acknowledges that Landlord has not contracted for or agreed to
pay for the work or materials called for in the contract described above.
Contractor agrees to look solely to Tenant or Tenant's interest in the Premises
to satisfy any mechanic's lien, right, claim or causes of action which
Contractor may have against Tenant arising out of the above referenced contract.
Contractor shall obtain a similar waiver and acknowledgment from all
subcontractors and suppliers.
EXECUTED this ___________day of ______________, 19____.
CONTRACTOR:
_________________________________
By:______________________________
Subscribed and sworn to before me this _______ day of ______________, 19___.
My commission expires:______________________________________________
_____________________________Notary Public
<PAGE> 50
EXHIBIT F
FORM 2
PARTIAL WAIVER OF LIEN
(Subcontractor or Material Supplier)
STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
WHEREAS, ____________________ ("Contractors") has/have been
employed by STIFEL FINANCIAL CORP. and STIFEL, NICOLAUS & COMPANY, INCORPORATED,
as Tenant of the Premises described below, to perform construction as a general
contractor upon the following described premises, to-wit:
("the Premises"), the specific terms and conditions of such employment being
governed by that certain Agreement dated the _______ day of _______________,
19_, and
WHEREAS, under authority of the above mentioned Agreement,
_______________ has/have employed _______________________ as a subcontractor
material supplier, to perform labor, to furnish materials or to do both upon the
Premises or some portion thereof, the specific terms and conditions of such
employment being governed by that certain Agreement dated the ________ day of
________________, 19_, and
WHEREAS, EBS Building, L.L.C. ("Landlord") is Landlord of the
Premises.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt of which is
hereby acknowledged, subcontractor or material supplier does hereby waive any
right it may have to file any and all mechanic's liens, claim of lien or rights
of lien against Landlord or Landlord's interest in the Premises, provided by the
statutes of the State of Missouri, upon the above described Premises or any
portion thereof. Further, subcontractor or material supplier hereby acknowledges
that Landlord has not contracted for or agreed to pay for the work or materials
called for in the contract described above. Subcontractor or material supplier
agrees to look solely to Tenant to satisfy any mechanic's lien, right, claim or
cause of action which subcontractor or material supplier may have against Tenant
arising out of the above referenced contract.
<PAGE> 51
EXECUTED this ______ day of ____________, 19___.
SUBCONTRACTOR OR
MATERIAL SUPPLIER:
_________________________________
By:______________________________
<PAGE> 52
EXHIBIT G
NONDISTURBANCE AND SUBORDINATION AGREEMENT
------------------------------------------
This Nondisturbance and Subordination Agreement is made and
entered into this _____ day of ____________________, 19___ by and among STIFEL
FINANCIAL CORP., a corporation organized and existing under the laws of the
State of Delaware, and STIFEL, NICOLAUS & COMPANY, INCORPORATED, a corporation
organized and existing under the laws of the State of Missouri (collectively,
the "Tenant"), having as Tenant's address for notice purposes 500 Washington
Ave., Suite 900, St. Louis, Missouri 63101, Attention: Steve Bushmann, EBS
Building, L.L.C., a limited liability company organized and existing under the
laws of the State of Delaware (the "Landlord") having as Landlord's address for
notice purposes 800 Market Street, Suite 1800, St. Louis, Missouri 63101,
Attention:___________________________, and _________________________, a
______________________, organized and existing under the laws of _______________
(the "Mortgagee"), having as Mortgagee's address for notice purposes .
_______________________________________________
WITNESSETH: That
WHEREAS, Landlord and Tenant have entered into a certain Office
Lease dated _____________________ (the "Lease"), demising to Tenant a portion of
the real estate known as the Edison Brothers Building in the City of St. Louis,
State of Missouri (the Real Estate");
WHEREAS, Mortgagee is the holder of a note and deed of trust
encumbering the Real Estate (the "Mortgage"); and
WHEREAS, the parties hereto desire to enter into this
Nondisturbance and Subordination Agreement.
NOW, THEREFORE, for and in consideration of the Premises and the
mutual covenants contained herein, the parties hereto stipulate, covenant and
agree as follows:
1. Subordination. The Lease is hereby made subject, junior and
subordinate to the Mortgage and to all renewals, modifications, consolidations,
replacements and extensions of the Mortgage so that all rights of the Tenant
under the Lease shall be subject, junior and subordinate to the rights of the
Mortgagee under the Mortgage and to all renewals, modifications, consolidations,
replacements and extensions of the Mortgage as fully as if such instruments had
been executed, delivered and recorded prior to the Lease, all on the conditions
and subject to the other provisions of this Agreement.
2. Attornment. Tenant agrees to recognize the Mortgagee or any
purchaser at a foreclosure sale involving the Mortgage as its landlord under the
Lease without the necessity of any other or further attornment than in this
paragraph contained (and this paragraph shall be considered an attornment).
Tenant hereby waives any and all rights to termination of the Lease by reason of
the foreclosure of the Mortgage, and if any court holds the Lease to be
terminated by reason of a foreclosure of the Mortgage, this Agreement shall be
deemed to be a new lease between the purchaser at such foreclosure, as landlord,
and Tenant, as tenant, for the balance of the term of the Lease for the same
demised premises at the same rental therein provided and upon the identical
terms and conditions as therein provided. Also in the event of any such holding,
at the written request of Tenant or the purchaser at the foreclosure, Tenant and
such purchaser at
<PAGE> 53
foreclosure shall execute and deliver to each other a new lease for the balance
of the term of the Lease for the same demised premises at the same rental
therein provided and upon the same terms and conditions as therein provided.
3. Nondisturbance. Mortgagee agrees that so long as the Tenant
shall not be in default under the Lease, any foreclosure of the Mortgage (or
proceeding in respect thereof) shall not divest, impair, abrogate, modify or
otherwise adversely effect the interest and rights of Tenant under the Lease;
provided, however, that Mortgagee or any purchaser at a foreclosure sale shall
not be: (a) liable for any act or omission of a prior landlord (including the
Landlord) (b) subject to any offsets or defenses which Tenant might have against
any prior landlord (including the Landlord); (c) bound by any rent or additional
rent which the Tenant might have paid more than one month in advance of the date
due under the Lease to any prior landlord (including the Landlord for any period
beyond the month in which the foreclosure occurs; or (d) bound by any agreement
or modification of the Lease without the consent of the Mortgagee.
4. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto, their successors and assigns,
including any purchaser at a foreclosure sale.
5. Governing Law. This Agreement shall be governed by the laws of
the State of Missouri.
IN WITNESS WHEREOF, the undersigned have executed and delivered
this Nondisturbance and Subordination Agreement as of the day and year first
above written.
TENANT:
STIFEL FINANCIAL CORP.
By:_____________________________________
Title:______________________________
Date:___________________________________
STIFEL, NICOLAUS & COMPANY, INCORPORATED
By:_____________________________________
Title:______________________________
Date:___________________________________
2
<PAGE> 54
LANDLORD:
EBS BUILDING, L.L.C.
By:_____________________________________
Name:_______________________________
Title:______________________________
Date:___________________________________
MORTGAGEE:
By:_____________________________________
Title:______________________________
Date:___________________________________
3
<PAGE> 55
EXHIBIT H
LEASE ESTOPPEL CERTIFICATE
--------------------------
LEASE DATE: _______________________________________
LANDLORD: EBS Building, L.L.C.
TENANT: STIFEL FINANCIAL CORP. AND STIFEL, NICOLAUS &
COMPANY, INCORPORATED
PREMISES: Suite _____, Edison Brothers Building
AREA: 85,000 Square Feet
MORTGAGEE/
PROSPECTIVE
PURCHASER: _______________________________________
The undersigned Tenant in the above Lease hereby certifies to
Mortgagee and to Landlord as follows:
1. That the term of the Lease commenced on _________________,
19___, and that Tenant is in full and complete possession of the Premises
demised under the Lease and has commenced full occupancy and use of the
Premises, such possession having been delivered by Landlord and having been
accepted by Tenant.
2. That the Lease calls for Monthly Base Rent Installments of
$__________ to date, and in addition, Tenant is paying an adjustment to Annual
Base Rent in the amount of $__________ per month which commenced to accrue on
_____________________, 19___.
3. That no advance rental or other payment has been made in
connection with the Lease except rental for the current month, and the Rent has
been paid to and including ____________________, 19___.
4. That all of the obligations and conditions under the Lease to
be performed to date by Landlord or Tenant have been satisfied, free of defenses
and setoffs, including all construction work in the Premises; except as follows:
5. That the Lease is a valid lease and in full force and effect
and represents the entire agreement between the parties, that there is no
existing default on the part of Landlord or Tenant in any of the terms or
conditions thereof, and no event has occurred which, with the passing of time or
the giving of notice or both, would constitute an event of default, except as
follows, and that said Lease: (check one as appropriate)
(_____) Has not been amended, modified, supplemented, extended, renewed
or assigned.
(_____) Has been amended, modified, supplemented, extended, renewed or
assigned as follows by the following described agreements:
<PAGE> 56
6. That the Lease provides for a term of __________ months and the
term of the Lease expires on __________________, 19___.
7. There is no action, voluntary or involuntary, pending against
Tenant under the bankruptcy laws of the United States or any state thereof.
8. That this Certificate is being made knowing that the Mortgagee
and Landlord are relying upon the representations made herein.
9. This Certificate may be relied upon by the prospective
purchaser's mortgage as if addressed thereto.
IN WITNESS WHEREOF, the undersigned Tenant has executed this Lease
Estoppel Certificate as of the _____ day of ___________________, 19___.
TENANT:
STIFEL FINANCIAL CORP.
By:_____________________________________
Title:______________________________
Date:___________________________________
STIFEL, NICOLAUS & COMPANY, INCORPORATED
By:_____________________________________
Title:______________________________
Date:___________________________________
2
<PAGE> 57
EXHIBIT I
TWELFTH FLOOR EXPANSION
-----------------------
<PAGE> 58
ADDENDUM NO. 1
ATTACHED TO AND MADE A PART OF
LEASE DATED SEPTEMBER 30, 1998
BETWEEN EBS BUILDING, L.L.C., AS LANDLORD,
AND STIFEL FINANCIAL CORP. AND
STIFEL, NICOLAUS & COMPANY, INCORPORATED, AS TENANT
23.31. TENANT AMENITIES. Tenant shall have the right, upon prior
written notice to Landlord and subject to availability, upon the payment of an
hourly rate of Twelve and No/100 Dollars ($12.00), not to exceed One Hundred and
No/100 Dollars ($100.00) per day to Landlord, to use the Building's meeting
rooms located on the second floor of the Building and currently named the
"Harvard" and "Founders" rooms, in common with other users designated by
Landlord, as the same may be available from time to time, to be billed by
Landlord on a monthly basis and payable by Tenant within thirty (30) days of
receipt of Landlord's invoice. Throughout the Term such rooms shall be
maintained and configured in a manner reasonably determined by Landlord to
afford substantially equivalent finish and utility to the level of finish and
utility offered by such rooms as of the date of this Lease. Landlord reserves
the right to increase the foregoing hourly or per diem rate at any time and from
time to time, which increase shall not exceed three percent (3%) per year. The
use of such rooms shall be subject to such reasonable rules and regulations as
may be promulgated by Landlord at any time and from time to time (which Landlord
shall use reasonable efforts to enforce in a non-discriminatory manner). Tenant
hereby guarantees usage of at least one hundred fifty (150) "meeting room days"
per calendar year, and to the extent Tenant's usage of and payments for usage of
the meeting rooms fall below such guaranteed minimum in any calendar year during
the Term, after the end of the relevant calendar year(s) within thirty (30) days
of receipt of Landlord's invoice Tenant shall pay Landlord the per diem rate
times the number of "meeting room days" less than one hundred fifty (150) on
which Tenant shall have used and paid for usage of the meeting rooms. Tenant
shall provide written notice to Landlord and Landlord's Building manager not
less than fifteen (15) nor more than forty-five (45) days prior to each day on
which it proposes to use either or both of the "Harvard" and "Founders" rooms
pursuant to the right and license set forth in this Section 23.31; in the event
the requested room(s) are not available and are not subsequently made available
to Tenant by Landlord on the date requested by Tenant, Tenant's payment
obligation to Landlord with respect to the guaranteed minimum "meeting room
days" usage for the then current calendar year shall be reduced by the per diem
charge for each such day.
23.32. STORAGE AREA. Landlord hereby leases unto Tenant and Tenant
hereby accepts from Landlord approximately 4,200 useable square feet of storage
space located on the seventh floor of the Building, and designated as Storage
Space S-1A (the "Storage Area"), all as outlined on the floor plan attached
hereto as Exhibit A. The Storage Area shall be made available to Tenant on or
prior to April 1, 1999. The annual rent for the Storage Area shall be Thirty
Three Thousand Six Hundred Dollars ($33,600.00), payable in equal monthly
installments of Two Thousand Eight Hundred Dollars ($2,800.00) each and shall be
added to Tenant's Annual Base Rent obligations hereunder. The Storage Area shall
be delivered to Tenant in its "as is" condition. Tenant agrees that the Storage
Area may be used only for the storage (and not any use or
<PAGE> 59
operation) of furniture, office equipment, supplies and boxes and may not be
used for storage of any dangerous or noxious materials or the operation of
computer equipment. Tenant's use of the Storage Area shall be in full compliance
with the applicable provisions of the Lease. The term of the lease of the
Storage Area shall expire concurrent with the expiration of the Term of the
Lease, unless otherwise earlier terminated by agreement of the parties. Landlord
reserves the right to relocate the Storage Area pursuant to Section 3.4 of the
Lease.
23.33. RENEWAL OPTION. Provided that this Lease is in full force
and effect and Tenant is not in default hereunder, Tenant shall have the option
to extend the Term of this Lease on the same terms, conditions and provisions as
contained in this Lease, except as otherwise expressly provided herein, for two
(2) periods of five (5) years each (each, an "Extension Period"). If exercised
in accordance herewith, the Extension Period shall commence on the first (1st)
day after such scheduled Lease Expiration Date or on the first day after the
expiration of the first Extension Period, as the case may be (hereinafter
referred to in this Section 23.33 as the "Expiration Date") and the rental rate
shall be at the then prevailing market base rent for comparable quality space in
similar class buildings in the Downtown St. Louis Business District, taking into
account all rental terms such as free rent, moving allowances, allowances for
tenant improvements, step rent structure, base years for operating expense and
tax escalation, and lease commissions, if any (the "Prevailing Market").
The renewal option may only be exercised in accordance with the
procedures set forth herein. As a prerequisite to Tenant's right so to extend
the Term of this Lease, not less than fifteen (15) months prior to the
Expiration Date, Tenant shall, by written notice to Landlord (the "Preliminary
Notice"), notify Landlord of Tenant's preliminary intent to exercise such
renewal option and request that Landlord determine the Prevailing Market rate
for the Premises as it would be during the Extension Period. Within thirty (30)
days following Landlord's receipt of the Preliminary Notice, Landlord will
notify Tenant of such Prevailing Market rate as reasonably determined by
Landlord. Not less than twelve (12) months prior to the Expiration Date, Tenant
may, by written notice to Landlord ("Extension Notice"), then elect to exercise
Tenant's option to extend the Term of the Lease. If Tenant shall fail to give
any such Extension Notice, Tenant's right to exercise such option and all
subsequent options shall cease and be void. Additionally, if the option to
extend the Lease Term is not exercised in the aforesaid manner, the Lease Term
and Tenant's rights hereunder and its rights to occupy and possess the Premises
shall expire on the Expiration Date (i.e., the scheduled Lease Expiration Date
or the end of the first Extension Period, as the case may be).
In the event Tenant disagrees with Landlord's determination of
such Prevailing Market rate, then within no more than fifteen (15) days after
Tenant receives Landlord's determination of such rate Tenant shall give Landlord
notice of its desire to arbitrate such rate, which notice shall be accompanied
by the identity of an arbitrator appointed by Tenant. Thereafter, Landlord shall
have fifteen (15) days in which to appoint its arbitrator, and within fifteen
(15) days after the appointment of Landlord's arbitrator the two arbitrators
theretofore appointed shall appoint a third arbitrator. After such third
appointment, the three arbitrators thus elected shall have thirty (30) days in
which to establish the Prevailing Market rate as defined above in dispute
between Landlord and Tenant, which determination shall be final and binding upon
the parties hereto. Each arbitrator appointed hereunder shall be a licensed real
estate broker with experience in office space leasing, and no such arbitrator
shall have any other existing contractual relationship with either party hereto.
Landlord and Tenant shall pay the fees of their respectively appointed
arbitrators and the fee of the third arbitrator shall be shared equally by
2
<PAGE> 60
Landlord and Tenant. In the event base rental is to be paid in accordance with
the Prevailing Market rate and such Prevailing Market rate is then subject to
dispute or arbitration as provided herein, Tenant shall nevertheless pay an
amount of base rental equal to the Prevailing Market rate as determined by
Landlord during the pendency of any such dispute or arbitration; provided that
Landlord shall promptly refund any amounts subsequently determined to have been
overpaid by Tenant.
23.34. EXPANSION OPTION. Provided that this Lease is in full force
and effect and Tenant is not in default hereunder beyond any applicable cure
period, Tenant shall have the right to lease and occupy additional space in the
Building as follows:
a. SEVENTH FLOOR EXPANSION. Tenant shall have the right to
lease and occupy, during the first two (2) years of the Term of the Lease, all
or a portion of the remainder of the seventh floor of the Building "Seventh
Floor Expansion", provided that the portion of the seventh floor not leased and
occupied by Tenant after the exercise of the foregoing option must be configured
and located so as to be leaseable to third parties in accordance with customary
market terms and reasonably acceptable to Landlord (the "Seventh Floor
Expansion") and such term shall expire coterminously with the Lease. Tenant may
exercise this right only by giving Landlord at least one hundred twenty (120)
days prior written notice and Tenant shall receive possession of said additional
space upon completion of the tenant improvements for such additional space.
Annual Base Rent for the Seventh Floor Expansion shall be charged at the rate
per rentable square foot then in effect for the Premises times the number of
rentable square feet occupied by Tenant in the Seventh Floor Expansion, which
rate shall increase annually pursuant to the terms of Section 1.11 of the Lease.
Tenant's rent obligations with respect to the Seventh Floor Expansion shall
commence upon substantial completion of the improvements to be constructed by
Landlord thereto pursuant to this paragraph and the tender of possession thereof
by Landlord to Tenant. In addition, Tenant's Proportionate Share shall be
adjusted to reflect the Seventh Floor Expansion, with all other terms of the
Lease to remain the same. Landlord and Tenant hereby agree to execute an
amendment to the Lease reflecting the additional space and other adjustments set
forth in this Section 23.34.a. The number of rentable square feet encompassed by
the Seventh Floor Expansion shall be determined in accordance with the
procedures utilized in Section 1.8 of the Lease with regard to that portion of
the Premises which is situated on the Seventh Floor of the Building as of the
date of the Lease. Landlord shall provide Tenant with a tenant improvement
allowance for the Seventh Floor Expansion in an amount equal to $15.00 per
rentable square foot of the Seventh Floor Expansion. The improvements to be
constructed in the Seventh Floor Expansion shall be designed and constructed in
accordance with the procedure set forth in Exhibit C (excluding paragraph C.1.
thereof). Any costs incurred by Landlord in excess of the foregoing allowance
shall be paid by Tenant to Landlord within thirty (30) days of Tenant's receipt
of Landlord's invoice therefor. Notwithstanding the foregoing, Landlord shall,
during the first two (2) years of the Term of the Lease, have the right to lease
all or a portion of the Seventh Floor to a tenant that also makes to Landlord a
bona fide offer to lease and occupy the entire Sixth Floor of the Building;
provided, however, that Landlord shall notify Tenant, in writing, of any such
bona fide offer and Tenant shall thereafter have ten (10) business days to
exercise the option for the Seventh Floor Expansion, which Seventh Floor
Expansion shall encompass up to all rentable square footage on the Seventh Floor
but not less than the space set forth in the bona fide offer, which Tenant shall
thereafter lease from Landlord pursuant to the terms of this Section 23.34.a or
otherwise permit Landlord to lease said space free and clear of the option
granted in this Section 23.34.a. The foregoing option is a continuous option and
shall apply to each such bona fide offer received by
3
<PAGE> 61
Landlord during the first two (2) years of the Term of the Lease. In the event
Tenant exercises such option, Landlord shall have the right to substitute
comparable space which is contiguous to that portion of the Premises which is
situated on the seventh floor of the Building for the space which was the
subject of the bona fide offer.
b. TWELFTH FLOOR EXPANSION. Tenant shall have the right to
lease and occupy approximately 5,900 rentable square feet located on the Twelfth
Floor of the Building depicted on Exhibit I to this Lease (the "Twelfth Floor
Expansion"), which option may be exercised only in writing on or before December
31, 1999, with occupancy available in its "as is" condition on May 1, 2001, and
the term for such space shall expire coterminously with the Lease. Annual Base
Rent for the Twelfth Floor Expansion shall be charged at the Prevailing Market
rate determined in accordance with the provisions of Section 23.33 above. In
addition, Tenant's Proportionate Share shall be adjusted to reflect the Twelfth
Floor Expansion, with all other terms of the Lease to remain the same. Landlord
and Tenant hereby agree to execute an amendment to the Lease reflecting the
additional space and other adjustments set forth in this Section 23.34.b. and
Landlord and Tenant hereby stipulate and agree that the Twelfth Floor Expansion
contains 5,900 rentable square feet. Any improvements to the Twelfth Floor
Expansion shall be made strictly in accordance with the provisions of Article 11
of the Lease.
23.35. BUILDING NAME CHANGE. Landlord shall, within six (6) months
of the date of the Lease, change the name of the Building to "One Financial
Plaza", subject to confirmation of the availability of the name "One Financial
Plaza", and subject to Landlord's right to take such longer time as shall be
reasonably necessary to change the signage and other Building name
identification on or in connection with the Building in a manner that shall not
conflict with the provisions of Section 23.24 of the Lease. Otherwise,
Landlord's right to change the name of the Building shall be governed by Article
10 of the Lease.
23.36. NON-COMPETE. No other tenant leasing and occupying premises
within the Building will be allowed by Landlord to advertise the sale or
issuance of securities from the first floor common areas of the Building or from
first floor leased premises visible from the first floor common areas or
exterior of the Building (provided that for purposes of this prohibition the
term "securities" shall not be considered to include certificates of deposit and
similar bank accounts customarily sold or issued in connection with retail and
commercial banking operations). No other tenant leasing and occupying premises
within the first floor of the Building will be allowed by Landlord to use its
leased premises for the sale or issuance of securities (subject to the same
proviso set forth in the preceding sentence). Except for the prohibitions
expressly set forth in the preceding two sentences and elsewhere in this Lease,
Landlord shall be unrestricted in the leasing and use of space within the
Building and in the placement of signage and advertisement in, on or about the
Building.
4
<PAGE> 1
EXHIBIT 10.7
Execution Form
------------------------------------------------------------
EDISON BROTHERS BUILDING
STANDARD OFFICE LEASE
FOR
EDISON BROTHERS STORES, INC.
------------------------------------------------------------
<PAGE> 2
EDISON BROTHERS BUILDING
STANDARD OFFICE LEASE
TABLE OF CONTENTS
-----------------
ARTICLE INDEX PAGE
- ------- ----- ----
ARTICLE 1. PARTIES AND REFERENCE DATA..........................................1
ARTICLE 2. DEMISING CLAUSE.....................................................3
ARTICLE 3. TERM AND POSSESSION.................................................3
ARTICLE 4. RENT................................................................5
ARTICLE 5. SECURITY DEPOSIT....................................................7
ARTICLE 6. PERMITTED USE.......................................................7
ARTICLE 7. SERVICES............................................................8
ARTICLE 8. SUBLETTING AND ASSIGNMENT..........................................10
ARTICLE 9. QUIET POSSESSION AND SUBORDINATION.................................11
ARTICLE 10. LANDLORD'S RESERVED RIGHTS........................................12
ARTICLE 11. ALTERATIONS AND IMPROVEMENTS......................................13
ARTICLE 12. REPAIRS AND REPLACEMENTS..........................................14
ARTICLE 13. DESTRUCTION OR DAMAGE.............................................14
ARTICLE 14. EMINENT DOMAIN....................................................15
ARTICLE 15. HOLDING OVER......................................................15
ARTICLE 16. SURRENDER OF POSSESSION...........................................16
ARTICLE 17. DEFAULT AND REMEDIES..............................................16
ARTICLE 18. BANKRUPTCY........................................................18
ARTICLE 19. INSURANCE AND WAIVER OF RECOVERY..................................19
ARTICLE 20. TAXES ON TENANT'S PROPERTY........................................21
ARTICLE 21. AMERICANS WITH DISABILITIES ACT...................................21
<PAGE> 3
ARTICLE 22. HAZARDOUS MATERIALS...............................................21
ARTICLE 23. GENERAL PROVISIONS................................................22
ARTICLE 24. VACATION/TERMINATION OPTION.......................................27
ARTICLE 25. LCRA LEASE........................................................28
ARTICLE 26. OPTION TO EXTEND..................................................29
ARTICLE 27. TENANT PAYMENT....................................................31
Exhibit A Floor Plan
Exhibit B [intentionally deleted]
Exhibit C [intentionally deleted]
Exhibit D Building Rules
Exhibit E [intentionally deleted]
Exhibit F Lien Waivers
Exhibit G Lease Estoppel Certificate
Exhibit H [intentionally deleted]
Exhibit I Reserved Parking Spaces
Exhibit J First Floor Vacated Space Plan
Exhibit K Meeting Room Rules
Exhibit L Existing Security System
Exhibit M Meeting Rooms
Exhibit N First and Second Floor Relocation Areas
Exhibit O Subordination, Attornment and Non-
Disturbance Agreement
<PAGE> 4
EDISON BROTHERS BUILDING
STANDARD OFFICE LEASE
ARTICLE 1.
PARTIES AND REFERENCE DATA
As used in this Lease the following terms shall have the
following meanings:
1.1. LANDLORD: EBS Building, L.L.C., a Delaware limited
liability company, having as its address for notice purposes:
PricewaterhouseCoopers LLP, One NationsBank Plaza, 800 Market Street, St. Louis,
Missouri 63101, Attn: Keith F. Cooper, with a copy to the Building manager, as
identified by Landlord by written notice to Tenant.
1.2. TENANT: Edison Brothers Stores, Inc., a Delaware
corporation, having as its address for notice purposes 501 North Broadway, St.
Louis, Missouri 63102 Attn: Legal Department.
1.3. DATE OF THIS LEASE: September 30, 1998
1.4. DATE OF TENANT FINISH FLOOR PLAN: N/A
LANDLORD'S PLAN SUBMITTAL DATE: N/A
TENANT'S PLAN APPROVAL DATE: N/A
1.5. LEASE COMMENCEMENT DATE: October 1, 1998
RENT COMMENCEMENT DATE: October 1, 1998
LEASE EXPIRATION DATE: September 30, 2000
1.6. TERM: Two years
1.7. BUILDING: the office building in the City of St. Louis,
State of Missouri, known and numbered as 501 North Broadway, St. Louis, Missouri
63102, together with the legally subdivided lot upon which it is situated,
including all facilities and improvements thereon and consisting of
approximately 434,136 rentable square feet.
1.8. PREMISES: approximately 206,450 rentable square feet in
the Building as depicted in Exhibit A of this Lease. Rentable Area shall be
193,442 square feet, which equals the Premises less the mezzanine areas as shown
on Exhibit A.
1.9. SUITE NUMBER: N/A, Floor Numbers: Floors Three,
Four and Five, parts of Floors One and Two, and the mezzanine levels of Floors
One and Two.
1.10. PERMITTED USE: General office purposes only and
for no other purpose without the prior written consent of Landlord.
1
<PAGE> 5
1.11. ANNUAL BASE RENT AND MONTHLY BASE RENT INSTALLMENT:
Annual Base Rent shall be $9.00 per square foot of Rentable Area per year
through September 30, 2000; Monthly Base Rent Installment shall be the amount of
Annual Base Rent divided by 12.
1.12. COMMERCIAL OR COMPREHENSIVE GENERAL LIABILITY
INSURANCE REQUIRED:
$1,000,000.00, annual aggregate.
1.13. SECURITY DEPOSIT: NONE.
1.14. TENANT'S PROPORTIONATE SHARE: 44.56%.
1.15. EXPENSE STOP AMOUNT: The Expense Stop Amount shall be
based upon the Expenses, as defined in Section 4.2 of the Lease, of the Building
for the 2000 (01/01/2000 - 12/31/2000) calendar year.
1.16. TAX EXPENSE STOP AMOUNT: The Tax Expense Stop Amount
shall be based upon the Taxes, as defined in Section 4.2 of the Lease, of the
Building for the 2000 (01/01/2000 - 12/31/2000) calendar year.
1.17. NUMBER OF PARKING SPACES: RESERVED: 68 spaces on Level
B-1 of the garage in the Building, as depicted on Exhibit I hereto; provided,
however, Tenant shall be entitled to the use of the "double spaces" on level B-1
of the garage in the Building, each of which shall only be counted as one space.
UNRESERVED: 107 spaces in the garage owned and operated by the Land Clearance
for Redevelopment Authority of the City of St. Louis and located on City Block
118 in the City of St. Louis (the "St. Louis Centre Garage"). The foregoing
numbers of spaces shall be subject to reduction pursuant to Section 23.19 below.
In addition to the parking spaces described above, Landlord shall license to
Tenant those additional 35 reserved and 143 unreserved parking spaces
(collectively, the "Additional Parking Spaces") previously made available to
Tenant under the Existing Lease (as defined below) until such time as Landlord
may revoke such license, in whole or in part, by written notice to Tenant that
Landlord proposes to make some or all of the Additional Parking Spaces available
to another tenant of the Building (whether or not then in occupancy of the
Building), which notice may be delivered by Landlord at any time and from time
to time. Tenant shall upon thirty (30) days written notice from Landlord
surrender all or the portion of such Additional Parking Spaces designated by
Landlord (subject to the limitations set forth in the following sentence) to
Landlord upon receipt of such notice and Tenant shall thereafter have no right
to utilize such spaces. During the initial Term of this Lease, in response to
Landlord's notice Tenant shall be obligated to surrender one of the Additional
Parking Spaces for each 1,000 rentable square feet of space in the Building
which Landlord proposes to lease to a tenant of the Building, whether or not
then in occupancy of the Building. During either of the Extension Periods, in
response to Landlord's notice Tenant shall surrender such number of the
Additional Parking Spaces as Landlord may designate in its notice to Tenant.
1.18. INITIAL MONTHLY RENT PER PARKING SPACE: RESERVED:
no charge. UNRESERVED: $65 per month.
1.19. ADDENDUM: See Addendum No. 1 attached hereto and
incorporated herein by reference.
2
<PAGE> 6
1.20. BROKERS: Name of Landlord's broker: Insignia/ESG, Inc.;
Party responsible for payment: Landlord. Name of Tenant's broker: Cushman &
Wakefield, Inc.; Party responsible for payment: Tenant shall be responsible for
all payments to Cushman & Wakefield, Inc., and subject to and in accordance with
the provisions of Section 23.9 of this Lease, Landlord shall pay Tenant Twenty
Five Thousand Dollars ($25,000.00) in the aggregate to reimburse Tenant for fees
paid to Cushman & Wakefield, Inc., The Stolar Partnership and/or Michael Fox,
Inc.
1.21. EXHIBITS: The following Exhibits attached to this
Lease are incorporated herein by this reference.
Exhibit A. Floor Plan
Exhibit B. [intentionally deleted]
Exhibit C. [intentionally deleted]
Exhibit D. Building Rules
Exhibit E. [intentionally deleted]
Exhibit F. Lien Waivers
Exhibit G. Lease Estoppel Certificate
Exhibit H. [intentionally deleted]
Exhibit I. Reserved Parking Spaces
Exhibit J. First Floor Vacated Space Plan
Exhibit K. Meeting Room Rules
Exhibit L. Existing Security System
Exhibit M. Meeting Rooms
Exhibit N. First and Second Floor Relocation Areas
Exhibit O. Subordination, Attornment and Non-
Disturbance Agreement
ARTICLE 2.
DEMISING CLAUSE
Landlord, for and in consideration of the rents, covenants and
agreements hereinafter mentioned and hereby agreed to be paid, kept and
performed by Tenant, does hereby lease to Tenant, and Tenant does hereby lease
from Landlord, the Premises on the terms and conditions contained herein.
ARTICLE 3.
TERM AND POSSESSION
3.1. TERM. The Term shall commence on the Lease Commencement
Date and shall continue for the Term, unless earlier terminated as provided
herein. Any period of occupancy of the Premises by Tenant prior to the Lease
Commencement Date shall be governed by that certain Lease dated as of September
26, 1997 between Landlord and Tenant (the "Existing Lease"), which Existing
Lease, exclusive of the indemnities benefiting Landlord and/or Tenant
thereunder, shall terminate and be of no further force and effect concurrent
with the commencement of the Term; and in any event Tenant's and Landlord's
indemnities for the benefit of the other party under the Existing Lease shall
survive the termination of such Existing Lease. Landlord hereby acknowledges
that as of the date of this Lease, Landlord is not aware of any
3
<PAGE> 7
default by Tenant under the Existing Lease nor of any event which, with the
giving of notice or upon the passage of time, or both, could constitute a
default by Tenant under such Existing Lease. Tenant hereby acknowledges that as
of the date of the Lease, Tenant is not aware of any default by Landlord under
the Existing Lease nor of any event which, with the giving of notice or upon the
passage of time, or both, could constitute a default by Landlord under such
Existing Lease.
3.2. POSSESSION. Prior to execution of this Lease, Tenant has
been a tenant of the Premises for a number of years and has been afforded the
opportunity to fully completely examine and inspect the Premises. Tenant's
execution of this Lease shall be conclusive evidence for all purposes of
Tenant's acceptance of the Premises in good order and satisfactory condition,
and in a state and condition satisfactory, acceptable and suitable to Tenant's
use pursuant to this Lease. TENANT ACCEPTS THE PREMISES "AS IS" "WHERE IS" AND
WITH ANY AND ALL FAULTS, AND LANDLORD NEITHER MAKES NOR HAS MADE ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE QUALITY,
SUITABILITY OR FITNESS THEREOF OF THE PREMISES OR THE CONDITION OR REPAIR
THEREOF.
3.3. BUILDING PLANNING. If, during the Term, Landlord requires
all or a portion of the Premises for use in conjunction with another suite or
for other reasons connected with the Building planning program, upon notifying
Tenant in writing, Landlord shall have the right to move Tenant out of such
portion of the Premises to other comparable space in the Building, at Landlord's
sole cost and expense, and the terms and conditions of this Lease shall remain
in full force and effect, save and excepting that a revised Exhibit A shall
become part of this Lease and shall reflect the location of the new space and
Article 1 of this Lease shall be amended to include all correct data as to the
new space. In order to be effective, any such notice delivered by Landlord shall
contain the following legend: "This notice constitutes a request for relocation
delivered pursuant to Section 3.3 of the Lease between EBS Building, L.L.C. and
Edison Brothers Stores, Inc." Landlord may effect such relocation only if the
new space meets with Tenant's reasonable approval and Tenant shall advise
Landlord of Tenant's approval thereof, or the withholding of such approval,
within ten (10) days of Landlord's notice to Tenant. If the new space does not
meet with Tenant's reasonable approval, Tenant may terminate this Lease with
respect to, but solely with respect to, the space from which Landlord requests
Tenant to move by providing written notice to Landlord of such termination
concurrent with Tenant's notice of disapproval of the new space. In the event
Tenant effects such termination, Tenant shall reimburse Landlord for the cost of
constructing any necessary demising walls and other improvements to the Building
necessary to permit leasing of such space to a third party, which payment shall
be made within ten (10) days of Landlord's invoice therefor. Notwithstanding the
foregoing, however, Landlord may not exercise such relocation right with regard
to any portion of the Premises situated on the Third, Fourth or Fifth Floors of
the Building or the mailroom situated on the First Floor of the Building, and
with regard to that portion of the Premises situated on the Second Floor of the
Building, Landlord may only exercise the foregoing relocation right with respect
to the areas between the "Harvard" and "Founders" rooms which, as of the date of
this Lease, constitute the Meeting Rooms (as defined below). Such areas on the
First and Second Floors of the Building are depicted on Exhibit N to this Lease.
3.4. COMMON AREAS. Tenant shall have the nonexclusive right to
use, in common with other tenants in the Building and subject to the Building
Rules, the common areas
4
<PAGE> 8
in the Building. The "common areas" in the Building shall mean such areas as are
provided and maintained by Landlord from time to time as areas for the common
use by tenants or occupants of the Building, including Tenant and Landlord.
ARTICLE 4.
RENT
4.1. RENT. Commencing on the Rent Commencement Date, Tenant
shall pay the Annual Base Rent specified in Article 1 to Landlord at the
location designated from time to time by Landlord in the Monthly Base Rent
Installment specified in Article 1 in advance, on, or prior to the first day of
each and every month during the Term without abatement or reduction (except as
expressly set forth in Section 7.3 and Articles 13 and 14 of this Lease) or set
off or deduction whatsoever. The rent for any partial month shall be prorated on
the basis of thirty (30) days to the month and shall be paid on the first day of
such partial period.
4.2. ADJUSTMENTS TO RENT. During each lease year of any
Extension Period (as defined in Article 26 below), in addition to the Annual
Base Rent, Tenant shall pay as additional rent Tenant's Proportionate Share of
increases in Expenses and increases in Taxes in accordance with this Section
4.2. The Annual Base Rent and payments to be made pursuant to this Section 4.2
shall be referred to in this Lease as the "Rent". If the Expenses for any lease
year of any Extension Period exceed the Expense Stop Amount, Tenant shall pay
Tenant's Proportionate Share of such excess. If the Taxes in any lease year of
any Extension Period exceed the Tax Expense Stop Amount, Tenant shall pay
Tenant's Proportionate Share of such excess. Within one hundred eighty (180)
days after the end of each calendar year (or portion thereof) during the term of
any Extension Period hereunder, Landlord will provide Tenant with a written
notice ("Statement") setting forth Tenant's Proportionate Share of increases in
Taxes and/or Expenses over the Tax Expense Stop Amount or Expense Stop Amount,
as the case may be, together with a statement of Expenses and Taxes for the
previous calendar year. Within thirty (30) days following receipt of the
Statement, Tenant shall pay to Landlord as additional rent: (a) Tenant's
Proportionate Share of increases in Taxes over the Tax Expense Stop Amount
and/or Expenses over the Expense Stop Amount, as the case may be, for the
previous calendar year after credit for any estimated payments which Tenant has
made pursuant to this Section 4.2; and (b) an estimate of Tenant's Proportionate
Share for the months which have elapsed in the then current calendar year based
on the previous calendar year's increase in Expenses and/or Taxes over the
applicable Expense Stop Amount and Landlord's good faith projection of the
increase in Expenses and/or Taxes over the applicable Expense Stop Amount during
the current calendar year after credit for any estimated payments made by Tenant
pursuant to this Section 4.2. Commencing with the month following the month in
which the Statement is dated and continuing until such time as Tenant receives
Landlord's next Statement, Tenant shall, each month, pay 1/12 of the estimate of
Tenant's Proportionate Share of Expenses and Taxes over the applicable Expense
Stop Amount, which estimate shall be based on Expenses for the previous year and
taxes in excess of the Tax Expense Stop Amount based on Taxes for the previous
year and Landlord's good faith projection of the increase in Expenses and Taxes
for the current calendar year. Payments relative to Expenses shall be credited
against the actual Expenses as shown in Landlord's next Statement. Similarly,
payments relative to Taxes shall be credited against the actual Taxes as shown
in Landlord's next Statement. If the next Statement shows that Tenant has
overpaid and if Tenant is not then in default or thereafter in the event such
default is cured within the applicable cure
5
<PAGE> 9
period, Landlord shall credit such overpayment against the next accruing
payments of Rent until the overpayment is reduced to zero, or if the Term of
this Lease (including any Extension Period) has ended, Landlord shall repay such
amount to Tenant as soon as reasonably practicable after the actual Expenses and
Taxes are known. The obligation to pay Tenant's Proportionate Share of the
excess of Taxes and/or Expenses over the applicable Expense Stop Amount shall
survive any termination of the Term, as extended at Tenant's option under
Article 26 hereof. In the event Tenant shall have elected to extend the term of
this Lease for the One Year Extension Period, Tenant will not be responsible to
pay that portion of the increase in Taxes over the Tax Expense Stop Amount or
Expenses over the Expense Stop Amount that is more than three percent (3%) in
excess of the Tax Expense Stop Amount or Expense Stop Amount, as the case may
be, during such One Year Extension Period. In the event Tenant shall have
elected to extend the Term of this Lease for the Seven Year Extension Period,
Tenant will not be responsible to pay that portion of the increase in Taxes over
the Tax Expense Stop Amount or Expenses over the Expense Stop Amount, as the
case may be, that is more than five percent (5%) in excess of the Tax Expense
Stop Amount or Expense Stop Amount, as the case may be, during the first year of
such Seven Year Extension Period or more than five percent (5%) in excess of the
Tax Expense Stop Amount or Expense Stop Amount, as the case may be, increased by
five percent (5%) each year (on a cumulative basis), during the remainder of
such Seven Year Extension Period. For example, in the event the Expense Stop
Amount was calculated to be $10,000, Tenant would not be responsible to pay its
proportionate share with respect to that portion of Expenses in excess of
$10,300 during the One Year Extension Period, such that Tenant's Proportionate
Share of Expenses over the Expense Stop Amount would not exceed $133.68 (44.56%
of $300) and the monthly payment would not exceed $11.14. Such payments would
commence January 1, 2001. Similarly, during the first Lease Year of the Seven
Year Extension Period, Tenant would not be responsible to pay its proportionate
share with respect to that portion of Expenses in excess of $10,500, commencing
January 1, 2001. Effective October 1, 2001, the foregoing cap would increase to
$11,025; $11,576.25 on October 1, 2002; $12,155.06 on October 1, 2003;
$12,762.82 on October 1, 2004; $13,400.96 on October 1, 2005; and $14,071.01 on
October 1, 2006.
4.3. EXPENSES. The term "Expenses" means all expenses and
costs of operating the Building, including, without limitation, the following
costs: (a) wages of all employees (including employment taxes and fringe
benefits); (b) janitorial labor and materials; (c) costs of building security
personnel; (d) electricity, gas, sewer, water, trash disposal and other
utilities but excluding those charges for which Landlord is otherwise reimbursed
by Tenant and excluding those charges separately billed to other tenants of the
Building; (e) maintenance and repairs (including maintenance and service
contracts); (f) landscaping maintenance; (g) insurance premiums; (h) capital
improvements to the extent necessary to comply with applicable governmental
rules and regulations; (i) expense of building management fees; and (j) capital
expenses which reduce any component cost of Expenses (such cost to be reasonably
amortized by Landlord and Expenses to include only the cost as so amortized by
Landlord during the calendar year for which such computation is made). Expenses
shall not include: (w) costs of alterations of any tenant's premises; (x)
principal and interest payments on loans made on the security of the Building;
(y) costs of capital expenditures (except as provided above in the this
section); and (z) leasing commissions. If the Building is not fully leased or if
Landlord is not providing standard building services to all tenants during any
calendar year, actual Expenses shall be adjusted to reflect a fully serviced and
leased Building for the purpose of making the adjustment to Annual
6
<PAGE> 10
Base Rent. Landlord shall utilize consistently applied accounting practices in
calculating Expenses during the Term.
4.4. TAXES. The term "Taxes" means (a) real estate taxes
assessed on the Building and personal property taxes assessed on the personal
property and equipment owned or leased by the Landlord and used in connection
with the Building, including any increases in real estate taxes as any partial
or full tax relief which presently may be afforded to the Building expires, and
further including any tax imposed as a substitute for or supplement to presently
existing real estate and/or personal property taxes; (b) reasonable expenses of
Landlord in attempting to reduce or limit real estate and/or personal property
taxes (any refunds to be credited against taxes in the year received); and (c)
any and all taxes, charges, and/or surcharges payable by Landlord (other than
tax on net income) whether or not now customary or within the contemplation of
the parties hereto (i) upon allocation to, or measured by the Rentable Area of
the Premises or on the rent payable hereunder, including without limitation any
gross income tax or excise tax levied by the State, any political subdivision
thereof, City or Federal Government with respect to such rent; or (ii) upon or
with respect to possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises or any portion
thereof.
4.5. INSPECTION RIGHTS. During the Term and upon ten (10) days
prior written notice to Landlord, Tenant or Tenant's designee shall have the
right, during normal business hours, to inspect at the Landlord's office in the
Building, Landlord's books and records with respect to Expenses and Taxes within
sixty (60) days of Tenant's receipt of the Statement. Landlord shall cooperate
with Tenant in any such examination of Landlord's books and records, and shall,
if requested by Tenant make available a member of its staff to explain any
entries in such books and records. Tenant may, at Tenant's expense, make copies
of any such books or records not designated as confidential by Landlord;
provided, however, that such materials may not be disclosed by Tenant to any
other person or entity without Landlord's consent. Unless Tenant asserts
specific error(s) within sixty (60) days of Tenant's receipt of the Statement,
the Statement shall be deemed to be correct. In the event Landlord concurs with
Tenant's determination of specific error(s) in the Statement and if Tenant is
not then in default or thereafter in the event such default is cured within the
applicable cure period, Landlord shall credit any overpayment against the next
accruing payments of Rent until the overpayment is reduced to zero, or if the
Term of this Lease (including the Extension Period) has ended, Landlord shall
repay such amount to Tenant.
ARTICLE 5.
SECURITY DEPOSIT
There shall be no security deposit required under this Lease.
ARTICLE 6.
PERMITTED USE
Tenant shall use and occupy (occupancy shall not exceed one
(1) person per 200 rentable square feet on any floors which are not fully
occupied by Tenant) the Premises only for the Permitted Use. Tenant and all
persons permitted by Tenant to come upon the Premises shall
7
<PAGE> 11
comply with the Building Rules and with such reasonable modifications thereof as
Landlord may make from time to time. Landlord shall not be liable for any
nonobservance of the Building Rules or the Meeting Room Rules by any other
person; provided, however, Landlord will use reasonable efforts to enforce the
Building Rules and the Meeting Room Rules in a nondiscriminatory manner. Tenant
shall not make or permit to be made any use of the Premises which directly or
indirectly is forbidden by applicable law or governmental regulation or which
may be dangerous to persons or property or which may be in conflict with or
invalidate or increase the premium cost of any policy of insurance carried on
the Building. To the best of Landlord's knowledge, Tenant's current use of the
Premises pursuant to the Existing Lease does not conflict with or invalidate or
increase the premium cost of any policy of insurance carried on the Building.
Tenant shall have the right, in common with other tenants and occupants of the
Building, to use the meeting room facilities, if any, maintained by Landlord on
the second floor of the Building as depicted on Exhibit M to this Lease (the
"Meeting Rooms"). Tenant shall comply with the Meeting Room Rules and with such
reasonable modifications thereof as Landlord may make from time to time. The
configuration and availability of the Meeting Rooms shall be subject to such
modifications as Landlord may effect at any time and from time to time;
provided, however, that the Meeting Room currently named the "Founders" room
shall be maintained by Landlord in substantially its current configuration
during the initial Term of this Lease.
ARTICLE 7.
SERVICES
7.1. BUILDING STANDARD SERVICES. Landlord at Landlord's
expense shall furnish: (a) heat and air conditioning and ventilation to provide
a seasonable temperature (subject to governmental regulations) for normal
occupancy and use of the Premises under normal business operations daily from
7:00 A.M. to 6:00 P.M., Saturdays from 7:00 A.M. to 12:30 P.M., Sundays and the
following holidays excepted: New Year's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day and Christmas Day ("Normal Business Hours"); (b)
cold water from the public supply for drinking, lavatory and toilet purposes and
hot water for lavatory purposes from regular Building supply drawn through
fixtures installed by Landlord; (c) janitor service and customary cleaning in
and about the Premises (private kitchens, private eating areas and private
restrooms excepted) Monday through Friday (holidays excepted) comparable to
standard janitor service furnished by other Class A multi-tenant St. Louis
office buildings (Tenant shall not provide any janitor services or cleaning
without Landlord's prior consent); (d) passenger elevator service in common with
other tenants at all times, subject to temporary interruptions for maintenance
and subject to interruptions in the event of emergencies (freight elevator
service will be made available by Landlord upon reasonable notice by Tenant);
(e) window washing of all exterior windows in the Premises, both inside and out,
at reasonable intervals; (f) electrical service at those points of connection
provided and installed by Landlord and in the manner and to the extent deemed by
Landlord to be standard (which standard is described as "normal electrical
consumption" in Section 7.2 below); (g) restrooms; and (h) access to telephone
and network calling at no charge to Landlord. Tenant shall have no right of
access to and within the Building for the installation or operation of systems
for the provision of electrical service to the Premises for part or all of
Tenant's electrical energy requirements without Landlord's prior written
consent. Tenant shall report to Landlord any deficiency in the services provided
by Landlord or Landlord's agents. Notwithstanding the foregoing, during the
initial Term of this Lease, Landlord shall provide heat and air conditioning and
ventilation to provide a reasonable temperature (subject to
8
<PAGE> 12
governmental regulations) for normal occupancy and use of the Premises under
normal business operations on Mondays from 5:00 A.M. to 9:00 P.M., from 6:00
A.M. to 9:00 P.M. Tuesday through Friday, and from 7:00 A.M. to 5:00 P.M. on
Saturdays and Sundays. In the event Tenant requires heat, air conditioning or
ventilation services before or after the foregoing hours, such services will be
available to Tenant at Landlord's expense (which expense shall constitute an
Expense for the purpose of calculating the Expense Stop Amount). Tenant may
obtain such services by providing notice to Landlord in accordance with
procedures established by Landlord from time to time. Heat, air conditioning and
ventilation services shall be provided to Tenant's computer room and telephone
room (all as presently configured) on a 24 hour per day basis, seven days per
week.
7.2. OVER BUILDING STANDARD SERVICES. During either of the
Extension Periods, if Tenant occupies the Premises after Normal Business Hours,
Tenant shall reimburse Landlord for the increased expenses of providing
utilities and other services necessary to operate the Building during such
hours, including but not limited to, increased expenses for heating, air
conditioning, security service, Building employees' overtime and any unusual
janitorial service. During either of the Extension Periods, after Normal
Business Hours heating, ventilating and air conditioning will be available to
Tenant at Tenant's expense at the from time to time cost thereof to Landlord as
calculated by Landlord (which is currently $25 per hour per floor, but which
charge shall be subject to unilateral change by Landlord from time to time as
provided herein). Normal electrical consumption on the Premises is as follows:
(i) electricity drawn from Building standard receptacles: 1 watt per usable
square foot in the Premises per hour; (ii) Building standard lighting: 2.5 watts
per usable square foot in the Premises per hour; and (iii) Building standard
heating, ventilating and air conditioning is designed to offset 4.5 watts per
usable square foot in the Premises per hour. Tenant will not be allowed to
exceed any of the amounts of electricity in the Premises as herein referenced
without Landlord's prior written approval. If Tenant receives Landlord's written
approval, Tenant is responsible for all expenses associated with such excess
electrical consumption during the Extension Period. Landlord reserves the right
to install submeters or to conduct an electric consumption audit to determine
electrical consumption on the premises at the expense of Landlord. A master
meter if desired by Tenant may be installed at Tenant's expense in a manner
approved by Landlord. Landlord shall have access to such metering devices at all
reasonable times and shall prepare a separate monthly statement of the excess
utilities used by such equipment based on the utility rates established from
time to time by the public utility furnishing such service. Tenant shall pay the
amounts shown on such statements to Landlord within five (5) business days of
receipt. Should Tenant fail to promptly pay for such service, Landlord may
discontinue furnishing such service, which shall not be deemed an eviction
(actual or constructive) or a disturbance of Tenant's possession, use and quiet
enjoyment of the Premises. Tenant agrees that Landlord shall not be liable for
damages resulting from such discontinuance, nor shall Tenant be relieved from
the performance of any of Tenant's covenants or obligations under this Lease.
Landlord, by furnishing any of the above services, shall not be deemed to have
warranted the same to be free from any interruption or discontinuance that is
beyond the reasonable control of the Landlord or which may result from
occasional damage or malfunctions of equipment and distribution facilities. Any
such interruption or discontinuance shall not constitute an eviction (actual or
constructive) or a disturbance of Tenant's possession, use or quiet enjoyment of
the Premises. Tenant agrees that Landlord shall not be liable for damages
resulting from any such interruption or discontinuance, nor shall Tenant be
relieved of the performance of any of Tenant's covenants or obligations under
this Lease.
9
<PAGE> 13
7.3. INTERRUPTION OF SERVICES. Notwithstanding the foregoing,
if (i) Landlord ceases to furnish any service in the Building for a period in
excess of five (5) consecutive days, (ii) such cessation does not arise as a
result of an act or omission of Tenant, (iii) such cessation is not caused by a
fire or other casualty, and (iv) as a result of such cessation, the Premises or
a material portion thereof is rendered untenantable (meaning that Tenant is
unable to use the Premises in the normal course of its business) and Tenant in
fact ceases to use the Premises, or a material portion thereof, then Tenant, as
its sole remedy, shall be entitled to receive an abatement of Base Rent payable
hereunder during the period beginning on the sixth (6th) consecutive day of such
cessation and ending on the day when the service in question has been restored.
In the event the entire Premises has not been rendered untenantable by the
cessation in service, the amount of abatement that Tenant is entitled to receive
shall be prorated based upon the percentage of the Premises so rendered
untenantable and not used by Tenant.
7.4. SECURITY SYSTEM. Landlord, prior to March 31, 1999, at
Landlord's expense shall install a card-key or keypad security access system
(including the installation of wood and glass doors associated with such system
which are similar to the doors currently installed in the Fifth Floor elevator
lobby) in the elevator lobby entrances to such portions of the Premises as are
located on floors of the Building which are fully occupied by Tenant and at the
entrance to the Human Resource area on the First Floor of the Building (as shown
on Exhibit A). Landlord shall also install such system on two entrances to
Tenant's mailroom on the First Floor of the Building and on one entrance (in the
aggregate) to one of the two areas, as designated by Tenant prior to Landlord's
installation of such security access system, depicted on the First Floor Vacated
Space Plan shown on Exhibit J herein which constitute part of the Premises. Such
system shall be generally comparable to security systems installed in other
Class A multi-tenant office building. Landlord shall also install other
reasonable security measures, such as a security gate, at the atrium stairwell
entrance to the Premises accessible only by a card-key or keypad. Prior to such
time, Landlord shall maintain the existing security system described in Exhibit
L. Landlord shall have a watch-person on duty in the lobby of the Building on a
24-hour per day basis, seven days per week. Landlord shall provide security at
the entrance to the Building from the St. Louis Centre Garage. Landlord shall
provide up to 500 card keys to Tenant in connection with the use of the card key
security system installed by Landlord. Any card keys in excess thereof
(including replacements therefor) shall be made available to Tenant by Landlord
at Tenant's sole cost and expense.
ARTICLE 8.
SUBLETTING AND ASSIGNMENT
8.1. SUBLEASING AND ASSIGNMENT. Tenant shall not by operation
of law or otherwise have the right to assign, hypothecate, mortgage, encumber or
convey this lease or any interest in or under it, or to sublet, or otherwise
permit occupancy by any other person or entity of all or any portion of the
Premises during the initial Term hereof. Tenant shall not by operation of law or
otherwise have the right to sublet, or otherwise permit occupancy by any other
person or entity of all or any portion of the Premises during the Extension
Period (as defined in Article 26 hereunder) without the express written consent
of the Landlord, which consent shall not be unreasonably withheld or delayed.
For the purposes of this section any transfer of stock in a corporate tenant or
any transfer of an interest in a partnership tenant in which a transfer of
control of the corporation or partnership is effected shall not be deemed to be
an assignment of this Lease
10
<PAGE> 14
requiring the prior written consent of Landlord. Any document purporting to
sublet the Premises or assign Tenant's interest in this Lease shall be of no
force or effect unless the same shall bear the written consent of Landlord. No
subtenant or assignee shall use the Premises for any purpose other than the
Permitted Use. No permitted sublease or assignment shall in any way release
Tenant from Tenant's primary liability under this Lease. If Tenant desires the
consent of Landlord to sublease or assign during the Extension Period, at least
thirty (30) but no more than one hundred twenty (120) days prior to the date on
which Tenant desires the assignment or sublease to be effective (the "Transfer
Date"), Tenant must submit the proposed sublease or assignment to Landlord for
Landlord's approval, together with the following documents: (a) a detailed
description of the portion of the Premises proposed to be sublet (which must be
a single, self-contained unit) (the "Space"); (b) complete copies of the
financial statements of the subtenant or assignee made available to Tenant with
an authorization to verify the same; (c) a declaration by the subtenant or
assignee as to the type of business to be carried out; (d) proof of payment of
all leasing commissions, if applicable; and (e) executed lease estoppel
certificates from Tenant and the proposed subtenant or assignee in the Building
standard form. If Tenant is permitted to sublease at a base rent in excess of
that provided for herein, or if Tenant is permitted to assign its interest in
this Lease for any consideration whatsoever, such excess or such consideration
(net of any subletting or assignment costs, including commissions, paid by
Tenant and approved in writing by Landlord in connection with such permission to
sublease or assign) shall be paid by Tenant to Landlord as received. Tenant
shall pay all of Landlord's out-of-pocket costs and expenses, including
reasonable attorneys' fees, relating to any such proposed assignment or
subletting.
8.2. SUBLEASING AND ASSIGNMENT TO AFFILIATES. Notwithstanding
the provisions of Section 8.1 of this Lease, Tenant, upon at least ten (10) days
prior written notice to Landlord, shall be permitted to assign this Lease or to
sublet the whole or any part of the Premises to a wholly owned subsidiary or to
an entity with which Tenant may merge or consolidate, upon advance or concurrent
written notice to Landlord (accompanied by copies of the assignment or
subletting documentation), but without the necessity of obtaining Landlord's
consent.
ARTICLE 9.
QUIET POSSESSION AND SUBORDINATION
Landlord covenants and agrees with Tenant that so long as
Tenant is not in default hereunder, Tenant shall peaceably and quietly enjoy the
Premises through the Term without hindrance or molestation by anyone claiming
through or under Landlord, subject, however, to the terms of this Lease. This
Lease is subject to all present and future easements, conditions and
encumbrances of record, and to all applicable laws, ordinances and governmental
rules and regulations (hereinafter collectively called the "Conditions").
Landlord shall use its reasonable best efforts to obtain from the holder of any
deeds of trust or mortgages affecting the Building a subordination, attornment
and non-disturbance agreement substantially in the form of Exhibit O attached
hereto and incorporated herein by reference. Such subordination, attornment and
non-disturbance agreement shall provide that, so long as Tenant is not in
default under this Lease, Tenant's use and enjoyment of the Premises in
accordance with all the material terms of this Lease shall not be disturbed by
reason of any foreclosure of any first deed of trust. If Tenant is not furnished
with such subordination, attornment and non-disturbance agreement from the
holder of
11
<PAGE> 15
any deed of trust or mortgage hereafter affecting the Building or
leasehold thereof, this Lease shall not be subordinate to such deed of trust or
mortgage and Landlord shall not be liable to Tenant for any failure to deliver
the requested subordination, attornment and non-disturbance agreement. If
Landlord obtains and delivers the required subordination, attornment and
non-disturbance agreement, the rights of Tenant under this Lease shall be and
are subject and subordinate at all times to the lien of any deed of trust or
mortgage hereafter in force against the Building, and to all advances made or
hereafter to be made upon the security thereof, and to all renewals,
modifications, consolidations, replacements and extensions thereof. Except as
expressly set forth above, this Article 9 is self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination Tenant shall promptly execute the required subordination,
attornment and non-disturbance agreement and any and all such further
instruments as may be reasonably requested by Landlord. If any purchaser at a
foreclosure sale (or by deed in lieu of foreclosure) becomes the owner of the
Premises, Tenant will attorn to and recognize such entity's becoming such owner
for all purposes in place of the Landlord named in this Lease.
ARTICLE 10.
LANDLORD'S RESERVED RIGHTS
Landlord reserves the following rights: (a) to change the name
or street address of the Building; (b) to maintain one or more signs on the
exterior of the Building; (c) to designate and control all sources furnishing
Building related services to tenants; (d) at any time during the Term if Tenant
has vacated the Premises) and otherwise during the last six (6) months of the
Term, to display "for rent" signs on and exhibit and otherwise prepare the
Premises for reoccupancy; (e) to retain passkeys to all doors within and into
the Premises; (f) during the last six (6) months of the Term to exhibit the
Premises to prospective lessees upon reasonable notice to Tenant; (g) to grant
to anyone the exclusive right to conduct any particular business in the Building
(other than the businesses conducted by Tenant in the Building as of the
Commencement Date); (h) to close the Building after Normal Business Hours and on
legal holidays and to affect such reasonable security measures as Landlord may
deem appropriate and in the best interests of the Building and tenants; subject,
however, to Tenant's right to admittance (on a 24 hour basis, seven days per
week) under such reasonable security regulations as Landlord may prescribe from
time to time; (i) to approve the weight, size, and location of safes or other
heavy objects, which objects may be moved in, about or out of the Building or
Premises only at such times and in such manner as Landlord shall direct, and in
all events at Tenant's sole risk and responsibility; (j) to take any and all
measures necessary or desirable for the operation, safety, protection or
preservation of the Building, including repairs, alterations, decorations,
additions or improvements, whether structural or otherwise, in and about the
Building or any part thereof, and installation of an energy management system to
more accurately monitor and control heat, ventilating and air conditioning in
the Building, and during the continuance of any such work to temporarily close
doors, entry ways, public spaces and corridors in the Building and to interrupt
or temporarily suspend Building services or facilities upon reasonable prior
notice to Tenant, except in the event of emergency; and (k) to remove Tenant's
name from all exterior signage on or serving the Building and from all signage
in the interior of the Building (other than the Building directory). Landlord
may enter upon the Premises upon reasonable notice to the Tenant (except in the
case of an emergency) and may exercise any or all of the foregoing rights
without being deemed guilty of an eviction (actual or constructive) or
disturbance of Tenant's use or possession and without being liable in any manner
to Tenant and without abatement of rent or affecting of
12
<PAGE> 16
Tenant's obligations hereunder. Tenant hereby consents to Landlord's use of the
name "Edison Brothers" as part of the name of the Building during the Term of
this Lease, as extended pursuant to any Extension Period. It is understood and
agreed that Landlord is under no obligation to use the name "Edison Brothers" as
part of the name of the Building. Landlord shall comply with applicable laws,
rules and regulations and the Building Rules and the Meeting Room Rules in
connection with the operation, maintenance and management of the Building.
ARTICLE 11.
ALTERATIONS AND IMPROVEMENTS
Tenant shall not, without the prior written consent of
Landlord, make any alterations, improvements or additions to the Premises
(hereinafter referred to as a "Change"). Tenant's installation and
reconfiguration of its modular office units used for executive offices shall not
constitute a Change or require Landlord's consent unless such installation or
reconfiguration results in alterations to the structural components of the
Building or the Building's HVAC, electrical, plumbing or other utility systems.
Landlord may impose such reasonable conditions with respect to such Change as
Landlord deems appropriate, including without limitation, requiring Tenant to
furnish Landlord security for the payment of all costs to be incurred in
connection with the Change, insurance against liabilities which may arise out of
such work and the plans and specifications naming Landlord as an additional
insured together with all necessary permits for such Change. The work necessary
to make the Change or to effect the reconfiguration of Tenant's modular office
units shall be done at Tenant's expense by employees or contractors selected by
Tenant and, with respect to a Change, approved by Landlord, which approval shall
not be unreasonably withheld or delayed, and shall be performed in such manner
and at such times as Landlord shall direct to minimize disturbance to other
tenants (and without limiting the generality of the foregoing, Tenant
acknowledges that Landlord may withhold its consent to the use of employees or a
contractor selected by Tenant if, in Landlord's judgment, the retention of such
employees or contractor might delay, hinder or otherwise interfere with
Landlord's construction activities in or management of the Building). Tenant
shall promptly pay, when due, the cost of all such work and of all decorating
required by reason thereof. With respect to a Change, Tenant shall also pay to
Landlord a percentage of the cost of such work, which percentage shall not
exceed 10% of the cost of such work (or 5% if Tenant shall have the work
supervised and performed by a general contractor selected and paid by Tenant and
approved by Landlord), as reimbursement to Landlord for all expenses arising
from Landlord's involvement with such work. Upon completion of such work, Tenant
shall deliver to Landlord, if payment is made directly to contractors, evidence
of payment, contractors' affidavits and full and final waivers of all liens for
labor, services or materials (in the form attached hereto as Exhibit F). Tenant
shall defend and hold Landlord and the Building harmless from all costs, damages
and liens and expenses related to such work. In connection with such work Tenant
shall never be deemed an agent of Landlord. All work done by Tenant or Tenant's
contractors shall be done in a first class workmanlike manner using only good
grades of materials and shall comply with all union and insurance requirements
and all Conditions. In consideration of Landlord's consent to such Change, any
Change shall (without further compensation to Tenant) become Landlord's property
at the termination of the Term, and shall, unless Landlord requests otherwise,
be relinquished to Landlord in good condition, ordinary wear, casualty,
condemnation and damage due to the acts or omissions of Landlord, its agents,
engineers or contractors excepted.
13
<PAGE> 17
ARTICLE 12.
REPAIRS AND REPLACEMENTS
Landlord, at Landlord's expense, shall maintain and keep in
good condition the Premises and Building, including the foundation, exterior
walls, roof, roof membrane and roof covering of the Building, sprinkler system
in or serving the Premises and/or the Building, the HVAC system, and plumbing,
electric and other utility lines servicing the Building or connecting the
Premises and the Building, except for damage to the Premises or Building
(including the parts thereof specified above) caused by acts or omissions of
Tenant, Tenant's agents, employees, contractors, guests or invitees, in which
event Tenant, subject to the provisions of Section 19.2 hereof, will bear the
cost of such maintenance or repair. Tenant, at Tenant's expense, shall at all
times keep the Premises in a clean, safe and tenantable condition and in first
class order, repair and appearance and Landlord shall have the right to approve
the means and methods employed in performance of such work. If Tenant does not
do so Landlord may (but need not) restore the Premises to a clean, safe and
tenantable condition, and Tenant shall pay the cost thereof forthwith upon being
billed by Landlord. This Section shall not apply to damage or destruction and
condemnation proceedings otherwise provided for in this Lease. In the event
emergency repairs are required within the Premises and Tenant is unable to
contact Landlord after diligent and persistent efforts so to do and Landlord is
otherwise unaware of such emergency, Tenant may perform Landlord's repair
obligations within the Premises as set forth herein. Such repairs shall be
performed in a good and workmanlike manner using materials of a quality
comparable to the materials used in the construction of the Premises and the
Building generally. During the performance of such repairs (and thereafter,
until Tenant is able to contact Landlord), Tenant shall endeavor to notify
Landlord that Tenant has undertaken to make such repairs on Landlord's behalf
and Landlord shall have the right to assume the performance of such repairs at
any time. Any such repairs undertaken by Tenant shall be performed in a manner
so as not to interfere with any other tenant's access to or use and occupancy of
its premises within the Building. Landlord shall reimburse Tenant for the
reasonable costs of said repairs within thirty (30) days of Landlord's receipt
of an invoice for same. For the purposes of this Article 12, an "emergency"
necessitating such repairs shall not be deemed to exist unless Tenant reasonably
determines that there is an imminent threat of harm to any person or an imminent
threat of material damage to Tenant's property located in the Premises.
ARTICLE 13.
DESTRUCTION OR DAMAGE
If all or a substantial portion of the Premises be rendered
untenantable, inaccessible or unsafe by fire or other casualty, or portions of
the Building exclusive of the Premises are damaged or a system therein is
damaged in such a way as to render the Premises untenantable by fire or other
casualty, and if it is reasonably anticipated that even though undertaken and
pursued with all due diligence it will require more than six (6) months to
repair the damaged area, or if the Building or Premises are damaged by an
uninsured casualty (meaning a casualty which would not have been covered by
standard "all risk" insurance coverage, determined as of the date of this
Lease), (i) Landlord may terminate this Lease as of the date of such casualty by
notice to Tenant given within thirty (30) days after such occurrence, and (ii)
if such casualty occurs during the last twelve (12) months of the Term and is
not caused by any willful act or omission of Tenant, Tenant may terminate this
Lease as of the date of such casualty by notice to Landlord given within
14
<PAGE> 18
thirty (30) days after such occurrence. If neither Landlord nor Tenant elects to
terminate this Lease, Landlord shall proceed with all due diligence to repair
the damaged area at Landlord's expense and the Rent shall abate as to that
portion of the Premises which is untenantable for so long as the same shall
remain untenantable. If this Lease is terminated pursuant to this section, Rent
shall be apportioned on a per diem basis and paid to the date of the casualty.
If the Premises are partially damaged by fire or other casualty but are not
rendered substantially untenantable, then Landlord shall proceed with all due
diligence to repair the Premises and the Rent shall abate as to that portion of
the Premises which is untenantable for so long as the same shall remain
untenantable, but Rent shall not otherwise abate. If all or a substantial
portion of the St. Louis Centre Garage shall be rendered untenantable,
inaccessible or unsafe by fire or other casualty, Tenant's obligation to pay
parking charges for the parking spaces in the St. Louis Centre Garage shall
abate for so long as the same shall remain untenantable, inaccessible or unsafe,
as the case may be.
ARTICLE 14.
EMINENT DOMAIN
If the whole of the Building or the whole of the Premises
shall be taken by the exercise of the power of eminent domain or pursuant to any
agreement in lieu of the exercise of such power (hereinafter called a
"Condemnation Proceeding"), then this Lease shall terminate as of the date of
the taking of possession by or the vesting of title in the condemning authority
(such date being hereinafter called the "Taking Date"). If less than the whole
of the Building or less than the whole of the Premises shall be taken in a
Condemnation Proceeding, Tenant may at Tenant's option terminate this Lease as
of the Taking Date by giving notice of Tenant's exercise of such option within
sixty (60) days after the Taking Date, provided that as a result of such taking
Landlord shall have reasonably determined that the Premises (or the remaining
portion thereof) may no longer be adequately used for the Permitted Use. If a
portion of the Premises shall be taken and Tenant shall not exercise Tenant's
option to terminate this Lease or if such taking shall not give rise to such
option to terminate, then this Lease shall terminate on the Taking Date only as
to that portion of the Premises so taken but shall remain in full force and
effect with respect to that portion of the Premises not so taken, and the Rent
and other charges payable by Tenant hereunder shall be reduced in the ratio in
which the diminution of the rentable square footage of the Premises following
the Taking Date shall bear to the rentable square footage thereof immediately
prior to such Taking Date. Except as otherwise ordered by the court in a
Condemnation Proceeding, all income, rent, awards or interest derived from any
Condemnation Proceeding shall belong to and be the property of Landlord, but
this shall not preclude Tenant from making an independent claim for the value of
Tenant's personal property which Tenant is entitled to remove under this Lease
in such Condemnation Proceeding provided that such claim does not result in a
reduction of Landlord's award.
ARTICLE 15.
HOLDING OVER
If Tenant without the consent of Landlord retains possession
of the Premises or any part thereof after termination of the Term of this Lease,
Tenant shall pay to Landlord Rent at a rate equal to two hundred fifty percent
(250%) (except to the extent Tenant shall have elected to extend the Term for
the Seven Year Extension Period and the holdover shall occur after the
15
<PAGE> 19
first month of the term of the Seven Year Extension Period, in which event such
rate shall be two hundred percent (200%)) of the Rent payable for the month
immediately preceding the commencement of said holding over computed on a per
month basis for each month or part thereof (without reduction for any partial
month) that Tenant remains in possession, and in addition thereto, in the event
Tenant remains in possession of the Premises or any part thereof for a period in
excess of four (4) months after termination of the Term of this Lease, Tenant
shall pay Landlord all direct and consequential damages sustained by reason of
Tenant's retention of possession. Any such retention of possession shall
constitute a month to month lease terminable in accordance with law.
ARTICLE 16.
SURRENDER OF POSSESSION
Upon the termination of the Term Tenant shall immediately
surrender the Premises (together with any Changes) to Landlord in good order,
repair and condition, ordinary wear and casualty losses for which Tenant is not
responsible pursuant to the terms of this Lease and damage caused by the acts or
omissions of Landlord, its agents, contractors or employees excepted, and shall
remove all office furniture and equipment, trade fixtures and other items of
Tenant's property on the Premises. Tenant shall pay Landlord upon demand the
reasonable cost of repairing any damage to the Premises and to the Building not
repaired by Tenant and caused by any such removal. If Tenant fails or refuses to
remove any such property from the Premises, Tenant shall be conclusively
presumed to have abandoned the same and Landlord may dispose of the same without
incurring any liability therefor. Tenant shall not be required to remove the
improvements to the Premises constituting the computer room or Tenant's modular
office units used for executive offices.
ARTICLE 17.
DEFAULT AND REMEDIES
17.1. TENANT DEFAULTS AND LANDLORD'S REMEDIES. If Tenant shall
default in the payment of any installment of the Rent or in the payment of any
other sum required to be paid by Tenant under this Lease and such default shall
continue for ten (10) days after written notice to Tenant, or if Tenant shall
default in the observance or performance of any other covenant or condition in
this Lease which Tenant is required to observe or perform and such default shall
continue for thirty (30) days after written notice to Tenant (or, in the event
Landlord determines, in its reasonable judgment, that (i) such default is
capable of cure by Tenant and such default will not cause or contribute to a
breach or default under any other lease of the Building or any mortgage lien on
the Building (ii) Tenant commences the cure of such default within the foregoing
30 day period, and (iii) Tenant diligently prosecutes the complete cure of such
default in good faith, then such longer period as may be reasonably necessary to
effect such cure), or if a default involves a hazardous condition and is not
cured by Tenant immediately upon written notice to Tenant, or if the interest of
Tenant in this Lease shall be levied upon under execution or other legal
process, or if any voluntary petition in bankruptcy or for corporate
reorganization or any similar relief shall be filed by Tenant, or if any
involuntary petition in bankruptcy shall be filed against Tenant under any
federal or state bankruptcy or insolvency act and shall not have been dismissed
16
<PAGE> 20
within sixty (60) days following the filing thereof, or if a receiver shall be
appointed for Tenant or any of the property of Tenant by any court and such
receiver shall not be dismissed within sixty (60) days from the date of
appointment, or if Tenant shall make an assignment for the benefit of creditors,
or if Tenant shall admit in writing Tenant's inability to meet Tenant's debts as
they mature, then Landlord may treat the occurrence of any one or more of the
foregoing events as a breach of this Lease and thereupon at Landlord's option
may, without notice or demand of any kind to Tenant or any other person,
exercise one or more of the following described remedies, in addition to all
other rights and remedies provided at law or in equity:
(a) Landlord may terminate this Lease and the estate
created hereby by giving Tenant written notice of such intent,
in which event Landlord may forthwith repossess the Premises
and be entitled to recover forthwith, in addition to any other
sums or damages for which Tenant may be liable to Landlord as
damages, an amount, if any, equal to the Rent which would have
been payable during any period of rent-free occupancy provided
to Tenant by this Lease, the cost of all unamortized leasing
commissions paid by Landlord in connection with this Lease,
and all other amounts paid to or on behalf of Tenant in
connection with Tenant's entry into this Lease and occupancy
of the Premises (including without limitation any moving cost
allowance, payments on lease(s) assumed by Landlord, payment
for preparation of floor plans and the like), including
Landlord's interest expense thereon, together with a sum of
money equal to the net present value of the excess of the
value of the Rent provided to be paid by Tenant for the
balance of the Term over the fair market rental value of the
Premises, after deduction of all anticipated expenses of
reletting for said period. The net present value shall be
calculated using a discount rate of seven percent (7%) per
annum.
(b) Landlord may terminate Tenant's right of
possession and may repossess the Premises by forcible entry or
unlawful detainer suit, by taking peaceful possession or
otherwise without terminating this Lease, in which event
Landlord may, but shall be under no obligation to, relet the
same for the account of Tenant, for such rent and upon such
terms as shall be satisfactory to Landlord. For the purpose of
such reletting, Landlord is authorized to decorate, repair,
remodel or alter the Premises. If Landlord shall fail to relet
the Premises, Tenant shall pay to Landlord as damages a sum
equal to the amount of the Rent reserved in this Lease for the
balance of the then-existing Term of this Lease. If the
Premises are relet and a sufficient sum shall not be realized
from such reletting after paying all of the costs and expenses
of all decoration, repairs, remodeling, alterations and
additions and the expenses of such reletting to satisfy the
Rent provided for in this Lease and the amounts recoverable
(including broker's fees) by Landlord from Tenant pursuant to
subparagraph (a) of this paragraph, Tenant shall satisfy and
pay the same upon demand therefor from time to time. Landlord
may file suit to recover any sums falling due from time to
time and no suit or recovery of any portion due Landlord
hereunder shall be any defense to any subsequent action
brought for any amount not theretofore reduced to judgment in
favor of Landlord.
17
<PAGE> 21
No waiver of any default by Tenant shall be implied from any omission by
Landlord to take any action on account of said default if such default persists
or shall be repeated, and no express waiver shall affect any default other than
the default specified in the express waiver and then only for the time and to
the extent therein stated. No failure of Landlord to exercise any power given
Landlord hereunder or to insist upon strict compliance with any obligation
hereunder and no custom or practice of the parties at variance with the terms
hereof shall constitute a waiver of Landlord's right to demand exact compliance
with the terms hereof. The provisions of this Section shall survive any
termination of this Lease. As long as Tenant shall have vacated and surrendered
the Premises to Landlord upon the termination of the Lease or the termination of
Tenant's right of possession of the Premises, Landlord shall not include in any
calculation of damages to be paid by Tenant the amounts paid to Tenant pursuant
to Article 27 of this Lease. In the event of a default by Tenant under this
Lease which continues beyond any applicable cure period, Landlord shall use
reasonable good faith efforts to mitigate its damages in accordance with the
laws of the State of Missouri.
17.2. LANDLORD'S DEFAULTS. If Landlord shall default in the
observance or performance of any covenant or condition in this Lease which
Landlord is required to observe or perform and such default shall continue for
thirty (30) days after written notice to Landlord (or, in the event Landlord
commences the cure of such default within the foregoing 30 day period, and
Landlord diligently prosecutes the complete cure of such default in good faith,
such longer period as may be reasonably necessary to effect such cure), Tenant
shall thereafter have the right to perform such covenant or effect the
satisfaction of such condition and Landlord shall reimburse Tenant for Tenant's
reasonable costs in connection therewith within thirty (30) days of receipt of
Tenant's invoice therefor. Tenant may effect such performance only within the
Premises and such portions of common areas of the Building necessary for the use
and occupancy of the Premises, and further shall effect such performance without
causing or contributing to any breach or default of other leases of the Building
or any mortgage lien on the Building.
ARTICLE 18.
BANKRUPTCY
If a petition is filed by or against Tenant for relief under
the bankruptcy laws of the United States (the "Bankruptcy Code"), and Tenant
(including for the purposes of this section Tenant's successor in bankruptcy,
whether a trustee or Tenant as debtor in possession) assumes and proposes to
assign, or proposes to assume and assign, this Lease pursuant to the provisions
of the Bankruptcy Code to any person or entity who has made or accepted a bona
fide offer to accept an assignment of this Lease on the terms acceptable to
Tenant, then notice of the proposed assignment setting forth (a) the name and
address of the proposed assignee, (b) all of the terms and conditions of the
offer and proposed assignment, and (c) the adequate assurance to be furnished by
the proposed assignee of the proposed assignee's future performance under this
Lease, shall be given to Landlord by Tenant no later than twenty (20) days after
Tenant has made or received such offer, but in no event later than ten (10) days
prior to the date on which Tenant applies to a court of competent jurisdiction
for authority and approval to enter into the proposed assignment. Landlord shall
have the prior right and option, to be exercised by notice to Tenant given at
any time prior to the date on which the court order authorizing such assignment
becomes
18
<PAGE> 22
final and non-appealable, to receive an assignment of this Lease upon the same
terms and conditions, and for the same consideration, if any, as the proposed
assignee, less any brokerage commission which may otherwise be payable out of
the consideration to be paid by the proposed assignee for the assignment of this
Lease. If this Lease is assigned pursuant to the provisions of the Bankruptcy
Code, Landlord: (i) may require from the assignee a deposit or other security
for the performance of assignee's obligations under this Lease in an amount
substantially the same as would have been required by Landlord upon the initial
leasing to a tenant similar to the assignee; and (ii) shall be entitled to
receive as additional Rent, any amounts received by Tenant in connection with
such assignment. Any person or entity to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code shall be deemed without further act or
documentation to have assumed all of the Tenant's obligations arising under this
Lease on and after the date of such assignment. Any such assignee shall upon
demand execute and deliver to Landlord an instrument confirming such assumption.
No provision of this Lease shall be deemed a waiver of Landlord's rights or
remedies under the Bankruptcy Code to oppose any assumption and/or assignment of
this Lease, or to regain possession of the Premises if this Lease has neither
been assumed nor rejected within sixty (60) days after the date of the order for
relief or within such additional time as a court of competent jurisdiction may
have fixed. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord under this Lease, whether or not
expressly denominated as rent, shall constitute rent for the purposes of Section
502(b)(6) of the Bankruptcy Code.
ARTICLE 19.
INSURANCE AND WAIVER OF RECOVERY
19.1. INSURANCE. Tenant shall at all times during the Term
maintain in full force and effect with respect to the Premises (a) commercial or
comprehensive general liability insurance (on an occurrence and not claims-made
basis) having the limits set forth in Article 1 hereof, (b) workers'
compensation and employer's liability insurance in form and in at least the
minimum amount required by law, (c) contractual liability insurance sufficient
to cover Tenant's indemnity obligations hereunder and (d) such other coverage as
may be reasonably required by Landlord or any mortgagee of the Building, each in
the standard form generally of use in the State of Missouri by a company
reasonably satisfactory to Landlord. The amount of such insurance coverage shall
be subject to increase upon the reasonable request of Landlord. Such insurance
shall be subject to modification, exhaustion or cancellation only upon ten (10)
days notice to Landlord. Tenant, at or prior to the Lease Commencement Date, and
thereafter not less than thirty (30) days prior to the expiration of any such
policy, shall furnish Landlord with an endorsement to such insurance, such
endorsement to be in a form reasonably acceptable to Landlord and any mortgagee
of the Building and, at the request of Landlord, to name Landlord and any such
mortgagee as an additional insured.
19.2. WAIVER OF RECOVERY. Landlord and Tenant hereby mutually
waive any and all rights of recovery against one another for real or personal
property loss or damage occurring to the Premises or to the Building or any part
thereof or any personal property located therein from perils which are able to
be insured against in standard fire and extended coverage, vandalism and
malicious mischief and sprinkler leakage insurance contracts (commonly referred
to as "All Risk") issued in the State of Missouri (whether or not such insurance
actually is carried). Such release shall include any deductible or self insured
retention. Landlord and Tenant shall request
19
<PAGE> 23
their insurance carriers to consent to a waiver of all rights of subrogation
against each other by inclusion of such a clause in their respective policies or
by endorsement thereto.
19.3. INDEMNITY BY TENANT. Subject to the foregoing limited
waiver, Tenant shall defend and indemnify Landlord and save Landlord harmless
from and against any and all claims against Landlord arising from (a) Tenant's
use or occupancy of the Premises or the conduct of Tenant's business or from any
activity, work or thing done, permitted or suffered by Tenant in or about the
Premises or Building, (b) the nonperformance of any covenant or agreement on
Tenant's part to be performed pursuant to the terms of this Lease or (c) any act
or negligence of Tenant or of any of Tenant's agents, contractors, employees,
invitees or licensees, and from and against all costs, counsel fees, expenses
and liabilities incurred in any such claim or in any action or proceeding
brought thereon; and in case any action or proceeding be brought against
Landlord by reason of any such claim, Tenant upon notice from Landlord,
covenants to resist or defend at Tenant's expense such action or proceeding by
counsel reasonably satisfactory to Landlord; provided that the foregoing
provision shall not be construed to make Tenant responsible for loss, damage,
liability or defense resulting from injuries to third parties to the extent
caused by the negligence of Landlord or Landlord's contractors, licensees,
employees, guests and invitees.
19.4. INDEMNITY BY LANDLORD. Landlord shall defend and
indemnify Tenant and save Tenant harmless from and against any and all claims
against Tenant arising from (a) the nonperformance of any covenant or agreement
on Landlord's part to be performed pursuant to the terms of this Lease, or (b)
any act or negligence of Landlord or any of Landlord's agents, contractors,
employees, invitees or licensees (but not including, in any event, other tenants
of the Building and their respective agents, contractors, employees, invitees or
licensees), and from and against all costs, counsel fees, expenses and
liabilities incurred in any such claim or in any action or proceeding brought
thereon; and in case any action or proceeding be brought against Tenant by
reason of any such claim, Landlord, upon notice from Tenant, covenants to resist
or defend at Landlord's expense such action or proceeding by counsel reasonably
satisfactory to Tenant; provided that the foregoing provision shall not be
construed to make Landlord responsible for loss, damage, liability or defense
resulting from injuries to third parties to the extent caused by the negligence
of Tenant or Tenant's contractors, licensees, employees, guests and invitees. It
is expressly understood and agreed that none of Landlord's covenants,
undertakings and agreements under this Lease are made or intended as personal
covenants, undertakings or agreements by Landlord, and any liability for damage
or breach or nonperformance by Landlord shall be collectible only out of
Landlord's interest in the Building, and no personal liability is assumed by or
at any time may be asserted against Landlord.
19.5. LANDLORD'S INSURANCE. Landlord shall at all times
maintain in full force and effect with respect to the Building commercial or
comprehensive general liability insurance having the limits set forth in Article
1 hereof and property damage insurance with respect to the Building of a type
and in commercially reasonable amounts comparable to insurance obtained by other
similarly situated landlords.
20
<PAGE> 24
ARTICLE 20.
TAXES ON TENANT'S PROPERTY
20.1. PERSONAL PROPERTY TAXES. Tenant shall be liable for and
shall pay before delinquency, taxes levied against any personal property or
trade fixtures placed by Tenant in the Premises. If any such taxes on Tenant's
personal property or trade fixtures are levied against Landlord or Landlord's
property or if the assessed value of the Building is increased by the inclusion
therein of a value placed upon such personal property or trade fixtures of
Tenant and if Landlord, after written notice to Tenant, pays the taxes based
upon such increased assessments, which Landlord shall have the right to do
regardless of the validity thereof, but only under proper protest if requested
by Tenant, Tenant shall upon demand repay to Landlord the taxes levied against
Landlord, or the proportion of such taxes resulting from such increase in the
assessment; provided that in any such event, at Tenant's sole cost and expense,
Tenant shall have the right, in the name of Landlord and with Landlord's full
cooperation, to bring suit in any court of competent jurisdiction to recover the
amount of any such taxes so paid under protest, any amount so recovered to
belong to Tenant.
20.2. EXCESS REAL ESTATE TAXES. If the leasehold improvements
in the Premises, whether installed and/or paid for by Landlord or Tenant and
whether or not affixed to the real property so as to become a part thereof, are
assessed for real property tax purposes at a valuation higher than the valuation
at which leasehold improvements conforming to Landlord's building standard work
in other space in the Building are assessed, then the real property taxes and
assessments levied against Landlord or the property by reason of such excess
assessed valuation shall be deemed to be taxes levied against personal property
of Tenant and shall be governed by the provisions of Section 20.1 above. If the
records of the City Assessor are available and sufficiently detailed to serve as
a basis for determining whether said improvements are assessed at a higher
valuation than Landlord's building standard work, such records shall be binding
on both Landlord and Tenant. If the records of the City Assessor are not
available or sufficiently detailed to serve as a basis for making said
determination, the actual cost of construction shall be used.
ARTICLE 21.
AMERICANS WITH DISABILITIES ACT
Landlord shall be responsible for compliance with the
requirements of the Americans with Disabilities Act (the "ADA") with respect to
the Building shell, lobbies, restrooms, and other common areas of the Building,
and agrees to hold Tenant harmless with respect to failure by Landlord to
fulfill Landlord's obligations under the ADA with respect to those areas. Tenant
shall be responsible for compliance with the requirements of the ADA with
respect to the Premises, and the use and occupancy of the Premises by Tenant,
and agrees to hold Landlord harmless with respect to failure by Tenant to
fulfill Tenant's obligations under the ADA with respect to the occupancy and use
of the Premises.
ARTICLE 22.
HAZARDOUS MATERIALS
The Building was constructed in compliance with the codes and
regulations in effect at the time of construction. Landlord agrees to comply
with all applicable laws and
21
<PAGE> 25
regulations relating to hazardous materials associated with the Building
structure and common areas. The foregoing does not relate to compliance with
laws or regulations which are applicable to the use or occupancy of premises in
the Building by individual tenants or the conduct of such tenant's business in
those premises and compliance with those laws and regulations shall be the sole
responsibility of the individual tenants. As of the date of this Lease, to the
best of Landlord's knowledge, the Premises contain no asbestos and Landlord has
received no notice with respect to the Building from any governmental agency of
any violation of the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), Resource Conservation and Recovery Act ("RCRA") or any
similar law or regulation in effect in the State of Missouri. Tenant agrees to
comply with all applicable laws and regulations relating to hazardous materials
and Tenant shall not use, store, dispose of, or generate any such materials in,
on or about the Premises or the Building except as customarily used for general
office purposes, which materials may be utilized and subsequently disposed of
only in strict compliance with all applicable laws and regulations and insurance
requirements applicable to the Building.
ARTICLE 23.
GENERAL PROVISIONS
23.1. COSTS AND EXPENSES OF ENFORCEMENT: If Tenant or Landlord
brings any action for any relief against the other, declaratory or otherwise,
arising out of this Lease, including any suit by Landlord for the recovery of
Rent or possession of the Premises, the losing party shall reimburse the
prevailing party for the reasonable fees and costs of attorneys, including the
reasonable fees and costs of investigators and experts engaged in connection
with such action and reasonable fees, costs and expenses incurred in connection
with any appeal, all of which shall be deemed to have accrued on the
commencement of such action and shall be paid whether or not the action is
prosecuted to judgment. The "prevailing party" shall be the party that prevails
in obtaining a remedy or relief which most nearly reflects the remedy or relief
which that party sought.
23.2. LATE FEES: All amounts due Landlord under this Lease
shall be considered past due for the purposes hereof on the tenth (10th) day
after the due date and shall bear interest from such date until paid at an
annual rate equal to four percent (4%) in excess of the then publicly announced
Prime Rate of Mercantile Bank National Association, St. Louis, Missouri, or its
successor (the "Bank') which rate shall change as and when such Prime Rate shall
be changed by such Bank, or the highest lawful rate, whichever is less. If the
Bank no longer exists, then in such event, Landlord may designate another bank
doing business in the City or County of St. Louis, Missouri to determine the
Prime Rate for purposes of this section. Further, on the second occasion and all
subsequent occasions in any calendar year during the Term on which any
installment of Rent has not been received by Landlord within ten (10) days after
the Rent's due date, Landlord shall be entitled, as a service charge, to a fee
of five percent (5%) of the amount of the Monthly Rent then due hereunder.
23.3. NOTICES: All notices, consents, approvals and requests
required or permitted hereunder shall be given in writing and shall be effective
for all purposes if hand delivered or sent by (a) certified or registered United
States mail, postage prepaid, or (b) expedited prepaid delivery service, either
commercial or United States Postal Service, with proof of attempted delivery,
and (c) by telecopier (with answer back acknowledged), addressed if to
22
<PAGE> 26
Landlord at Landlord's address set forth in Article 1 hereof, or at such other
address designated from time to time by Landlord, or if to Tenant, at Tenant's
address set forth in Article 1 hereof, or at such other address designated from
time to time by Tenant. A notice shall be deemed to have been given: in the case
of hand delivery, at the time of delivery; in the case of registered or
certified mail, when delivered or the first attempted delivery on a Business
Day; or in the case of expedited prepaid delivery and telecopy, upon the first
attempted delivery on a Business Day.
23.4. LANDLORD'S RIGHT TO TRANSFER INTEREST: Landlord has the
right to transfer Landlord's interest in the Building and in this Lease, and
upon any such transfer Landlord shall automatically be released from all
liability accruing under this Lease after the date of such transfer, and Tenant
shall look solely to such transferee for the performance of Landlord's
obligations hereunder, Landlord's (and such transferee's) liability in any event
to be without personal liability or recourse to any assets other than Landlord's
or such transferee's interest and title in and to the Building. Landlord may
assign Landlord's interest in this Lease to a mortgage lender as additional
security provided that such assignment shall not release Landlord from
Landlord's obligations hereunder and Tenant shall continue to look solely to
Landlord for the performance of Landlord's obligations hereunder.
23.5. ENTIRE AGREEMENT: This Lease, together with the Exhibits
referenced in Article 1 and Addendum(s), if any, constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
shall be binding upon the parties hereto and their respective heirs, personal
representatives, executors, successors and permitted assigns, as the case may
be. All terms used in this Lease shall be deemed to refer to the masculine,
feminine, neuter, singular or plural, as the context may require.
23.6. APPLICABLE LAW AND PARTIAL INVALIDITY: This Lease shall
be governed by and enforced in accordance with the laws of the State of
Missouri. The invalidity or unenforceability of any provision of this Lease
shall not affect or impair any other provision.
23.7. AMENDMENT: This Lease may not be altered, amended,
modified, or extended except by written instrument signed by Landlord and
Tenant.
23.8. WAIVER: The waiver by either Landlord or Tenant of any
breach of any term, condition or covenant of this Lease shall not be deemed to
be a waiver of any subsequent breach of the same or any other term, condition or
covenant of this Lease. No failure either by Landlord or Tenant to take action
against the other party hereto on account of any failure by such party to
perform any of such party's obligations under this Lease shall be deemed to be a
waiver by the non-defaulting party, except only where the non-defaulting party
has provided to the other party a written waiver, signed by the non-defaulting
party.
23.9. BROKERAGE: Each of the parties hereto warrants to the
other that, except as set forth in Article 1 hereof, such party has not
obligated the other party for any finders', brokers' or other agents'
commission, fees or other remuneration in connection with this Lease; and Tenant
shall indemnify and hold Landlord harmless from and against any and all claims
for such fees alleged to have been incurred by Tenant, including, without
limitation, any such claims made by or on behalf of Cushman & Wakefield. The
foregoing notwithstanding, within fifteen (15) days after receipt of the consent
of the LCRA as described in paragraph 29 of Addendum
23
<PAGE> 27
No. 1 hereto, Landlord shall reimburse Tenant in the amount of Twenty Five
Thousand Dollars ($25,000.00), in the aggregate, for (i) the costs associated
with such fees to Cushman & Wakefield, (ii) the legal expenses payable by Tenant
to The Stolar Partnership, and (iii) the architectural fees payable by Tenant to
Michael Fox, Inc.
23.10. LEASE ESTOPPEL CERTIFICATE: Tenant from time to time,
upon not less than ten (10) days prior written request by Landlord, will
promptly deliver to Landlord a duly executed Lease Estoppel Certificate in the
Building standard form (attached hereto as Exhibit G).
23.11. FORCE MAJEURE: Any prevention, delay or stoppage due to
strikes, lockouts, labor disputes, acts of God, inability to obtain labor or
materials, governmental restrictions, regulations or controls, enemy or hostile
government action, civil commotion, fire or other casualty or other causes
beyond the reasonable control of the party required to perform shall excuse the
performance by such party for a period equal to any such prevention, delay or
stoppage, except for the obligations imposed with regard to Rent and other
charges to be paid by Tenant pursuant to this Lease.
23.12. LEASE TERMINATION: This Lease may be terminated only in
accordance with its terms, and no unilateral termination by Tenant or voluntary
surrender of this Lease by Tenant shall be effective unless such termination or
surrender shall be accepted by Landlord in writing.
23.13. RELATIONSHIPS: Nothing contained in this Lease shall be
deemed to constitute or be construed to create any relationship between Landlord
and Tenant other than that of lessor and lessee.
23.14. AUTHORITY: Tenant, in the event that it is a
Corporation, hereby covenants and warrants that (a) it is duly authorized to do
business in the State of Missouri; (b) the person executing this lease on behalf
of Tenant is an officer of Tenant duly authorized by Tenant to sign and execute
this Lease on Tenant's behalf; and (c) this Lease is a valid and binding
obligation of Tenant, enforceable in accordance with the Lease's terms.
23.15. NON-BINDING UNLESS SIGNED; COUNTERPARTS; FACSIMILE
COPIES: Submission of the form of this Lease for examination shall not bind
Landlord in any manner, and no lease or other obligation of Landlord shall arise
until this instrument is signed by both Landlord and Tenant and delivery is made
to each party. This Lease may be executed in counterparts, each of which shall
constitute an original. The parties may sign this Lease by telefaxed copies, and
any such telefaxed copy shall be deemed to be an original and no objection shall
be made to the introduction into evidence of any telefaxed copy on grounds
related to the telefaxed copy not being an original. But, in such event,
executed originals shall be forwarded to the other parties at the request of any
party.
23.16. RIGHTS: No rights to any view or to light or air over
any property, whether belonging to Landlord or any other person are granted to
Tenant by this Lease.
23.17. [intentionally deleted]
24
<PAGE> 28
23.18. LEASE PAYMENTS: Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease (regardless of Tenant's
designation of such payments) to satisfy obligations of Tenant hereunder in such
order and amounts as Landlord in Landlord's sole discretion may elect.
23.19. PARKING SPACES: Tenant shall have the use of the number
of reserved parking spaces in the Building parking garage as set forth in
Article 1 hereof and shown on Exhibit I on a 24 hour basis. Landlord shall mark
such spaces as "reserved" but shall have no obligation to monitor the use of
such spaces. Subject to the continued effectiveness of the Parking Lease (as
defined below), Tenant shall have the use of the number of unreserved parking
spaces in the St. Louis Centre Garage as set forth in Article 1 hereof during
Normal Business Hours and upon payment of the Monthly Rent therefor set forth in
Article 1 for such space(s), which Monthly Rent may be changed by Landlord upon
thirty (30) days advance written notice given to Tenant to a rate not exceeding
the lowest published (or otherwise objectively verifiable) monthly rate in the
St. Louis Centre Garage, but in any event not lower than the rate for such
spaces charged by the LCRA to the Landlord pursuant to the Parking Lease.
Concurrent with any vacation and surrender of space by Tenant pursuant to
Article 24 hereof, Tenant shall surrender one (1) parking space for each two
thousand (2,000) rentable square feet (or portion thereof) of space vacated by
Tenant. The number of parking spaces to be surrendered by Tenant shall be
allocated on a pro rata basis between the Building garage and the St. Louis
Centre Garage based upon a fraction, the numerator of which is the number
reserved or unreserved parking spaces then available to the Tenant hereunder, as
the case may be, and the denominator or which is the total number of parking
spaces then available to the Tenant hereunder; provided, however, single
reserved spaces shall be surrendered prior to double reserved spaces. The
parking spaces to be surrendered by Tenant shall be designated by Tenant,
subject to Landlord's reasonable approval.
For example, if the Tenant surrendered 5,000 square feet of
Rentable Area to Landlord, Tenant would be required to surrender 3 parking
spaces. If Tenant then had 68 reserved spaces and 107 unreserved spaces, Tenant
would be required to surrender 1 reserved space (3 x (68/175) = 1.17) and 2
unreserved spaces (3 x (107/175) = 1.83).
23.20. LANDLORD'S LIABILITY: Notwithstanding any other
provision hereof to the contrary, Landlord or Landlord's agents shall not be
liable for any damage to property entrusted to employees or agents of Landlord,
nor for loss of or damage to any property by theft or otherwise, nor for any
injury or damage to property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water or rain which may leak from any part of the
Building or from the pipes, appliances or plumbing works therein or from the
roof, street or subsurface or from any other place or resulting from dampness or
any other cause whatsoever. Landlord or Landlord's agents shall not be liable
for interference with the light or other incorporeal hereditaments, nor shall
Landlord be liable for any latent defect in the Premises or in the Building.
Tenant shall give prompt notice to Landlord in case of fire or accidents in the
Premises or in the Building or of defects therein or in the fixtures or
equipment.
23.21. [intentionally deleted]
25
<PAGE> 29
23.22. TENANT'S FINANCIAL STATEMENTS: Tenant shall, once per
quarter, provide Landlord with a current financial statement and financial
statements two (2) years prior to the current financial statement year. Such
statements shall be prepared in accordance with generally accepted accounting
principles except as otherwise noted therein and, if such is the normal practice
of Tenant, shall be audited by an independent certified public accountant.
23.23. LANDLORD'S DEFAULT: In the event of any default on the
part of Landlord, Tenant shall give notice by certified mail to any holder of a
financial encumbrance covering the Building, whose address shall have been
furnished to the Tenant, and shall offer such holder a reasonable opportunity to
cure the default, which time period shall not be any shorter than the period set
forth in Section 17.2 of this Lease.
23.24. SIGNAGE: Tenant's existing signage may remain in place
at the Premises. Landlord shall place Tenant's corporate name on the Building
Directory located in the Lobby area(s). Notwithstanding the foregoing, Landlord
reserves the right to remove or replace any of Tenant's signage located on the
First and Second Floors and any other floor not fully occupied by Tenant now or
in the future.
23.25. WAIVER OF TRIAL BY JURY: Tenant hereby agrees not to
elect a trial by jury of any issue triable of right by jury, and waives any
right to trial by jury fully to the extent that any such right shall now or
hereafter exist with regard to the claim, counterclaim or other action arising
in connection therewith. This waiver of right to trial by jury is given
knowingly and voluntarily by Tenant, and is intended to encompass individually
each instance and each issue to which the right to a trial by jury would
otherwise accrue. Landlord is hereby authorized to file a copy of this paragraph
in any proceeding as conclusive evidence of this waiver by Tenant.
23.26. HEADINGS: The Article and/or Section headings and the
Table of Contents in this Agreement are included herein for convenience of
reference only and shall not constitute a part of this Agreement for any other
purpose.
23.27. TIME OF THE ESSENCE: Time is of the essence with
respect to the performance and observance of all of the terms, covenants and
conditions hereof by Tenant and Landlord.
23.28. LANDLORD'S FEES. Whenever Tenant requests Landlord to
take any action or give any consent required or permitted under this Lease,
Tenant shall reimburse Landlord for Landlord's reasonable costs incurred in
reviewing the proposed action or consent, including, without limitation,
reasonable attorneys', engineers' or architects' fees, within ten days after
Landlord's delivery to Tenant of a statement of such costs. Tenant shall be
obligated to make such reimbursement without regard to whether Landlord consents
to any such proposed action.
23.29. TELECOMMUNICATIONS. Tenant and its telecommunications
companies, including, but not limited to, local exchange telecommunications
companies and alternative access vendor services companies, shall have no right
of access to and within the Building for the installation and operation of
telecommunications systems, including, but not limited to, voice, video, data
and any other telecommunications services provided over wire, fiber optic,
microwave, wireless and any other transmission systems, for part or all of
Tenant's telecommunications within the Building and from the
26
<PAGE> 30
Building to any other location without Landlord's prior written consent.
Notwithstanding the foregoing, Tenant shall have continued access to its
existing telecommunications system as configured on the date hereof for the
purpose of maintaining and repairing same. Tenant may exercise the foregoing
right so long as such maintenance or repair does not require Tenant to enter any
premises in the Building leased to or occupied by a third party and does not
otherwise interfere with any other person's or entity's use or occupancy of the
Building.
23.30. DISCLAIMER OF IMPLIED WARRANTIES. Landlord expressly
disclaims any implied warranty that the Premises are suitable for Tenant's
intended commercial purpose, and Tenant's obligation to pay rent and additional
rent hereunder is not dependent upon the condition of the Premises or the
performance by Landlord of its obligations hereunder, and, except as otherwise
expressly provided herein, Tenant shall continue to pay the rent and additional
rent, without abatement or reduction (except as expressly set forth in Section
7.3 and Articles 13 and 14 of this Lease) or setoff or deduction notwithstanding
any breach by Landlord of its duties or obligations hereunder, whether express
or implied.
23.31. LEASE YEAR. The term "lease year" means a period of
time during the term of this Lease conforming to the following: The first lease
year means the period commencing on the Lease Commencement Date and ending
September 30, 1999 and succeeding lease years during the term of this Lease
shall commence and end on dates corresponding to those on which the first lease
year commences and ends.
ARTICLE 24.
VACATION/TERMINATION OPTION
Subject to Tenant's compliance with the terms and provisions
of this Article 24, Landlord hereby grants to Tenant the right to vacate and
surrender to Landlord (and thereby effect the termination of this Lease as to
such vacated and surrendered portion of the Premises) any portion of the
Premises consisting of at least five thousand (5,000) contiguous rentable square
feet in the Building. Any such vacation of space (and related termination) shall
be effective on the date specified in the Tenant's notice of exercise of such
right. Thereafter, such space shall no longer constitute part of the Premises
and Tenant shall have no right to use or occupy such space. Tenant may exercise
the foregoing rights only by giving Landlord sixty (60) days prior written
notice, which notice shall specify that part of the Premises to be vacated by
Tenant. The effectiveness of any such vacation of space shall be subject to (i)
Landlord's determination, within ten (10) days of such notice that such vacation
complies with the terms of the next grammatical paragraph hereof, and is
configured and located so as to be leaseable to third parties in accordance with
customary market terms and reasonably acceptable to Landlord, (ii) Tenant's
vacation of such space on or prior to the date specified in Tenant's notice,
which date shall be not less than sixty (60) days nor more than one hundred
eighty (180) days from the date of Tenant's notice, and (iii) Tenant's payment
(within ten (10) days of receipt of Landlord's invoice therefor) of the cost of
constructing any necessary demising walls and other improvements to the Building
necessary to permit leasing of such surrendered space to a third party. Tenant
shall cooperate with Landlord in the construction of any necessary demising
walls to separate the portion of the Premises so vacated from the remainder of
the Premises. Subject to Tenant's compliance with the terms and provisions of
this Article 24, Tenant may exercise the foregoing right at any time and from
time to time during the initial Term hereof and during the One Year Extension
Period (as hereinafter defined). The foregoing right shall not be exercisable
during the Seven Year Extension Period (as
27
<PAGE> 31
hereinafter defined). The foregoing notwithstanding, Tenant at no time during
the initial Term or any Extension Period (as hereinafter defined) shall have the
right to vacate any portion of the Premises which would result in Tenant's
Rentable Area to fall below one hundred and twenty five thousand (125,000)
square feet. All calculations of the amount of rentable area vacated and
surrendered by Tenant pursuant to this Article 24, as well as all calculations
of the amount of rentable area thereafter occupied by Tenant under this Lease,
shall be performed by Landlord at Tenant's cost and expense, utilizing the same
load factor as was utilized to calculate the rentable area of such portion of
the Building at the commencement of this Lease.
Any space so surrendered by Tenant shall first be from either
the Fifth or First floors of the Building. Any space surrendered on the First
floor of the Building shall be configured as one of the contiguous blocks of
space described on the First Floor Vacated Space Plan attached hereto as Exhibit
J. Tenant shall have no right to surrender space on the Fourth floor of the
Building until Tenant shall have surrendered all of the space on the Fifth floor
of the Building to Landlord. Similarly, Tenant shall have no right to surrender
space on the Third floor of the Building until Tenant shall have surrendered all
of the space on the Fourth floor of the Building to Landlord, and Tenant shall
have no right to surrender space on the Second floor of the Building until
Tenant shall have surrendered all of the space on the Third floor of the
Building.
Concurrent with Tenant's vacation of any such space, Landlord
and Tenant shall enter into an amendment to this Lease in form and substance
satisfactory to Landlord to reflect the adjustment to the dimensions of the
Premises, the corresponding reduction of rental amounts owed by Tenant, at the
then applicable annual rental rate, and Tenant's Proportionate Share. Any space
so vacated and surrendered by Tenant shall be vacated and surrendered in
compliance with the provisions of Article 16 of this Lease (and this Lease shall
terminate with respect to such space) and Tenant shall be responsible for
re-affixing its signage to the doors to Tenant's reconfigured space.
Tenant shall have the right to exercise the foregoing options
only if at the time of such exercise and on the effective date thereof, no
default by Tenant exists under this Lease. If a default by Tenant under this
Lease (after giving effect to applicable cure periods) shall occur at any time
after the exercise by Tenant of one of the foregoing options but prior to the
effectiveness thereof, the exercise by Tenant of such option shall cease and be
void.
ARTICLE 25.
LCRA LEASE
On or prior to the Lease Commencement Date, Tenant shall
execute and deliver to Landlord any and all documents, consents and
certificates, and Landlord may take any and all actions, as may be necessary or
desirable to effect the assignment of Tenant's rights under that certain Lease
dated as of December 22, 1982 and the Addendum thereto (collectively, the
"Parking Lease") between Land Clearance for Redevelopment Authority of the City
of St. Louis (the "LCRA") and Tenant with respect to the use and enjoyment of
the parking spaces and facilities described therein. Tenant hereby represents
and warrants that Tenant is in full compliance with all the terms and conditions
of the Parking Lease and no condition exists which, of itself, or upon the lapse
of time or the giving of notice (or both) might create an event of default under
the Parking Lease. Tenant further represents and warrants that it has no
knowledge of any condition which, of itself, or upon the lapse of time or the
giving of notice (or both) might
28
<PAGE> 32
create an event of default by the LCRA under the Parking Lease. Tenant shall
cooperate with Landlord to obtain any necessary third party consents in
connection with such assignment.
ARTICLE 26.
OPTION TO EXTEND
Subject to the provisions hereinafter set forth in this
Article 26, and provided that Tenant is not in default hereunder, after notice
and opportunity to cure to the extent provided in Article 17, at any time from
the exercise of the option until the Lease Expiration Date, Landlord hereby
grants Tenant the option to extend the Term on the same terms, conditions and
provisions as contained in this Lease, except as otherwise expressly provided
herein, for one (1) period of either one (1) year (the "ONE YEAR EXTENSION
PERIOD") or one period of seven (7) years (the "SEVEN YEAR EXTENSION PERIOD").
Such period, regardless of its duration, may also be referred to herein
generally as the "EXTENSION PERIOD"). If exercised in accordance herewith, the
Extension Period shall commence on the first (1st) day after the Lease
Expiration Date.
If Tenant delivers an "Extension Notice" as hereinafter
provided, the Term shall be extended on the same terms, conditions and
provisions as contained herein except that the Annual Base Rent during the One
Year Extension Period, if elected by Tenant, shall be $12.00 per square foot of
Rentable Area of the Premises per year, and the Annual Base Rent during the
Seven Year Extension Period, if elected by Tenant, shall reflect the "Prevailing
Market" rate, as determined in accordance with this Article 26.
Not less than twelve (12) months prior to the Expiration Date,
Tenant may request, by written notice to Landlord (the "PRELIMINARY NOTICE"),
that Landlord determine the Prevailing Market rate for the Premises as it would
be during the Seven Year Extension Period if Tenant elected to exercise its
option for such Seven Year Extension Period. Within ten (10) days following
Landlord's receipt of the Preliminary Notice, Landlord will notify Tenant of
such Prevailing Market rate as reasonably determined by Landlord. If Tenant does
not agree with Landlord's determination of such Prevailing Market rate, Tenant,
by written notice to Landlord (the "ARBITRATION NOTICE") within five (5)
business days after being advised of Landlord's determination of the Prevailing
Market rate, shall have the right to have the Prevailing Market rate determined
using the following procedures:
If Tenant provides Landlord with an
Arbitration Notice, each party shall, at its own expense,
select and retain an appraiser, with the qualifications set
forth below and notify the other party of its selection within
ten (10) days after Landlord's receipt of the Arbitration
Notice. Each appraiser so selected shall be certified as an
MAI appraiser or as an ASA appraiser and shall have had at
least three (3) years experience within the previous ten (10)
years as a real estate appraiser working in the downtown St.
Louis area, with working knowledge of current rental rates and
practices. For purposes of this Lease, an "MAI" appraiser
means an individual who holds an MAI designation conferred by,
and is an independent member of, the American Institute of
Real Estate Appraisers (or its successor organization, or in
the event there is no successor organization, the organization
and designation most similar), and an "ASA" appraiser means an
individual who holds the Senior Member designation conferred
by, and is an
29
<PAGE> 33
independent member of, the American Society of
Appraisers (or its successor organization, or, in the event
there is no successor organization, the organization and
designation most similar). Within thirty (30) days after
Landlord's receipt of the Arbitration Notice, each appraiser
shall determine the Prevailing Market rate and shall notify
the other appraiser and both parties of such appraiser's
determination. In the event only one party selects an
appraiser and notifies the other party of its selection during
the ten (10) day period specified above, and such party's
appraiser gives such notice within the thirty (30) day period,
or in the event an appraiser duly selected by one party fails
to give such notice within the thirty (30) day period, then
the determination of the Prevailing Market rate made by the
selected appraiser who gave such notice shall be deemed to be
the Prevailing Market rate. If the determination of the
appraisers are within ten percent (10%) of each other, the
Prevailing Market rate shall be the average of the two (2)
determinations. If both appraisers notify each other and both
of the parties of their respective determination of the
Prevailing Market rate within the thirty (30) day period, and
their determinations do not agree within ten percent (10%) on
the Prevailing Market rate, then within fifteen (15) days
after both appraisers notify both parties of their respective
determination of the Prevailing Market rate, each party will
cause the appraiser selected by it to confer with the other
appraiser and the two (2) appraisers shall select a third
appraiser (the "THIRD APPRAISER") having the qualifications
set forth above. In the event the appraisers selected by
Landlord and Tenant cannot agree upon the Third Appraiser
within such fifteen (15) day period, each party will, within
ten (10) days thereafter, cause the appraiser selected by it
to supply the name of one (1) appraiser having the
qualifications as set forth above, and a representative of
Landlord, with a representative of Tenant present, shall make
a blind draw of one (1) name of the two (2) provided, who
shall serve as the Third Appraiser. In the event only one (1)
of the appraisers supplies the name of a prospective third
appraiser during such ten (10) day period, the appraiser named
by such appraiser shall be the Third Appraiser. Within twenty
(20) days from the date of his appointment, the Third
Appraiser shall make his determination of the Prevailing
Market rate and will submit a written determination thereof to
both parties and both appraisers. If the determination of the
Third Appraiser and either one of the other appraisers are
within ten percent (10%) of each other, the Prevailing Market
rate shall be the average of the two (2) determinations.
Notwithstanding the foregoing, if the determination of the
Third Appraiser and both of the other appraisers are within
ten percent (10%) of each other or if none of such
determinations are within ten percent (10%) of the others, the
Prevailing Market rate shall be the average of the three (3)
determinations. If the Third Appraiser believes that expert
advice would materially assist him, he may retain one or more
qualified persons to provide such expert advice. The parties
shall share equally in the costs of the Third Appraiser and of
any experts retained by the Third Appraiser. Any fees of any
appraiser, counsel or experts engaged directly by Landlord or
Tenant, however, shall be borne by the party retaining such
appraiser, counsel or expert. In the event that the Prevailing
Market rate has not been determined by the commencement date
of the Extension Period, Tenant shall pay Annual Base Rent
upon the terms and conditions in effect for the Premises until
such time as the Prevailing Market rate
30
<PAGE> 34
has been determined. Upon such determination, the Annual
Base Rent shall be retroactively adjusted to the
commencement of the Extension Period. If such adjustment
results in an underpayment of Annual Base Rent by Tenant,
Tenant shall pay Landlord the amount of such underpayment
within thirty (30) days after the determination thereof. If
such adjustment results in an overpayment of Annual Base
Rent by Tenant, Landlord shall credit such overpayment
against the next installment of Annual Base Rent due under
the Lease and, to the extent necessary, any subsequent
installments until the entire amount of such overpayment has
been credited against Annual Base Rent.
Not less than eight (8) months prior to the Expiration Date,
Tenant, by written notice to Landlord ("EXTENSION NOTICE"), may exercise
Tenant's option to extend for either the One Year Extension Period or the Seven
Year Extension Period and the Term of this Lease shall be thereby extended. If
Tenant shall fail to give any such Extension Notice, Tenant's right to exercise
such option shall cease and be void. Additionally, if the option to extend the
Term is not exercised in the aforesaid manner, the Term and Tenant's rights
hereunder and its rights to occupy and possess the Premises shall expire on the
Expiration Date.
ARTICLE 27.
TENANT PAYMENT
Provided that this Lease shall be in full force and effect,
that Tenant shall not be in material default under this Lease and that no event
shall have occurred that, with notice or lapse of time, or both, would
constitute a material default by Tenant hereunder, then on the date which is not
more than twenty (20) days after the Lease Commencement Date hereof or, in the
event of the occurrence of such a material default or event that would
constitute a material default, then on the date which is not more than twenty
(20) days after such default or event is cured (provided such default or event
is cured within the applicable cure period), Landlord shall pay to Tenant the
sum of Eight Hundred Eighty Seven Thousand Seven Hundred Forty Two Dollars
($887,742.00).
SEE ALSO ADDENDUM NUMBER 1 TO THIS LEASE ATTACHED HERETO AND MADE A PART HEREOF.
31
<PAGE> 35
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH
MAY BE ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, the undersigned have caused this Lease to
be signed and delivered on their behalf on the dates set forth below.
TENANT:
EDISON BROTHERS STORES, INC.
By: /s/ Thomas M. Feiner
-------------------------------------
Name: Thomas M. Feiner
Title: Vice President
Date: September 30, 1998
LANDLORD:
EBS BUILDING, L.L.C.
BY: PricewaterhouseCoopers LLP, as Manager
By: /s/ Keith F. Cooper
-------------------------------------
Keith F. Cooper
Partner
Date: September 29, 1998
32
<PAGE> 36
EXHIBIT A
FLOOR PLAN
<PAGE> 37
EXHIBIT B
[INTENTIONALLY DELETED]
<PAGE> 38
EXHIBIT C
[INTENTIONALLY DELETED]
<PAGE> 39
EXHIBIT D
BUILDING RULES
Tenant's use of the Building and Premises shall be governed by
the following rules, which Landlord shall use reasonable efforts to enforce on a
uniform basis. Landlord reserves the right to unilaterally amend or add to the
rules (subject to the terms of this Lease and on a uniform basis), and such
amendments and additions shall be effective when notice of the same is given to
Tenant in the manner provided in the Lease.
1. Nothing shall be displayed, painted or affixed by Tenant on
any part of the exterior or interior of the Building (except within the
Premises) without the prior written consent of Landlord, and then only of such
color, size, style and material as shall be approved by Landlord. Nothing shall
be placed in the Premises which may be visible from the exterior of the Building
(including window treatments) without the prior written consent of Landlord.
2. Landlord shall furnish Tenant with two (2) keys to each
door lock for the Premises. Additional keys shall be procured from Landlord and
paid for by Tenant. No additional or replacement locks shall be placed on any
door of the Premises, and Tenant shall not permit duplicate keys to be made.
Tenant shall be solely responsible for the security of all keys to the Premises.
All keys furnished to Tenant shall be surrendered to Landlord at the termination
of the Term.
3. If Tenant desires additional wiring connections, Landlord
shall direct the electricians as to where the wires are to be introduced and
without such directions no boring or cutting for wiring shall be permitted.
4. Tenant shall not install or operate any steam or internal
combustion engine, boiler, machinery, refrigerating or heat generating device or
air conditioning apparatus in or about the Premises or carry on any mechanical
business therein. Tenant shall not install any vending machines other than for
use by Tenant's employees; however Tenant may install a refrigerator, microwave
or coffee maker in the Premises for use solely by Tenant's employees.
5. The common areas of the Building shall not be obstructed by
Tenant or used in any way except for ingress and egress to and from the offices.
Tenant shall place no objects outside Tenant's premises.
6. The bathroom fixtures shall not be used for purposes other
than those for which they were constructed. The cost of repairing any damage
caused by Tenant resulting from misuse of such fixtures shall be borne by
Tenant.
7. Tenant shall not permit littering of the common areas of
the Building.
8. Tenant shall not make noises, cause disturbances or
vibrations or use any electrical or electronic devices or other devices that
emit sound or other waves or disturbances or create odors, any of which may be
offensive to other tenants of the Building or which would interfere with the
operation of any device or equipment or radio or television broadcasting or
reception from or within the Building or elsewhere, and shall not place or
install any musical
<PAGE> 40
instrument or equipment or any similar device inside or outside the Premises
without the prior written consent of Landlord. The use thereof, if permitted,
shall be subject to control of Landlord to the end that others shall not be
disturbed or annoyed.
9. Tenant shall not waste utility services and shall cooperate
fully with Landlord to assure the most effective operation of the Building's
HVAC system and shall not adjust any controls other than thermostats installed
for Tenant's use. Tenant shall keep corridor door(s) closed.
10. Tenant assumes full responsibility for protecting Tenant's
space from theft, robbery and pilferage, which includes keeping doors locked and
other means of entry to the Premises closed and secured.
11. No animals, birds, bicycles or other vehicles shall be
allowed in any part of the Building without the prior consent of Landlord.
12. Any person or person (other than the janitor of Landlord)
who shall be employed for the purpose of cleaning or maintaining the Premises
shall be employed at Tenant's cost, subject to the terms of the Lease, and
Landlord shall in no way be responsible for any loss of property on or from the
Premises, however occurring, by such person.
13. Tenant shall not accumulate or store on the Premises any
waste paper, discarded records, sweepings, rags, rubbish or other combustible
matter. Tenant shall not place in any trash receptacle any material which cannot
be disposed of in the ordinary course, and Tenant shall keep all trash within
Tenant's Premises. All garbage and refuse disposal shall be made in accordance
with Landlord's instructions as designated from time to time.
14. Tenant shall not make any room to room canvass to solicit
business from other tenants in the Building and shall not exhibit, sell, or
offer to sell, use, rent or exchange any item or service in or from the Premises
unless within the Permitted Use.
15. Landlord reserves the right to exclude from the Building
all disorderly persons, persons under the influence of alcohol or a controlled
substance, idlers and peddlers, solicitors, and persons entering in crowds or in
such unusual numbers as to cause inconvenience to the tenants of the Building.
16. Any parking spaces included in the Lease shall be used
only for the personal automobiles, sports utility vehicles, motorcycles and
pick-up trucks (all of widths, heights, lengths and other dimensions fitting
within the garages and Building standard parking spaces) of Tenant and Tenant's
employees and guests (no trucks, motor homes and the like). Landlord reserves
the right to designate locations for one or more of such parking spaces subject,
however, to the terms of the Lease. Upon Landlord's request, Tenant promptly
shall furnish Landlord the names, vehicle descriptions and vehicle license
numbers of each authorized user of Tenant's parking spaces. Tenant shall be
liable for all costs and expenses suffered or incurred by Landlord in the towing
of illegally parked vehicles of Tenant, Tenant's employees or guests. Landlord
shall have no obligation to monitor the use of any such spaces.
2
<PAGE> 41
17. Tenant shall comply with all Conditions (as defined in
the Lease) in connection with Tenant's use and occupancy of the Premises.
18. All deliveries to the Premises shall be subject to the
reasonable control of Landlord as to place and time of deliveries.
19. The common areas of the Building are a no smoking area in
which no smoking of any kind, including but not limited to cigarettes, cigars,
pipes, or any other device, is permitted except in an area specifically
designated by Landlord as an area where smoking is permitted. Landlord shall not
be responsible for violations of this provision by any Tenant of the Building,
Tenant's employees, visitors, contractors, or subcontractors. In the event
Landlord seeks to enforce this provision against Tenant, Tenant shall pay all
costs and expenses of every kind including, without limitation, all court costs
and attorneys fees and charges. In the event Landlord seeks any injunctive
relief to prevent violations of this provision of the Lease, Tenant agrees that
if a bond is required by the court, that the amount of such bond not exceed
$100.00. Landlord further reserves the absolute right to designate the entire
areas of the Building, grounds and Premises as non-smoking.
20. All use of the loading dock serving the Building shall be
subject to the reasonable control of Landlord.
21. Passenger elevators shall not be utilized for the movement
of mail carts or similar equipment.
3
<PAGE> 42
EXHIBIT E
[INTENTIONALLY DELETED
<PAGE> 43
EXHIBIT F
FORM 1
CONTRACTOR'S LIEN WAIVER
STATE OF MISSOURI )
) SS. WAIVER
CITY OF ST. LOUIS )
WHEREAS, _____________________ ("Contractors") has/have been
employed by EDISON BROTHERS STORES, INC., as Tenant of the Premises described
below, to perform construction as a general contractor upon the following
described premises, to-wit:
("the Premises"), the specific terms and conditions of such employment being
governed by that certain Agreement dated the ________ day of __________, 19___,
and
WHEREAS, EBS Building, L.L.C. ("Landlord") is Landlord of the
Premises.
NOW, THEREFORE, for and in consideration of the sum of Ten
Dollars ($10.00) and other good and valuable consideration, the receipt of which
is hereby acknowledged, Contractor does hereby waive any right it may have to
file any and all mechanic's liens, claim of lien or right of lien against
Landlord or Landlord's interest in the Premises, provided by the statutes of the
State of Missouri, upon the above described Premises or any portion thereof.
Further, Contractor hereby acknowledges that Landlord has not contracted for or
agreed to pay for the work or materials called for in the contract described
above. Contractor agrees to look solely to Tenant or Tenant's interest in the
Premises to satisfy any mechanic's lien, right, claim or causes of action which
Contractor may have against Tenant arising out of the above referenced contract.
Contractor shall obtain a similar waiver and acknowledgment from all
subcontractors and suppliers.
EXECUTED this ___________day of ______________, 19____.
CONTRACTOR:
____________________________
By:_________________________
Subscribed and sworn to before me this _______ day of ______________, 19___.
My commission expires:______________________________________________
_____________________ Notary Public
<PAGE> 44
EXHIBIT F
FORM 2
PARTIAL WAIVER OF LIEN
(Subcontractor or Material Supplier)
STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
WHEREAS, ____________________ ("Contractors") has/have been
employed by EDISON BROTHERS STORES, INC., as Tenant of the Premises described
below, to perform construction as a general contractor upon the following
described premises, to-wit:
("the Premises"), the specific terms and conditions of such employment being
governed by that certain Agreement dated the _______ day of _______________,
19_, and
WHEREAS, under authority of the above mentioned Agreement,
_______________ has/have employed _______________________ as a subcontractor
material supplier, to perform labor, to furnish materials or to do both upon the
Premises or some portion thereof, the specific terms and conditions of such
employment being governed by that certain Agreement dated the ________ day of
________________, 19_, and
WHEREAS, EBS Building, L.L.C. ("Landlord") is Landlord of the
Premises.
NOW, THEREFORE, for and in consideration of the sum of Ten
Dollars ($10.00) and other good and valuable consideration, the receipt of which
is hereby acknowledged, subcontractor or material supplier does hereby waive any
right it may have to file any and all mechanic's liens, claim of lien or rights
of lien against Landlord or Landlord's interest in the Premises, provided by the
statutes of the State of Missouri, upon the above described Premises or any
portion thereof. Further, subcontractor or material supplier hereby acknowledges
that Landlord has not contracted for or agreed to pay for the work or materials
called for in the contract described above. Subcontractor or material supplier
agrees to look solely to Tenant to satisfy any mechanic's lien, right, claim or
cause of action which subcontractor or material supplier may have against Tenant
arising out of the above referenced contract.
EXECUTED this ______ day of ____________, 19___.
SUBCONTRACTOR OR
MATERIAL SUPPLIER:
______________________________
By:___________________________
<PAGE> 45
EXHIBIT G
LEASE ESTOPPEL CERTIFICATE
LEASE DATE:
LANDLORD: EBS Building, L.L.C.
TENANT: EDISON BROTHERS STORES, INC.
PREMISES: Suite _____, Edison Brothers Building
AREA: __________ Square Feet
MORTGAGEE/
PROSPECTIVE
PURCHASER: ___________________________
The undersigned Tenant in the above Lease hereby certifies
to Mortgagee and to Landlord as follows:
1. That the term of the Lease commenced on _________________,
19___, and that Tenant is in full and complete possession of the Premises
demised under the Lease and has commenced full occupancy and use of the
Premises, such possession having been delivered by Landlord and having been
accepted by Tenant.
2. That the Lease calls for Monthly Base Rent Installments of
$__________ to date, and in addition, Tenant is paying an adjustment to Annual
Base Rent in the amount of $__________ per month which commenced to accrue on
_____________________, 19___.
3. That no advance rental or other payment has been made in
connection with the Lease except rental for the current month, and the Rent has
been paid to and including ____________________, 19___.
4. That, to the best knowledge of Tenant, all of the
obligations and conditions under the Lease to be performed to date by Landlord
or Tenant have been satisfied, free of defenses and setoffs, including all
construction work in the Premises; except as follows:
5. That the Lease is a valid lease and in full force and
effect and represents the entire agreement between the parties, that, to the
best knowledge of Tenant, there is no existing default on the part of Landlord
or Tenant in any of the terms or conditions thereof, and no event
<PAGE> 46
has occurred which, with the passing of time or the giving of notice or both,
would constitute an event of default, and that said Lease: (check one as
appropriate)
(_____) Has not been amended, modified, supplemented, extended, renewed or
assigned.
(_____) Has been amended, modified, supplemented, extended, renewed or assigned
as follows by the following described agreements:
6. That the Lease provides for a term of __________ months and the term of
the Lease expires on __________________, 19___.
7. There is no action, voluntary or involuntary, pending against Tenant
under the bankruptcy laws of the United States or any state thereof [other than
the administration of Tenant's reorganization proceedings commenced in November
1995 in the United States Bankruptcy Court for the District of Delaware].
8. That this Certificate is being made knowing that the Mortgagee and
Landlord are relying upon the representations made herein.
9. This Certificate may be relied upon by the prospective purchaser's
mortgage as if addressed thereto.
IN WITNESS WHEREOF,the undersigned Tenant has executed this Lease Estoppel
Certificate as of the _____ day of ___________________, 19___.
TENANT: EDISON BROTHERS STORES, INC.
By:______________________________
Title:__________________________
Date:_____________________________
<PAGE> 47
EXHIBIT H
[INTENTIONALLY DELETED]
<PAGE> 48
EXHIBIT I
RESERVED PARKING SPACES
<PAGE> 49
EXHIBIT J
FIRST FLOOR VACATED SPACE PLAN
<PAGE> 50
EXHIBIT K
EDISON BUILDING MEETING ROOMS RULES AND REGULATIONS
1. Meeting Rooms to be scheduled with the Property Manager on a first
come, first serve basis.
2. Equipment in the Meeting Rooms is the property of the Landlord. Tenant
shall operate the equipment while occupying a Meeting Room.
3. Meeting Room equipment shall not be removed without prior written
consent of the Property Manager.
4. Tenant shall be responsible for setting up and returning the Meeting
Rooms to the original configuration.
5. Landlord shall maintain the Meeting Rooms and the equipment therein.
<PAGE> 51
EXHIBIT L
EXISTING SECURITY SYSTEM
Prior to the installation of the Tenant Security System, Landlord will continue
to monitor access to Tenant's Premises as follows:
1. Security will sign-in and announce all visitors to Tenant's Premises.
2. Tenant's employees will be required to show identification badges prior
to entering Tenant's Premises.
3. Elevators 3 through 8 will serve Tenant's floors only. No other
elevators will be allowed access to floors 3 through 8 while Tenant
occupies the space.
<PAGE> 52
EXHIBIT M
MEETING ROOMS
<PAGE> 53
EXHIBIT N
FIRST AND SECOND FLOOR RELOCATION AREAS
<PAGE> 54
EXHIBIT O
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE AGREEMENT
THIS SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE AGREEMENT made and
entered into as of this _____ day of ___________, ______, by and between
______________________________________________________________________, a
______________ corporation (hereinafter called "Lender"), and EDISON BROTHERS
STORES, INC., a Delaware corporation (hereinafter called "Tenant"),
WITNESSETH:
WHEREAS, Lender is the owner and holder of a certain promissory Note dated
________________, 19__, in the face principal amount of ________________________
Dollars ($_________________), which is secured by a Deed of Trust and Security
Agreement of even date therewith recorded in Book _______, Page __, St. Louis
City Records (the "Deed of Trust") encumbering
______________________________________________________ as described therein,
WHEREAS, Tenant has entered into a certain Lease dated September ___, 1998
with EBS Building, L.L.C., a Delaware limited liability company, demising
certain premises therein described at 501 North Broadway, St. Louis, Missouri
63102 (together with any further extensions, renewals or modifications thereof,
the "Lease"),
WHEREAS, Tenant has requested Lender to recognize Tenant's right to
the Premises demised by the Lease in the event of foreclosure of the Deed of
Trust,
<PAGE> 55
NOW THEREFORE, for and in consideration of the premises and the mutual
covenants hereof, the parties hereto stipulate, covenant, and agree as follows:
1. Lender agrees that so long as Tenant shall not be in default under the
Lease, (a) Tenant's right of possession and enjoyment of the Premises demised by
the Lease shall be and remain undisturbed and unaffected by any foreclosure or
other proceedings involving the Deed of Trust and (b) Lender and any purchaser
at a foreclosure sale involving the deed of trust shall recognize Tenant as
Tenant under the Lease.
2. Tenant agrees to recognize Lender or any purchaser at a foreclosure sale
involving the Deed of Trust as its Landlord under the Lease for that part of the
Premises demised by the Lease without the necessity of any other or further
attornment than in this paragraph contained (and this paragraph shall be
considered an attornment). Tenant hereby waives any and all rights to terminate
the Lease by reason of any foreclosure of the Deed of Trust, and if any court
holds the Lease terminated by reason of a foreclosure of the Deed of Trust, this
Agreement shall be deemed a new lease for the balance of the term of the Lease
at the same rental therein provided, and upon the same terms and conditions as
therein provided.
3. Neither Lender nor any purchaser at foreclosure shall, at any time
after, be:
(a) liable for any act or omission of a prior landlord, except
that Lender, upon succeeding to Landlord's interest and while in
privity of estate with Tenant, and only during such period, will remain
obligated to cure any on-going defaults;
(b) subject to any offsets or defenses which Tenant might have
against any prior landlord arising after the time Lender ceased to be a
partner in the entity which is Landlord under the Lease and is not
Landlord under the Lease except such offsets and defenses as are
expressly provided for in the Lease and arise out of Landlord defaults
of which Tenant notified Lender at the time of the alleged default;
<PAGE> 56
(c) bound by any prepayment of rent or additional rent which
Tenant might have paid to any prior landlord more than thirty (30) days
prior to the due date of such installment; or
(d) bound by any agreement or modification of the Lease without
the consent of Lender (which consent shall not be unreasonably withheld).
4. Subject to the provisions hereof, Tenant agrees that the Lease as it may
hereafter be amended, renewed, modified, replaced, substituted or extended, from
time to time, shall in all respects be, and is hereby expressly made, subject,
subordinate and inferior at all times to the lien, right, title and terms of the
Deed of Trust and to all of the terms, conditions and provisions thereof, and to
all advances and/or payments made or to be made thereunder, as it may have been
or may hereafter be amended, increased, renewed, modified, consolidated,
replaced, combined, substituted, severed, split, spread, refinanced, recast or
extended, whether or not such Deed of Trust also covers other lands and/or
buildings and/or leases. Furthermore, nothing contained in this Agreement shall
in any way impair or affect the lien(s) created by the Deed of Trust.
5. This Subordination, Attornment and Non-Disturbance Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors
and assigns.
<PAGE> 57
6. This Subordination, Attornment and Non-Disturbance Agreement may be
executed by the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one and
the same agreement.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
instrument as of the day and year first above written.
[LENDER]
By: ______________________
Name:
Title:
EDISON BROTHERS STORES, INC.
By:_______________________
Name:
Title:
<PAGE> 58
STATE OF )
) SS:
OF )
On this day of , ______, before me appeared , to me personally known, who,
being by me duly sworn, did say that he is the __________________of
________________________________________________, a corporation of the State of
____________, and that the seal affixed to the foregoing instrument is the
corporate seal of said corporation, and that said instrument was signed and
sealed on behalf of said corporation, by authority of its Board of Directors;
and said acknowledged said instrument to be the free act and deed of said
corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the and State aforesaid, the day and year first above written.
__________________________
Notary Public
My Commission Expires:
________________
STATE OF __________)
) SS:
_______ OF ________)
On this___________ day of_____________________ , ______, before me appeared
_________________________________________ , to me personally known to be the
person described in and who executed the foregoing instrument and who being by
me duly sworn, did say that he is a _____________ of EDISON BROTHERS STORES,
INC., a corporation organized and existing under the laws of the State of
Delaware; and said ______________acknowledged said instrument to be his free act
and deed and the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the City and State aforesaid, the day and year first above written.
________________
Notary Public
My Commission Expires:
____________________
<PAGE> 59
ADDENDUM NO. 1
ATTACHED TO AND MADE A PART OF
LEASE DATED SEPTEMBER 29, 1998
BETWEEN EBS BUILDING, L.L.C., AS LANDLORD,
AND EDISON BROTHERS STORES, INC., AS TENANT
28. By execution of this Lease, Tenant does by these presents bargain
and sell unto Landlord, its successors and assigns forever, all right, title and
interest of Tenant in and to the furniture, furnishings, equipment and fixtures
in the First floor lobby of the Building, the Building atrium, the Meeting Rooms
and all other common areas of the Building, exclusive of any artwork in such
areas of the Building. Tenant shall remove any pictures, plaques and other
miscellaneous personal property on the walls of the Meeting Rooms prior to the
Commencement Date.
29. From and after the Lease Commencement Date, Landlord hereby
covenants to perform those obligations of the tenant under the Parking Lease
which, if not performed, would give the landlord thereunder the right to
terminate such lease. Landlord shall not effect any amendment to the Parking
Lease which materially adversely affects Tenant's parking rights in the St.
Louis Centre Garage.
<PAGE> 60
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
executed on the date first above written.
TENANT:
EDISON BROTHERS STORES, INC.
By: /s/ Thomas M. Feiner
_________________________
Name: Thomas M. Feiner
Title: Vice President
Date: September 30, 1998
LANDLORD:
EBS BUILDING, L.L.C.
BY: PricewaterhouseCoopers LLP, as Manager
By: /s/ Keith F. Cooper
_____________________________
Keith F. Cooper
Partner
Date: September 29, 1998
<PAGE> 1
EXHIBIT 10.8
ASSIGNMENT OF LEASE
THIS ASSIGNMENT OF LEASE is made and entered into as of the 30th day of
September, 1998, by and between EDISON BROTHERS STORES, INC., a Delaware
corporation, having a notice address of 501 North Broadway, Attn: Legal
Department, St. Louis, Missouri 63102 ("Assignor"), and EBS BUILDING L.L.C., a
Delaware limited liability company, having a notice address of 701 Market
Street, Suite 1220, Attn: Jack Reis, St. Louis, Missouri 63101 ("Assignee").
1. Assignment. For value received and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Assignor does hereby bargain and sell, convey and confirm, and assign to
Assignee, its successors and assigns forever all of Assignor's right, title and
interest under that certain lease by and between The Land Clearance for
Redevelopment Authority of the City of St. Louis, a public body, corporate and
politic of the State of Missouri, as lessor, and Assignor, as lessee, dated
December 22, 1982, as amended to date (the "Lease"), a current, true and
complete copy of which is attached hereto as Exhibit A and incorporated herein
by reference.
2. Representation. Assignor does hereby represent and affirm that the
Lease is in full force and effect, that there exists no default thereunder nor
any event which, upon the lapse of time or the giving of notice, or both, may
constitute a default thereunder, and that all covenants, agreements and
obligations binding on lessee under the Lease to and including the date hereof
have been complied with, performed and satisfied (as the case may be); and
without limiting the generality of the foregoing, Assignor does hereby represent
and affirm that all rentals and other monetary obligations to be paid or
fulfilled by lessee under the Lease to and including the date hereof have been
so paid or fulfilled (as the case may be).
3. Assumption. Assignee does hereby accept the foregoing assignment,
and (i) assumes and agrees to be bound by the Lease from and after the date
hereof, and (ii) agrees to perform all duties and obligations of lessee under
the Lease occurring from and after the date hereof.
4. Miscellaneous. This Assignment shall be binding upon the parties
hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as
of the date first above written.
EBS BUILDING, L.L.C. EDISON BROTHERS STORES, INC.
a Delaware limited liability company a Delaware corporation
By: /s/ Keith F. Cooper By: /s/ John F. Burtelow
----------------------- -----------------------
Name: Keith F. Cooper Name: John F. Burtelow
Title: Partner Title: Executive Vice President
<PAGE> 2
STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
On this 30th day of September, 1998, before me appeared John F.
Burtelow, to me personally known, who being by me duly sworn, did say that he is
the Executive Vice President of Edison Brothers Stores, Inc., a Delaware
corporation, and that said instrument was signed on behalf of said corporation
by authority of its board of directors, and said John F. Burtelow acknowledged
said instrument to be the free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in the City and State aforesaid, the day and year first above written.
/s/ Susan E. Cantillon
-----------------------------
Notary Public
My commission expires: [SEAL]
May 2, 2002
- -----------
STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
On this 30th day of September, 1998, before me appeared Keith F.
Cooper, to me personally known, who being by me duly sworn, did say that he is
the Partner of PricewaterhouseCoopers LLP, the Manager of EBS Building, L.L.C.,
a Delaware limited liability company, and that said instrument was signed on
behalf of said company by authority of its board of directors, and said Keith
Cooper acknowledged said instrument to be the free act and deed of said company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in the City and State aforesaid, the day and year first above written.
/s/ Marcia Walsh
-----------------------------
Notary Public
My commission expires: [SEAL]
September 21, 1999
- ------------------
2
<PAGE> 3
LESSOR'S CONSENT
TO ASSIGNMENT OF LEASE
For value received and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and to induce the
assumption by Assignee set forth in the foregoing Assignment of Lease by virtue
of this consent, THE LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF THE CITY OF
ST. LOUIS, a public body, corporate and politic of the State of Missouri, hereby
consents to the foregoing Assignment of Lease. This consent shall, however,
apply only to the specific transaction described in the foregoing Assignment of
Lease and shall not constitute a waiver of the necessity for such consent to any
subsequent assignment or subletting, whether by Assignee or any assignee or
sublessee of the whole or any part of the premises leased pursuant to the Lease.
Dated this 30th day of September, 1998.
LESSOR:
LAND CLEARANCE FOR REDEVELOPMENT
AUTHORITY OF THE CITY OF ST. LOUIS,
a public body, corporate and politic of the
State of Missouri
ATTEST: By: /s/ Michael Jones
-----------------------------------------
Name: Michael Jones
Title: Chairman, St. Louis Development Corporation
/s/ Linda R. Criss APPROVED AS TO LEGAL FORM AND
- -------------------------- ADEQUACY
Name: Linda R. Criss
Title: Assistant Secretary
/s/ Leslye Mitchell
----------------------
Name: Leslye Mitchell
Title: General Counsel
3
<PAGE> 4
STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
On this 23rd day of September, 1998, before me appeared Michael W.
Jones, to me personally known, who being by me duly sworn, did say that (s)he is
the Chairman of The Land Clearance for Redevelopment Authority of the City of
St. Louis, a public body, corporate and politic of the State of Missouri, and
that said instrument was signed on behalf of said public body by authority of
its Board of Commissioners, and said Michael W. Jones acknowledged said
instrument to be the free act and deed of said public body.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in the City and State aforesaid, the day and year first above written.
/s/ Tascha L. Jones
-----------------------------
Notary Public
My commission expires: [SEAL]
March 30, 1999
- --------------
4
<PAGE> 5
EXHIBIT A
LEASE
THIS LEASE, made and entered into as of this 22nd day of December,
1982 by and between LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF THE CITY OF
ST. LOUIS, a public body, corporate and politic of the State of Missouri
("Lessor"), and EDISON BROTHERS STORES, INC., a Delaware Corporation ("Lessee"),
authorized to do business in Missouri.
W I T N E S S E T H T H A T:
WHEREAS, Lessor is constructing a parking facility ("Garage") on
City Block 118 in the City of St. Louis, which Lessor anticipates will be
completed and operable by May 15, 1983, having a ground floor retail space and
six floors of parking; and
WHEREAS, Lessee may construct an office building ("Office
Building") on City Block 119 and vacated St. Charles Street in the City of St.
Louis, to the North of Lessor's Garage; and
WHEREAS, the parties hereto wish to provide for the leasing of
parking spaces within the Garage, for use by Lessee, and its assigns, as defined
in Article V herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
PREMISES
Lessor, for and in consideration of the rents hereinafter reserved
and the covenants, agreements and stipulations hereinafter expressed, does
hereby lease and let to the Lessee, and the Lessee does rent and hire from the
Lessor, the following described premises, to-wit:
Parking spaces for 250 automobiles on the fifth level, (one below
the roof level) ("Premises") of the Garage, to be erected by Lessor on City
Block 118, containing approximately 1,427 parking spaces, more particularly
described in Exhibit "A" attached hereto and made a part of this Lease, showing
all drives, ramps and walks, and entrance and exits to be used in connection
with the 250 parking spaces. The width, depth, and angle of the parking spaces
to be leased to Lessee and the width of the driving lanes serving those spaces
shall be as required by law, and may be modified by Lessor from time to time, to
conform to the requirement of law, or such reasonable variances from those
requirements as may be duly approved, however, reasonable
<PAGE> 6
requirements of the Lessee shall be discussed with Lessee and taken into account
prior to making any changes, and in no event shall the spacing be smaller than
on other garage floors.
ARTICLE II
TERM: OPTIONS TO RENEW
The term of this Lease shall be for a period of twenty (20) years,
commencing on the first day of the first full month that the entire Garage is
substantially complete and ready for occupancy, which Lessor anticipates will be
on or about May 15, 1983. Lessee shall not be obligated to commence occupancy
under this Lease until all mechanical equipment to be installed for the
operation of the Garage, including elevator service to the Premises, is
operable.
Lessor shall provide Lessee thirty (30) days notice in writing of
the commencement of the term of this Lease, and the parties may agree that
Lessee may commence occupancy prior to the initial date for the commencement of
this Lease by paying pro-rata rental as provided in Article III herein.
Lessee is hereby granted ten (10) consecutive options to extend
the term hereof for periods of five (5) years each, which option terms shall
begin respectively at the expiration of the original term or the then current
option term, as the case may be, and as provided in Article IV of this Lease.
Notice of election by Lessee to exercise each such option shall be
given to Lessor in writing at least six months prior to expiration of the
original term or the then current option term, as the case may be; and no
further instrument shall be required to be executed for such purpose. If Lessee
shall fail to notify Lessor of its election to exercise any of the
above-described options within the period provided, Lessor shall notify Lessee
in writing of its failure to exercise such options and Lessee shall then have an
additional ten days from its receipt of Lessor's notification in which to
exercise the option.
Notwithstanding the foregoing, in the event a retail shopping mall
is not under construction on City Blocks 126 and 127, adjoining the Famous-Barr
Store and the Stix, Baer and Fuller Store located on City Blocks 128 and 125 in
the City of Saint Louis, respectively, within five (5) years of the date of the
commencement of this Lease, at the option of Lessee, to be exercised upon 180
days prior written notice, terminate at the end of the fifth Lease Year with no
further liability to either party, and Lessee shall not be obligated to continue
occupancy under the terms herein. Further, in the event Lessee does not begin
construction of the Office Building on
2
<PAGE> 7
City Block 119 and the adjoining property, formerly known as St. Charles Street,
within five (5) years of the date of the commencement of this Lease, this Lessee
shall terminate.
For the purposes hereof, a Lease Year shall mean twelve (12)
consecutive full calendar months, except that the first Lease Year hereof shall
be twelve (12) consecutive full calendar months from and after the commencement
date hereof plus, if applicable, any partial calendar month prior to the first
full calendar month.
ARTICLE III
RENT
As rent for the Premises, Lessor reserves, and Lessee agrees to
pay to Lessor in addition to all other payments hereinafter agreed to be made by
Lessee, an annual cash rental of ONE HUNDRED SIXTY FIVE THOUSAND AND NO/100
DOLLARS ($165,000.00), for the first five (5) years of the term of this Lease,
and ONE HUNDRED EIGHTY THOUSAND AND NO/100 DOLLARS ($180,000.00) for the
remaining fifteen (15) years of the term of this Lease, said annual rent to be
paid in monthly installments at the rate of THIRTEEN THOUSAND SEVEN HUNDRED
FIFTY AND NO/100 DOLLARS ($13,750.00) per month for the first five (5) years,
and FIFTEEN THOUSAND AND NO/100 DOLLARS ($15,000.00) per month for the ensuing
fifteen (15) years, with payments to be made on the first day of the initial
term hereof on the first day of each month thereafter. Rent for the Premises
shall commence on the date the initial term under this Lease commences, as
provided in Article II herein. Rent for any fractional portion of any month
prior to the commencement or end of the term hereof shall be pro-rated on the
basis of three hundred sixty (360) days to the year.
Any monthly rental payment received by Lessor after the due date
shall include interest at twelve percent (12%) per annum from the date upon
which Lessee receives notice of such delinquency.
3
<PAGE> 8
ARTICLE IV
RENEWAL TERMS
As rent for the Premises upon Lessee's election to renew this
Lease as provided in Article II herein, Lessor agrees to accept the same rental
terms and conditions as provided in this Lease during the last fifteen (15)
years of the initial term, ($60.00 per car space per month, plus all increases
in operating costs over the base year, as defined in Article X herein); however,
the total payment during such option terms of $60.00 plus increased operating
costs is not to exceed the then current per car monthly rate charged by the
three most comparable parking garages in the downtown area in regard to all
pertinent factors including location and quantity of spaces within a garage, the
length of the term of the lease and the hours (as to 80% of the spaces) such
spaces are available to Lessee. In the event the parties cannot agree upon three
(3) comparable parking garages at the commencement of a renewal term or the
current per car monthly rate for the comparable parking garages as described
above, the issue or issues shall be submitted to arbitration as provided in
Article XVIII herein, and the arbitrators shall consider the factors herein
before enumerated in making their determination.
ARTICLE V
USE OF PREMISES
The Premises shall be used only for the purpose of parking motor
vehicles in connection with Lessee's, or Lessee's successors, assigns and
tenants use and occupancy of the Office Building, and Lessee's use and occupancy
of its other offices.
Lessor reserves the right to restrict the use of the Premises
according to reasonable non-discriminatory guidelines including, but not limited
to, the size and weight of motor vehicles parking on the Premises. Lessee shall
be notified in writing of any such guidelines, and shall notify those parties to
whom Lessee has made available such Premises.
ARTICLE VI
LESSOR TO PAY COST OF PROPERTY INSURANCE
Lessor will, at all times during the Lease term, maintain All Risk
property damage insurance for the replacement value of the Garage and all
permanent improvements and equipment used in its operation.
4
<PAGE> 9
ARTICLE VII
LESSOR TO REPAIR
Lessor shall, at its expense, keep and maintain the Property in
good order, repair and in tenantable condition, in compliance with all
applicable laws, ordinances and insurance contract requirements, and use its
best efforts to keep the Premises clean, safe and free of nuisances and
trespassers.
Lessee shall not do or suffer anything to be done whereby the
Premises, or any part thereof, may be encumbered by any mechanic's or other
similar lien and if, whenever and as often as nay mechanic's or other similar
lien is filed against the Premises, or any part thereof, purporting to be for or
on account of any labor done or materials or services furnished in connection
with an work in, on or about the Premises done by, for or under the authority of
Lessee or anyone claiming by, through or under Lessee, Lessee shall bond or
discharge the same of record within thirty (30) days after the date of filing.
Notice is hereby given that Lessor does not authorize or consent to and shall
not be liable for any labor or materials furnished Lessee or anyone claiming by,
through or under Lessee upon credit, and that no mechanic's or similar lien for
any such labor, services or materials shall attach to or affect the reversionary
or other estate of Lessor in and to the Premises or any part thereof.
ARTICLE VIII
LESSOR AND LESSEE TO CARRY LIABILITY INSURANCE
Lessor, at its expense, shall cause to be maintained with respect
to its duties and responsibilities as owner of the Property hereunder, and the
Lessee shall, at its expense, with respect to its occupancy and use of the
Premises, cause to be maintained public liability insurance against claims for
personal injury, death or property damage suffered by others upon or in or about
the Property or the Premises, as the case may be, such personal injury insurance
to be in limits of not less than $1,000,000 for any one person and not less than
$3,000,000 from any one accident or occurrence and for property damage to be in
limits of not less than $100,000. Each policy of insurance shall include the
other party as additional insured and each shall be furnished with a copy of all
such policies, which shall contain a provision that such insurance shall not be
canceled or changed except on thirty (30) days written notice to the other
party. Each policy evidencing insurance required to be carried by Lessor and
Lessee pursuant to this Lease shall contain the following provisions and/or
clauses: (i) a cross-liability clause; (ii) a provision that
5
<PAGE> 10
such policy and the coverage evidenced thereby shall be primary and
non-contributing with respect to any policies carried by the other party and
that any coverage carried by the other party shall be excess insurance; (iii) a
provision including other party and any other parties in interest designated by
the other party as additional insureds; (iv) a waiver by the insurer of any
right to subrogation against the other party, its agents, employees and
representatives which arises or might arise by reason of any payment under such
policy or by reason of any act or omission of the other party, its agents,
employees or representatives; (v) a severability clause.
ARTICLE IX
ADDITIONAL COVENANTS BETWEEN LESSEE AND LESSOR
A. Lessee, for itself and for all persons at any time claiming
by, through or under it, agrees under penalty of forfeiture of this Lease, that
during the term herein the Premises shall:
1. be used only for the purposes set forth in Article V
herein;
2. be kept free from all nuisances in or adjacent thereto
reasonably under control of Lessee; and
3. not be occupied or used for any purpose or in any
manner forbidden by, or contrary to Federal or State Law, or City
ordinance or regulation.
B. Lessor hereby grants Lessee the right to connect Lessee's
Office Building with the Garage by a walkway(s) from the Garage to the Office
Building, provided that prior to the commencement of construction, Lessee shall
submit detailed plans and specifications to Lessor for review and approval. Such
walkway may extend to the West Stairwell/Elevator core of the Garage so as to
facilitate access for occupants of Lessee's Building to the St. Louis Centre
walkways (if any) over Sixth Street. Lessee shall pay the cost of constructing
any such walkway(s) and the cost of maintenance, repair, expenses and security
associated therewith. Lessee agrees that any parking spaces in the Garage lost
due to the design and construction of the walkway(s) by the Lessee shall be
deducted from the two-hundred fifty (250) spaces herein leased and Lessee shall
not be entitled to a reduction in rent therefor. Such walkway(s) shall be for
the exclusive use of visitors to and occupants of Lessee's Office Building and
Lessee shall have exclusive control thereof.
C. In order to designate Lessee's spaces Lessor and Lessee
agree as follows:
6
<PAGE> 11
1. Lessor intends, after the grand opening of the retail
shopping mall, planned for construction as described in Article II
herein, to segregate the fifth and sixth (roof) floors of the Garage
for the use of Lessee and others with reserved parking spaces. Lessor
intends that the reserved spaces on the fifth and sixth (roof) floors
be segregated from the lower floors of the Garage by such methods as
the parties shall agree upon. The original cost of any necessary
electrical or mechanical control devices and their installation cost
shall be shared equally by Lessor and Lessee. The cost of maintenance,
repair and replacement of such equipment shall be paid fourteen percent
(14%) by Lessee and eighty-six percent (86%) by Lessor, as provided in
Article X, Section C, herein.
2. Prior to the grand opening of the retail shopping mall,
and at all other times during the term of the Lease, or any extensions
thereof, Lessee may, at its own cost and expense, provide interior
signs or devices acceptable to Lessor to designate the Premises. The
size, location and design of such devices or signs shall be submitted
to Lessor for review and written approval, and Lessor's approval shall
not be unreasonably withheld.
D. This Lease shall reserve the Premises for Lessee's use
Monday through Friday, from 7:00 a.m. to 6:00 p.m.; and, in addition, fifty (50)
of the parking spaces on the Premises shall be accessible to and available for
Lessee's use in keeping with such additional hours as the Garage is in
operation, which shall not be less than normal downtown business hours, and with
exiting privileges without charge on a twenty-four (24) hour basis. Lessor's
charges for use of the Premises for the balance of Lessee's parking spaces in
excess of the times provided above shall not exceed those charges paid by hourly
parkers for use of the Garage, and there shall be exiting privileges from the
Garage for all occupants on a twenty-four (24) hour basis.
E. Lessor shall, upon notice from Lessee, at all times during
the term of this Lease and any extensions thereof, take such action as may be
necessary to remove or cause to be removed all unauthorized vehicles parked in
Lessee's reserved spaces.
ARTICLE X
LESSEE TO PAY ADDITIONAL OPERATING EXPENSES
A. Lessee agrees to pay as additional rent an amount to be
determined annually, which shall be:
7
<PAGE> 12
1. For the initial term of this Lease, Lessee's pro-rata
share, as hereinafter defined, of the difference between one-fourth of
the operating expenses of the garage over the first four years of this
Lease (hereinafter the "base year"), and the operating expenses of each
year beginning with year five.
Operating expenses calculated on the increase in expenses
over the average of the first two years shall be due at the end of the
second and third years of the original term of this Lease, however, the
base year shall be calculated to mean the average of the first four
years of the original term of this Lease, and any operating expenses to
be paid by or reimbursed to Lessee shall be adjusted at the end of
fourth year when the base year is established.
In calculating the "base year" operating expenses
there shall be an equitable allocation of expenses on an accrual basis
such as insurance premiums which may in part or whole be applicable to
the "base year" period but which are paid prior to or after the "base
year" period.
2. For any renewal period hereunder, Lessee's pro-rata
share of the difference between the operating expenses of the Garage in
the "base year", and each year of the renewal period, so long as the
total rental for the Premises is consistent with the provisions of
Article IV herein.
B. The operating expenses of the Garage shall be calculated on
an accrual basis and shall not include any operating expenses attributable to
any portion of the Garage which is not used for the parking of motor vehicles
but shall include the following as they pertain to portions of the Garage which
are used for the parking of motor vehicles:
1. Premiums for fire, extended coverage and other
property insurance, and liability insurance.
2. Reasonable wages and fringe benefits paid to garage
employees, managers and operators according to the prevailing rates,
Lessor's administrative costs attributable to Garage operation,
including office overhead, employees wages and fringe benefits and
other expenses. Lessor's administrative costs to Garage operation shall
be calculated as provided on Exhibit "B", attached hereto and
incorporated herein by reference.
8
<PAGE> 13
3. Cost of maintenance including cleaning, normal
repairs to the Garage and snow removal from the public sidewalks
adjacent to the Garage entrances. Such maintenance excludes structural
repairs and capital improvements.
4. Cost of striping, numbering and similar work where not
properly attributable to others.
5. Cost of bonding garage personnel.
6. Cost of parking tickets (if used in connection with
Lessee's vehicles).
7. Cost of supplies.
8. Cost of all utilities.
9. Cost of attendants uniforms and their cleaning.
10. Costs of security services, including the costs
of the maintenance and repair of security equipment, which shall not
include the original cost of purchasing and installing such security
equipment but shall include replacement of such equipment as is
reasonably necessary due to age, obsolescence, wear and other causes
not covered by Lessor's insurance provided pursuant to Article IV
herein.
11. Costs of the maintenance and repair of all machinery
and equipment used in and for the Garage, which cost shall not include
the original cost of purchasing and installing such machinery and
equipment but shall include replacement of such machinery and equipment
as is reasonably necessary due to age, obsolescence, wear, and other
causes not covered by Lessor's insurance provided pursuant to Article
IV hereof.
12. Increase in any operation and maintenance costs or
expenses for which no other provision is made in this contract, but not
including any penalties, or interest thereon, due to Lessor's default
on any payment due in connection with the Garage construction or
operation.
13. Beginning in the year 1992, any cost increase in
interest over twelve percent (12%) due to the necessity of refinancing
the Garage bonds issued by Lessor in 1982, but only in connection with
the parking portion of the Garage; provided, however, that Lessee shall
not be required to pay such costs if such refinancing is required due
to Lessor's default in its obligations under the Garage bonds, or
Lessor fails to utilize
9
<PAGE> 14
Garage revenues to liquidate the bonds and diverts such revenues to
other projects of Lessor.
C. Lessee's pro-rata share shall be defined for this Article X
to be fourteen percent (14%), which figure has been agreed to in consideration
of the number of spaces leased to Lessee out of the total number of spaces
within the Garage, and the hours for which Lessee's spaces are available to
Lessee out of the total number of hours the Garage is open, on a weekly basis.
D. Lessor shall maintain full and complete boos and records of
all such operating expenses in keeping with generally accepted accounting
principles and such books and records shall be available for audit by Lessee or
Lessee's agents at Lessor's office, upon ten (10) days prior written notice of a
reasonable time and place for such inspection, for three (3) years after the end
of each Lease year.
E. Lessor shall use best efforts to keep expenses reasonable
and competitive.
ARTICLE XI
LESSOR'S RIGHT OF ENTRY FOR INSPECTION AND REPAIR: LESSEE WASTE
Lessee agrees that Lessor shall have the right, from time to time,
to make reasonable examination of the Premises, and for that purpose, the Lessor
and its agents shall have the right, at all reasonable hours, to enter the
Premises and to inspect the Premises to determine if Lessee is committing any
waste upon the Premises. Lessee shall commit no waste upon the Premises. If any
work is required to correct any waste to the Premises committee by Lessee, then
if such damage is not covered by Lessor's insurance, Lessor shall give Lessee
notice in writing setting forth the work required to correct such waste and
directing Lessee to do such work. If Lessee has not begun to do such work within
ten (10) days after such notice, or if Lessee, having begun such repairs, shall
fail to complete promptly, the Lessor shall have the right to enter and make
such repairs as are necessary and proper and shall assess the cost of such
repairs with interest at twelve percent (12%) per annum from the time the Lessor
shall pay for the same, against the Lessee. If Lessee shall fail to pay such
costs on demand by Lessor, such default shall subject Lessee to the same
penalties and give Lessor the same rights of forfeiture, as herein provided in
the case of non-payment of rent.
10
<PAGE> 15
ARTICLE XII
ASSIGNMENT AND SUBLETTING
Provided it remains primarily liable under this Lease, Lessee may
assign this Lease, or sublease the Premises, or any part thereof, or permit the
tenancy or use by any other party only with the written consent of Lessor, which
consent shall not be unreasonably withheld. Lessee shall provide Lessor with a
copy of any such assignment or sublease.
This Lease may not be assigned by Lessee, nor may a greater
portion than twenty (20) percent of the parking spaces be sublet by Lessee
(other than to tenants of Lessee's downtown properties), provided, however,
until such time as the Office Building is substantially complete Lessee may
sublet any portion of its spaces to others as provided above.
Lessee, if unable to utilize all of the Premises in connection
with making parking available to its employees or to tenants of the downtown
properties which it controls, shall first offer such excess spaces to Lessor, as
a reduction in the number of leased spaces on the basis of a pro-rata reduction
of rent and other charges, and if Lessor is unwilling or unable to accept such
offer then lessee shall have the right to offer such excess spaces to other than
occupants of the Office Building, however only on a monthly reserved basis.
ARTICLE XIII
STRUCTURAL ALTERATIONS AND ADDITIONS
No structural alterations to the Garage, and no connections to and
from the Premises or the Garage of any kind, shall be made without notice to
Lessor and the written consent of Lessor, except as provided in Article XIV and
Article IX, B.
ARTICLE XIV
DESTRUCTION OF PREMISES
A. Insured Loss. In the event of damage to, or the destruction
of, the Garage from fire or any other cause within the coverage provided by the
insurance required to be maintained by Lessor pursuant to the provisions of
Article VI hereof, this Lease shall not terminate, but shall continue in full
force and effect according to its terms, and the Lessor will promptly cause the
Garage to be repaired or restored; provided, however, in the last year of the
initial twenty-year (20) term hereof, or the last year of any succeeding term,
Lessor may in lieu of repairing or restoring the Premises, elect to terminate
this Lease by written notice to Lessee, and, in such event this Lease shall
terminate, and neither party shall have any further liability hereunder,
11
<PAGE> 16
and the insurance proceeds from the insurance policies maintained by Lessor
shall be paid to and retained by Lessor. However, Lessee may void such
termination within thirty (30) days of its receipt of such notice by exercising
one of its remaining five (5) year options. From the date of such damage or
destruction, a just and proportionate part of the cash rental and other charges
provided by herein (based on the percentage of the Premises which shall be
untenantable) shall be abated until the Premises are restored.
B. Uninsured Loss: Premises Tenantable. In the event of damage
to the building from any cause not within the coverage of the aforementioned
insurance, if such damage does not render the Premises unquestionably
untenantable for a period of more than thirty (30) days, and can be repaired by
Lessor at a cost not in excess of $10,000 or such larger amount as Lessor or
Lessee shall then agree to incur, Lessor shall proceed promptly (and/or Lessee
as appropriate), at its expense, to repair said damage, and, in such event, all
other provisions hereof shall remain in full force and effect. If Lessor shall
repair other portions of the Garage then it shall also repair Lessee's Premises.
C. Uninsured Loss: Premises Untenantable. In the event of
destruction of the building, or damage thereto which unquestionably renders the
Premises untenantable for a period of more than thirty (30) days, from causes
not within the aforesaid insurance coverage, and Lessor does not elect to repair
the Garage, then either Lessor or Lessee may terminate this Lease by written
notice to the other given no more than ten (10) days after such destruction or
damage occurs. If neither Lessor nor Lessee elects to terminate, Lessor shall
promptly rebuild or repair said buildings, at its expense, and in such event
from and after thirty (30) days from the time of the damage or destruction, a
just and proportionate part of the cash rental provided for herein (based on the
percentage of the Premises which shall be untenantable) shall be abated until
the Premises are restored.
If the Lessor and Lessee cannot agree as to whether said Premises
are unquestionably untenantable for thirty (30) days, the fact shall be
determined by arbitration as provided in Article XVIII herein.
If it is determined by arbitration, or agreement between the
Lessor and Lessee, that said Premises are not unquestionably untenantable for
thirty (30) days, then (and provided restoration of said building can be
accomplished at a cost not in excess of $10,000.00 or such
12
<PAGE> 17
larger amount as Lessor shall then agree to) Lessor shall restore said building
at Lessor's own expense, with all reasonable speed and promptness.
ARTICLE XV
SIGNS
Lessee shall be permitted to place directional signs within the
Garage or the Premises, with Lessor's written approval as provided in Article
IX. Such approval shall not be unreasonably withheld if Lessee's proposed signs
are in keeping within the size and design of other similar signs of Lessor.
Lessee shall not be permitted to place signs on the exterior of the Garage.
ARTICLE XVI
DEFAULTS
The occurrence of one or more of the following shall constitute an
"Event of Default":
(a) Lessee's failure to pay any rent or other charges due
Lessor under this Lease within ten days of its receipt of written notice from
Lessor of such delinquency; or
(b) Lessee's failure to duly, promptly and strictly (according
to the true intent and purpose of the provisions of this Lease) observe, perform
and comply with any other covenant, agreement, stipulation or condition of this
Lease and every other obligation by this Lease upon the Lessee imposed for a
period of more than thirty (30) days after its receipt from Lessor of written
notice specifying such default (unless such default constitutes an emergency
condition which must be cured without delay in order to prevent injury to
persons or damage to property, in which event such default shall be cured as
quickly as possible; or unless such default is not of an emergency nature and
cannot, with due diligence on the part of Lessee, be cured within said 30 day
period then same shall not constitute an Event of Default so long as Lessee is
proceeding diligently to cure same).
Then forthwith, upon the happening of any such Event of Default,
at the option of Lessor, Lessor, by notice in writing to Lessee, may forfeit
this Lease and terminate the leasehold term hereby created and absolutely end
and conclude all the estate and rights of the Lessee and of all persons claiming
by, through or under Lessee, in respect to the Premises and every part thereof,
on any date or at any time, however distant; after the happening of any such
event.
13
<PAGE> 18
Upon the termination of this Lease, whether by expiration of time
or by forfeiture or otherwise, Lessee shall quit the premises and surrender and
deliver to Lessor possession of the Premises and all rights appertaining
thereto, and for every day that Lessee, or any person claiming by, through or
under Lessee, shall hold the Premises, or any part thereof, after the
termination of this Lease, the Lessee shall pay the Lessor at a rate equal to
double the rental value herein provided, and Lessee shall also pay all general
and special damage of every kind and nature to which Lessor shall be subjected
by reason of any such holding over on the part of Lessee or of anyone claiming
by, through or under Lessee.
If Lessee shall default in the performance or observance of any
agreement or condition in this Lease contained on its part to be performed or
observed other than an obligation to pay money, and shall not cure such default
(or shall not within said period commence to cure such default and thereafter
prosecute the curing of such default to completion with due diligence), Lessor
may at its option, without waiving any claim for damages for breach of
agreement, at any time thereafter cure such default for the account of Lessee,
and any amount paid or any contractual liability incurred by Lessor in so doing
shall be deemed paid or incurred for the account of Lessee, and Lessee agrees to
reimburse Lessor therefor or hold Lessor harmless therefrom; provided that
Lessor may cure any such default as aforesaid prior to the expiration of said
waiting period but after notice to Lessee, if the curing of such default prior
to the expiration of said waiting period is reasonably necessary to protect the
real estate or Lessor's interest therein, or to prevent injury or damage to
persons or property. If Lessee shall fail to reimburse Lessor upon demand for
any amount paid for the account of Lessee hereunder, said amount shall be added
to and become due as a part of the next payment of rent due hereunder.
If Lessor shall default in the performance or observance of any
agreement or condition in this Lease on its part to be performed or observed, or
shall default in the payment of any tax or other charge which shall be a Lien
upon the Premises or the Garage, and if Lessor shall not cure such default
within thirty (30) days after notice from Lessee specifying the default (or
shall not within said period commence to cure such default and thereafter
prosecute the curing of such default to completion with due diligence), Lessee
may, at its option, without waiving any claim for damages for breach of
agreement, at any time thereafter cure such default for the account of Lessor,
and any amount paid or any contractual liability incurred by Lessee in so doing
shall be deemed paid or incurred for the account of Lessor and Lessor agrees to
reimburse Lessee
14
<PAGE> 19
therefor or hold Lessee harmless therefrom; provided that Lessee may cure any
such default as aforesaid prior to the expiration of said waiting period, but
after said notice to Lessor, if the curing of such default prior to the
expiration of said waiting period is reasonably necessary to protect the real
estate of Lessee's interest therein or to prevent injury or damage to persons or
property. If Lessor shall fail to reimburse Lessee upon demand for any amount
paid for the account of Lessor hereunder, said amount may be deducted by Lessee
from the next or any succeeding payments of rent or other charges due hereunder.
ARTICLE XVII
NO CONSTRUCTIVE WAIVER
No waiver of any forfeiture, by acceptance of rent or otherwise,
shall waive any subsequent cause of forfeiture or breach of any condition of
this Lease; nor shall any consent by Lessor to any assignment or subletting of
said Premises, or any part thereof, be held to waive or release any assignee or
sublessee from any of the foregoing conditions or covenants as against him or
them; but every such assignee and sublessee shall be expressly subject thereto.
No oral agreement in relation to any matter whatever with respect to the
provisions of this Lease shall have binding force or effect on either party
herein, or be held to vary such provisions or affect the obligations of either
party hereunder.
ARTICLE XVIII
ARBITRATION
In the event Lessor and Lessee cannot reach agreement as to the
construction of any article or clause of this Lease, all such questions shall be
determined by arbitration; and, pending arbitration between the parties, there
shall be no cancellation or forfeiture of this agreement.
Lessor and Lessee shall each choose an arbitrator within five (5)
days after either has notified the other in writing of its intention to submit a
dispute to arbitration. The two (2) arbitrators appointed shall select a third
arbitrator within five (5) days thereafter, or within such time as may be
lengthened or shortened by mutual agreement. A decision of any two arbitrators
shall be conclusive and binding upon the parties.
The arbitrators shall be entitled to charge and collect reasonable
and equitable compensation for their services, and shall determine the
percentage of such compensation which shall be paid by Lessor and Lessee. No one
shall be nominated or act as an arbitrator who is in
15
<PAGE> 20
any way financially interested in this Lease or in the business affairs of
either party. The arbitrators shall not have the authority to alter or modify
any of the express provisions of this Lease, nor shall they have the power to
make a ruling contrary to any agreement reached by the parties in the course of
negotiations on this Lease or any dispute arising from this Lease.
ARTICLE XIX
QUIET ENJOYMENT
Upon timely paying the fixed Annual Minimum Rent, and additional
Rent reserved hereunder and performing and faithfully observing all of the other
terms, covenants and condition of this Lease on Lessee's part to be performed
and observed, Lessee shall peaceably and quietly have, hold and enjoy the Leased
Premises during the Lease Term.
ARTICLE XX
NO JOINT VENTURE
Nothing contained herein shall be deemed or construed by the
parties hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or of joint venture between the parties
hereto, it being understood and agreed that neither the method of computation of
rental, or any other provisions contained herein, nor any acts of the parties
herein, shall be deemed to create any relationship between the parties hereto
other than the relation of Lessor and Lessee.
ARTICLE XXI
SPECIFIC PERFORMANCE
Lessor and Lessee shall have the right to obtain specific
performance of any and all covenants or obligations of the other under this
Lease, and nothing contained in this Lease shall be construed as or shall have
the effect of abridging such right.
ARTICLE XXII
RECORDING: FURTHER DOCUMENTS
Upon notice from either party to the other, the parties shall
execute (in recordable form), an appropriate short form of Lease which when
recorded, will impart constructive notice to third parties of the rights of
Lessor and Lessee under this Lease. It is hereby agreed that if any part intends
to record this Lease, the Exhibits hereto may be omitted from such recording.
The parties shall further execute and deliver all such other appropriate
supplemental agreements and other instruments and take such other action as may
be necessary to make this Lease fully and
16
<PAGE> 21
legally effective, binding, and enforceable as between the parties hereto and as
against third parties; Costs of recordation shall be paid by parties requesting
same.
ARTICLE XXIII
GOVERNING LAW
This Lease is a contract entered into under the laws of the State
of Missouri.
ARTICLE XXIV
COUNTERPARTS
This Lease may be signed in any number of counterparts, and
signature to any one counterpart shall be deemed signature to all such
counterparts, which when taken together shall constitute one agreement.
ARTICLE XXV
ENTIRE AGREEMENT
This Lease, together with all Exhibits hereto, constitutes the
entire agreement between the parties with respect to the subject matter hereof
and the transactions contemplated herein and supersedes all prior agreements,
representations, warranties, statements, promises and understandings, whether
oral or written.
ARTICLE XXVI
APPROVALS, NOT UNREASONABLY WITHHELD
Whenever in this Lease or other deed, instrument or agreement
between the parties relating to the subject matter hereof there is provision for
or requirement of approval, consent or satisfaction of requirements of either
party, such approval or consent shall not be unreasonably withheld, and such
requirement shall be reasonably stated in the context of the premises and
purposes of this Lease. If a party shall desire the approval or consent of any
other party hereto to any matter, such party may give notice to such other party
that it requests such approval or consent, specifying in such notice the matter
as to which such approval or consent is requested and reasonable detail
respecting such matter. Such other party shall reply within ten (10) working
days (or such greater of lesser number of days as may herein be specified in a
particular case requiring consent or approval) after receipt thereof.
ARTICLE XXVII
RULES OF CONSTRUCTION
17
<PAGE> 22
All headnotes herein are for convenience of reference only and
shall not otherwise be deemed a part of this Lease or be considered in
interpreting the provisions hereof.
In the event that any one or more of the phrases, sentences,
clauses, paragraphs or sections contained in this Lease shall be declared
invalid by arbitration or by the final and unappealed order, decree or judgment
or any court, this Lease shall be construed as if such phrases, sentences,
clauses, paragraphs or sections had not been a part hereof.
Words importing the singular number shall include the plural
number and vice-versa.
All references herein to particular Articles or sections are
references to Articles or sections of this Lease.
ARTICLE XXVIII
FORCE MAJEURE
If Lessor or Lessee as a result of strikes, lockouts or labor
disputes, inability to obtain labor or material or reasonable substitutes
thereof, or acts of God, commotion, riot or insurrection, fire or other casualty
or other events similar or dissimilar to the foregoing but also beyond the
reasonable control of the party obligated to perform, shall fail punctually to
perform any term, covenant or condition on its part to be performed under this
Lease, then such failure shall be excused and not be an Event of Default by such
party, but only to the extent and for the time occasioned by such event.
Notwithstanding anything contained herein to the contrary, a lack of funds or an
inability to procure financing shall not be deemed an event beyond the
reasonable control of either party.
ARTICLE XXIX
NOTICES AND DEMANDS
A notice, demand, or other communication under this Lease by
either the Lessee or Lessor shall be sufficiently given or delivered, if it is
dispatched by registered or certified mail, return receipt requested, and for:
Lessee:
Edison Brothers Stores, Inc.
400 Washington Avenue
P.O. Box 14020
St. Louis, Missouri 63178
Attention: Legal Department
Lessor:
18
<PAGE> 23
Land Clearance for Redevelopment
Authority of the City of St. Louis
1300 Convention Plaza
St. Louis, Missouri 63103
Attention: Executive Director
or such other address and/or such other attention with respect to either such
party as the party may, from time to time designate in writing and forward to
the other.
Except as this Lease may otherwise expressly provide, Notice shall
be deemed given on the date of receipt marked on the return receipt in the case
of notice by mail.
ARTICLE XXX
WAIVER OF SUBROGATION
Each party hereto does hereby waive, remise, release and
discharge the other party, hereto and any officer, director, shareholder,
beneficiary, partner, agent, employee or representative of such party, of and
from any liability whatsoever hereafter arising from loss, damage or injury
cause by fire or other casualty for which insurance is carried or required to be
carried by the injured party at the time of such loss, damage or injury.
ARTICLE XXXI
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
Lessee's rights and obligations under the Lease are contingent
upon execution of an Agreement between the parties hereto and the Trustee for
the purchasers of Lessor's Garage bonds issued in 1982, in substantially the
terms of Exhibit C, attached hereto and incorporated herein, to provide for
non-disturbance of Lessee's rights under this Lease.
19
<PAGE> 24
Upon Lessor's request, Lessee will subordinate its rights
hereunder to the Liens of any first mortgages or any Lien resulting from any
method of financing or re-financing (hereinafter collectively referred to as
"mortgage") hereafter existing against all or a part of the Garage, and to all
renewals, modifications, replacements, consolidations and extensions thereof,
and shall execute and deliver all documents requested by a mortgagee or security
holder to effect such subordination, provided the mortgagee or security holder
agrees in writing that Lessee's obligations under this Lease shall not be
increased thereby and that if Lessor defaults under the mortgage, said mortgage
or security holder shall recognize this Lease and shall not disturb Lessee's
possession while Lessee is not in default hereunder.
(SEAL) EDISON BROTHERS STORES, INC.
ATTEST: By /s/ Walter H. Heinecke
-----------------------------------
/s/ E. Newman
- ------------------------------
(SEAL) LAND CLEARANCE FOR REDEVELOPMENT
AUTHORITY OF THE CITY OF ST. LOUIS
ATTEST: By /s/ C. L. Farris
-----------------------------------
C. L. Farris, Executive Director
/s/ Ann B. Hapenhorst
- ------------------------------
Assistant Secretary
Approved As To Legal Form And Adequacy:
/s/ Irvin Dagen
- ------------------------------
Irvin Dagen, General Counsel
20
<PAGE> 25
STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
On this 22nd day of December, 1982, before me appeared C. L.
FARRIS, to me personally known, who, being by me duly sworn, did say that he is
the Executive Director of the LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF THE
CITY OF ST. LOUIS, a public body corporate and politic of the State of Missouri
and that the seal affixed to the foregoing instrument is the corporate seal of
said corporation, and said instrument was signed and sealed in behalf of said
corporation by authority of its Board of Commissioners, and said C. L. FARRIS
acknowledged said instrument to be the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in the City and State aforesaid, the day and year first above
written.
/s/ George C. Montgomery
------------------------------------
Notary Public
(SEAL)
My Commission Expires:
October 7, 1985
- ------------------------------
STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
On this 15th day of December, 1982, before me appeared WALTER
H. HEINECKE, to me personally known, who being by me duly sworn, did say that he
is the Vice President of EDISON BROTHERS STORES, INC., a corporation organized
and existing under the laws of the State of Delaware, and that the seal affixed
to the foregoing instrument is the official seal of said corporation, and that
said instrument was signed and sealed in behalf of said corporation by authority
of its Board of Directors and said Vice President acknowledged said instrument
to be the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed
my official seal in the City of St. Louis and State aforesaid, the day and year
first above written.
/s/ Ben W. Rankin
------------------------------------
Notary Public
(SEAL)
My Commission Expires:
January 22, 1985
- ------------------------------
21
<PAGE> 26
EXHIBIT "B"
Formula in computing administration charges:
A = Employee hourly rate (does not include vacation, sick or holiday
leave) equals Actual hours of all employees x rate + tax, F.I.C.A.,
health
B = LCRA total direct costs (employee yearly salary)
C = Ratio of A to B
D = LCRA indirect costs (overhead costs attributable to employee)
A + (C x D) = Charges
An additional prorated charge of employee's vacation, sick or holiday leave will
be charged at year end or at the end of such portion of the year as is
applicable.
EXAMPLE:
Employee - - - - - 5 hrs. @ 6.00 per hour
A - - - - - 5 x $6.00 = $30.00
B - - - - - $15,000 total LCRA direct costs
C - - - - - $30.00/$15,000 = .002
D - - - - - $10,000.00 LCRA indirect costs
$30.00 + ($10,000 x .002) = $50.00
<PAGE> 27
Form 6/7/82
Exhibit "C"
AGREEMENT
THIS AGREEMENT dated as of ____________, 1982, by and between EDISON
BROTHERS STORES, INC., a Delaware corporation, (the "Lessee"), LAND CLEARANCE
FOR REDEVELOPMENT AUTHORITY OF THE CITY OF ST. LOUIS, a public body corporate
and politic of the State of Missouri, (the "Lessor"), and THE BOATMEN'S NATIONAL
BANK OF ST. LOUIS, ( the "Trustee"), in its capacity as Trustee under an
Indenture of Trust ("Indenture") dated as of March 1, 1982, between Trustee and
Lessor.
WITNESSETH:
WHEREAS, Lessor issued its Series 1982, Parking Facility Mortgage
Revenue Bonds, ("Bonds"), to finance a portion of the estimated cost of
constructing a multi-level parking garage, (the "Garage"), on City Block 118 of
the City of St. Louis, Missouri; and
WHEREAS, the Bonds are secured by an Indenture of Mortgage and Deed of
Trust dated as of March 1, 1982, between Lessor and Trustee, encumbering the
real estate described in Exhibit A, attached hereto and incorporated herein by
reference ("City Block 118"); and
WHEREAS, Lessor and Lessee have entered into a certain Lease dated
_______ (the "Lease"), demising a portion of the Garage to be built on City
Block 118, which Lease provides that the parties thereto enter into an agreement
regarding their rights in the event of a default under the Indenture; and
WHEREAS, the parties hereto desire to enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereof, the parties hereto stipulate, covenant and agree as follows:
1. Subordination. Lessee agrees that all rights of the Lessee under
the Lease shall be subject, junior and subordinate to the right of the Trustee
under the Indenture and to all renewals, modifications, consolidations,
replacements and extensions of the Indenture as fully as if such instruments had
been executed, delivered and recorded prior to the Lease, all on the conditions
and subject to the other provisions of this Agreement.
<PAGE> 28
2. Attornment. Lessee agrees to recognize the Trustee or any
purchaser at a foreclosure sale involving the Indenture as its Lessor under the
Lease without the necessity of any other or further attornment than in this
paragraph contained (and this paragraph shall be considered an attornment). If
any court holds the Lease to be terminated by reason of foreclosure of the
Indenture, this Agreement shall be deemed to be a new lease between the
purchaser at such foreclosure as Lessor, and Lessee as Lessee, for the balance
of the term of the Lease for the same demised premises at the same rental
therein provided and upon the same terms and conditions as therein provided.
Also, in the event of any such holding, at the written request of Lessee of the
purchaser at foreclosure, Lessee and purchaser at foreclosure shall execute and
deliver to each other a new lease for the balance of the term of the Lease for
the same demised premises at the same rental therein provided and upon the same
terms and conditions as therein provided.
3. Non-Disturbance. the Trustee agrees that so long as Lessee
shall not be in default under the Lease, any foreclosure of the Indenture (or
proceeding in respect thereof) shall not divest, impair, abrogate, modify or
otherwise adversely affect the interest and rights of Lessee under the Lease.
4. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto, their successors and
assigns, heirs, executors and administrators, including any purchaser at
foreclosure sale.
5. Governing Law. This Agreement shall be governed by the laws of the
State of Missouri
IN WITNESS WHEREOF, the undersigned have executed and delivered this as
of the day and year first above written.
ATTEST: EDISON BROTHERS STORES, INC.
/s/ E. Newman By: /s/ Walter H. Heinecke
- ------------------------------ ----------------------------------
(SEAL)
ATTEST: LAND CLEARANCE FOR REDEVELOPMENT
AUTHORITY OF THE CITY OF ST. LOUIS
/s/ Ann B. Hapenhorst By: /s/ C. L. Harris
- ------------------------------ ----------------------------------
(SEAL) C. L. Harris, Executive Director
Approved As To Legal Form And Adequacy:
/s/ Irvin Dagen
- ------------------------------
Irvin Dagen, General Counsel
2
<PAGE> 29
ATTEST: THE BOATMEN'S NATIONAL BANK OF ST.
ST. LOUIS
As Trustee
/s/ D. Hale By: /s/ Calvin C. Cole
- ------------------------------ ----------------------------------
(SEAL) Calvin C. Cole
Assistant Trust Officer Vice-President
3
<PAGE> 30
RESOLUTION NO. 3512
RESOLUTION APPROVING LEASE OF 250 PARKING SPACES
IN AUTHORITY'S CITY BLOCK 118 GARAGE
TO EDISON BROS. STORES, INC.
WHEREAS, the Land Clearance for Redevelopment Authority of the City of
St. Louis is constructing a public parking garage on City Block 118 in the City
of St. Louis; and
WHEREAS, Edison Bros. Stores, Inc. is planning construction of an
office building on City Block 119, adjacent to the Authority's garage on City
Block 118; and
WHEREAS, Edison Bros. Stores, Inc. has agreed to the terms of a Lease,
Form 9/29/82, for 250 parking spaces in the garage; and
WHEREAS, said Lease has been presented to this Board by the Staff of
the Authority, and the terms have been discussed by this Board; and
WHEREAS, Legal Counsel has advised this Board that the Lease, Form
9/29/82, is not contrary to any federal, state or local laws, ordinances or
regulations, or any contractual obligations of the Authority; and
WHEREAS, this Board has determined that it will be in the best
interests of the Authority and the City as a whole, as well as the development
of the St. Louis Centre Project, that the proposed Lease be entered into by the
Authority;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE
LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF THE CITY OF ST. LOUIS THAT:
1. The Lease, Form 9/29/82, by and between Land Clearance for
Redevelopment Authority of the City of St. Louis and Edison Bros. Stores, Inc.
is hereby approved.
2. The Executive Director is hereby authorized and directed to
execute the Lease in substantially Form 9/29/82, and to take all other necessary
and proper actions to carry out the intent of this Resolution and the terms of
the Lease.
Approved by Board of Commissioners, Land Clearance Redevelopment
Authority of the City of St. Louis, October 20, 1982.
<PAGE> 31
Form: 7/20/84
ADDENDUM No. 1 TO
LEASE DATED DECEMBER 22, 1982
BY AND BETWEEN
LAND CLEARANCE FOR REDEVELOPMENT
AUTHORITY OF THE CITY OF ST. LOUIS
AND EDISON BROTHERS STORES, INC.
WHEREAS, the Land Clearance for Redevelopment Authority of the city of
St. Louis ("Lessor") has entered into a Lease, dated December 22, 1982,
("Lease") with Edison Brothers Stores, Inc. ("Lessee") for 250 parking spaces on
the fifth parking level of Lessor's parking facility ("Garage") in the City
Block 118, City of St. Louis; and
WHEREAS, aforesaid Lease contains provisions whereby Lessee may
construct a walkway(s) within Lessor's Garage to connect Lessee's Office
Building with the west stairwell/elevator core of said Garage, subject to
certain conditions; and
WHEREAS, Lessee now wishes to construct certain office facilities,
along with a walkway on the first parking level near the northwest corner of the
Garage; and
WHEREAS, Lessee also wishes to construct an exit door from its Office
Building to the Garage on the first parking level near the northeast corner with
the right to exit the garage through the ease stairwell of the Garage and
another exit door on the fifth parking level near the center of the north wall
of the Garage; and
WHEREAS, Lessor and Lessee both acknowledge and agree that construction
of such office facilities within the Garage presents certain unusual problems,
due to the design and type of construction of the Garage; and
WHEREAS, Lessee is willing to take extra precaution and safeguards in
the construction of aforesaid office space and of its operation thereafter; and
WHEREAS, Lessee agrees to pay all of the cost of construction thereof
and all cost of maintenance, repair and security associated therewith;
NOW, THEREFORE, the parties hereto do mutually agree, as follows:
1. Article IX, Paragraph 3, Page 6 of the Lease is hereby amended to
permit Lessee to construct: a) office facilities on the first working level
(second floor) of the garage, along with a walkway connecting Lessee's Office
Building with the west stairwell/elevator core of the Garage, said space having
interior measurements of approximately 30 feet by 56 feet. Such
<PAGE> 32
space is the equivalent of six parking spaces and shall be in lieu of six spaces
leased on the fifth level of the Garage. b) doorways from said Office Building
to Garage, one on the first parking level near the northeast corner of the
Garage and one on the fifth parking level near the center of the north wall of
the Garage. Neither doorway shall cause the loss of parking spaces unless Lessee
shall be required by the City to construct a walkway from doorways to a
stairway. Lessee shall present copies of all plans and specifications for such
work to Lessor for approval and they shall be dated and incorporated herein by
reference. Such plans shall be available at the offices of Lessor and Lessee at
all times. Lessor and Lessee agree, at Lessee's sole expense, to complete such
further documentation as the City may require in connection with any
walkway/stairwell (for exiting through the garage).
2. Lessee shall exercise extra caution and care in constructing all
alterations and improvements as provided for in the Lease and in Section 1
above, with particular care given to the drilling of holes and other
penetrations of floor slabs, columns and beams. Lessee shall employ an
independent testing laboratory to (1) locate post-tensioning tendons in the
floor slabs and beams before any drilling takes place; (2) observe drilling
operations; and (3) certify that no damage has been done to tendons. Lessee
shall be responsible for and pay all costs of waterproofing office and walkway
areas from leakage through floors above and exterior walls, as well as leakage
through floors to commercial space below, and shall be liable for any costs
caused by leakage.
3. Lessee shall during the term of the Lease maintain and keep in good
repair all of Lessee's improvements including waterproofing. Lessee shall make
no future alterations without consulting with Lessor and providing Lessor with
all plans and specifications requested by Lessor.
4. Upon the termination of the Lease or the cessation of use of any of
the improvements or alterations constructed by Lessee in or to the Garage,
Lessee shall, if requested by Lessor, restore all space, walls, floors,
structural and architectural elements to their original condition as parking
spaces and pay for any unrepaired damage.
5. Copies of floor plans showing the locations of the above referenced
exit doors and office facilities are attached hereto as Exhibit A, being dated
6/8/84, and are incorporated herein by reference. All further plans shall be
dated and approved in writing by
2
<PAGE> 33
Lessor and Lessee and shall be attached to Exhibit A. All approved plans shall
be available at the offices of Lessor and Lessee during normal working hours.
6. All other terms and conditions of the Lease shall remain in full
force and effect.
Executed this 4th day of October 1984
AND CLEARANCE FOR REDEVELOPMENT
AUTHORITY OF THE CITY OF ST. LOUIS
(SEAL)
By /s/ C. L. Farris
-----------------------------------
C. L. Farris, Executive Director
/s/ Ann B. Hapenhorst
- ------------------------------
Assistant Secretary
APPROVED AS TO LEGAL FORM AND ADEQUACY
/s/ Sarah Sugil
- ------------------------------
Assistant Counsel
ATTEST EDISON BROTHERS STORES, INC.
By /s/ E. Newman By /s/ A. E. Newman
---------------------------- -----------------------------------
Its Secretary Its Vice President
(SEAL)
3
<PAGE> 34
Form: 3/15/85
ADDENDUM NO. 2 TO LEASE DATED
DECEMBER 22, 1982 BY AND BETWEEN
LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF
THE CITY OF ST. LOUIS AND EDISON BROTHERS STORES, INC.
WHEREAS, the Land Clearance for Redevelopment Authority of the
City of St. Louis ("Lessor") has entered into a Lease, dated December 22, 1982,
and Addendum No. 1 to said Lease dated October 4, 1984, ("Lease") with Edison
Brothers Stores, Inc. ("Lessee") for 250 parking spaces on the fifth parking
level of Lessor's parking facility ("Garage") in the City Block 118, City of St.
Louis; and
WHEREAS, aforesaid Lease contains provisions whereby Lessor and Lessee
are obligated to carry liability insurance coverage on the premises; and
WHEREAS, Lessee at the advice of its insurance agents desires certain
changes in Section VIII of said Lease, "Lessor and Lessee to Carry Liability
Insurance"; and
WHEREAS, Lessor and Lessee agree that it will be to the mutual benefit
of both parties to delete certain parts of Section VIII to the Lease; and
NOW, THEREFORE, the parties hereto do mutually agree, as follows:
1. Article VIII, Page 6, the words "a copy of all such policies" is
changed to "a certificate evidencing its required insurance".
2. Article VIII, Paragraph 1, Page 6, of the Lease is hereby amended
to delete Section (i), a cross liability clause; Section (iv) a waiver by the
insurer of any right of subrogation against the other party, its agents,
employees and representatives which arises or might arise by reason of any
payment under such policy or by reason of any act or omission of the other
party, its agents, employees or representatives; (v) a severability clause.
3. All other terms and conditions of the Lease and Addendum No. 1
shall remain in full force and effect.
Executed this 1st day of April, 1985
LAND CLEARANCE FOR REDEVELOPMENT
AUTHORITY OF THE CITY OF ST. LOUIS
(SEAL)
By /s/ C. L. Farris
--------------------------------------
ATTEST: C. L. Farris, Executive Director
<PAGE> 35
/s/ Ann B. Hapenhorst
- ------------------------------
Assistant Secretary
APPROVED AS TO LEGAL FORM
AND ADEQUACY
/s/ Sarah Sugil
- ------------------------------
Acting General Counsel
EDISON BROTHERS STORES, INC.
(SEAL)
ATTEST: By /s/ Walter H. Heinecke
--------------------------------------
Vice President
/s/
- ------------------------------
Assistant Secretary
2
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1998
<CASH> 4,941
<SECURITIES> 0
<RECEIVABLES> 47,088
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 86,053
<PP&E> 20,490,788
<DEPRECIATION> (799,970)
<TOTAL-ASSETS> 21,525,487
<CURRENT-LIABILITIES> 1,308,025
<BONDS> 1,172,000
0
0
<COMMON> 0
<OTHER-SE> 19,045,462
<TOTAL-LIABILITY-AND-EQUITY> 21,525,487
<SALES> 0
<TOTAL-REVENUES> 2,652,041
<CGS> 0
<TOTAL-COSTS> 3,274,094
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 5,307
<INCOME-PRETAX> (627,360)
<INCOME-TAX> 0
<INCOME-CONTINUING> (627,360)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (627,360)
<EPS-PRIMARY> (0.07)
<EPS-DILUTED> (0.06)
</TABLE>
