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EXHIBIT 10.17
LEASE AGREEMENT
THIS LEASE AGREEMENT ("LEASE") is made and entered into between Francor, L.L.C.
("LANDLORD"), and Birch Telecom, Inc. ("TENANT"), as of the 20th day of
July, 1998.
WITNESSETH:
In consideration of the obligation of Tenant to pay rent and in consideration of
the other terms, covenants and conditions of this Lease, all of which are hereby
agreed to by Landlord and Tenant, Landlord hereby demises and leases to Tenant
the Premises and the parking areas described below, and the use of the roof of
the building described below, to have and to hold the same for the Term of this
Lease, all upon the covenants and conditions set forth below.
BASIC PROVISIONS
1. The following basic provisions shall be construed in conjunction with, and
limited by, reference thereto in other provisions of this Lease:
a. "LANDLORD": Francor, L.L.C., a Delaware limited liability company
Address of Landlord: ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
b. "TENANT": Birch Telecom, Inc., a Delaware corporation
c. "PREMISES": All of the second, third and fourth floors of the building
located at 2020-2028 Baltimore, Kansas City, Missouri (the "BUILDING"),
which consists of approximately 37,126 rentable square feet.
d. "TENANT'S PERCENTAGE": Total rentable area in the building is 48,137
square feet, and Tenant's proportionate share ("TENANT'S PERCENTAGE") is
seventy-seven and thirteen hundredths percent (77.13%).
e. "TERM": A period of ninety-six and one-half (96.5) months, commencing on
December 15, 1998 (the "COMMENCEMENT DATE") and ending on December 31,
2006 (the "EXPIRATION DATE"), unless sooner terminated in accordance
with the provisions of this Lease. Provided, however, if the New
Improvements have not been substantially completed and Landlord has
not delivered to Tenant possession of the Premises by December 15,
1998, as provided in the section below titled Possession and
Surrender . . .," the Commencement Date and the Expiration Date shall be
extended by a number of days equal to the number of days past December
15, 1998 that the New Improvements are substantially completed and
Landlord delivers to Tenant possession of the Premises. If adjustments
of the Commencement Date and the Expiration Date are necessary,
Landlord and Tenant shall execute an amendment to this Lease setting
forth the revised Commencement Date and Expiration Date.
f. "BASE RENT": Payable in monthly installments in advance during the Term,
paid to Landlord, or to the agent of Landlord designated in writing by
Landlord, at the address indicated above, or at such other place as
Landlord shall designate, according to the following schedule:
Month 1 $ 37,125.50
Month 2 through 12 $ 46,407.50
Month 13 through 24 $ 49,501.33
Month 25 through 36 $ 51,048.25
Month 37 through 48 $ 52,595.17
Month 49 through 60 $ 54,142.08
Month 61 through 72 $ 55,689.00
Month 73 through 84 $ 57,235.92
Month 85 through 96 $ 58,782.83
g. "ADDITIONAL RENT" shall be parking charges as defined in the section
below titled "Parking," Tenant's Percentage of the increase in operating
costs defined in the sections below titled Additional Rent" and
"Operating and Maintenance Costs" and all other amounts Tenant owes
Landlord under this Lease.
h. "SECURITY DEPOSIT": $50,000.00.
PAYMENT OF RENT; LATE CHARGE
2. Tenant shall pay Base Rent in monthly installments in advance, beginning on
the Commencement Date and on the first day of each and every month thereafter
during the Term, with proration for any partial month's occupancy, without
demand. Provided, however, no Base Rent shall be due for the period of December
15, 1998 through and including December 31, 1998. If Landlord does
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not receive the full amount of any rent payment due under this Lease within ten
(10) days after it is due, a late charge of One Thousand and No/100s Dollars
($1,000.00) will be added to the unpaid amount to cover the extra expense
involved in handling the delinquency. Late charges shall be due on demand by
Landlord or the due date of the next monthly installment of Base Rent, which
ever is earlier.
POSSESSION AND SURRENDER AND CONDITION OF PREMISES AT END OF TERM
3. Landlord shall promptly begin and diligently pursue to completion all
of the work and improvements specified in attached Exhibit A (collectively, the
"BUILDING IMPROVEMENTS") and all of the work and improvements specified in
attached Exhibit B (collectively, the "TENANT IMPROVEMENTS"). Landlord shall
substantially complete the Building Improvements and the Tenant Improvements
(collectively, the "NEW IMPROVEMENTS"), and shall deliver to Tenant possession
of the Premises, by the Commencement Date. If Landlord fails to substantially
complete the New Improvements, and to deliver possession of the Premises by the
Commencement Date, Landlord shall not be liable to Tenant for any loss or damage
resulting from such failure, except as provided below in this section, the
Commencement Date shall be extended to the date on which the New Improvements
are substantially complete and Landlord delivers possession to Tenant of the
Premises, and, except as provided in the section below titled "Substantial
Completion," Tenant shall not be liable to Landlord for any Base Rent or
Additional Rent that would have been due prior to the respective extended
Commencement Date.
Landlord's progress toward substantial completion of the New
Improvements shall be sufficient to, and Landlord shall, give Tenant access to
the Premises (a) during the twenty-one (21) days prior to the Commencement Date
to wire and install Tenant's telephone, computer and other communications
equipment, systems furniture and trade fixtures and (b) during the two (2) days
prior to the Commencement Date to move the rest of its furniture, files and
other property into the Premises so that Tenant will be able to commence full
operation of its business on the Commencement Date. Tenant's wiring,
installation and move in activities provided for in this paragraph shall not
unreasonably interfere with Landlord's substantial completion of the New
Improvements. If such unreasonable interference causes a delay in Landlord (i)
substantially completing the New Improvements, (ii) giving Tenant access to the
Premises during the twenty-one (21) days or the two (2) days prior to the
Commencement Date as provided in this paragraph above or (iii) giving Tenant
Possession of the Premises, then Tenant shall pay Landlord, within thirty (30)
days after Landlord's demand, all increased costs incurred by Landlord as the
result of such unreasonable interference, Tenant shall not be given the rent
credit provided in the next paragraph and Landlord shall not be subject to
Tenant's termination rights provided in the next two paragraphs during the
period of delay caused by such unreasonable interference. Further, Tenant shall
not be given the rent credit provided in the next paragraph and Landlord shall
not be subject to Tenant's termination rights provided in the next two
paragraphs during the period of delay caused by Tenant's failure to deliver to
Landlord the plans, specification and drawing needed for Exhibit B on or before
September 1, 1998.
If Landlord fails to substantially complete the New Improvements and to
deliver to Tenant possession of the Premises by the Commencement Date, or if
Landlord does not give Tenant access to the Premises during the twenty-one (21)
days or the two (2) day before the Commencement Date as required in the
immediately preceding paragraph, Tenant shall be given credit toward the third
and subsequent monthly installments of Base Rent in amounts equal to one day of
Base Rent for each day of delay past the Commencement Date. The amount of Base
Rent for each day of delay shall be the product of multiplying the monthly
installment of Base Rent by one thirtieth (1/30th) of such monthly installment.
If Landlord fails to substantially complete the New Improvements and to
deliver to Tenant possession of the Premises within ninety (90) days after the
Commencement Date, Tenant may terminate this Lease by written notice to Landlord
given within ten (10) days after the end of such 90 day period. Termination
shall be effective on the date the notice is given. Within ten (10) days after
such termination, Landlord shall pay to Tenant an amount equal to the amount of
the credit Tenant would have been entitled to receive toward payment of monthly
installments of Base Rent, if Tenant had not terminated this Lease pursuant to
the provisions of the immediately preceding paragraph.
Tenant's acceptance of possession of the Premises after substantial
completion of the New Improvements will be deemed to be an indication that
Tenant is satisfied with the physical condition of the Premises, subject to
Landlord's obligations stated in the section below titled "Substantial
Completion" and Landlord's obligations stated in the section below titled
"Maintenance, Repair and Replacements." Tenant acknowledges that there have been
no representations, agreements or promises to decorate, alter, repair or improve
the Premises, except as provided in this Lease. Upon termination or expiration
of this Lease, except for damage caused by fire or other perils, Tenant, at
Tenant's expense, will: (a) surrender the Premises in as good a condition as
general office use will have reasonably permitted, subject to normal wear and
tear, Tenant's obligations under this Lease and Insurable Losses; (b) have
removed the Generator and all of Tenant's property from the Premises; (c) have
promptly repaired any damage to the Premises caused by the removal of the
Generator and Tenant's property; and (d) leave the Premises free of trash and
debris and in "broom-clean" condition.
BUILDING AND TENANT IMPROVEMENTS
4. Landlord, by August 15, 1998, shall deliver to Tenant and ▇▇▇▇▇▇▇▇
Architects, Inc., Tenant's architect, all of the plans, specifications and
drawings needed to replace the preliminary content of Exhibit A that is attached
to this Lease. Tenant, by September 1, 1998, shall deliver to Landlord and to
▇.▇. ▇▇▇▇ Construction Co., Landlord's general contractor, all of the plans,
specifications and drawings needed for Exhibit B that will be attached to this
Lease. After the time this Lease is executed, both parties shall cooperate with
each other and their respective architects and contractor to reach agreement on
the content of Exhibit A and Exhibit B and the cost and prices for the Tenant
Improvements as soon as reasonably possible, but not later than September 15,
1998. Upon such agreement,
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Landlord and Tenant shall execute any amendment of this Lease necessary to
substitute a new agreed upon Exhibit A and an agreed upon Exhibit B.
Landlord shall contract for, and shall cause to be performed, prior to
the Commencement Date, (a) all of the Building Improvements, at Landlord's sole
cost and in accordance with the attached Exhibit A plans and specifications, as
subsequently revised in accordance with the provisions of the first paragraph of
this section, and (b) all of the Tenant Improvements, in accordance with the
Exhibit B plans and specifications to be attached to this Lease. Landlord shall
obtain prices and costs for the Tenant Improvements that are reasonable and
customary. Such prices and costs may include an amount, not to exceed Fifty
Thousand and No/100s Dollars ($50,000.00) (the "PREMIUM"), for overtime and
other costs so that Landlord's contractor may use best efforts to substantially
complete the Tenant Improvements and deliver to Tenant possession of the
Premises by December 15, 1998. Landlord shall cause its contractor to agree to
(i) substantially complete the New Improvements and to deliver to Tenant
possession of the Premises by December 15, 1998, (ii) keep accurate time and
expense records for expenditure of the Premium and (iii) allow Tenant to audit
records for expenditure of the Premium at reasonable times after reasonable
notice. Landlord shall pay the first Seven Hundred Sixty-Two Thousand Five
Hundred Twenty and No/100s Dollars ($762,520.00) of the cost of the Tenant
Improvements (the "TI ALLOWANCE"), which amount shall include reimbursement to
Tenant for all fees and charges payable to Tenant's architect, other than fees
and charges for specification of furniture and furnishings, as and when Tenant
becomes obligated to pay such amounts. Tenant shall reimburse Landlord for the
cost of the Tenant Improvements in excess of the TI Allowance, less a ten
percent (10%) holdback (the "HOLDBACK"), by the time Landlord owes such excess
to it's contractors and suppliers, but not earlier than ten (10) days after
receipt of a notice from Landlord that includes an accounting for the amount
requested from Tenant, supporting documentation for the same and the date
Landlord must pay the requested excess to its contractors and suppliers. Tenant
shall pay the Holdback to Landlord within three (3) days after completion of all
punch list items in accordance with the provisions of the next section. Without
the prior written consent of Tenant, Landlord shall not incur costs and expenses
for the Tenant Improvements described in Exhibit B that will be attached to this
Lease in excess of those agreed upon by Landlord and Tenant pursuant to the
provisions of the first paragraph of this section. Any changes to Exhibit A or
Exhibit B shall be approved in advance, in writing, by both Landlord and Tenant.
All of the Tenant Improvements shall be the property of Landlord and shall be
surrendered to Landlord upon expiration or termination of this Lease.
In the event that Landlord's total cost for Tenant Improvements is less
than the TI Allowance, the difference shall be credited back to Tenant in the
form of rent reduction. The amount of the difference shall be divided by
thirty-six (36), and the quotient shall be subtracted from the scheduled Base
Rent for each of months three (3) through thirty-eight (38), inclusive.
SUBSTANTIAL COMPLETION
5. "SUBSTANTIAL COMPLETION" of the New Improvements shall mean (a) written
certification given to Landlord and Tenant by Tenant's and Landlord's architects
that all of the New Improvements have been completed (i) in accordance with the
plans and specifications contained in attached Exhibit A and Exhibit B, (ii) in
accordance with Laws (defined below), (iii) in a workmanlike manner, according
to and using applicable industry standards, methods and procedures and (iv) with
good quality materials and (b) issuance of a temporary or final certificate of
occupancy for the Premises by the City of Kansas City, Missouri (the "CITY").
Substantial completion shall not include completion of minor punch list type
items which are minor items of work or adjustments of equipment and fixtures
that can be completed after occupancy. Prior to taking possession of the
Premises, Tenant shall give written notice to Landlord of any items which, upon
visual inspection, are readily apparent or cosmetic and are not satisfactorily
completed (the "PUNCH LIST" items). Within thirty (30) days of receipt of the
punch list items, Landlord shall complete or correct all punch list items, or
shall address in writing any punch list item which Landlord, in Landlord's
reasonable opinion, deems to be inconsistent with the standards recited in
clause (a) of the first sentence of this section. If Tenant does not notify
Landlord of any punch list items before the date Tenant takes possession of the
Premises, it will be conclusively presumed the readily apparent or cosmetic
items included in the New Improvements have been satisfactorily completed and
accepted by Tenant. Landlord, at Landlord's cost and not as part of Operating
Costs (defined below), shall repair and correct (i) latent defects in the
structural aspects of the building, the parking areas and the Premises that
exist on the Commencement Date and, (ii) during the first year after the
Commencement Date or any longer period covered by an enforceable warranty or
guaranty, work and materials involved in the New Improvements that later prove
to be of poor quality or inconsistent with the standards recited in clause (a)
of the first sentence of this section.
All disagreements between Landlord and Tenant concerning whether (1)
prices and costs for the Tenant Improvements were reasonable and customary, (2)
the New Improvements have been substantially completed, (3) an item should be
included on Tenant's punch list, (4) items on the punch list have been completed
or properly completed, (5) latent defects exist (6) work or materials later
prove to be of poor quality or inconsistent with the standards recited in clause
(a) of the first sentence of the immediately preceding paragraph and (7) latent
defects or poor quality or substandard work have been repaired or corrected
properly, shall be resolved by Landlord's and Tenant's architects. If their
architects are not able to resolve a particular disagreement, a third architect
chosen by those two architects shall be hired by Landlord and Tenant, and the
majority decision of the three architects shall be binding upon Landlord and
Tenant. The third architect shall not have any business, social or other
connections with, or bias in favor of, Landlord or Tenant or the two architects
who choose him/her. The fees of the third architect shall be shared equally by
Landlord and Tenant. Landlord and Tenant shall diligently and in good faith
cooperate with each other and the architects involved to resolve the
disagreements as expeditiously as possible and shall secure commitments from
such architects to do the same.
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OPTION TO RENEW
6. Tenant shall have the option to renew and extend the Term once for a
period of three (3) years if, at the time of giving notice of its exercise and
at the time the renewed and extended Term begins, an Event of Default by Tenant
has not occurred, or, if it occurs after the notice is given, it is cured by the
date the renewed and extended Term begins. To exercise such option, Tenant must
notify Landlord, in writing, of its intent to renew and extend the Term at least
six (6) months prior to the expiration of the current Term. During the renewed
and extended Term, all of the covenants and conditions of this Lease shall
remain the same, except that Base Rent for each month of the renewed and
extended Term shall be Sixty-One Thousand Eight Hundred Seventy-Six and 67/100s
Dollars ($61,876.67).
PARKING
7. Landlord shall create at least six (6) parking spaces in the basement
of the building, in accordance with applicable City Codes and the plans and
specifications contained in attached Exhibit A, by the Commencement Date. Tenant
shall have the exclusive use of: ( a) the greater of seventy-five percent (75%)
of the total, or six (6), parking spaces in the basement of the building, at a
rate of $75.00 per space per month; (b) six (6) parking spaces in the surface
lot directly east of and across Baltimore Street from the building, at a rate of
$35.00 per space per month; and (c) up to the greater of seventy-five percent
(75%) of the total, or seventy-five (75), of the parking spaces available to
Landlord in what is known as the Freight House surface lot, at the rate
negotiated and paid by Landlord, as may be adjusted from time to time. Tenant's
use of, and obligation to pay for, parking spaces in the Freight House surface
lot shall be on an as needed basis each month, determined by written notice to
Landlord one full calendar month in advance of the use. The amounts due from
Tenant to Landlord for parking shall be paid monthly, in advance, as Additional
Rent. All of the parking areas mentioned in this section shall be referred to
collectively in this Lease as the "PARKING AREAS" and shall be adequately
lighted, at all times for those in the garage of the building, and after sunset
and until sunrise each day for the those outdoors. None of the parking spaces
referred to above in this section shall be used to satisfy any handicapped
parking space requirements imposed upon Landlord by Laws (defined below). If
Landlord loses it rights to use the Freight House surface parking lot or the
parking lot east across Baltimore Street from the building for providing Tenant
with the parking spaces referred to in this Section, or its rights to use any
other parking lot(s) to which Tenant and Landlord agree after the Commencement
Date, Landlord shall provide Tenant, prior to or by the time of the loss, with
the same number of alternate parking spaces in a lot(s) located in close
proximity to the building that are reasonably acceptable to Tenant. Landlord
shall give Tenant copies of all notices Landlord receives in connection with any
threatened or actual termination of its rights to use any parking areas promptly
after Landlord receives the same.
PUBLIC REQUIREMENTS
8. Landlord, at Landlord's cost and as part of the work Landlord will do
in connection with the New Improvements, shall cause the building, the parking
areas and the Premises to comply with the federal Americans With Disabilities
Act and any similar State or local laws (collectively, the "ADA") for the
Permitted Use defined below. The plans and specifications Tenant submits for the
Tenant Improvements shall adhere to, and Tenant's use of the Premises shall
comply with, the ADA. After the Commencement Date, if Tenant's use of the
Premises or the parking areas, or Tenant's employment activities, necessitate
further improvements or alterations to the building, the Premises or the parking
areas to comply with the ADA as currently in effect or hereafter amended or
superseded, Tenant shall make such improvements or alterations in accordance
with the section of this Lease titled "Alterations." If the requirements of the
ADA with respect to the building, the parking areas or the Premises otherwise
change after the Commencement Date, Landlord shall make any improvements or
alterations to the same necessitated by such change and the cost of doing so
shall be included within Operating Costs (defined below). Tenant and Landlord,
in performing their respective obligations and in exercising their respective
rights under this Lease, shall comply with all present and future codes,
ordinances, laws, regulations, orders, judgements and other public requirements
(collectively, "LAWS") affecting the building, the parking areas and the
Premises and Tenant's and Landlord's respective personal property, and the use
thereof, and shall Indemnify each other in connection with any failure to do so.
QUIET ENJOYMENT
9. Landlord hereby covenants that Tenant, upon paying rent as provided,
and performing all covenants and agreements contained in this Lease to be
performed by Tenant, shall and may peacefully and quietly have, hold and enjoy
the Premises. Nothing in this section shall prevent Landlord from performing
alterations or repairs on other portions of the building, nor shall performance
of such alterations or repairs be construed as a breach of this covenant by
Landlord, if such performance does not unreasonably interfere with the conduct
of Tenant's business at the Premises.
ASSIGNMENT-SUBLETTING
10. a. Tenant shall not sublet, assign, transfer, mortgage, pledge,
hypothecate or encumber this Lease or any interest herein or any portion hereof,
or permit or suffer any other person (the employees, agents, servants and
invitees of Tenant excepted) to occupy or use the Premises, or any portion
thereof, without the prior written consent of Landlord. Permission is, however,
granted Tenant to assign this Lease and/or to sublet the Premises, or any part
thereof, to any subsidiary, parent or affiliate of Tenant, or any entity to
which
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Tenant sells its stock or assets or with which Tenant merges or joins, or any
entity to which Tenant converts, upon giving Landlord written notice. In the
event of any assignment or subletting, Tenant shall remain the principal obligor
under all covenants of this Lease, and by accepting any assignment or
subletting, an assignee or subtenant shall become bound by and shall perform and
shall become entitled to the benefit of all of the conditions and covenants by
which Tenant is bound. A consent to any such assignment, subletting, occupation
or use by any other entity shall not be deemed to be a consent to any subsequent
assignment, subletting, occupation or use by another entity. Any assignment or
subletting of the Premises in violation of the provisions of this section shall
be void. Any subletting or assignment consented to by Landlord shall be
evidenced only in writing and in form reasonably acceptable to Landlord and
Tenant. Landlord acknowledges and consents to Tenant subletting a portion of the
Premises to DNS Publishing, Inc., a Missouri corporation.
b. Landlord shall not sell or otherwise transfer the building or the
parking areas, or any part thereof or interest therein, nor assign this Lease,
unless, simultaneous with the closing of the sale, transfer or assignment, (i)
the buyer, transferee, assignee or other recipient of Landlord's interest
(collectively, an "ASSIGNEE") agrees in writing with Landlord and Tenant at the
time of the transaction (1) to assume this Lease, (2) to perform all of
Landlord's obligations under this Lease and (3) acknowledges receipt of the
Security Deposit and that the Assignee and Tenant are contractually bound to
each other under this Lease and (ii), promptly after closing the transaction,
Landlord gives Tenant a copy of the Assignee assumption agreement that contains
all parties' original signatures and the Assignee's name and its contact person,
address and phone number (collectively, the "ASSIGNEE ASSUMPTION AGREEMENT").
Tenant will not have any obligation to pay Base Rent, Additional Rent or other
payments to an Assignee until the monthly installment of Base Rent that first
becomes due after Tenant is given the Assignee Assumption Agreement.
USE
11. Tenant shall only use and occupy the premises (a) for general office
purposes, (b) to house, operate and maintain telecommunications equipment and
(c) for activities ancillary to the uses specified in the immediately preceding
two clauses (collectively, the "PERMITTED USE"), and for no other purpose
without Landlord's prior written consent. Tenant will not (i) use the Premises
for any unlawful, disreputable, or extra-hazardous purpose, (ii) maintain or
allow any public or private nuisance in the Premises, (iii) disturb the quiet
enjoyment of any other tenant, (iv) permit any operation on the Premises which
might emit offensive odors into other portions of the building, (v) use any
apparatus which might make undue noise or set off undue vibrations in the
building or (vi) permit any activity or anything to be kept or used which would
increase the fire insurance rate or other insurance rates on the building or
contents. Tenant will not permit the Premises to be used for any purpose which,
in Landlord's reasonable opinion, impairs the reputation or character of the
building. Tenant shall not install nor permit the installation of any signs in
or upon the Premises which are visible from the exterior hereof without the
written consent of Landlord. Tenant shall not obstruct or use the sidewalks,
entries, passages, vestibules, halls, elevators or stairways of the building for
any purpose other than ingress or egress to and from the Premises, or throw, or
sweep, or put anything out of the windows or doors, or in the passages or
corridors of the building. Landlord shall include in each lease of, and in each
other occupancy or use agreement for, every portion of the building, other than
the Premises, a section that is substantially the same as this section, modified
only by the description of the Permitted Use. Landlord shall enforce such
section in all such Leases and agreements.
MAINTENANCE, REPAIRS AND REPLACEMENTS
12. a. Except for the obligations imposed upon Tenant in the immediately
following subsection, and subject to the sections of this Lease titled "Damage
and Destruction" and "Building and Tenant Improvements," Landlord shall operate,
maintain, repair and replace, when necessary, the building and its common areas,
the parking areas and the real estate upon which the building and its common
areas and the parking areas are located, including all structural components of
the same and of the Premises. Such structural components include, without
limitation, heating, air conditioning, ventilation, water, sprinkler, plumbing,
lighting (excluding any lighting fixtures within the Premises installed by
Tenant) electrical, elevator, fire escape and alarm (excluding any alarm
installed in the Premises by Tenant) equipment, systems, fixtures (excluding
Tenant's trade and telecommunications fixtures and equipment), supplies,
services, service panels and structures for, and windows and panels of, the
building and its common areas, the parking areas and the Premises and the
exterior walls and the areas above the surface of the ceilings, below the
surface of the floors and behind the surface of the interior walls of the
Premises. Landlord's duties under this subsection shall include, without
limitation, (i) keeping the building and its common areas and parking areas free
of rodents, insects and other pests; (ii) policing and keeping the building's
common areas and the parking areas clean, sanitary, orderly, sightly,
unobstructed and free from trash, debris, ice and snow; (iii) preventing water
pipes in or that serve the building, and those that serve the Premises, from
freezing; (iv) maintaining the lawn, shrubs, plants, trees and other landscaping
of the building's common areas and the parking areas, if any and (v) doing all
work necessary to continuously provide the services Landlord is required to
provide under the section below titled "Services." Landlord shall reimburse
Tenant for any repair or replacement work for which Tenant is responsible under
the following subsection that is necessitated by the negligent act or omission
or fault of Landlord or its employees, agents, vendors, licensees or invitees.
Landlord promptly shall begin and shall diligently pursue to completion any
needed repairs and replacements of which it receives written notice from Tenant,
or of which it otherwise has actual notice, in accordance with Laws, in a
workmanlike manner, according to and using applicable industry standards,
methods and procedures, with good quality materials and, when required, after
obtaining a permit for such work from the City (collectively, the "WORK
STANDARDS").
b. Except for the obligations imposed upon Landlord in the immediately
preceding subsection and subject to the sections of this Lease titled "Damage
and Destruction" and "Building and Tenant Improvements," Tenant, at Tenant's
sole cost, promptly shall (i) maintain and keep clean, sanitary and sightly and
in good order, repair and condition the Premises, including the non-structural
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components of the Premises, (ii) repair all damage to the Premises caused by the
negligent act or omission or fault of Tenant or its employees, agents, vendors,
licensees or invitees and (iii) reimburse Landlord for any repair or replacement
work for which Landlord is responsible under the preceding subsection that is
necessitated by the negligent act or omission or fault of Tenant or its
employees, agents, vendors, licensees or invitees. All of Tenant's work required
in this subsection shall be performed in accordance with the Work Standards.
ALTERATIONS
13. a. Tenant shall not alter or change the Premises without prior written
consent of Landlord, and, unless otherwise provided in writing, all work shall
be done by or under the direction of Landlord, at Tenant's sole cost, in
accordance with the Work Standards and by a contractor employed by Tenant that
is reasonably acceptable to Landlord and Tenant. Any alteration shall be of a
quality equal to or exceeding the quality of Tenant Improvements specified in
attached Exhibit B. Landlord reserves the right to require any contractor to
provide lien waivers and liability insurance. Any alterations, physical
additions or improvements, except movable office furniture and equipment and
telecommunication equipment, shall at once become property of Landlord and shall
be surrendered to Landlord upon termination or expiration of this Lease.
Notwithstanding anything herein to the contrary, any increase in ad valorem
taxes or insurance premiums resulting from such improvements shall be the sole
responsibility of Tenant.
b. Without Landlord's prior written consent, but subject to the other
provisions of the immediately preceding subsection, Tenant may, at its cost,
install and operate sending and receiving antennas and satellite dishes mounted
on a single structure anchored to the roof of the building, and communication
equipment related to such antennas and dishes, in a location reasonably
acceptable to Landlord and Tenant. Upon the expiration or sooner termination of
this Lease, Tenant shall remove such antennas, satellite dishes and
communication equipment at its cost. Tenant, at its cost, shall repair any
damage to the roof or building structure caused by installation or removal of
antennas and satellite dishes and related communication equipment. Landlord
diligently shall make good faith efforts to correct or to cause the owners,
operators or users of communication equipment located on or in the building or
any other property in the vicinity of the building that Landlord owns or leases
to correct any reception or transmission interference problems its or their
equipment cause with Tenant's communication equipment. Landlord shall not
install, erect or use any antennas, satellite dishes or other communication
equipment in, on or from the building, the parking areas or any other property
in the vicinity of the building that Landlord owns or leases, nor allow any
other entity that leases, subleases or licenses such property from Landlord to
do the same, if such other equipment interferes with the receipt by, the sending
of signals from or the operation of Tenant's antennas, satellite dishes or other
communication equipment.
c. Within one (1) year after the Commencement Date, Landlord shall
construct on the roof of the building, in accordance with the Work Standards and
at Landlord's sole cost, a deck not less than five hundred (500) square feet in
area, for the use and enjoyment in common by the employees and invitees of all
of the tenants of the building. Such deck shall be connected to the stairwell
and elevator shaft of the building where they open onto the roof. Landlord may
close such deck with reasonable frequency for reasonable periods of time for the
temporary exclusive use of the deck for private functions upon notice to Tenant.
SERVICES
14. Landlord, at its sole cost, shall furnish to the building and the
Premises (a) heated and refrigerated air conditioning, in season at reasonable
temperatures and in reasonable amounts, and reasonable air ventilation, for
executive business offices (collectively, "HVAC") from 7:00 a.m. until 7:00
p.m., Monday through Friday, and from 8:00 a.m. through 1:00 p.m on Saturday
(collectively, "OPERATING HOURS"), except on New Year's Day, the 4th of July,
Thanksgiving Day and Christmas Day of each year ("HOLIDAYS"), (b) elevator
service to all floors and the basement of the building, ingress to and egress
from the building and the parking areas and the security services listed below,
all of which services shall be furnished twenty-four (24) hours a day, every day
of the year, and (c) janitor and trash removal services Monday through Friday of
each week, exclusive of holidays, including, at a minimum, the services stated
in attached Exhibit C. Security services, at a minimum, shall consists of (i) a
security guard driving by and looking for and reporting problems at the building
on a regular basis, but not less than twice a night, during night time hours,
every day of the year, (ii) elevators that are programed to restrict access,
after normal business hours and on weekends and holidays, to each floor of the
building and the basement parking area to only those who enter access code
numbers revealed to only those who work on or otherwise have a right to be on
each floor, (iii) restricted access to the building's common areas and the
basement parking area after normal business hours and weekends and holidays to
only the employees, customers, invitees, vendors and contractors of the Landlord
and Tenant and other tenants of the building, (iv) restrict access to other
parking areas at all times to only those with permits to park there and (v)
adequate lighting in the common areas and the basement parking area at all times
and in the outdoor parking areas during all night hours.
HVAC shall be available in all parts of the Premises upon Tenant's
request during all non-operating hours, including on holidays. The cost of
providing Tenant with HVAC during non-operating hours (including holidays) shall
be charged to Tenant at an hourly rate determined by Landlord based upon the
actual utility costs plus all other reasonable costs incurred by Landlord in
providing the same, including depreciation of Landlord's HVAC equipment during
such non-operating hours operation, and shall be paid by Tenant as Additional
Rent on the date the next monthly installment of Base Rent is due following
receipt by Tenant of a statement therefor.
Notwithstanding anything in this section to the contrary, separate HVAC
equipment for Tenant's network operations center in the Premises (the "NOC")
shall be included in the Tenant Improvements and detailed in Exhibit B that will
be attached to this Lease, and the utilities used to operate such HVAC for the
NOC shall be separately metered by Tenant at its cost and in its name and paid
for directly by Tenant. Landlord shall provide Tenant with space, other than in
the Premises, for placement and installation of (i) an air-conditioner
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condenser unit for the NOC's HVAC, (ii) an air-conditioner condenser unit for
the HVAC for Tenant's computer room, (iii) an uninterruptable power generator
for the NOC and the Tenant's computer room (the "GENERATOR") and a structure to
house the Generator, and (iv) in the basement or elsewhere in the interior of
the building, a wall mounted transfer switch for the Generator, all of which
equipment and structure shall be included in Exhibit B as part of the Tenant
Improvements. Tenant shall not be obligated to pay additional rent or other
consideration to Landlord for any of the space provided by Landlord outside of
the Premises as required in this paragraph. After completion of the Tenant
Improvements, Landlord shall have no obligation for, nor liability with respect
to, the inspection, operation, maintenance or repair of any of the equipment
mentioned in this paragraph, except to the extent Landlord is required to repair
and correct work and materials related to any of the equipment mentioned in this
paragraph, as required in the section of this Lease titled "Substantial
Completion."
Tenant shall not, without Landlord's prior written consent, install or
operate any electrical equipment, machinery or mechanical device or computer on
the Premises, other than those normally used in connection with the Permitted
Use and other than as permitted in the immediately preceding paragraph. If
Tenant needs or demands electric service above the needs of the Permitted Use,
Tenant shall pay for same, at the same rates paid by Landlord, as Additional
Rent, if Landlord is reasonably able to provide same, except as otherwise
provided in the immediately preceding paragraph of this section. Tenant also
shall pay for any additional special facilities or equipment, and all costs for
installing same, that are not included in the Tenant Improvements specified in
Exhibit B that will be attached to this Lease. Landlord shall diligently restore
any services it is obligated to provide under this section when failures,
stoppages or interruptions occur. Tenant shall promptly notify Landlord of the
need for any such restoration. Landlord shall not be liable for damages to
Tenant for failure to perform any of the covenants in this section, nor shall
temporary stoppages, temporary failures or interruptions of any of the services
to be supplied by Landlord under this section be construed as an eviction of
Tenant, work an abatement of rent or relieve Tenant from any covenant or
agreement, unless such failure, stoppage or interruption (i) is caused by the
negligent act or omission or fault of Landlord or its employees, agents,
vendors, licensees or invitees and occurs for an aggregate of three (3) hours or
more per day during any fourteen (14) days during a period of thirty days, or
(ii) is the result of an Event of Default by Landlord.
Notwithstanding anything to the contrary in this section, and without
compensation to Landlord, Tenant may obtain utilities and any of the services
described in this section directly from the provider of the same, after giving
Landlord notice of its intent to do so and after Tenant and Landlord agree on
the manner and place such utilities and services will be brought into the
building and the Premises, which agreement on either party's part shall not be
withheld or delayed unreasonably. Any and all costs, whether direct or indirect,
resulting from the installation, operation, non-operation, maintenance or
removal of such utilities and services shall be borne solely by Tenant or the
provider of the utility or service.
ENTRY
15. Landlord, its officers, agents and representatives shall have the right
to enter into and upon the Premises at reasonable times agreed to in advance by
Tenant, and with reasonable frequency, (a) to inspect the same, make repairs or
replacements and perform maintenance and other tasks required of Landlord, or
which Landlord has the right to do, under this Lease, (b) to show the Premises
to prospective purchasers and lenders and, during the last six months of the
term, if the Term has not been renewed and extended, to prospective tenants or
(c), at any time without advance notice or agreement, to deal with any emergency
related to the serious immediate safety, protection or preservation of the
building, the Premises or the lives or health of occupants of the building.
Landlord may and shall at all times have master keys or pass keys to the
Premises. Tenant shall not change any locks or install locks in the doors of the
Premises, or install other devices or systems which would restrict access to the
Premises, except for burglar and other security systems, without Landlord's
prior written consent. If Tenant installs alarms or other security systems in
the Premises, it shall provide Landlord with access codes for the same that
Landlord may use only in connection with entering the Premises in an emergency
as provided in clause (c) of this section. Landlord shall keep such access codes
confidential and shall Indemnify Tenant for any consequences of failing to do
so. Landlord shall not enter the NOC or other rooms or areas where Tenant's
communications equipment is housed or operated, except to deal with an emergency
of the type described above in clause (c) of this section. Each time an entry
into the Premises is made pursuant to clause (c) of this section, Landlord shall
use reasonable efforts to take care of Tenant's property and, promptly after
having so entered, Landlord shall notify Tenant of its having done so, the
reasons for the entry and what was discovered and done while in the Premises. In
connection with performing Landlord's obligations and exercising its rights
under this Lease, and in connection with Landlord servicing other parts of the
building, Landlord may adjust and balance the controls of the HVAC systems, if
they do not exclusively serve the Premises and if doing so does not adversely
affect the temperature and comfort of workers and the operation of equipment in
any part of the Premises, conduct environmental audits or abatement and erect,
use, maintain, repair, replace or relocate pipes, ducts, wiring conduits and
similar devices in and through the Premises, so long as such activity does not
unreasonably disrupt the conduct of Tenant's business at the Premises or
interfere with the operation of Tenant's telecommunication equipment located in
the Premises or on the roof of the building.
ADDITIONAL RENT
16. Upon notice from Landlord, Tenant shall pay Landlord, as Additional
Rent, in advance in equal monthly installments, at the time and place that
installments of Base Rent are due and payable, beginning January 1, 2000,
Tenant's Percentage of any increase in Operating Costs (hereinafter defined) as
reasonably estimated by Landlord, over and above actual Operating Costs for
1999. On or before March 1, 2001, and on or before March 1 of each subsequent
year, Landlord shall prepare and deliver to Tenant an itemized detailed
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statement of the actual Operating Costs for the previous calendar year, together
with a statement of the actual Operating Costs for 1999. Within thirty (30) days
after receipt of such statement, Tenant shall pay Landlord the amount of any
deficiency between estimated and actual in Tenant's Percentage of any increase
in Operating Costs for the prior calendar year over those for 1999. In the event
of any overpayment by Tenant, such overpayment shall be credited towards
installments thereafter becoming due and payable. If occupancy of the building
during 1999 or any subsequent calendar year is less than one hundred percent
(100%), then Operating Costs for the year in question shall be increased or
"grossed up" to that amount of Operating Costs that, using reasonable
projections, would normally be expected to be incurred during the year in
question if the building was 100 percent occupied, as determined under generally
accepted accounting principles consistently applied. Landlord shall provide in
the statements required in this section, a reasonably detailed description of
how the Operating Costs were grossed up. Only those component expenses that are
affected by variations in occupancy levels shall be grossed up.
OPERATING AND MAINTENANCE COSTS
17. The phrase "OPERATING COSTS" shall be defined as the sum of any and all
reasonable costs, expenses and disbursements of every kind and character which
Landlord reasonably incurs, pays or becomes obligated to pay in any calendar
year in connection with the ownership, operation, maintenance, repair, and
replacement of the building and the land upon which the building is located (the
"LAND"), and all related improvements and appurtenances thereto, in a manner
similar to the way well managed office building properties in the
downtown/midtown area of Kansas City, Missouri, are operated, maintained,
repaired and replaced, all determined in accordance with generally accepted
accounting principles for such office buildings, consistently applied. Operating
Costs shall include, but not be limited to, the following: real estate taxes and
assessments; rent taxes, gross receipt taxes, water and sewer charges; insurance
premiums for the coverage Landlord is required to carry under this Lease and for
other coverage Landlord reasonably carries in connection with its ownership and
operation of the building; license, permit and inspection charges; utilities;
service contracts; labor; building management; air conditioning, heating and
elevator maintenance; supplies; security; janitor service; trash removal
service; maintenance and upkeep costs of and for the building and all parking
areas, drives, lawns, trees, shrubbery and common areas; depreciation of
equipment (but not fixtures) owned by Landlord and used solely for maintenance
and operation of the building and the cost of contesting by appropriate
proceedings increases in real estate taxes and assessments and the applicability
to, or the validity of, any Laws which might increase Operating Costs if such
contesting is agreed to in advance by Landlord and Tenant. The phrase "REAL
ESTATE TAXES" shall mean all taxes, general and special, levied or assessed on
the land and the building, and on any land and/or improvements now or hereafter
owned by Landlord that constitute the parking areas.
Operating Costs shall not include, without limitation, the following:
(i) cost of improving, preparing for lease, repairing, maintaining, cleaning or
altering space in the building available or to become available for lease or the
modification of such space to comply with Laws; (ii) labor costs, advertising,
brokerage fees, leasing commissions, legal and other professional fees related
to leasing or attempting to lease space in the building or enforcement or
dispute of lease provisions, the recovery of damages or pursuit of other
landlord remedies; (iii) cost of correcting construction defects; (iv) cost of
repairs caused by the negligent act or omission or fault of Landlord, its
employees, agents, vendors, invitees, licensees or other tenants of the Building
or their employees, agents, vendors, invitees, licensees or subtenants; (v)
salaries of Landlord's or Landlord's managing agent's executives; (vi)
maintenance, repair and replacement costs paid from the proceeds of any
insurance policy or by Tenant or third parties; (vii) utility and other charges
reimbursed or paid directly by Tenant or any other tenant of the building or the
parking areas; (viii) depreciation, except for depreciation allowed under the
previous paragraph of this section; (ix); labor costs of any manager or
management company if the basis for such manager's or company's compensation is
a fee calculated to include the cost of labor such manager or company hires to
perform its management obligations; (x) capital expenditures, except reasonable
capital expenditures for energy conservation if Tenant's Percentage of such
costs is equal to or less than Tenant's Percentage of the savings in utility
charges, during the remaining Term, achieved by such capital improvements; and
(xi) Operating Costs that are not charged to and collected from all other
tenants of the building. The amount of labor costs includable in Operating Costs
shall be limited to a portion of such costs determined by the percent of time a
particular employee works on matters related to the building. The amount of
costs for tools and equipment includable in Operating Costs shall be limited to
a portion of such costs determined by the percent of time particular tools and
equipment are used at the building.
Tenant, at its expense, shall have the right once per calendar year
following receipt of the statement of Operating Costs prepared by Landlord and
promptly after prior written notice to Landlord, to audit Landlord's books and
records relating to Operating Costs for the two preceding years. In the event
such an audit demonstrates the amount Tenant paid or will pay as Additional Rent
in connection with the years audited by Tenant was or will be higher or lower
than the amount of Additional Rent actually due pursuant to the preceding
section, then, within ten (10) days of such determination, Landlord shall refund
any over-payment and adjust the amount of Additional Rent Tenant is required to
pay, or Tenant shall pay any under-payment.
CONDEMNATION
18. If the building is taken by any competent authority under the power of
eminent domain, or is acquired for any public or quasi-public use or purpose,
the Term of this Lease shall terminate upon the date when possession of the
building is so taken or acquired. If less than all of the building, or if the
Freight House parking area, is taken or damaged by such condemning authority, or
if the grade of any street or alley adjacent to the land or the parking areas is
changed by any competent authority and such change of grade makes it necessary
or desirable to remodel the building or the parking areas to conform to the
changed grade, Tenant shall have the right to terminate this
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Lease by giving notice to Landlord ninety (90) days or more prior to the date of
termination stated in the notice. Tenant shall not be entitled to receive any
amount from the condemnation award for, or from any judgment for damages caused
by, the taking or the change of grade. Nothing in this section shall preclude an
award being made to Tenant, and Tenant recovering, for loss of business,
depreciation to and cost of removal of Tenant's Property, the value of fixtures
installed in the Premises by Tenant and the cost of relocating Tenant's
businesses, provided that such award does not reduce the amount due and payable
to Landlord. Upon termination of this Lease as provided in this section, rent
shall be apportioned as of the date of the termination.
PROPERTY DAMAGE INSURANCE
19. Landlord shall keep in force a policy or policies of property damage
insurance insuring the building and appurtenant structures, including the Tenant
Improvements, under a commercial property insurance policy with a special broad
causes of loss form (formerly known as "all-risk" insurance) issued on a
replacement cost basis in an amount not less than eighty percent (80%) of the
full replacement cost of the building and appurtenances, including the Tenant
Improvements, with endorsements covering the following: (a) mechanical
breakdown, (b) backup of sewers and drains, (c) differences in conditions for
the peril of earthquake and (d) building ordinance (collectively, an "ALL-RISK
POLICY"), with the aggregate of applicable deductibles not exceeding Twenty-Five
Thousand and No/100s Dollars ($25,000.00), exclusive of the deductible for
earthquake coverage which shall not be greater than ten percent (10%) of the
replacement cost of the building.
Landlord shall pay the premium for the All-Risk Policy (the "PROPERTY
INSURANCE PREMIUM") each year before it becomes delinquent and, promptly
thereafter, shall send Tenant a certificate of such insurance, or if Tenant
requests, a copy of the policy, as required in the last paragraph of this
section. If Tenant questions whether the amount of property damage insurance
Landlord carries on the building equals eighty percent (80%) of the replacement
cost of the building, and Landlord and Tenant can not reach agreement thereon,
they will use the procedure outlined in the last paragraph of the section of
this Lease titled "Substantial Completion" to resolve their disagreement.
Tenant, at Tenant's cost, shall keep in force a policy or policies of
property damage insurance, issued on a replacement cost basis, insuring all
personal property owned, leased or otherwise belonging to or in the possession
of Tenant that is used, stored, placed, incorporated, installed or erected in,
on or in connection with the Premises, including, without limitation, signs,
telecommunication equipment and trade fixtures (collectively, "TENANT'S
PROPERTY"), with an agreed amount endorsement and such coverage amounts,
deductibles and other endorsements as Tenant deems appropriate.
As used in this Lease, an "INSURABLE LOSS" means any whole or partial
loss of or damage to the building or the Premises or the personal property of
either party or of third parties which would be covered by an All-Risk Policy,
or an equivalent tenant's policy, regardless of (i) the amount of coverage
carried, (ii) whether such insurance is actually maintained and (iii) whether
the cost of repairing or replacing the loss or damage falls within an applicable
deductible, and any loss which is covered by any insurance policy of Landlord or
of Tenant in force at the time of such loss.
All insurance required to be maintained by a party to this Lease (in
this section or the next) shall be issued by companies reasonably acceptable to
Landlord and Tenant that are authorized to do business in the State in which the
Premises are located and that have a rating by A.M. Best of at least B++. Each
party to this Lease shall deliver to the other party current certificates of all
such insurance on a form known as ▇▇▇▇▇ 27, which certificates shall provide
that the insurer shall give the other party at least thirty (30) days notice
prior to any lapse, cancellation or material change in coverage and, if
requested by the other, copies of the actual policies, and, promptly following
request, shall deliver to the other party complete copies of the policies.
INDEMNITY AND LIABILITY INSURANCE
20. As used in this Lease, "INDEMNIFY" means the party to this Lease that
is identified shall indemnify, defend and save harmless the other party to this
Lease, and the other party's officers, directors, shareholders, members,
managers, trustees, general and limited partners and subtenants and the
employees, agents, invitees and licensees of the other party and of the other
party's subtenants, from and against any and all actions, claims, demands,
losses, damages, fines, penalties, interest charges, liabilities, judgements and
costs of every kind, including, without limitation, reasonable attorney fees and
litigation costs, asserted against or incurred by the other party, and/or the
other party's officers, directors, shareholders, members, managers, trustees,
general and limited partners and subtenants and the employees, agents, invitees
and licensees of the other party and of the other party's subtenants, in
connection with or with respect to situations, circumstances or events stated in
this Lease.
Subject to the section of this Lease titled "Waiver of Subrogation,"
Tenant shall Indemnify Landlord in connection with all third party claims for
loss of life, bodily injury or damage to property (a "CLAIM" or, collectively,
"CLAIMS") asserted against or incurred by Landlord that arise from or out of any
occurrence in, on or in connection with the Premises, except for Claims that are
the result of wilful or negligent acts or omissions of Landlord or of Landlord's
officers, directors, shareholders, members, managers, trustees, general and
limited partners, employees, agents, invitees or licensees or are the result of
a Default by Landlord under this Lease. If a Claim is asserted against or
incurred by Landlord, Tenant, upon notice thereof from Landlord and at Tenant's
cost, shall defend Landlord from the Claim by counsel reasonably acceptable to
Landlord.
Subject to the section of this Lease titled "Waiver of Subrogation,"
Landlord shall Indemnify Tenant from and against any and all Claims asserted
against or incurred by Tenant that arise from or out of any occurrence in, on or
in connection with the building, the parking areas or the Premises, but only to
the extent such Claims are the result of wilful or negligent acts or omissions
of Landlord or of
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Landlord's officers, directors, shareholders, members, managers, trustees,
general or limited partners, employees, agents, invitees or licensees or are the
result of a Default by Landlord. If such a Claim is asserted against or incurred
by Tenant, Landlord, upon notice thereof from Tenant and at Landlord's cost,
shall defend Tenant from the Claim by counsel reasonably acceptable to Tenant.
Throughout the term of this Lease, Tenant and Landlord each shall keep
in force a policy(ies) of commercial general liability insurance (on the
occurrence form) in which the limits of coverage for combined single limit
bodily injury and property damage shall be not less than Three Million and
No/100s Dollars ($3,000,000.00). Such policy(ies) shall contain a contractual
endorsement insuring Tenant's and Landlord's respective indemnity agreements set
forth in this section, to the extent such an endorsement is available. Tenant's
and Landlord's policies also will name the other as an additional insured.
DAMAGE AND DESTRUCTION
21. a. Subject to the options to terminate provided below in this section,
if the building or the Premises or the parking areas suffer an Insurable Loss or
a loss other than an Insurable Loss that is not substantial, or if any of the
parking areas suffer any loss, Landlord, at its cost, including, but not limited
to, use of all proceeds available under the All-Risk policy, shall (i) repair
and restore the building, the Premises and the parking areas to a condition
substantially equivalent to their condition immediately prior to the loss,
subject to zoning and building laws applicable at the time of the work, (ii)
commence the work with reasonable promptness and (iii) diligently pursue the
work to completion in accordance with all of the provisions of the section above
titled "Substantial Completion," except for clause a(i) of that subsection.
b. If the building or the Premises suffer a substantial loss that is
not an Insurable Loss, Landlord may terminate this Lease by notice to Tenant
given within thirty (30) days after the date of the loss. However, Tenant may
avoid such a termination if (i) Tenant gives Landlord notice, within thirty (30)
days after the date of Landlord's notice of election to terminate, that Tenant,
at Tenant's cost, will repair or restore the Premises and any other portion of
the building necessary to restore and use the Premises, with an assignment of
Landlord's interest in all proceeds available under the All-Risk Policy Landlord
is required to keep in force, (ii) the City will issue a building permit for
such work, if one is required, and (iii) Tenant commences the work with
reasonable promptness and diligently pursues the work to completion. If Tenant
does give such a termination avoidance notice, Landlord promptly shall assign to
Tenant all of its rights to make a claim, and all of the proceeds available,
under the All-Risk Policy for the loss. If Landlord does not exercise its option
to terminate, Landlord shall repair or restore the building and the Premises in
accordance with the provisions of the immediately preceding subsection. For the
purposes of this section, "SUBSTANTIAL" shall mean damage to such an extent that
the estimated cost of fully repairing the damage is greater than five percent
(5%) of the value of the building or the Premises immediately prior to the loss,
subject to zoning and building laws applicable at the time of the work.
c. If the building or the Premises suffer a loss, Landlord, after
consulting with its All-Risk Policy carrier, architect and contractors and
within thirty (30) days after the date of the loss, shall give Tenant notice of
the length of time Landlord reasonably believes it will take to complete repairs
to or restoration of the building and the Premises as provided in this section.
If such period of time is expected to be greater than one hundred eighty (180)
days after the date of the loss (the "REPAIR PERIOD"), or if Landlord fails to
give Tenant such notice, Tenant may terminate this Lease by giving notice to
Landlord within thirty (30) days after receipt of Landlord's notice of the time
it will take to repair or restore the Premises. If, during the last thirty-six
(36) months of the initial Term, and after consultation as provided in this
subsection, Landlord reasonably believes the time it will take to complete
repairs to or restoration of the building and the Premises as provided in this
section will be greater than the Repair Period, Landlord may terminate this
Lease by giving notice to Tenant of the termination at the same time it gives
Tenant notice of the expected time frame for completing repairs and restoration.
If, after commencement of repair or restoration of the building and the Premises
as provided in this section, such work cannot reasonably be expected to be
substantially complete by the end of thirty (30) days after the end of the
Repair Period, Tenant may terminate this Lease by giving notice to Landlord.
d. If this Lease is terminated under any option given in this section,
this Lease shall terminate on the date the loss or damage to the Premises
occurred. Rent shall be apportioned as of the date of termination, and any rent
paid in advance for any period beyond the date of termination shall be refunded
to Tenant.
e. Following any loss or damage that Landlord is obligated or has
elected to repair or restore, Tenant shall cooperate fully with Landlord to
facilitate Landlord's repair or restoration of the building and the Premises.
Landlord shall not be responsible to Tenant for any inconvenience arising from
such work, but rent shall be equitably prorated and abated during the period for
which, and to the extent which, the Premises are untenantable and Tenant is
unable to conduct its business from the Premises. Any rent paid in advance for
any period during which rent is to be abated shall be credited to the next
ensuing payments, if any, and if no further payments are to be made, such rent
shall be refunded promptly to Tenant.
WAIVER OF SUBROGATION
22. Notwithstanding anything to the contrary contained in this Lease, each
party to this Lease (the "RELEASING PARTY") hereby releases the other party (the
"RELEASED PARTY") from any liability which the Released Party would, but for
this section, have had to the Releasing Party during the term of this Lease for
any damage to or loss or destruction of the building or the Premises, the
property of the Releasing Party or the property of others which is under the
Releasing Party's control which results from an Insurable Loss to the building,
the Premises or to the property of, or to the property under the control of, the
Releasing Party, regardless of how such loss, damage or destruction occurs,
including, without limitation, as the result of negligent acts or omissions of
the Released Party or its officers, directors,
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shareholders, members, managers, general and limited partners, trustees,
employees, agents, subtenants, invitees or licensees. Each party to this Lease
promptly will give notice of the provisions of this section to its insurance
carriers and obtain from them any endorsements required to give effect to the
foregoing releases and, if requested, deliver reasonable evidence of such
endorsements to the other party. Provided, however, the release contained in
this section will become inoperative and null and void if the Releasing Party's
insurance carrier (a) takes the position that the existence of such a release
vitiates or would substantially adversely affect any policy so insuring the
Releasing Party, and notice thereof is given to the Released Party, or (b)
requires payment of a higher premium as the result of the existence of such a
release, unless, in the later case, the Released Party, within twenty (20) days
after notice thereof from the Releasing Party, pays such increase in premium.
HOLDING OVER
23. If Tenant retains possession of the Premises after the expiration or
termination of the Term by lapse of time or otherwise, without renewal and
extension and without Landlord's written consent, Tenant shall pay Landlord Base
Rent at a rate equal to 150% of the Base Rent payable for the month immediately
preceding the expiration or termination of the Term, and any Additional Rent,
computed on a per-month basis for each month or part thereof without reduction
for any partial month that Tenant remains in possession. If, however, such
retention of possession of the Premises is with Landlord's written consent,
Tenant shall pay Landlord Base Rent at the same rate payable for the month
immediately preceding the expiration or termination of the Term. Any retention
of possession mentioned in this section shall constitute a month-to-month lease.
The provisions of this section shall not exclude Landlord's right of re-entry or
any other right hereunder. The acceptance by Landlord of any payment of rent
subsequent to the commencement of such retention of possession by Tenant shall
not be deemed to constitute a waiver by Landlord of any of the provisions of
this section.
RULES AND REGULATIONS OF BUILDING
24. Tenant, its employees, agents, servants, invitees and guests shall
comply fully with all of the rules and regulations of the building reasonably
established by Landlord (the "RULES AND REGULATIONS"), of which Tenant receives
copies, as long as Landlord uniformly enforces the Rules and Regulations with
all of the other tenants of the building and they do not conflict with the
Provisions of this Lease. Landlord shall at all times have the right to amend
the Rules and Regulations in such reasonable manner as may be deemed advisable
for safety, care, order, control, cleanliness and exterior and interior
appearance of the Premises, building and the parking areas. The current Rules
and Regulations, marked "EXHIBIT E" are attached to and hereby incorporated into
this Lease.
RIGHTS RESERVED AND RETAINED BY LANDLORD
25. Landlord reserves the following rights, but only to the extent (a)
their exercise does not unreasonably interfere with any rights of Tenant
hereunder or any of Tenant's signs or the operation of Tenant's communication
equipment, (b) their exercise does not unreasonably interfere with the conduct
of Tenant's business at the Premises and (c) all reasonable costs incurred by
Tenant in connection with Landlord's exercise of the following rights, including
attorney and paralegal fees, are paid by Landlord to Tenant upon Tenant's
demand: (i) to name the building and to change the name or street address of the
building; (ii) to install and maintain all signs on the exterior and interior of
the building, so long as doing so does not interfere or conflict with signs
Landlord has agreed Tenant may install and maintain on the exterior and interior
of the building; (iii) to grant utility easements or other easements in, or
re-plat, subdivide or make other changes in the legal status of the land.
SUBORDINATION AND ATTORNMENT
26. a. This Lease shall be subordinate to any future Deed of Trust or
Mortgage (a "MORTGAGE") that encumbers the building, and all renewals,
modifications, amendments, extensions, assignments and participation thereof,
if the mortgagee, beneficiary or owner thereof ("MORTGAGEE") enters into a
Subordination and Non-Disturbance Agreement (an "SNDA") with Tenant that is
reasonably acceptable to Tenant and Mortgagee and that contains a provision
similar to the following:
"As long as no Event of Default by Tenant exists, Mortgagee shall not
disturb Tenant's right to possession of the Premises or any other
rights of Tenant under the Lease during the initial and subsequent
Terms of the Lease, and the Lease and all rights and obligations of the
parties to the Lease shall continue in full force and effect,
notwithstanding foreclosure of the Mortgage or transfer of the building
in lieu of foreclosure."
The word "Mortgagee(s)," as used in this Lease, shall include each Mortgagee
that exists on the Commencement Date. This Lease is contingent upon each
Mortgagee that exists on the Commencement Date entering into an SNDA with Tenant
that is reasonably acceptable to Tenant and the Mortgagee and that contains a
non-disturbance provision similar to the one quoted above in this subsection.
b. Tenant shall attorn and pay rent to an entity that acquires the
building by purchase at a foreclosure sale or by a deed in lieu of foreclosure,
and shall recognize such entity as the Landlord under this Lease, if such entity
agrees in writing with Tenant at the time of the transaction to assume this
Lease and perform all of Landlord's obligations under this Lease and
acknowledges it and Tenant are contractually bound to each other under this
Lease. Provided, however, such an agreement shall provide that such acquiring
entity shall not be (1) liable for any previous act or omission of any prior
landlord under this Lease, (2) subject to any offset, not expressly provided for
in this Lease, that accrues to Tenant against Landlord under this Lease prior to
the sale or transfer, (3) bound by any previous
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modification of this Lease not expressly provided for in this Lease or any
previous prepayment of more than one month's rent, unless such modification or
prepayment was approved in writing by Landlord and such acquiring entity or
their respective successors or assigns or (4) liable for new construction or
remodeling of leasehold improvements or reimbursement for the costs of the same
which may be required to be performed or paid for by Landlord under this Lease,
other than those required under the sections of this Lease titled "Tenant
Improvements," "Damage and Destruction," "Maintenance, Repairs and
Replacements,"and "Eminent Domain."
c. Landlord shall not allow to be foreclosed any lien against the land
granted, created or caused by Landlord that is prior to this Lease and, in
connection with which, Tenant is not a party to an SNDA.
ESTOPPEL CERTIFICATE
27. Tenant shall within ten (10) days after written request by Landlord,
deliver to Landlord in writing an executed statement certifying that: this Lease
is unmodified and in full force and effect, or in the case of Lease
modifications, that this Lease as modified is in full force and effect; the
dates to which rent or other charges have been paid; the amount, if any, of
prepaid rent and deposits paid by Tenant to Landlord; the nature and kind of
concessions, rental or otherwise, if any, which Tenant has received or is
entitled to receive; and that no Event of Default by Landlord exists, or if such
an Event of Default does exist, a detailed description thereof. Such statement
also shall include such other certifications as Landlord reasonably requests.
INTEREST
28. If an Event of Default occurs that is caused by Tenant's or Landlord's
failure to pay Base Rent, Additional Rent or any other amount due under this
Lease, interest shall accrue on all such unpaid amounts at the rate of fifteen
percent (15%) per annum from the due date until paid ("DEFAULT INTEREST").
Default Interest shall be due upon demand.
DEFAULT
29. A default ("DEFAULT") under this Lease will occur whenever any
obligation imposed by this Lease upon Tenant or Landlord is not performed or
observed on the due date stated, or in the manner provided, in this Lease, or
whenever any representation made in this Lease by either party is breached or
turns out to have been untrue or deficient when made, or whenever any warranty
made in this Lease by either party is breached or is untrue. The occurrence of
any of the following events shall constitute an event of default ("EVENT OF
DEFAULT") under this Lease:
a. Tenant fails to pay the full amount of any Base Rent, Additional
Rent or other payment due under this Lease within ten (10) days after Landlord
(i) gives Tenant notice that such payment is in Default or (ii) demands payment
of any amount Tenant is obligated to pay Landlord upon demand. Provided,
however, if Default notices concerning three (3) separate Base Rent, Additional
Rent or other payments have been given by Landlord to Tenant during any previous
eighteen (18) consecutive calendar months, a subsequent Default by Tenant in
payment of any Base Rent, Additional Rent or other payment due under this Lease
on the date it is due shall constitute an Event of Default without notice to
Tenant;
b. Tenant fails to (i) comply in a material manner with any condition,
covenant or other provision of this Lease applicable to Tenant, other than one
involving the payment of Base Rent, Additional Rent or other sums, (ii) remedy,
to Landlord's reasonable satisfaction, a material breach of any warranty made in
this Lease by Tenant, including as the result of a warranty later being
materially untrue or deficient, or (iii) correct, to Landlord's reasonable
satisfaction, the consequence to Landlord of a representation made by Tenant
that proves to have been materially false or deficient when made within thirty
(30) days after Landlord gives Tenant notice of such Default. However, if the
material Default of which Tenant is given notice cannot reasonably be remedied
within 30 days after Landlord's notice, an Event of Default will not occur
unless Tenant fails to promptly commence good faith efforts to remedy the
noticed Default within the 30 day period and, thereafter, fails to diligently
pursue such good faith efforts through remedy of the noticed Default;
c. Tenant or Landlord makes any conveyance or assignment for the
benefit of creditors, generally does not pay its debts as they become due or
admits in writing its inability to pay its debts as they become due, files a
petition commencing a voluntary case under any chapter of the Bankruptcy Code,
11 U.S.C. Sec. 101 et seq. (the "BANKRUPTCY CODE"), consents to the filing of
such a petition or acquiesces in the appointment of a trustee or receiver for
its or any substantial part of its assets or takes any action looking to its
dissolution or liquidation; or a proceeding is instituted against Tenant or
Landlord seeking the entry of an order to adjudicate it as a bankrupt or seeking
reorganization, arrangement, readjustment, liquidation, dissolution or similar
relief against it under the Bankruptcy Code, or any other present or future
federal or state statute, law, rule or regulation, which proceeding either
results in such entry or remains undismissed for sixty (60) days, or, within
sixty (60) days after the appointment without its consent of a trustee or
receiver for it or any substantial part of its assets, such appointment is not
vacated;
d. Landlord or Tenant files or has filed against it a petition under
any chapter of the Bankruptcy Code and this Lease is rejected in such Bankruptcy
proceeding;
e. The discovery of Hazardous Material in violation of Environmental
Laws at or affecting the land, the building or the Premises that was not
deposited, installed or permitted to be placed or disposed of by or on behalf of
Tenant, for which Landlord does not obtain a "no further action required" letter
pursuant to Environmental Laws or that is not removed or remediated in
accordance with Environmental Laws and within the time required by Environmental
Laws; or
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f. Landlord, or a Mortgagee mentioned below in this sentence, fails to
(i) comply in a material manner with any condition, covenant or other provision
of this Lease applicable to Landlord, (ii) remedy, to Tenant's reasonable
satisfaction, a material breach of any warranty made in this Lease by Landlord
or (iii) correct, to Tenant's reasonable satisfaction, the consequence to Tenant
of a representation made by Landlord that proves to have been materially false
or deficient when made within thirty (30) days after Tenant gives Landlord, and
all Mortgagees whose names and addresses previously have been given in a notice
to Tenant, notice of such Default. However, if the material Default of which
Landlord and such Mortgagees are given notice cannot reasonably be remedied
within 30 days after Tenant's notice, an Event of Default will not occur unless
Landlord or such Mortgagees fail to promptly commence good faith efforts to
remedy the noticed Default within the 30 day period and, thereafter, fail to
diligently pursue such good faith efforts through remedy of the noticed Default.
DEFAULT EXPENSES
30. The phrase "DEFAULT EXPENSES", as used in this Lease, means all costs
and expenses reasonably incurred by Landlord or by Tenant that are in any way
connected with a Default or an Event of Default by the other party and, unless
prohibited by law, includes, without limitation, reasonable attorney fees and
litigation costs. Upon demand, Default Expenses shall be paid by the party who
caused the other party to incur the Default Expenses.
LANDLORD'S REMEDIES
31. After occurrence of an Event of Default by Tenant, Landlord, at
Landlord's option and without further notice or demand, except as provided
below in this section, may do any of the following:
a. Reenter and resume possession of the Premises without termination of
this Lease; evict, remove and put out Tenant or any other persons who might be
in possession of, or present at, the Premises, together with all personal
property found at the Premises; and attempt to relet the Premises as Tenant's
agent in an effort to mitigate Landlord's damages. Landlord shall receive the
rental income from any reletting of the Premises as Tenant's agent and shall
apply it to the payment of, first, amounts, other than rent, owed by Tenant to
Landlord under this Lease; second, to the reasonable costs of any repair,
renovation, remodeling, redecorating and advertising of the Premises, brokerage
fees and other costs associated with Landlord's efforts to relet the Premises;
and third, rent due, and to become due, under this Lease;
b. Give Tenant notice that this Lease is terminated effective the date
stated in the notice; reenter and resume possession of the Premises for
Landlord's own benefit, free of this Lease; and evict, remove and put out Tenant
or any other persons who might be in possession of, or present at, the Premises,
together with all of Tenant's Property and all other personal property found at
the Premises. If Landlord terminates this Lease, all of Tenant's obligations to
Landlord for unpaid rent and for all other sums due under this Lease through the
date of termination shall be determined as of the date this Lease is terminated
and shall be paid by Tenant to Landlord upon demand. Additionally, upon demand,
Tenant shall be obligated to pay Landlord (1) the present value, determined as
of the date this Lease is terminated and discounted at a rate per annum equal to
the interest rate on a United States Treasury obligation with a maturity equal
or closest to the remaining term of this Lease, plus two hundred (200) basis
points, of the difference between the amount of rent reserved for the balance of
the term of this Lease and the reasonable rental value of the Premises for the
same period; and (2) all costs incurred by Landlord for repair of damage to the
Premises caused by or in connection with Tenant's or any other person's
occupying or vacating the Premises after termination of this Lease. All other
obligations of Tenant that would have come due if this Lease had not been
terminated, except for Default Expenses, shall terminate as of the date this
Lease is terminated;
c. Perform any obligation of Tenant under this Lease necessary to
remedy the Event of Default by Tenant; and
d. Pursue any and all other remedies available at law or in equity that
are not inconsistent with the provisions of this Lease.
TENANT'S REMEDIES
32. After occurrence of an Event of Default by Landlord, Tenant, at
Tenant's option, without further notice or demand, except as provided below in
this section, may do any of the following: (a) perform any obligation of
Landlord under this Lease necessary to remedy an Event of Default by Landlord
and offset all costs of doing so, and all related Default Expenses and Default
Interest, by deducting the same from Base Rent, Additional Rent and other
payments Tenant then and in the future owes and will owe Landlord under this
Lease, and Tenant shall give Landlord notice of the amount of all such offset
deductions at the time rent payments are due under this Lease; (b) terminate
this Lease by giving Landlord notice that the termination will be effective on a
date stated in the notice; and (c) pursue all other remedies available to Tenant
under this Lease, or available to Tenant at law or in equity, that are not
inconsistent with the provisions of this Lease. Provided, however, if Landlord
or a Mortgagee mentioned in subsection e of the section of this Lease titled
"Default" gives Tenant notice that Landlord or such Mortgagee disagrees with the
existence of the Event of Default for which Tenant intends to exercise its
offset rights, or disagrees with the amount Tenant intends to or might offset,
and if Tenant and Landlord are not able to resolve the disagreement within ten
(10) days after Tenant receives Landlord's notice, Tenant shall not exercise the
offset rights provided in this section unless the disagreement is resolved in
Tenant's favor, in whole or in part, and only to the extent resolved in Tenant's
favor, by the procedure outlined in the last paragraph of the section of this
Lease titled "substantial completion," if the issues involve disagreements that
are the same as or similar to those covered by that paragraph, or by two
commercial real estate agents, one designated by Landlord and
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one designated by Tenant, other than an agent who manages the building, who both
specialize in management of, and regularly manage, multiple office buildings in
the general downtown/midtown area of Kansas City, Missouri that are reasonably
similar to the building and who each have the designation of Certified Property
Manager ("CPM") given by the Building Owners and Managers Association
International ("BOMA"). If those two agents are not able to resolve a particular
disagreement, a third similarly qualified commercial office real estate agent
chosen by those two agents shall be hired by Landlord and Tenant, and the
majority decision of the three agents shall be binding upon Landlord and Tenant.
The third agent shall not have any business, social or other connections with,
or bias in favor of, Landlord or Tenant or the two agents who choose him/her.
The fees of the third agent shall be shared equally by Landlord and Tenant.
Landlord and Tenant shall diligently and in good faith cooperate with each other
and the commercial real estate agents involved to resolve the disagreements as
expeditiously as possible and shall secure commitments from such real estate
agents to do the same.
REMEDIES CUMULATIVE
33. All rights, powers, privileges and remedies of each party under this
Lease, and available to each party at law or in equity, are cumulative and are
not exclusive.
WAIVER
34. A waiver by either Landlord or Tenant of any obligation, Default or
Event of Default of, or due from, the other party under this Lease shall not be
deemed or construed to be a continuing waiver of such obligation, Default or
Event of Default nor as a waiver of, or permission for, any subsequent
obligation, Default or Event of Default. No delay or failure of either Landlord
or Tenant in exercising any right, power, privilege or remedy under this Lease,
or available at law or in equity, shall affect such right, power, privilege or
remedy, or be deemed to be a waiver thereof, nor shall any single or partial
exercise thereof, or any failure to exercise the same in any instance, preclude
any further or future exercise thereof or the exercise of any other right,
power, privilege or remedy by either Landlord or Tenant. No payment by Tenant or
receipt by Landlord of a lesser amount than the rent provided for in this Lease
shall be deemed to be other than on account of the earliest due rent. Nor shall
any endorsement or statement on any check or letter accompanying any check or
payment as rent be deemed in accord and satisfaction and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of the rent or pursue any other remedy provided for in this Lease. In
connection with the foregoing, Landlord shall have the absolute right in its
sole discretion to apply any payment received from Tenant to any amount or other
payment of Tenant then not current and due or delinquent. The receipt and
acceptance by Landlord of delinquent rent shall not constitute a waiver of any
other Default, but shall constitute only a wavier of timely payment for the
particular payment involved.
SECURITY DEPOSIT
35. Tenant at the time of execution of this Lease has deposited with
Landlord the security deposit stated in section 1 of this Lease to be held by
Landlord to guarantee the faithful performance by Tenant of all of the covenants
and conditions to be kept and performed by Tenant. Said deposit shall be
deposited in a separate interest bearing money market account at a depository
institution in the metropolitan Kansas City area that is insured by the Federal
Deposit Insurance Corporation ("FDIC") and shall not be co-mingled with other
funds. Unless and until an Event of Default by Tenant occurs, the Security
Deposit, and the interest that accrues thereon, shall be the property of Tenant.
If an Event of Default by Tenant occurs, Landlord may apply the whole or any
part of such Security Deposit toward the payment of any amount which Landlord
may be required to expend by reason of the Event of Default. If, after such
application of the Security Deposit, the Event of Default is cured, Tenant shall
pay to Landlord, on demand, the amount necessary in order to restore the
Security Deposit to its original amount. In the event that Tenant shall
faithfully and fully comply with all the covenants and conditions of this Lease,
the Security Deposit, and all accrued interest thereon, shall be returned to
Tenant within thirty (30) days of the end of the Term and upon the surrender of
the Premises. In the event of any transfer of the building, Landlord, subject to
the section of this Lease titled "Assignment and Subletting," shall pay over the
Security Deposit to the transferee to be held under the covenants and conditions
of this Lease.
TENANT'S ENVIRONMENTAL PROVISIONS
36. a. Except as provided in the next subsection, Tenant shall not deposit,
install or permit to be placed or disposed upon, over, in or under the Premises
any substance deemed hazardous ("HAZARDOUS MATERIAL") by applicable laws, rules,
governmental standards, orders or regulations promulgated by the United States
of America, or any city, county, state or other governmental entity that has
jurisdiction with respect to Hazardous Material (collectively, "ENVIRONMENTAL
LAWS"). Tenant, at Tenant's cost, shall immediately remove any Hazardous
Material deposited, installed or permitted to be placed or disposed upon, over,
in or under the Premises by or on behalf of Tenant, except for the Hazardous
Material referred to in the next subsection.
b. Landlord acknowledges the Permitted Use will result in the use and
storage of Hazardous Material at the Premises related to telecommunications
equipment and the Permitted Use, including, without limitation fuel for the
Generator. Landlord consents to use and storage of such Hazardous Material at
the Premises so long as such Hazardous Material is used and stored in compliance
with Environmental Laws.
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c. Tenant shall Indemnify Landlord in connection with any voluntary or
involuntary action by, against or involving Landlord that, in any way, results
from or relates to any breach of Tenant's covenants in this section or, except
as provided in the previous subsection but including with respect to the
Generator and the fuel for same, discovery or removal of any Hazardous Material
upon, over, under, in or emanating from the Premises that was or is deposited,
installed or permitted to be placed or disposed of by or on behalf of Tenant.
LANDLORD'S ENVIRONMENTAL PROVISIONS
37. a. Landlord represents and warrants to Tenant, to the best of
Landlord's knowledge, that, prior to Tenant taking possession of the Premises,
no Hazardous Material has emanated from nor has any Hazardous Material been
disposed of, placed or left upon, over, under or in, nor removed from, the land,
the building or the Premises, and neither the land, the building or the Premises
have been used for the generation, handling, transportation or storage of
Hazardous Material, other than Hazardous Material consented to by Landlord in
the immediately preceding section.
b. Landlord shall Indemnify Tenant in connection with any voluntary or
involuntary action by, against or involving Tenant that, in any way, results
from or relates to any breach of Landlord's covenants in this section or
discovery or removal of any Hazardous Material upon, over, under, in or
emanating from the land, the building or the Premises that was deposited,
installed or placed on, disposed of from, in existence at or removed from the
land, the building or the Premises prior to Tenant taking possession of the
Premises and that was not or is not deposited, installed or permitted to be
placed or disposed of upon, over, in or under the land, the building or the
Premises by or on behalf of Tenant, whether or not Landlord has knowledge of its
presence.
REPRESENTATIONS AND WARRANTIES
38. In addition to all other representations and warranties of Landlord and
Tenant contained in this Lease, (a) each party to this Lease represents to the
other party (i) it is properly formed and constituted as a Delaware limited
liability company, in the case of Landlord, and a Delaware corporation, in the
case of Tenant, and is in good standing with the State of Delaware and is
authorized to conduct its business in the States of Missouri, and (ii) it has
full right, title, power and authority to make, execute and deliver this Lease;
(b) Tenant represents to Landlord that any financial statements delivered to
Landlord prior to the execution of this Lease properly reflect the true and
correct value of all the assets and liabilities of Tenant; (c) Landlord
represents to Tenant (i) no Mortgages, security interests or other liens
encumber the Premises, other than 1998 and subsequent years' real estate taxes
that are not now due and payable, and the matters set forth on attached Exhibit
D; (ii) no delinquency, default or uncured event of default under any obligation
secured by a lien upon the Premises exists or is anticipated, nor has notice of
the same been given to Landlord; (iii) Landlord has not received, and does not
anticipate receiving, notice that the building, the parking areas or the
Premises, or use of the same, are in violation of any Laws; (iv) Landlord knows
of no planned or contemplated taking, taxing, assessment or other action by the
City or any other governmental authority, regulatory body or court that has
jurisdiction over the building or the parking areas or by any other party that
will or might adversely affect the Premises or Tenant's above stated intended
use of the Premises; (v) a valid agreement that will not expire during, and will
be enforceable throughout, the Term exists between Landlord and the owner of the
Freight House District surface parking lot for the number of parking spaces
stated in the section of this Lease titled "Parking" and (vi) the building and
the land have not been occupied or used by any entity since the effective date
of the July 25, 1995 Phase I Environmental Site Assessment of the land and the
building performed for Landlord by Underground Environmental Services, Inc.,
except for demolition and construction activities in the building, and (d)
Landlord warrants to Tenant that, after completion of the New Improvements, the
Premises and their use as offices will comply with Laws. Tenant and Landlord
each acknowledges the other is relying upon the accuracy and completeness of the
representations and warranties made in this section. Each party to this Lease
shall Indemnify the other party in connection with any breach or the falseness
of the party's representations and warranties made in this section.
CONDITIONS PRECEDENT
39. The effectiveness and enforceability of Tenant's obligations under this
Lease are contingent upon the following:
a. Receipt by Tenant, prior to the Commencement Date, of certificates
of insurance evidencing Landlord has secured and paid the premiums for all of
the insurance coverages it is required to carry under this Lease and, if
requested by Tenant, a copy of each insurance policy;
b. By the Commencement Date, each Mortgagee that exists on the
Commencement Date and Tenant executing an SNDA in a form reasonably acceptable
to Tenant and the Mortgagee;
c. Landlord's completion of the New Improvements, in accordance with
the time frames and the standards established in this Lease; and
d. By the Commencement Date, Landlord executing and delivering to
Tenant a Memorandum of Lease in a form reasonably acceptable to Tenant and
Landlord.
40. The effectiveness and enforceability of Landlord's obligations under
this Lease are contingent upon the following:
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a. Receipt by Landlord, prior to the Commencement Date, of certificates
of insurance evidencing Tenant has secured and paid the premiums for all of the
insurance coverages it is required to carry under this Lease and, if requested
by Landlord, a copy of each insurance policy;
b. By the Commencement Date, each Mortgagee that exists on the
Commencement Date and Tenant executing an SNDA in a form reasonably acceptable
to Tenant and the Mortgagee;
c. Landlord's completion of the New Improvements, in accordance with
the time frames and the standards established in this Lease
SURVIVAL
41. All of Landlord's and Tenant's respective (a) Indemnity and REALTOR
commission payment obligations contained in this Lease, (b) representations and
warranties made in this Lease, (c) other obligations under this Lease that have
accrued as of the date this Lease is terminated or expires and (d) remedies
provided for in this Lease shall survive termination or expiration of this
Lease.
HEADINGS
42. The titles and headings in the Lease are used only to facilitate
reference, and in no way to define or limit the scope or intent of any of the
provisions of this Lease.
ENTIRE AGREEMENT-AMENDMENTS
43. This Lease constitutes the entire agreement between the parties with
respect to the building, the parking areas and the Premises, and this Lease
covers, merges and includes all agreements, oral or written, between the parties
hereto, whether made prior to or contemporaneous with the execution of this
Lease, concerning the building, the parking areas and the Premises. This Lease
cannot be modified or changed by any verbal statement, promise or agreement, and
no modification, change nor amendment shall be binding on the parties unless it
shall have been agreed to in writing. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine, neuter, singular or plural,
as the identity of the person or persons may require.
SEVERABILITY
44. In the event any provisions of this Lease be officially found to be
contrary to law, or void as against public policy or otherwise, such provisions
shall be either modified to conform to the law or considered severable with the
remaining provisions hereof continuing in full force and effect.
PROCUREMENT NEGOTIATED BY
45. It is understood by the parties hereto that this Lease has been
negotiated by ▇▇▇▇▇ ▇. ▇▇▇▇, ("REALTOR"). REALTOR has acted in the capacity of
Agent for Tenant. Landlord and Tenant acknowledge REALTOR and no other was the
procuring cause of this Lease. Landlord shall pay REALTOR, and no other, a
commission of three percent (3%) of the gross Base Rent for the initial Term,
half of which shall be paid to REALTOR at the time this Lease has been signed by
Landlord and Tenant, and the other half of which shall be paid to REALTOR on the
Commencement Date.
MEMORANDUM
46. Neither party to this Lease shall record this Lease. However, Landlord
shall execute and deliver to Tenant a Memorandum of Lease in form and with
content sufficient for recording to provide constructive notice of the existence
of this Lease, without disclosing the rent provisions, which Tenant may record
at its cost.
SUCCESSORS AND ASSIGNS
47. All the covenants, agreements and conditions herein contained shall
extend to, and be binding upon, the respective successors, assigns, receivers or
other representatives of the parties to this Lease.
NOTICES
48. All notices, designations, consents, approvals, requests, demands,
objections, waivers, agreements or other communications (collectively,
"NOTICES") that are required to be sent, delivered, given, made, maintained or
obtained pursuant to this Lease shall be in writing and shall be served by (a)
hand delivery by a party to this Lease if the other party or its representative
acknowledges receipt in writing, (b) prepaid certified United States mail,
return receipt requested, (c) a delivery service that provides documentation of
the delivery
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or (d) telecopier, with a copy sent the same day by either prepaid certified
United States mail, return receipt requested, or by a delivery service that
provides documentation of the delivery. All notices shall be addressed to the
Landlord at the address stated in section 1 of this Lease and to Tenant at the
Premises. Either party may, by notice in the manner provided above, change its
address for all subsequent notices. Notices shall be deemed served and received
upon the earlier of the third (3rd) day following the date of mailing, in the
case of notices mailed by United States certified mail, or upon delivery in all
other cases. Failure or refusal by a party to this Lease to accept service of a
notice shall constitute delivery of the notice.
TIME OF THE ESSENCE
49. Time is of the essence of this Lease.
EXHIBITS
50. All Exhibits that are referred to in and that are attached to this
Lease are hereby incorporated into this Lease.
CONSENTS AND APPROVALS
51. Neither party to this Lease shall unreasonably withhold, condition or
delay any consent or approval with respect to any matter for which the a party
is required or desires to obtain the other party's consent or approval under
this Lease. If the required consent or approval is withheld, the reasons for
doing so shall be stated promptly in writing. Landlord shall exercise its
discretion with respect to all matters provided for in this Lease in a manner
which reasonably recognizes the legitimate business interests and concerns of
Tenant, including but not limited to, Tenant's need to utilize the Premises in a
commercially feasible fashion.
SUPPLEMENTAL PROVISIONS
52. a. This Lease shall be construed and enforced in accordance with the
laws of the State of Missouri.
b. A directory shall be maintained in the lobby of the building by
Landlord, with the names and suite numbers of the tenants in the building
properly numbered and lettered, but if changed or added to at the request of
Tenant, Tenant shall pay the cost of same. Door signs approved by Landlord and
Tenant shall be ordered by Landlord and installed in locations agreed to by
Landlord and Tenant. Tenant will not attach to the doors or hallways any signs
or logos other than the standard building type, without Landlord's prior written
consent.
c. Upon Landlord's request, Tenant shall furnish Landlord with its most
recently audited financial statements, but not more frequently than once a year,
so long as release of such statements does not violate applicable securities
laws or court order.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed by
their duly authorized undersigned representatives, in two originals, on date(s)
indicated below, to be effective as of the date stated at the beginning of this
Lease.
LANDLORD: TENANT:
FRANCOR, L.L.C., BIRCH TELECOM, INC.,
a Delaware limited liability company, a Delaware corporation,
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------ ---------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------ ---------------------------
Title: Member Title: President
------------------------------ ---------------------------
Date: 7/20/98 Date: July 17, 1998
------------------------------ ---------------------------
CERTIFICATE
I, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the Secretary of Birch Telecom, Inc., Tenant, hereby
certify that the officer executing the foregoing Lease on behalf of Tenant was
duly authorized to act in his capacity as President of Tenant, and his actions
are the action of Tenant.
(Corporate Seal) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Secretary
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EXHIBIT A
SPECIFICATIONS FOR IMPROVEMENTS TO BE MADE TO THE BUILDING
a) Building and Premises to meet all city code requirements for
entrance/egress and life/safety issues (modifications required due to
Tenant Improvements not included);
b) Building and Premises to meet all federal Americans with Disabilities
and similar State of Missouri and City of Kansas City requirements;
c) Two (2) finished fire-rated exit stairs;
d) New passenger elevator;
e) Freight elevator, connected to rear loading dock;
f) Mechanical rooms on the second and fourth floors to contain telephone
service panel and electrical and mechanical equipment for the Premises;
g) Electrical and HVAC brought to mechanical room, ready for distribution;
h) Water, drain and vent lines stubbed-out for restrooms;
i) Fully functioning sprinkler system, pipes sandblasted and sealed
(modifications required due to Tenant Improvements not included);
j) Exposed, sandblasted and sealed brick exterior walls;
k) Exposed wood ceilings, sandblasted and sealed;
l) Refinished hardwood floors;
m) Fully operational wooden sash windows (in existing penetrations),
complete with hardware.
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EXHIBIT B
SPECIFICATIONS FOR IMPROVEMENTS TO BE MADE TO THE PREMISES
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EXHIBIT C
MINIMUM JANITORIAL SERVICE SPECIFICATIONS FOR THE PREMISES
DAILY
a. Pull trash and remove it to area of the Property designated by
Landlord;
b. Replace plastic trash can liners if wet or torn;
c. Vacuum all high traffic carpeted areas;
d. Dust mop all wood and other hard surface floors;
e. Spot mop all wood and other hard surface floors with a wet mop that
has been wrung dry;
f. Clean and disinfect drinking fountains; and
g. Thoroughly clean the restrooms, including, without limitation:
i. Sanitize all fixtures;
ii. Polish bright work;
iii. Mop floors;
iv. replace all paper products and soap.
WEEKLY
a. Thoroughly vacuum all carpeted areas;
b. Dust all horizontal surfaces, excluding computer equipment, without
having to move items on such surfaces;
c. Edge vacuum along all baseboards, filing cabinets, desks and other
furniture and equipment and in all corners;
MONTHLY
a. Wash all restroom partition walls with disinfectant;
b. Dust all window blinds;
c. Dust all window ▇▇▇▇▇;
d. Dust all vertical surfaces and the front and backs of all doors and
cabinets; and
e. Low dusting of all chairs, tables and other furniture.
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EXHIBIT D
LIENS AND ENCUMBRANCES ON THE LAND
Those matters noted in Scheduled B-1 and B-2 of the title insurance commitment,
dated February 16, 1998, issued for the land by Assured Quality Title Company
under commitment number MJ19860, Revision No.-1, and the Deed of Trust granted
to Missouri Bank and Trust by Landlord.
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EXHIBIT E
RULES AND REGULATIONS
1. The common areas of the building shall not be obstructed by Tenant or
used for any purpose other than for ingress and egress.
2. Landlord shall have the right to control and operate the common areas
of the building, as well as facilities or services furnished for the
common use of tenants, in such manner as it deems best for the benefit
of the tenants generally.
3. Tenant shall cooperate with Landlord in the creation of a "Plan of
Action For Evacuation Assistance" from the Premises and the building
acceptable to the Codes Administration Department of the City of Kansas
City, and shall faithfully adhere to and abide by the terms of the
Plan.
4. The Premises shall not be used for any illegal, improper, objectionable
or immoral purposes. Landlord reserves the right to exclude or expel
from the building any person who, in the judgment of Landlord, is
intoxicated or under the influence of liquor or drugs, or who shall in
any manner do any act in violation of any of the Rules and Regulations
of the building.
5. Tenant shall not disturb, solicit or canvass any occupant of the
building.
6. Tenant shall not keep any pets or other animals in the Premises without
the prior written consent of Landlord.
7. Tenant acknowledges and understands that the timber frame construction
of the building makes it likely that noise and vibration emanating both
from within and outside the building will be perceived in the Premises
from time to time. Tenant will at all times be considerate of
neighboring tenants, and use its best efforts to prevent excessive,
unwarranted or repetitive noise and vibration within the Premises and
the building.
8. There shall be no smoking in the Common Areas of the building. Landlord
reserves the right to prohibit smoking in the Premises at any time upon
written notice to Tenant.
9. Tenant shall not overload the floor of the Premises or in any way
deface the Premises or any part thereof.
10. Tenant shall not use the freight elevators for routine access to or
egress from the Premises, but only for delivery and removal of freight,
furniture and equipment.
11. All moving of furniture, freight or equipment into or out of the
building shall be done at such time and in such manner as Landlord
shall reasonably designate. Landlord shall have the right to prescribe
the weight, size and position of all heavy equipment brought into the
building.
12. Tenant shall not use or keep in the Premises or the building any
kerosene, gasoline or inflammable or combustible fluid or material
without the prior written consent of Landlord, other than for Tenant's
Generator.
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