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EXHIBIT 10.18
OFFICE BUILDING LEASE
WITNESSETH, that for and in consideration of mutual covenants, Landlord
and Tenant hereby agree as follows:
SECTION A - BASIC LEASE DEFINITIONS.
DATE OF LEASE: January 27, 1999
LANDLORD: ON-SITE MANAGER:
Belletower Partners, L.L.C. CRES Management Company
4528 Belleview
Kansas City, Missouri 64111
TENANT:
Golden Sky Systems, Inc.
BUILDING: The multiple story building at 4700 Belleview, Kansas City,
Missouri 64112, which contains a total of approximately 81,917 net rentable
feet.
BUILDING LAND: The land described on Exhibit "A" attached hereto and
incorporated herein by this reference.
TOTAL BUILDING FACILITIES: The Building Land and the Building, and
other improvements now existing or hereafter constructed on the Building Land.
PREMISES: The premises located on the entire third floor, Suite 203 on
the second floor, and the entire B level of the building which is outlined in
red on Exhibit "B" and which contains a total of 34,861 net rentable square feet
of space and which shall be commonly known as Suite 300.
LEASE TERM: The term of this Lease shall commence on March 1, 1999 or
upon substantial completion and end on August 31, 2002 or forty-two (42) months
from Commencement Date. Tenant shall have immediate access upon full lease
execution for suite improvement work to be coordinated through Landlord.
RENT COMMENCEMENT DATE: The date the Premises are substantially
complete and delivered to Tenant. The term "substantially complete" shall mean
the date that the Improvements have been completed so that the Premises can be
used for their intended purposes, with the exception of items which do not
materially interfere with Tenant's use of the Premises.
ESTIMATED COMPLETION DATE: March 1, 1999
BASE RENT: Tenant shall pay to Landlord as Base Rent for the Premises
the following sums over the Lease Term:
$47,400.00 Monthly; $568,800.00 Annually; $16.32 Per Rentable Square
Foot
TENANT'S PERCENTAGE OF EXCESS TOTAL EXPENSES: 42.56% (which percentage
is calculated by dividing the net rentable square footage of the Premises by the
net rentable square footage of the Building).
BASE EXPENSES: 1999 calendar base year expenses. Tenant shall be
responsible for its full pro rata share of any and all increases in utilities,
real estate taxes and insurance associated with the Building. No deduction or
exclusion shall be made by reason of interior partitions or other interior
construction or equipment.
PERMITTED USES: General business office
SECURITY DEPOSIT: $47,400.00
ESTIMATED COMPLETION DATE: March 1, 1999
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STATE: Missouri
METROPOLITAN AREA: Kansas City
TOTAL EXPENSES AND TENANT'S EXPENSE CHARGE: As those terms are defined
in Section 4 of the Lease.
Each reference in this Lease to any of the foregoing Basic Lease Definitions
shall be deemed to incorporate all of the terms provided under each such Basic
Lease Definition.
SECTION B - ENUMERATION OF EXHIBITS.
The Exhibits enumerated in this Section and attached to this Lease are
hereby incorporated in this Lease by this reference, and each party agrees to
perform all obligations binding upon it under such Exhibits.
Exhibit "A" Legal Description of Building Land.
Exhibit "B" Plan delineating the Premises.
Exhibit "C" Plan and estimated construction bid
highlighting the specifications of Tenant's
desired improvements to be performed by Landlord
per this Lease document and Addendum.
1. PREMISES. Landlord hereby leases the Premises to Tenant, and Tenant
hereby rents the Premises from Landlord.
2. CONSTRUCTION OF IMPROVEMENTS. Landlord agrees to perform the
Landlord's Work in the Premises described on Exhibit "C" attached hereto.
Landlord shall endeavor to substantially complete Landlord's Work by the
Estimated Completion Date set forth in Section A - Basic Lease Definitions, but
Landlord shall have no liability whatsoever for failure to complete Landlord's
Work by the Estimated Completion Date, nor shall Tenant have any rights
hereunder on account of such failure. Entry into possession of the Premises
shall be deemed conclusive approval by Tenant of all of Landlord's Work except
for items thereof which are not completed or do not conform to Exhibit "C" and
as to which Tenant shall have given notice to Landlord within sixty (60) days
after the Rent Commencement Date.
3. RENT. Tenant shall, commencing with the Rent Commencement Date and
thereafter during the Lease Term, pay Landlord the Base Rent specified in
Section A - Basic Lease Definitions, without demand or any right of set-off or
deduction whatsoever. The Base Rent shall be paid in equal monthly installments
on the first day of each calendar month in advance at the address of Landlord
set forth in Section A - Basic Lease Definitions, or at such other place as
Landlord may from time to time designate. Base Rent shall be prorated for any
fractional calendar month. In addition to the Base Rent herein provided, Tenant
shall pay as additional rent all charges required to be paid by Tenant under
this Lease, whether or not designated as "additional rent."
4. TOTAL EXPENSE ESCALATION; ADDITIONAL RENT.
(A) The term "Total Expenses" shall mean the sum of (i) the
"Operating Expenses" (as defined in paragraph (C) of this Section) plus (ii) the
"Taxes" (as defined in paragraph (D) of this Section).
(B) For each calendar year falling wholly or partially within
the term of this Lease after the Rent Commencement Date in which the Total
Expenses shall exceed the 1999 calendar Base Year Expenses, "Base Expenses,"
Tenant shall pay a portion of such excess amount ("Excess Total Expenses")
determined by multiplying the Excess Total Expenses for such calendar year by
Tenant's percentage of Excess Total Expenses (such amount to be paid by Tenant
being herein called "Tenant's Expense Charge"). Tenant's Expense Charge for each
calendar year shall be reasonably estimated by Landlord from time to time, and
Tenant shall pay the amount so estimated to Landlord in monthly installments on
the first day of each calendar month in advance. Within a reasonable period of
time following the end of each calendar year during the term of this Lease after
the Rent Commencement Date in which there shall be Excess Total Expenses,
Landlord shall furnish Tenant with a statement in reasonable detail of the Total
Expenses for such calendar year and, within thirty (30) days after its receipt,
Tenant shall pay Landlord, any further amount of Tenant's Expense Charge shown
to be due by the statement. If such statement shall disclose that Tenant shall
have overpaid Tenant's Expense Charge for such calendar year, such overpayment
shall be applied against the next ensuing payment(s) of Tenant's Expense Charge
or upon the expiration of the Lease Term refunded to Tenant if Tenant has
discharged all of its obligations under the Lease. Landlord shall maintain the
books and records with
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respect to the Total Expenses in accordance with sound real estate accounting
principles and management practices. Tenant shall have the right to review,
audit and copy the books and records, at Tenant's expense, and Landlord agrees
to make them available to Tenant at reasonable times and locations, to determine
the accuracy of Landlord's Total Expense calculations.
(C) The term "Operating Expenses" shall include the total
costs and expenses incurred by Landlord in operating and maintaining the
Building and Building Land including, without limitation, the cost and expense
of the following: snow removal, gardening, landscaping, planting, replanting,
and replacing flowers and shrubbery; cleaning, striping, and resurfacing of
parking areas; public liability, property damage, and fire insurance with such
extended coverage, loss of rental and other endorsements as Landlord may, from
time to time, deem necessary, plus "all risk" or "DOC" insurance; repairs and
maintenance, painting and decorating of common areas; electricity (exclusive of
electrical service furnished to rentable space in excess of that normally
provided by Landlord and for which Landlord receives payment specifically
therefor from the occupant of such space), water, gas and other utilities
(including, without limitation, all capital expenditures intended to reduce the
cost of utilities); maintenance and replacement of fixtures and bulbs; elevators
and service contracts thereon; parking operation systems, and regulating
automobile and pedestrian traffic; sanitary control; extermination, removal of
rubbish, garbage and other refuse; security systems and policing of the Building
and Building Land; sewer charges; machinery and equipment used in the operation
and maintenance of the common areas (including the costs of inspection and
depreciation thereof but not the capital cost thereof); replacement of paving,
curbs and walkways and drainage facilities; maintenance and repair of covered
pedestrian walkways and draining facilities; maintenance and repair of covered
pedestrian walkways, if any, connecting the Building with other buildings; music
program service and loud speaker systems; heating, ventilating and air
conditioning the Building; cleaning and janitorial services; maintenance of
decorations, lavatories and elevators; maintenance and repair of all doors and
glass in common areas and Building roof and exterior walls and glass;
landscaping and fire sprinkler systems; cost of personnel (including security
personnel) directly involved in implementing all of the aforementioned
(including fringe benefits and workmen's compensation insurance covering
personnel); plus an amount equal to 15% of the total of all of the foregoing as
an agreed-upon reimbursement covering the fee and administrative costs to be
incurred by Landlord in connection with the administration of the Operating
Expenses. Notwithstanding the aforesaid, Operating Expenses shall not include
capital expenditures determined in accordance with generally accepted accounting
principles, consistently applied, nor any major repair, maintenance or
replacement unless amortized over its useful life.
(D) (1) The term "Taxes" as used in this Section shall
mean for each calendar year falling wholly or partially within any Lease Year,
all real estate taxes, assessments, water and sewer rents and other governmental
impositions and charges of every kind and nature whatsoever, extraordinary, as
well as ordinary, foreseeable and unforeseeable (including, without limitation,
assessments for public improvements or benefits and interest on unpaid
installments thereof), and each and every installment thereof which shall or may
during any Lease year be levied, assessed, imposed, become due and payable, or
liens upon or arising in connection with the use, occupancy or possession of or
grow due or, be payable out of, or for, the Building and Building Land or any
part thereof (including leasehold improvements, betterments and other permanent
improvements). A tax bill or copy thereof submitted by Landlord or Tenant shall
be conclusive evidence of the amount of Taxes or installment thereof.
(2) Taxes shall not include any inheritance, estate,
succession, transfer, gift, franchise, corporation income or profit tax or
capital levy that is or may be imposed upon Landlord; provided, however, that
if, at any time during the term of this Lease, the method of taxation prevailing
at the execution of this Lease shall be altered so that in lieu of or as a
substitute of the whole or any part of the taxes now levied, assessed or imposed
on real estate as such, there shall be levied, assessed or imposed (i) a tax on
the rents received from real estate, or (ii) a license fee measured by the rent
receivable by Landlord or for the Building and Building Land or any portion
thereof or (iii) a tax or license fee imposed on Landlord which is otherwise
measured by or based, in whole or in part, upon the Building and Building Land
or any portion thereof or (iv) any other tax or levy imposed in lieu of or as a
supplement to Taxes which are in existence as of the date of execution of this
Lease, then the same shall be included in the computation of Taxes hereunder,
computed as if the amount of such tax or fee so payable were that due if the
Building and Building Land were the only property of Landlord subject thereto.
(E) For any partial calendar years which fall within the first
and last Lease Years, (i) Tenant's Expense Charge shall be prorated and (ii) the
Base Expenses shall, for the purpose of applying the provisions of paragraph (B)
of this Section, be reduced to an amount computed by multiplying the Base
Expenses by a fraction, the numerator of which is the number of days in such
calendar year falling within the first and last Lease Year, as the case may be,
and the denominator of which is 360 days.
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5. LATE CHARGE. If Tenant shall fail to pay any rent or other monetary
obligation payable under this Lease within 10 days after notice that the same is
due and payable, Tenant shall pay Landlord interest on the past due amount at a
rate of interest equal to the lesser of (i) the highest lawful rate of interest
per annum that may be charged to Tenant under the laws of the State of Missouri,
or (ii) the rate of twelve percent (12%) per annum, from the due date to the
date of payment. The interest shall begin to accrue on the date which is
twenty-four (24) hours after Tenant receives written notice of delinquent
payment.
6. SECURITY DEPOSIT. Simultaneously herewith, Tenant has delivered to
Landlord the amount designated as Security Deposit in Section A - Basic Lease
Definitions. The Security Deposit shall be held, without interest, as an
unsegregated fund as security for the performance by Tenant of the provisions of
this Lease. The Security Deposit shall not be considered as liquidated damages
in the event of default by Tenant. If any part or all of the Security Deposit
shall be applied to cure a default on the part of Tenant, (i) such application
of the Security Deposit shall not constitute a waiver of such default or deprive
Landlord of any other remedy Landlord may have on account of any such default,
and (ii) Tenant shall immediately restore the Security Deposit to its full
original amount. Should Tenant comply with all of the provisions of this Lease
binding on Tenant, the Security Deposit shall be returned in full to Tenant at
the expiration of the term; PROVIDED, HOWEVER, (i) Landlord may deliver the
Security Deposit to the purchaser of Landlord's interest in the Building and
Building Land in the event that such interest is sold, and thereupon Landlord
shall be discharged from any further liability with respect to such Security
Deposit.
7. USE. Tenant shall use the Premises solely for the Permitted Uses set
forth in Section A Basic Lease Definitions, and for no other use or purpose
whatsoever.
8. ASSIGNMENT AND SUBLETTING.
(A) Tenant shall not, voluntarily, involuntarily or by
operation of law including bankruptcy law, assign or encumber this Lease, in
whole or in part, nor shall Tenant sublet all or any part of the Premises
without the prior consent of Landlord in each instance. Tenant may sublease or
grant use of Lease Premises or assign this Lease to (i) any entity that
controls, is controlled by or is under control with Tenant; (ii) any entity
resulting from the merger or consolidation with Tenant or to any entity that
acquires all Tenant's assets as a going concern of the business being conducted
on the Premises, as long as the assignee or sublessee is a bona fide entity of
equal or greater net worth and assumes the obligation of Tenant. In addition,
Tenant may assign this Lease and/or encumber the leasehold estate created by
this Lease to any secured creditors of Tenant.
(B) If Landlord conveys or transfers its interest in the
Building and Building Land, upon such conveyance or transfer, Landlord (and in
the case of any subsequent conveyances or transfer, the then grantor or
transferor) shall be entirely released from all liability with respect to the
performance of any obligations on the part of Landlord to be performed hereunder
from and after the date of such conveyance or transfer.
9. SUBORDINATION; ATTORNMENT. Upon the written request of the holder of
any mortgage deed of trust or similar evidence of security (hereinafter
"Mortgagee") now or hereafter encumbering the Building and Building Land, or any
part thereof, Tenant shall subordinate its rights under this Lease to the lien
of such mortgage. Notwithstanding the foregoing, if the Mortgagee elects to have
this Lease superior to its mortgage, then upon Mortgagee's request, Tenant shall
execute, acknowledge and deliver an instrument, in the form used by said
Mortgagee, effecting such priority. In the event proceedings are brought for the
foreclosure of, or the exercise of a power or sale under, any such mortgage, or
in the event of a conveyance of the Building, Tenant shall attorn to the
purchaser and recognize such purchaser as Landlord under this Lease. Tenant,
upon Landlord's request, shall execute, acknowledge and deliver such instruments
as are required to effect the intent of this paragraph. Notwithstanding the
aforesaid, Tenant's obligation to subordinate to any Holder of a Deed of Trust
shall apply only if such Holder agrees to provide standard and customary
non-disturbance agreements in favor of Tenant. Landlord will use its best
efforts to obtain from the Holder of any current Deed of Trust a non-disturbance
agreement in favor of Tenant.
10. ESTOPPEL CERTIFICATE. Tenant agrees to execute, acknowledge and
deliver to and in favor of any proposed Mortgagee or purchaser of the Building,
within ten (10) days after written request by Landlord an estoppel certificate,
in such form as is from time to time reasonably prescribed by Landlord regarding
the status of performance of this Lease.
11. SERVICES TO BE PERFORMED BY LANDLORD. Landlord shall furnish the
following services to Tenant.
(A) Air conditioning, ventilation and heating as required (in
Landlord's reasonable judgement) for comfortable use and occupancy under normal
office conditions, from 8:00 AM to 6:00 PM,
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Monday through Friday, and from 8:00 AM to 2:00 PM on Saturdays, but not on
Sundays or legal holidays; PROVIDED, HOWEVER, Landlord shall have the right to
change such hours and days of operation on reasonable prior notice to Tenant.
(B) Water for drinking, lavatory and toilet purposes (but this
shall not be construed as requiring Landlord to install plumbing facilities in
the Premises).
(C) Janitor service for the Premises which shall include only
the dusting of ceiling light fixtures and air grills, the washing of windows,
the sweeping and cleaning of floors (exclusive of rug shampooing and spot
removal) and the disposal of non-biohazard waste.
(D) Electrical energy for the Premises; PROVIDED, HOWEVER, in
the event the electrical energy estimated by Landlord's engineer, from time to
time during the terms of this Lease, to be used in the Premises, shall exceed
three (3) watts per square foot, Tenant shall pay Landlord the increase in cost
incurred by Landlord, as determined by Landlord's engineer, in furnishing to
Tenant such excess electrical energy, such amount to be paid monthly as
additional rent, together with Tenant's monthly installment of Base Rent.
(E) Self-operated passenger elevator service.
No interruption or malfunction of any of such services shall constitute an
eviction of Tenant or a breach by Landlord of any of its obligations hereunder
or render Landlord liable for damages or entitle Tenant to be relieved from any
of its obligations hereunder (including its obligation to pay Base Rent,
additional rent and other charges) or create in Tenant any right of set-off or
recoupment. In the event of any such interruption, Landlord shall use reasonable
diligence to restore such service. Notwithstanding the aforesaid, if the
Premises is rendered wholly or partially untenantable for Tenant's business by
reason of the complete failure of any essential service for a period of ten
days, Tenant shall have the option of having the Base Rent and Additional Rent
equitably abate. If the Premises is rendered wholly untenantable for Tenant's
business by reason of the complete failure of any essential service for a period
of thirty (30) days, Tenant shall have the further option to terminate this
Lease.
12. REPAIR AND MAINTENANCE.
(A) Tenant shall take good care of the Premises, and the
fixtures and equipment therein, and shall comply with all federal, state,
municipal and other laws, ordinances, rules and regulations applicable to the
Premises and the business conducted therein, and with any rules adopted from
time to time by Landlord or recommended by Landlord's insurance carriers.
(B) Subject to the provisions of Section 15 and 16, Landlord
shall make or cause to be made all necessary repairs to the Building and to the
Premises, except where the repair is made necessary or aggravated by misuse or
neglect by Tenant, its agents, servants, contractors, subtenants or invitees, in
which event Tenant shall make such repair with due diligence and at its sole
cost, Landlord shall not be deemed to have breached its obligation to make the
repairs required to be made by Landlord hereunder unless Landlord fails to make
the same within a reasonable period (taking into consideration the type of
repair involved) after receiving notice from Tenant of the need therefor.
Landlord does agree to maintain the Building in a manner consistent with similar
office buildings in the Plaza area of Kansas City, and Landlord should agree to
comply with all laws, etc. applicable to the Building.
13. INDEMNITY; INSURANCE; MECHANICS LIENS.
(A) Tenant shall indemnify and hold Landlord harmless from and
against any and all actions, claims, demands, costs (including reasonable
attorney's fees), damages or expenses of any kind which may be asserted against
or incurred by Landlord as the result of any occurrence in or about the
Premises, the Building, or the Building Land, or by reason of Tenant's use or
occupancy of the Premises, or by reason of the failure of Tenant to perform any
of its obligations under this Lease, including Tenant's agents, employees,
invitees, contractors, successors or permitted assigns. Tenant agrees to
maintain during the term, comprehensive general public liability insurance under
which Landlord and Tenant are named as insureds, with minimum policy limits of
$2,000,000.00 bodily injury, and $500,000.00 property damage, and containing a
contractual endorsement covering Tenant's indemnity obligations under this
paragraph. A current certificate of such insurance shall be deposited with
Landlord at all times which shall provide that such insurance may not be
altered, terminated, non-renewed or permitted to lapse without at least ten (10)
days prior written notice to Landlord.
(B) Tenant shall not suffer any mechanics' or materialmen's
lien to be filed against the Premises or the Building and Building Land or any
part thereof by reason of work, labor, services or materials performed or
furnished to Tenant or anyone holding the Premises under Tenant. Notwithstanding
the aforesaid, Tenant shall have the right to contest the validity or amount of
any such lien by appropriate proceedings diligently pursued by Tenant.
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(C) Anything in the Lease to the contrary notwithstanding, it
is agreed that each party (the "Releasing Party") hereby releases the other (the
"Released Party") from any liability which the Released Party would, but for
this paragraph (C), have had to the Releasing Party during the term of this
Lease, resulting from the occurrence of any accident, or occurrence or casualty
which is covered by casualty or property damage insurance being carried by the
Releasing Party at the time of such occurrence, which accident, occurrence, or
casualty may have resulted in whole or in part from any act or neglect of the
Released Party, its officers, agents or employees; PROVIDED, HOWEVER, the
releases hereinabove set forth shall become inoperative, null and void if the
Releasing Party wishes to place the appropriate insurance with an insurance
company which (i) takes the position that the existence of such release vitiates
or would adversely affect any policy so insuring the Releasing Party in
substantial manner and notice thereof is given to the Released Party, or (ii)
requires the payment of an unreasonably higher premium by reason of the
existence of such release, unless in the latter case the Released Party within
ten (10) days after notice thereof from the Releasing Party pays such
unreasonable increase in premium.
14. LIABILITY OF LANDLORD. Landlord shall not be liable for damage to
any property or injury to any person in or on the Premises resulting from the
condition of the Premises or the Building, or from the act or omission of Tenant
or of any other tenant, or from the bursting or leaking of any pipes, utility
lines, equipment or apparatus in, on or about the Premises or the Building or
any part thereof, from water, rain or snow which may leak into, issue or flow
from any part of the Building, or due to fire, explosion, action of the
elements, or other casualty, or due to any lack of, or failure to provide,
security with respect to the Building or any part thereof, and Tenant hereby
releases Landlord from any liability which Landlord would otherwise have
therefor. Notwithstanding the aforesaid, Landlord shall be liable for damage
resulting from Landlord's or its agent's or contractor's gross negligence or
willful acts. Tenant shall give Landlord prompt written notice of any accident
to or defect in the Premises or the Building or any portion thereof of which
Tenant has knowledge. Notwithstanding the foregoing, Landlord's liability shall
be limited in all cases where such liability exists to the assets constituting
the Building, the Building Land, and all improvements now existing or thereafter
constructed thereon.
15. FIRE OR OTHER CASUALTY. If the Premises or the Building shall be
damaged or destroyed by fire or other casualty, then Landlord shall repair or
restore the Premises and the Building with reasonable diligence (subject to
delays caused by reason of strikes, lockouts, labor troubles, inability to
procure materials, failure of power or other reasons of a like nature not the
fault of Landlord), and during the period of such restoration or repair the Base
Rent shall equitably abate to the extent the Premises are materially affected
thereby; PROVIDED, HOWEVER, in the event of any such casualty damage renders the
Premises or the Building partially or totally untenantable ( in Landlord's sole
judgement) Landlord shall have the right to terminate this Lease by giving
notice thereof to Tenant within thirty (30) days following the occurrence of
such casualty, and if Landlord so elects, (i) Landlord shall have no obligation
to repair or restore the Premises or the Building, (ii) this Lease shall
automatically terminate as of the day of such notice, (iii) the Base Rent,
additional rent and other charges shall be adjusted as of the date of the
occurrence of such casualty and (iv) neither party shall have any liability by
reason of such termination. In the event Landlord intends to restore, it shall
notify Tenant within thirty (30) days of the date of damage. If restoration
cannot reasonably be completed within one hundred twenty (120) days of the date
Landlord notifies Tenant of its intention to restore, Tenant shall have the
option to terminate the Lease by written notice to Landlord unless Landlord
provides Tenant comparable quality and size office space reasonably acceptable
to Tenant.
16. EMINENT DOMAIN. If the Premises, the Building or the Building Land
or any part thereof, shall be permanently taken by eminent domain, or conveyed
in lieu thereof, Landlord shall have the right to terminate this Lease by giving
written notice thereof to Tenant, and if Landlord so elects, this Lease shall
cease, and the charges payable hereunder shall be adjusted, as of the date
thirty (30) days following the giving of such notice. If this Lease is not
terminated, then Landlord shall repair any damage to the Premises, the Building
or the Building Land, this Lease shall continue in full force and effect, and
the Base Rent, additional rent and other charges shall not be abated or reduced,
except if a portion of the Premises is permanently taken in which event the Base
Rent and other charges shall be reduced in proportion to the amount of net
useable footage of the Premises so taken. Irrespective of whether this Lease is
terminated, Landlord shall receive the entire condemnation award, and Tenant
hereby assigns to Landlord all of Tenant's interest therein. Notwithstanding the
aforesaid, Tenant shall be entitled to any award for moving costs, lost
leasehold interest or other award which does not affect Landlord's award.
17. SURRENDER AND ALTERATIONS.
(A) On the last day of the term, or on the sooner termination
thereof, Tenant shall, (i) subject to the provisions of Section 15, peaceably
surrender the Premises in good order and repair (subject to Landlord's
obligations under paragraph (B) of Section 12), except for reasonable wear and
tear, and any casualty damage, and (ii) at its expense, remove from the Premises
its office supplies,
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moveable office furniture and equipment and personal property ("Tenant's
Property"). Any of Tenant's Property not so removed may, at Landlord's option
and without limiting Landlord's right to compel the removal thereof, be deemed
abandoned and retained by Landlord.
(B) The title to all alterations, additions, improvements,
repairs and decorations (including paneling, wall coverings, wall to wall
carpeting, view boxes, cabinets and any other article affixed to the walls,
floors, ceilings, or windows), shall vest in Landlord upon the installation
thereof and shall be surrendered with the Premises as part thereof, without
charge.
(C) Tenant shall not make any alterations, additions or
improvements to the Premises without the prior written consent of Landlord in
each instance.
18. ACCESS TO PREMISES. Landlord, its agents and employees, shall have
the right to enter the Premises at any time for any purpose deemed reasonable by
Landlord. Landlord expressly reserves the right to run necessary pipes, conduits
and ducts through the Premises and to carry on work in the vicinity thereof, and
Tenant hereby waives any claim for damages, inconvenience or constructive
eviction caused by reason thereof. Notwithstanding the aforesaid, Landlord
agrees to use reasonable efforts to minimize interference with Tenant's business
operations.
19. DEFAULT AND REMEDIES.
(A) Each of the following shall constitute an "Event of
Default":
(1) If Tenant shall fail to pay when due any Base
Rent, additional rent or other monetary obligation payable by Tenant under this
Lease and such default shall continue for ten (10) days after Landlord gives
written notice thereof to Tenant; or
(2) If Tenant shall fail to observe or perform any
other provision of this Lease, and such default shall continue for a period of
ten (10) days after Landlord gives written notice thereof to Tenant or if such
default cannot be cured in such period and Tenant has commenced and diligently
pursues cure, Tenant shall be granted an additional thirty (30) days to effect
cure; or
(3) If Tenant vacates or abandons the Premises.
(B) In the Event of Default, Landlord may, at its sole option,
either (i) terminate this Lease, or (ii) without terminating this Lease take
possession of the Premises, with or without process of law, using such force as
may be necessary to remove all persons and personal property therefrom, and in
the event of such re-entry without termination, Landlord may (but shall have no
obligation to do so), lease the Premises for the remainder of the term or for a
lesser or longer period on such terms and conditions as Landlord, in its sole
judgement, deems advisable and for the purpose of such re-letting, Landlord is
hereby authorized to make such repairs and alterations as Landlord deems
necessary. Notwithstanding any re-letting without termination, (i) Tenant shall
remain liable for payments of the Base Rent, additional rent and all other
monetary obligations and for the performance of all other obligations to be
performed by Tenant under this Lease and (ii) Landlord may at any time
thereafter elect to terminate this Lease for such previous breach. The rentals
received from any such re-letting shall first be applied to the expenses of such
re-letting (including alteration and repair expenses, and reasonable brokerage
and attorney's fees) and second to the payment of rent and other charges due and
unpaid hereunder. Tenant shall not be entitled to receive any surplus funds
received by Landlord from any such re-letting. If such funds from the re-letting
are less than those required to be paid by Tenant hereunder for any month, such
deficiency shall be calculated and payable monthly by Tenant. Landlord shall
also be entitled to collect from Tenant any other loss or damage which Landlord
may sustain by reason of Tenant's default under this Lease. Tenant hereby grants
to Landlord a security interest in Tenant's Property to secure the performance
of Tenant's obligations under this Lease. Notwithstanding any provision to the
contrary, in the event of Tenant's default, Landlord shall make reasonable
efforts to mitigate its damages.
20. LANDLORD'S RIGHTS TO CURE DEFAULTS. If Tenant fails to perform any
obligation on its part to be performed under this Lease, Landlord shall have the
right (i) if no emergency exists, to perform the same after giving twenty (20)
days notice to Tenant; and (ii) in any emergency situation to perform the same
immediately without notice or delay. Tenant shall, on demand, reimburse Landlord
for all costs incurred by Landlord in rectifying Tenant's defaults as aforesaid,
including reasonable attorney's fees. Except for gross negligence by Landlord,
Landlord shall not be liable for or in any way be responsible for any loss,
inconvenience or damage resulting to Tenant for any action taken by Landlord
pursuant to this Section.
8
21. LEGAL EXPENSES; REMEDIES CUMULATIVE.
(A) In case suit shall be brought because of the breach by
either party of any of its obligations under this Lease, either party shall be
entitled to recover all expenses incurred in connection with such breach,
including reasonable attorney's fees, court costs and expert/witness fees.
(B) Landlord's rights and remedies shall be cumulative and may
be exercised and enforced concurrently, and no right or remedy of Landlord shall
be deemed to be exclusive of any other right or remedy Landlord may have.
22. BUILDING NAME. Landlord reserves the right to change the name of
the Building from time to time, and Landlord shall have no liability to Tenant
in connection therewith.
23. LANDLORD'S RIGHT TO ALTER. Landlord shall have the right at any
time (and from time to time) (i) to alter the size, area, level and location of
hallways, entrances, parking areas, driveways, sidewalks, landscaped areas and
all other portions of the Building and the Building Land, , (ii) to construct
additional stories on the Building, and additional buildings in the vicinity
thereof, (iii) to permit owners or occupants of land outside the Building Land
and their invitees to use the parking areas, roads and sidewalks on the Building
Land and their invitees to use the parking areas, roads and sidewalks on the
Building Land, (iv) to relocate all or any part of any building or parking
areas, (v) and to relocate the Premises leased to any other tenant.
24. NOTICES. Any notice or approval required or given in connection
with this Lease shall be in writing and shall either be delivered by hand, shall
be sent by United States Certified Mail, postage prepaid, or shall be sent via
overnight courier:
If to Landlord, at its address set forth in Section A - Basic Lease
Definitions, with a copy to the on-site manager as set forth in Section
A - Basic Lease Definitions.
If to Tenant, at its address set forth in Section A - Basic Lease
Definitions.
Each party's address may be changed from time to time by such parties giving
notice as provided above. Notice shall be deemed given when delivered (if
delivered by hand or overnight courier) or when postmarked (if sent by mail).
Whenever Landlord's consent or approval is required (i) the same must be
obtained in writing, and oral consents shall be of no effect, and (ii) such
consent or approval may be withheld arbitrarily unless otherwise herein
specifically set forth to the contrary.
25. RULES AND REGULATIONS. Tenant agrees to comply with and observe the
following Rules and Regulations. Landlord reserves the right, at any time, once
or more often, by notice to Tenant, to amend or supplement said Rules and
Regulations in a reasonable manner:
(A) Tenant shall not obstruct or litter any of the Building
common areas. Such areas shall not be used by Tenant for any purpose except for
ingress and egress, nor shall Tenant have any special rights in the common areas
on account of the use of the common areas square footage to calculate the Net
Rentable Square Footage under Section A - Basic Lease Provisions.
(B) Tenant shall not have any sign or lettering on any part of
the Building, or on any part of the Premises which can be seen from the outside
of the Premises, except for Tenant's identification in the Building directory
and on the entrance to the Premises, each of which identifications shall be of a
design in accordance with the design criteria reasonably established by
Landlord, and shall be at Tenant's expense except that Tenant shall be allowed
to place its name on the exterior sign on Belleview to replace the "Humana" name
to occupy the same location as "Humana."
(C) Blinds, shades, draperies or other forms of inside window
coverings shall not be placed in the Premises except to the extent, if any, that
the appearance thereof is approved by Landlord and is in accordance with the
design criteria established by Landlord, and Tenant shall not do any painting or
decorating in the Premises or make, paint, cut or drill into, drive nails or
screws into, nor in any way deface any part of the Premises or the Building
without the prior written consent of Landlord. Tenant shall not overload any
floor or facility in the Building. Tenant shall keep the Premises sightly and
clean.
(D) Tenant shall not attach additional locks or similar
devices to any door or window, change existing locks, or make or permit to be
made any additional keys. If more than six keys
9
for one lock are desired, Landlord will provide them upon payment therefor by
Tenant. Upon termination of this Lease or Tenant's possession, Tenant shall
promptly surrender to Landlord all keys to the Premises.
(E) Tenant shall not use or permit to be brought into the
Building hazardous materials as defined in the Addendum to this Lease.
(F) Tenant shall not obstruct or interfere with the rights of
other tenants, nor in any way injure or annoy them, nor do anything which would
constitute a nuisance or which would damage the reputation of the building.
(G) The bringing into the Building or removal therefrom of
furniture, fixtures or supplies, when of large weight or bulk, shall be done at
such times and along such Building routes as the custodian of the Building shall
require. All damage to the Building caused by such deliveries or removals shall
be repaired at the expense of Tenant.
(H) If Tenant desires telephone connections, Landlord will
designate the location and manner in which the wires shall be introduced; and no
other boring or cutting for wires will be permitted.
(I) Tenant shall not (i) install any internal combustion
engine, boiler, refrigerator (except small household type refrigerators
customarily used in general offices), or heating or air conditioning apparatus
in the Building, (ii) carry on any mechanical business in the Building, (iii)
use the Premises for housing, lodging, or sleeping purposes, (iv) permit
preparation or warming of food in the Premises nor permit food to be brought
into the Premises for consumption therein (warming of coffee and individual
lunches of employees excepted), (v) place any radio or television antenna other
than inside the Premises, (vi) operate any sound-producing instrument which may
be heard outside the Premises, (vii) operate any electrical device from which
may emanate electrical waves which may interfere with or impair radio or
television broadcasting or reception from or in the Building or elsewhere,
(viii) bring into the Building any bicycle or other vehicle, or dog (except in
the company of a blind person), or other animal, insect or bird, (ix) permit any
objectionable noise, vibration or odor to emanate from the Premises, (x)
disturb, solicit or canvass any occupant of the Building, (xi) use the plumbing
facilities for any purpose other than that for which they are constructed, or
(xii) waste any of the utilities furnished by Landlord.
(J) Tenant shall not store any trash, rubbish or garbage in
the Premises except in a sanitary and inoffensive manner inside the Premises or
in areas approved by Landlord. Biohazard waste generated by Tenant shall be
stored and disposed of as required by applicable law, ordinance or regulation,
and at Tenant's sole expense.
(K) Tenant shall use its best efforts to secure compliance
with these Rules and Regulations (together with any authorized amendment or
supplement thereto) by Tenant's customers, contractors, employees and other
invitees.
26. PARKING AREAS. To serve generally Landlord's designees and the
occupants of the Building and their invitees, Landlord shall, subject to any
governmental taking or conveyance in lieu thereof, maintain parking areas on the
Building Land, which shall be subject to the exclusive control of Landlord.
Tenant agrees to furnish Landlord upon request, license numbers of all
automobiles of Tenant and its employees, and agrees to keep such list current.
Landlord shall have the right to reduce and re-arrange the layout or location of
the parking areas from time to time. Landlord agrees to provide Tenant one
hundred five (105) non-exclusive and unmarked parking spaces. Notwithstanding
the aforesaid, Landlord shall designate one (1) parking stall to be located on
the lowest level closest to the building entry door. Tenant shall have the
exclusive right to use such space as part of the one hundred five (105) spaces
made available to Tenant.
27. NON-WAIVER. Neither acceptance of rent by Landlord or failure by
Landlord to complain of any default of Tenant shall constitute a waiver of any
of Landlord's rights hereunder. Waiver by Landlord of any breach of any
provision herein by Tenant shall not be deemed a waiver of any subsequent breach
of the same or any other provision herein contained. No provision of this Lease
shall be deemed to have been waived unless such waiver shall be in writing and
signed by Landlord. Receipt by Landlord of Tenant's keys to the Premises shall
not constitute an acceptance of surrender of the Premises.
28. HOLDING OVER. If Tenant remains in possession of the Premises after
the expiration of the term of this Lease, without the execution of a new lease,
then, at Landlord's option, Tenant shall be deemed to be occupying the Premises
as a month to month Tenant, subject to all the provisions of this
10
Lease insofar as they are applicable to a month to month tenancy, but at a
monthly rental of twice the per month rental provided under this Lease.
29. LIMITATION OF LANDLORD'S LIABILITY. Notwithstanding anything set
forth in this Lease to the contrary, it is agreed that Tenant shall look solely
to the equity of Landlord in the Building and the Building Land for the
satisfaction of the remedies of the Tenant in the event of a breach by Landlord
of any of the provisions of this Lease, and Landlord shall not be liable for any
such breach except to the extent of Landlord's equity in the Building and the
Building Land.
30. ENTIRE AGREEMENT AND BINDING EFFECT. This Lease and any attached
addenda, guarantees or exhibits constitute the entire agreement between Landlord
and Tenant; no prior written, or prior or contemporaneous oral, promises or
representations shall be binding. This Lease shall not be amended, changed or
extended except by written instrument signed by both parties hereto. Section
captions herein are for convenience only, and neither limit nor amplify the
provisions of this Lease. The provisions of this Lease shall be construed in
accordance with the laws of the State of Missouri. The provisions of this
instrument shall be binding upon and inure to the benefit of the heirs,
executors, administrators, successors and permitted assigns of the parties, but
this provisions shall in no way alter the restriction in this Lease against
assignment and subletting by Tenant. If there is more than one Tenant under this
Lease, they shall be bound jointly and severally by all provisions herein
contained. Whenever the consent, approval or authorization of Landlord is
required under any provision of this Lease, Landlord may arbitrarily withhold
such consent, approval or authorization unless otherwise herein specifically
provided to the contrary.
31. TRIAL BY JURY WAIVER.
THE PARTIES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY MATTER ARISING OUT
OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND
TENANT, OR TENANT'S USE AND OCCUPANCY OF THE PREMISES.
32. TENANT.
(A) The parties hereto agree that if Tenant is a general
partnership and an additional partner or additional partners are admitted to the
partnership, then each such additional partner shall, contemporaneously with
becoming a member of such partnership, execute an agreement in form and
substance acceptable to Landlord whereby such additional partner shall agree to
be bound by all the terms of this Lease as if such additional partner had signed
this Lease as a general partner of such partnership as of the date hereof.
(B) The parties hereto agree that if Tenant is a professional
corporation and an additional shareholder or additional shareholders are
admitted to such corporation, then each such additional shareholder shall,
contemporaneously with becoming a shareholder, execute a Guaranty of Lease
Agreement in form and substance acceptable to Landlord whereby such additional
shareholder guarantees Tenant's obligations under this Lease.
33. LANDLORD'S CONSENT. Whenever any provision herein requires
Landlord's prior consent, Landlord agrees that it will not unreasonably withhold
or delay its consent.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
/s/ DENO AGNOS
WITNESS
/s/ TERESA LIPPERT
WITNESS
/s/ JO ELLEN LINN
WITNESS
/s/ LAQUITA ALLEN
WITNESS
LANDLORD:
BELLETOWER PARTNERS, L.L.C.
BY: /s/ JAMES LIPPERT
TENANT:
GOLDEN SKY SYSTEMS, INC.
BY: /s/ RODNEY A. WEARY
11
LANDLORD'S NOTARY
STATE OF KANSAS )
)SS
COUNTY OF JOHNSON )
Before me, a Notary Public in and for said County and State, appeared James
Lippert, personally known to me or having produced adequate proof of identity,
who, being first duly cautioned and sworn, acknowledged the signing of the
foregoing to be his or her free act and deed, both personally and on behalf of
said Corporation, and that the signing of the foregoing document was duly
authorized by such Corporation.
Sworn to and subscribed before me this 1st day of February, 1999.
/s/ O. E. Stevenson
-----------------------------
Notary Public
12
TENANT'S NOTARY
STATE OF MISSOURI )
)SS
COUNTY OF JACKSON )
Before me, a Notary Public in and for said County and State, appeared Rodney A.
Weary, personally known to me or having produced for me adequate proof of
identity, who, being first duly cautioned and sworn, acknowledged the signing of
the foregoing to be his or her free act and deed.
Sworn to and subscribed before me this 27th day of January, 19999.
/s/ CONSTANCE J. FISHER
---------------------------------
Notary Public
13
ADDENDUM
Addendum to Lease dated January 27, 1999 by and between Belletower Partners,
L.L.C. (Landlord) and Golden Sky Systems, Inc. (Tenant).
1. Environmental.
A. Definitions.
(i) "Hazardous Substance" shall mean (a) "hazardous
waste" as defined by the Resource Conservation and Recovery Act of 1976, as
amended; (b) "hazardous substance" as defined by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended; (c) "toxic
substances" as defined by the Toxic Substances Control Act, as amended; (d)
"hazardous materials" as defined by the Hazardous Materials Transportation Act,
as amended; (e) any other substances regulated under applicable federal, state
or local laws, and the regulations adopted under these acts, as amended; (f) oil
or other petroleum products; (g) any highly combustible substance; (h)
polychlorinated bipheyls; (i) any other substance whose presence could
reasonably be detrimental to the Building, the Premises or the Building Land, or
which could be hazardous to health or the environment.
(ii) "Release" shall be defined as transport onto or
across, storage, dumping, spilling, leaking, atmospheric injection, generation,
use causing or permitting to escape, onto or from the Building, the Premises, or
the Building Land, of any Hazardous Substance.
B. Landlord's Representations and Obligations.
Landlord has no knowledge of the presence of any Hazardous
Substance currently on or the present Release of any Hazardous Substance onto or
from, the Building, the Premises or the Building Land. Landlord further
represents that no governmental entity is currently investigating or conducting
remediation activities at the Building, nor has the Building been declared a
"Superfund" site. Landlord, its agents or employees, shall not, either with or
without negligence, Release any Hazardous Substance on or about the Building,
the Premises or the Building Land.
C. Tenant's Representations and Obligations.
Tenant, its agents, invitees, suppliers, contractors and
employees, shall not, either with or without negligence, Release any Hazardous
Substance on or about the Building, the Premises or the Building Land. Tenant
shall execute affidavits, representations and the like from time to time at
Landlord's request concerning Tenant's best knowledge and belief regarding the
presence or Release of Hazardous Substances about the Building, the Premises or
the Building Land.
D. Liability.
If any lender, purchaser or governmental agency shall ever
require testing of the Building, the Premises, or the Building Land to ascertain
whether or not there has been any Release of Hazardous Substances, and such
Release is reasonably determined to be attributable to Tenant, its agents,
invitees, suppliers, contractors or employees, Tenant shall be solely liable for
all testing, remediation costs including returning the Building, the Premises or
the Building Land to their previous conditions, any sums paid for settlement of
claims, judgments, and any governmental fines associated, directly or
indirectly, with such Release, and Tenant shall indemnify against and hold
Landlord harmless therefrom. If such Release is reasonably determined NOT to be
attributable to Tenant, its agents, invitees, suppliers, contractors or
employees, Tenant shall not be liable for any testing, remediation, any sums
paid for settlement of claims, judgments, or fines associated therewith, and
Landlord shall indemnify against and hold Tenant harmless therefrom. The
representations and obligations set forth in this Environmental section shall
survive the expiration or earlier termination of this Lease.
2. Disclosure: Tenant shall timely, completely and properly comply with
all federal, state and local reporting requirements relating to the use,
storage, transportation and disposal of hazardous material including
bio-hazardous waste, and Tenant shall deliver a copy of all such reports to
Landlord with current copies of all material safety data sheets which Tenant is
or may be required to keep for the Premises under state law.
14
3. Landlord's Work: Landlord agrees to cause the Premises to be
improved in accordance with the plans and specifications approved by Landlord
and Tenant which are attached as Exhibit "C" floor plan and Exhibit "C-1"
construction estimate and made a part of this Addendum & Lease document. Lessor
agrees to assume the total cost of constructing the Landlord's work as outlined
in Exhibit "C" and Exhibit "C-1" hereof up to but not exceeding $375,000.00. Any
additional costs or costs incurred due to charges requested by Tenant, shall be
Tenant's sole responsibility, and shall be paid as additional rent prior to
taking possession of the Premises.
4. Rooftop Antenna: The Landlord agrees to provide the non-exclusive
right to Tenant to utilize the rooftop of the Belletower Office Building for the
installation of up to three satellite dishes to be no larger then 3' in
diameter. The Tenant shall be responsible for all costs of installation,
maintenance, removal and repair of the building if damaged during the occupancy
of the satellite dishes. The Landlord shall have no liability with regard to
damage or injuries to any persons related to the satellite dishes. The Tenant
shall comply with all laws regulating the use of such satellite dishes. The
Tenant will be allowed access to the rooftop with prior notice to the Landlord.
The Tenant shall provide all necessary insurance for the installation and use of
such satellite dishes.
5. Option to Renew: The Landlord is offering either of the two
following options to renew to Tenant: (1) Any time during the first twelve
months of the Lease Term, the Tenant may extend the original Lease Term by an
additional 42 months upon written notice to Landlord, with base rent remaining
the same as the original Lease Term, except that the last 24 months of the
extension term shall increase to $50,900.00 monthly/$17.52 per rentable square
foot, with no additional Tenant improvements contributed by Landlord; or (2) the
Landlord is willing to offer an option to renew for an additional Lease Term
with time frame and rental rates to be negotiated at that time requiring 180
days' prior written notice to the Landlord from the Tenant, but in no event
shall the Base Rent be less than the initial Base Rent with no market
concessions or Tenant improvements..
6. Gymnasium: The Tenant agrees to install an area located on the B
level of the leased premises, not less than 1,500 square feet, to be utilized as
a gymnasium/work out area for the use of all tenants within the building. All
equipment will be installed by the Tenant, and a list of that equipment will be
provided by the Tenant to the Landlord listing equipment inventory originally
installed and to remain with the building throughout the Lease Term and beyond
should Tenant vacate the premises. A portion of the allowance stated in Section
3 above shall be used to create the gymnasium, but with the majority of the
above allowance utilized in Suites 203 and 300. The original equipment shall be
one universal type weight machine, one set of free weights with bench, one
motorized treadmill and one motorized stair-step machine. Tenant may add
additional equipment from time to time in addition to the original equipment,
and Tenant shall retain ownership of such additional equipment, and may remove
same at the end of the Term.
7. Contingency of Availability: This Lease is subject to the
availability of Suite 300 due to the requirement of a Lease termination of an
existing tenant.
8. Right of First Offer: In the event Landlord intends to make an offer
to a prospective tenant for any space located on the fourth floor of Belletower,
or in the event Landlord receives an offer to lease office space from a
prospective tenant on the fourth floor which is acceptable to Landlord, Landlord
hereby grants Tenant the right of first offer to lease the expansion space, upon
the same bona fide terms and conditions as are offered to such third party
prospective tenant. This right of first offer is contingent upon any other
rights of existing tenants in place upon the commencement of this Lease. Upon
receipt of a bona fide third party offer which is acceptable to Landlord, or
prior to delivering a bona fide offer to a third party from the Landlord,
Landlord shall give Tenant written notice thereof via overnight delivery
service, fax machine or hand delivery. Upon actual receipt of such notice,
Tenant shall have seven business days to notify Landlord, in writing, to lease
such space. If Tenant does not notify Landlord of Tenant's intent to lease such
expansion space, Landlord may then lease such space to the third party.
/s/ DENO AGNOS LANDLORD:
WITNESS
BELLETOWER PARTNERS, L.L.C.
/s/ TERESA LIPPERT
WITNESS BY: /s/ JAMES LIPPERT
/s/ JO ELLEN LINN TENANT:
WITNESS
GOLDEN SKY SYSTEMS, INC.
/s/ LAQUITA ALLEN
WITNESS BY: /s/ RODNEY A. WEARY